Equipment Safety Guard Defined

Equipment Safety Guard Defined

Posted: November, 2012

Hewitt v. L.E. Myers Co., 134 Ohio St.3d 199, 2012-Ohio-5317.

Issue: Has an employer “deliberately removed” an “equipment safety guard”, and committed an R.C. 2745.01(C) intentional tort, when it instructed an apprentice to work on electric lines without using rubber sleeves/gloves necessary for his safety?

Background: Hewitt worked as a second-step apprentice lineman. The employer assigned him to replace a power line. The employer made rubber gloves and sleeves available. However, according to Hewitt, a co-worker told him that he did not need to wear the gloves, and he did not do so. Hewitt made contact with a line and received a shock which caused severe burns.

Hewitt filed an R.C. 2745.01 intentional tort action against the employer. He claimed that the employer’s actions, instructing him not to wear necessary safety equipment, effectively removed a safety guard. A jury considered Hewitt’s claim under R.C. 2745.01(C), which provides that

Deliberate removal by an employer of an equipment safety guard . . . creates a rebuttable presumption that the removal . . . was committed with intent to injure another if an injury or an occupational disease or condition occurs as a direct result.

The jury found in favor of Hewitt. The employer appealed. The Court of Appeals also found in favor of Hewitt, because

the protective rubber gloves and sleeves were equipment safety guards within the meaning of R.C. 2745.01(C) and that the decision by Hewitt’s supervisor to place Hewitt alone in an elevated bucket close to energized wires without requiring him to wear protective rubber gloves or sleeves amounted to the deliberate removal of an equipment safety guard.

The employer appealed.

Decision: Supreme Court reverses.

Because R.C. 2745.01(C) does not define either “equipment safety guard” or “deliberate removal”, the Court considers the ordinary meaning of those terms.

The Court determines that equipment safety guard “means a protective device on an implement or apparatus to make it safe and to prevent injury or loss.” The Court refuses to follow the Court of Appeals’ reasoning and find that the term equipment safety guard includes safety equipment such as the rubber gloves and sleeves involved in the present case because to do so would ignore the legislature’s intent to restrict the availability of intentional torts.

Even though the Court’s decision that the rubber sleeves/gloves involved in the present case do not satisfy the definition of “equipment safety guard” resolved the case, the Court went on to consider the definition of “deliberate removal.”

The Court also found that the employer’s actions did not constitute a “deliberate removal.” The Court finds that the employer did not deliberately remove safety guards when it failed to instruct him to wear them, stating

we hold that the “deliberate removal” of an equipment safety guard occurs when an employer makes a deliberate decision to lift, push aside, take off, or otherwise eliminate that guard from the machine. Here, the employer’s failure to instruct Hewitt to wear protective items such as rubber gloves and sleeves and requiring Hewitt to work alone in an elevated bucket do not amount to the deliberate removal of an equipment safety guard.

Editor’s Comment: The legislature created the R.C. 2745.01(C) intentional tort for an employer’s deliberate removal of an equipment safety guard as an exception to the limitation of intentional tort in R.C. 2745.01. Therefore, the Court’s interpretation that the term “equipment safety guard” does not include safety equipment such as the rubber sleeves/gloves involved in the present case seems contrary to the legislature’s intent. The legislature recognized that an employer’s removal of safety equipment should be subject to intentional tort liability even though it otherwise restricted the intentional tort.

Justice Pfeifer’s dissent points out that the Court’s interpretation of the term equipment safety guard “reads words into the statute, something courts are not supposed to do,” and points out:

instead of adding words to the statute that the General Assembly could have easily added, instead of attempting to divine what the General Assembly intended, the better course is to read the statute as enacted and consider “equipment safety guard” as a unitary term. Viewed in that light, “equipment safety guard” has a simple meaning: equipment that is used as a safety guard. There is no need to add words to the statute. There is no need to divine intent. There is only a conclusion that the majority opinion does not want to countenance.

Information courtesy of the Ohio Workers’ Compensation Bulletin. Subscribe to the Ohio Workers’ Compensation Bulletin to keep informed about the Ohio workers’ compensation system.