*1 circumstances, not prohibited state is these Under investigation. criminal crime and of a acquitted profile person DNA in CODIS the retaining accordingly We investigation. criminal subsequent in a using profile the DNA appeals. court of judgment affirm the affirmed.
Judgment Lundberg O’Connor, C.J., and Lanzinger, O’Donnell, Stratton, Pfeifer, Brown, JJ., concur. McGee Katherine Attorney, and Mason, Prosecuting County Cuyahoga D.
William appellee. for Attorneys, Prosecuting Assistant McDonough, Brian Mullin and Moriarty, appellant. Brian General, Schimmer, General, T. Solicitor DeWine, Alexandra Attorney
Michael Solicitor, for amicus Hendershot, affirmance Deputy urging Michael Chief J. curiae, General. Attorney Ohio Myers Company, Appellant, v. Appellee, et al. Myers Co., v. L.E.
[Cite as 199,
of R.C. includes those on a devices machine that shield an employee injury by from guarding point operation of that machine and whether the “deliberate an “equipment safety guard” removal” such occurs lift, aside, an employer off, when makes a deliberate decision to push take otherwise eliminate that guard from the machine. follow, For the reasons that 2745.01(C), we hold that as used in R.C.
{¶2} “equipment safety guard” means a device designed operator shield the to or exposure injury by dangerous aspect equipment, and the “deliber- ate removal” of an equipment safety guard an employer occurs when makes lift, aside, off, deliberate decision to push take guard. otherwise eliminate that Protective gloves rubber and sleeves are personal items that an {¶ 3} controls and do not “an equipment safety constitute guard” purposes of R.C. 2745.01(C). An employee’s them, failure to use or an employer’s failure to them, an require employee to use does not constitute the deliberate removal equipment safety guard. Consequently, the plaintiff failed to establish a rebuttable presumption 2745.01(C), of intent pursuant and the defendant judgment was entitled to as a matter of law. We judgment reverse the of the court of appeals and enter in judgment appellant. favor of
Facts and Procedural History Appellee, Larry working was an apprentice lineman {¶ 4} appellant, Myers L.E. Company, electrical-utility construction contractor. Hewitt was a second-step apprentice, meaning that he had completed the first two in a steps seven-step program, and he was now in working the field. On June Hewitt assigned was to an L.E. Myers crew that was replacing old electrical power along London, lines Route near New Ohio. The crew met that for a morning daily job short briefing. Workers who attended the briefing signed daily job-briefing log. Hewitt claimed that he was late and missed meeting nevertheless, that morning; his signature appeared on the log. job line, Hewitt’s that in day was to tie the new power which was de-
energized. Because the crew was short one person, Hewitt had to work by himself in an though elevated bucket even he was only apprentice. According daily to the job-briefing log, workers were required to use rubber gloves that day, sleeves which was Myers’s consistent with L.E. in policy, available, case the lines became energized. gloves Hewitt admitted that were but Law, he claimed that Dennis on job, lineman told him that he should not de-energized. because the line and sleeves need did not wear them. conversation. Hewitt disputed Law ground from the Hewitt’s work supervising traffic and directing Law was Hewitt from the When yelled ground. Law to Hewitt day. point, At some in with an direction, hand came contact right the we his turned in Law’s shock, which caused severe burns. received an electric energized line and he He also benefits. compensation for and received workers’ applied parties and the specific safety requirement, a violation of a alleging filed a claim settled case. inten- against Myers alleging workplace this action L.E. Hewitt filed He alleged 2745.01 and common law.
tional tort violation injured working when that he would be certainty knew with substantial *3 power in lift lines without energized high-voltage alone an elevated bucket near Myers that L.E. gloves alleged the use of rubber and sleeves. Hewitt protective that were gloves in removed the rubber and sleeves protective effect him the electrical current.1 creating a barrier between guards plaintiffs to a trial. At the conclusion proceeded jury The case case, liability as to under R.C. 2745.01. Myers L.E. moved for directed verdict insufficient evidence to demonstrate The trial court concluded there was (B). 2745.01(A) and So the court required by direct intent to harm as R.C. 2745.01(C), according to which plaintiffs theory recovery limited the an creates a equipment safety guard deliberate removal of employer’s injure. of an intent to presumption rebuttable The court overruled jury returned verdict favor Hewitt. the verdict. Myers’s judgment notwithstanding
L.E.
motion for
the court’s denial of a directed verdict and
Myers appealed
the verdict. The court of
affirmed. The court
judgment notwithstanding
gloves
equipment safety
reasoned that the
rubber
and sleeves were
2745.01(C)
by
and that the decision Hewitt’s
guards
within the
energized
Hewitt alone in an elevated bucket close to
wires
supervisor
place
him to wear
or sleeves amounted to
requiring
without
court
safety guard.
appellate
of an
the deliberate removal
concluded,
a rebuttable
under R.C.
presumption
this established
injure
and L.E.
had
no evidence to rebut the
presented
intent
presumption.
Compensation to the extent of its
as defendants the Bureau of Workers’
Hewitt also named
challenge
attorney general
complaint
subrogation rights
asserted a
to the
and the Ohio
because
constitutionality
They
parties
appeal.
2721.12.
are not
in this
of R.C.
this court
of a
upon
acceptance
discretionary
The cause
before
1456,
appeal.
Analysis A cause of action for an employer governed by intentional tort is {¶ 2745.01, provides: which * * *
(A) In an action an brought against employer by an employee from an intentional damages resulting by tort committed the employer the course of during employment, employer shall not be liable unless plaintiff proves that the employer committed the tortious act with the injure intent to another or with the that the injury substantially belief certain to occur.
(B) section, “substantially As used this certain” means that an acts with deliberate intent to cause an an suffer disease, condition, injury, a or death.
(C) Deliberate removal an equipment safety deliberate misrepresentation toxic or hazardous substance creates rebuttable that the misrepresentation removal or was com- mitted with intent to another if an occupational disease or condition occurs as a direct result. Today, we review the phrase “deliberate removal employer of an *4 2745.01(C).2
equipment safety guard” in R.C. argues that “an equipment safety guard” safety means a device a attached to machine that is intended to from and that “deliberate removal” occurs employer when an a makes deliberate decision to that guard eliminate from the machine. statute, construing When a our primary goal is to ascertain give and Hairston,
effect to the
Assembly.
intent
v.
State
101 Ohio St.3d
¶
308,
2. trial The court ruled that Hewitt had insufficient evidence of a direct intent 2745.01(A) (B), necessary plaintiffs theory to recover under and the court limited the 2745.01(C). presumption the of intent in R.C. The issue of direct intent is not before us. Safety Guard” Equipment “An A. Definition of terms, plain look to the so we these does not define 17}
{¶ Co., 36 Ohio & Wilcox v. Babcock Fossen of the words. Van ordinary meaning following the (1988). used court of 100, 103, N.E.2d 489 St.3d definitions: device; a device specif: safety or as ‘a is defined ‘Guard’ machine.’ Merriam- operator machine or part
protecting
Ed.1996)].
(10th
means ‘the
‘Safety’
Dictionary
Collegiate
[516
Webster’s
hurt,
or loss.’
injury,
causing
or
undergoing
being
safe
condition
in an
used
implements
as ‘the
is defined
‘equipment’
at
And
[Id.
1027.]
at 392.]”
APPARATUS.’
activity:
[Id.
operation
¶
Technolo
Fickle v. Conversion
grammar to make apparatus implement on an device safety guard” means injury or loss. and to prevent safe Fickle, phrase interpreted so Appeals District Court of The Sixth Am., N. v. Rieter Automotive
phrase.
Beary
Larry
Serv., Inc.,
See
v.
Murphy Dump Truck
5th Dist. No.
¶
2011-CA-00048,
to machinery. The court reasoned that that interpretation would limit recovery
injured
employees who did not work with equipment.
generic safety-related item ignores not only the
the words used but
also the
Assembly’s
General
intent to restrict
liability for intentional torts. As
the Ninth District
Constr.,
observed
Barton v. G.E. Baker
Assembly’s efforts to
liability
restrict
for intentional tort by authorizing recovery
“only when an employer acts with specific intent.” Stetter v. R.J. Gorman
Servs., L.L.C.,
Derailment
280,
205
B. Definition
“Deliberate Removal”
employer’s
place
to
The court of
concluded
decision
27}
{¶
to
wires
him to wear
energized
requiring
Hewitt close
without
safety
gloves
equipment
or sleeves amounted
the deliberate removal
guard.
disagree.
We
the words
follows:
means
The court below defined
as
“deliberate”
“
thorough
careful
consideration —a
resulting
‘characterized
or
from
and
”
aside,
decision,’
or
by lifting,
means
‘to move
pushing
deliberate
“remove”
”
taking ¶ ¶ quoting 5009758 Fickle at 30-31. WL may the “deliberate be removal” referred get as careful and decision to rid or eliminate an thorough
described
is a
term that
guard.
argues
“removal”
broad
equipment
just
Although “removal”
encompasses
physical
may
more than
removal.
removing guard
making
more
encompass
physically
than
unavailable,
failure
disabling
employer’s
such
bypassing
guard,
safety procedure does
constitute the
train or instruct an
on a
equipment safety guard.
Fickle at
45. See also
deliberate removal of
Conclusion The not, and sleeves in this case do as a matter law, an constitute equipment safety guard within of R.C. 2745.01(C). Consequently, we reverse the judgment of the court order judgment favor of appellant.
Judgment reversed. O’Donnell, Lanzinger, Cupp, JJ., concur.
O’Connor, C.J., Brown, J., and McGee concur in judgment only. J., dissents.
Pfeifer,
Pfeifer, J., dissenting. days, One of these a company is to going surprise me and act honorably and with compassion. They going are to acknowledge their complicity grievous injuries by suffered their employee, they are going to adequately compensate their injuries, his or her are going to do so without to resorting every countervailing stratagem that their high-priced counsel can devise. Today is not that day. though Even L.E. Myers has implicitly acknowledged its complicity by firing every person involved in the incident that Larry injuries, caused Hewitt’s that, even L.E. though Myers knows through its employees, acted irresponsibly, does not have to suffer consequences; only apprentice its does.
I safety equipment ‘an ultimately concludes majority opinion it safe to make apparatus an implement device on means guard’ a plausible, 18. This is Majority opinion or loss.” prevent statute, words into the best, thing, one it reads conclusion. For though not the Lines, Coach to do. See Columbus-Suburban supposed courts are not something (1969), we Comm., N.E.2d 8 where v. Pub. 20 Ohio St.2d Inc. Util. statute], words used [in “to effect to the duty give that this court has stated words not used.” words used or to insert delete removal refers “[deliberate has chosen majority opinion that the The definition guard.” by changing three words: into the statute easily favor could have been written equipment. attached to safety guard deliberate removal *8 that it is not the statute prefers, but majority opinion That is the definition the enacted. could Assembly statute that the General adding of words to the Instead Assembly added, of to divine what easily attempting have instead enacted and consider intended, to read the statute as the better course is “equipment in that light, term. Viewed safety guard” unitary as “equipment safety guard. as a that is used simple meaning: equipment has a safety guard” intent. is no need to divine to add words to the statute. There There is no need want to counte- majority does not opinion is a conclusion that the only There nance. safety guard.” Assembly “equipment chose not to define The General meaning— unduly not want an restrictive my opinion, they
In that is because did many had chosen to. There are surely they that would have enacted one constrictive majority opinion’s that absent the new safety guards” “equipment injure. of intent to presumption would rise to rebuttable interpretation give rebuttable, of Remember, presump- whereas the absence the presumption the is case, often, dispositive. tion is as this the removal of which safety guard” example One dangerous a kill Most injure to a is switch. give presumption
should rise Hitherto, thought would have people machines have them. most reasonable of intent to to a rebuttable give presumption a kill switch would rise removing kill to remove switches without Employers are now free injure. anymore. Not 2745.01(C). facemasks, Helmets, and visors are other troubling over R.C. will no the removal of which safety guard, used as a examples Governors, injure. which of intent to lead to a rebuttable longer may now be removed operating quickly, machines from too prevent certain injuries without concern that give result will rise to a rebuttable presumption 2745.01(C). pursuant to R.C. equipment safety None of these fit within guards 2745.01(C). majority opinion’s the draconian interpretation of R.C. scope majority opinion staggering the and dangerous employees. The short-term consequences affirming the court of appeals’ decision True,
would be de minimis. the employer pay would have to some money to its injured apprentice. But this is an employer experienced whose supervisors told an apprentice sleeves, that he shouldn’t wear equipment safety guards designed specifically to prevent type Everyone occurred. involved with this case knows that the use of equipment safety guards issue would have prevented apprentice’s injuries. For injured apprentice, damages are a considerable amount of but for
money, employer, the sums significant. involved are not L.E. Myers’s parent company, MYR has a Group, capitalization market of over million $450 and earned over million in profits 2011. The long-term consequences $18 reversing the court of appeals and imposing unduly restrictive interpretation of “equipment safety guard” are potentially calamitous for Ohio’s workers be- cause will companies have less incentive to ensure that their employees operate safely as possible.
II Larry Hewitt sought recovery based on grounds: three that L.E. Myers with specific him, acted 2745.01(A); intent to that L.E. *9 2745.01(A) knew its actions were substantially him, certain to injure and (B); and that presumed him, to have intended to 2745.01(C). The trial court indicated it was to limit going the claim to the statutory presumption, though the court did not memorialize that conclusion in an event, entry. In the the court jury instructed the as to the “specific intent” and 2745.01(A) “substantially (B). certain” grounds contained in R.C. and Further- more, the interrogatories concepts addressed the of substantially certain injury and disregard conscious worker and did not address the statutory presumption. There is no reason to assume that jury confined itself to consideration of the statutory To presumption. contrary, ample there is reason to conclude that jury considered totality R.C. 2745.01 reaching its conclusion. The majority opinion does not jury even mention the interrogatories. instructions or Even with majority opinion’s 2745.01(C), conclusion regarding
the case should not Instead, be decided on the motion for a directed verdict. jury’s court of to consider whether
should be returned 2745.01(A) (B) and are sustainable. respect with to R.C. conclusions I dissent. III, Co., L.P.A., D. Shroge; Plevin & Gallucci Frank L. Gallucci and Michael Co., L.P.A., Flowers, Paul for appellee. and Paul W. Flowers W.
Tucker, West, L.L.P., Sassé, Benjamin appellant. Ellis & C. Firm, Mismas, L.L.C., Law D. affirmance for urging
The Mismas and John amicus curiae Ohio Association for Justice. Co., L.P.A., Sullivan,
Reminger and Brian D. reversal for amicus curiae urging Ohio Association of Civil Trial Attorneys. Andress, Hasbrook, Wileheck,
Roetzel & Emily urging Denise M. Ciecka for amicus FirstEnergy Corporation. reversal curiae L.L.C., Garvin, Hickey, Hickey, urging Garvin & Preston J. and Michael J. reversal for amicus curiae Ohio Chamber Commerce. Eckler, L.P.A., Sant,
Bricker & R. for amicus urging Robert reversal curiae of the National Chapter Independent Ohio Federation Business. Crosby, urging
Licata & Toerek and Elizabeth A. reversal for amicus curiae Enterprises. Council of Smaller KeyBank L.L.C.,
JNT Properties, Appellee, v. Appellant. Association, National Properties, KeyBank [Cite as JNT L.L.C. v. Natl.
Assn.,
209,