Beary v. Larry Murphy Dump Truck Serv., Inc.
2014 Ohio 4333
Ohio Ct. App.2014Background
- In Oct. 2009, LMDT (Larry Murphy Dump Truck Service, Inc.) was repaving a Giant Eagle parking lot; a skid steer (owned by LMDT) with a backup alarm was used.
- Joseph Beary (employee of LMDT) was struck from behind and seriously injured by the skid steer while tying caution tape; the skid steer was backing up and its backup alarm was not working at the time.
- Beary sued LMDT under R.C. 2745.01 (intentional tort) claiming the nonworking backup alarm was an ‘‘equipment safety guard’’ and that its removal created a rebuttable presumption of employer deliberate intent.
- Earlier appeals: this Court and the Ohio Supreme Court addressed whether a backup alarm is an ‘‘equipment safety guard.’’ The Ohio Supreme Court remanded for application of its Hewitt decision on that issue.
- On remand the trial court granted summary judgment for LMDT, finding the backup alarm is not an equipment safety guard and, alternatively, there was no evidence the alarm was deliberately removed. The appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a backup alarm is an "equipment safety guard" under R.C. 2745.01(C) | Backup alarm is a protective device designed to guard against the known danger of a machine operating in reverse and thus qualifies as an equipment safety guard | Backup alarm merely alerts/warns; it does not shield operator or bystander from exposure to the dangerous aspect and therefore is not an equipment safety guard | Backup alarm is not an equipment safety guard; it only warns and does not shield from exposure or injury |
| Whether employer deliberately removed/disabled a safety guard (to trigger rebuttable presumption of intent) | Evidence the alarm was disconnected for months and testimony that wires were observed disconnected show deliberate removal or at least raise a factual issue | No evidence that management deliberately removed or disabled the alarm; witness saw disconnected wires but could not identify who or when; no evidence of specific intent to injure | No evidence of deliberate removal or specific intent; rebuttable presumption not triggered |
Key Cases Cited
- Hewitt v. L. E. Myers Co., 134 Ohio St.3d 199 (defines "equipment safety guard" as a device designed to shield the operator from exposure to or injury by a dangerous aspect of the equipment)
- Beyer v. Rieter Automotive N. Am., 134 Ohio St.3d 379 (reversed appellate holding that face masks were equipment safety guards)
- Houdek v. Thyssenkrupp Materials, N.A., 134 Ohio St.3d 491 (employer knowledge of hazard insufficient; absent deliberate removal plaintiff must prove specific intent to injure)
- Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35 (standard for appellate review of summary judgment)