State ex rel. Cassens Corp. v. Indus. Comm.State ex rel. Cassens Corp. v. Indus. Comm.
On brief: Dave Yost, Attorney General, and Andrew J. Alatis, for respondent Industrial Commission of Ohio.
On brief: Law Office of Carla A. Lombardo, LLC, and Carla A. Lombardo; Schaffer and Associates, LPA, and Thomas J. Schaffer, for respondent Luis Ybarra.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE‘S DECISION
LUPER SCHUSTER, P.J.
{¶ 1} Relator, Cassens Corp., initiated this original action requesting that this court issue a writ of mandamus ordering respondent, Industrial Commission of Ohio (“commission“), to vacate an order finding that Cassens violated a specific safety requirement (“VSSR“).
{¶ 2} Pursuant to
{¶ 3} Cassens has filed objections to the magistrate‘s decision. Therefore, we must independently review the decision to ascertain whether “the magistrate has properly determined the factual issues and appropriately applied the law.”
{¶ 4} A brief summary of the factual circumstances is pertinent to our discussion. Cassens provides transport services for automobile manufacturers, transporting newly manufactured vehicles from the manufacturers’ factories to dealers and other sellers. In February 2018, respondent Ybarra was working at the outdoor lot of the Chrysler Group Yard in Toledo, Ohio, moving newly manufactured vehicles from the outdoor lot to the staging area where they were to be loaded onto auto carrier trucks or trains. After parking a newly manufactured vehicle in the staging area, Ybarra was walking in the yard when he was struck from behind by a newly manufactured Dodge Durango being driven by another Cassens employee. The newly manufactured vehicle had snow covering its windshield, and the other employee did not see Ybarra or honk his horn. Cassens had a work rule requiring drivers to clear snow off the windshields, and Cassens subsequently terminated the other employee for violating the rule. Ybarra‘s workers’ compensation claim was allowed for numerous conditions.
{¶ 5} Subsequently, on September 23, 2019, Ybarra filed an application for an additional award for VSSR, alleging Cassens had violated
{¶ 6} To be entitled to a writ of mandamus, Cassens must show a clear legal right to the relief sought and that the commission has a clear legal duty to provide such relief. State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of mandamus exists where the relator shows that the commission abused its discretion by entering an order which is not supported by any evidence in the record. State ex rel. Elliott v. Indus. Comm., 26 Ohio St.3d 76, 78-79 (1986). But when the record contains some evidence to support the commission‘s findings, there has been no abuse of discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry Co., 29 Ohio St.3d 56, 58 (1987).
{¶ 7} The dispute here relates to the commission‘s granting of Ybarra‘s application for an additional award for an alleged VSSR. In applying for a VSSR award, the claimant bears the burden of establishing (1) a specific safety requirement exists; (2) the employer failed to comply with the requirement; and (3) the failure to comply was the cause of the injury in question. State ex rel. DeMarco v. Indus. Comm., 10th Dist. No. 19AP-227, 2021-Ohio-1937, ¶ 6. Because a VSSR award is a penalty, it must be strictly construed, and all reasonable doubts concerning the interpretation of the safety standard are to be construed against its applicability to the employer. Id., citing State ex rel. Burton v. Indus. Comm., 46 Ohio St.3d 170, 172 (1989); State ex rel. Precision Steel Servs., Inc. v. Indus. Comm., 145 Ohio St.3d 76, 2015-Ohio-4798, ¶ 21.
{¶ 8} In order for the commission to find Cassens violated
{¶ 9} This court has set forth three general principles to guide our review of the commission‘s interpretation of the term “workshop” as used in the administrative code. First, the term “workshop” does not apply generally to all places of employment. Haire at ¶ 22, citing State ex rel. Double v. Indus. Comm., 65 Ohio St.3d 13, 16-17 (1992). Second, the commission may consider the common usage of the term and consult dictionaries to aid in its interpretation. Id., citing
{¶ 10} With these three principles in mind, we turn to the commission‘s interpretation of the term “workshop” as it applies to the Chrysler outdoor yard. The Supreme Court of Ohio has defined a workshop as used in the administrative code as “a room or place wherein power-driven machinery is employed and manual labor is exercised by way of trade for gain or otherwise.” State ex rel. Buurma Farms, Inc. v. Indus. Comm., 69 Ohio St.3d 111, 113 (1994). Additionally, the Supreme Court has found that an outdoor area can be a workshop within the meaning of
{¶ 11} Here, the portion of the Chrysler Group Yard facility in Toledo where Cassens employees engaged in their work duties is an outdoor, open-air storage lot where newly manufactured vehicles are stored as they await transport to dealers and other sellers.
{¶ 12} The evidence before the commission was clear that no manufacturing occurred at the outdoor storage lot. Instead, after a vehicle was assembled in the indoor factory, Chrysler would stage the vehicle for shipment. At that point, Cassens employees drive the completed vehicles into a designated zone of the outdoor yard where the vehicle awaits transport by either truck or railcar. The terminal manager for Cassens estimated the outdoor yard to be between one-half mile and one mile long, capable of storing 1,300 vehicles, and described the facility as “basically all a parking lot.” (Nov. 18, 2020 Tr. at 23.) Thus, despite the presence of the perimeter fence, the primary purpose of the Chrysler outdoor yard was merely storage of completed inventory. See Haire at ¶ 27 (finding that where the primary purpose of an indoor garage was the storage of vehicles, the facility was not a workshop within the meaning of
{¶ 13} Further, we do not agree with the magistrate that Cassens’ role in driving the newly manufactured vehicles to the designated zone of the outdoor yard where they would await transport can fairly be construed to be part of the manufacturing process such that the Chrysler outdoor yard can be considered a workshop. “‘An employer should not have to speculate as to whether it falls within the class of employers to whom a specific safety requirement applies.’ ” Johnson at 39-40, quoting Double at 17. Here, the vehicles were manufactured and assembled by Chrysler within the confines of a separate indoor facility. The outdoor, fenced-in lot where Ybarra was working for Cassens was a storage lot; it was not “a room or place wherein power-driven machinery is employed and manual labor is exercised by way of trade for gain or otherwise.” Buurma Farms at 113.
{¶ 14} The commission placed too much emphasis on the presence of the perimeter fence and did not account for the primary purpose of the outdoor yard. Thus, as there was not some evidence to support a finding that the purpose of the outdoor yard was conducting the type of work that would classify the outdoor yard as a workshop, we find the commission abused its discretion in concluding the Chrysler outdoor yard constituted a workshop within the meaning of
{¶ 15} Following our independent review of the record pursuant to
Objections sustained in part and moot in part;
writ of mandamus granted.
SADLER, J., concurs.
DORRIAN, J., concurs in part and dissents in part.
DORRIAN, J., concurring in part and dissenting in part.
{¶ 16} I concur in part and dissent in part with the majority.
{¶ 17} I concur because I would grant the request for a writ of mandamus.
{¶ 18} I respectfully dissent, however, because I would grant a limited writ only for the purpose of sending this action back to the commission to determine, in the first instance, the type of work activities performed within the Chrysler Group Yard facility and then whether the facility is a workshop for purposes
{¶ 19} The majority lays out the framework for analyzing the type of work activities performed within the facility at paragraphs 8-11. The majority then goes on to perform the analysis in the first instance at paragraphs 12-14. I would not perform the analysis, but rather permit the commission to perform the analysis. I would further direct the commission to consider additional guidance we laid out in State ex rel. Haire v. Indus. Comm., 154 Ohio App.3d 82, 2003-Ohio-4570, ¶¶ 11-12 (10th Dist.):
[F]or the term workshops the courts have recognized the definition outlined in Black‘s Law Dictionary (4 Ed. Rev. 1968) 1781, as a ‘room or place where power driven machinery is employed and manual labor is exercised by way of trade for gain or otherwise.’ * * * ‘Factory is defined in Webster‘s New World Dictionary, Second College Edition, as ‘a building or buildings in which things are manufactured; manufacturing plant.’
‘Utilizing these definitions it is apparent that for a facility to be categorized as a workshop or factory it must be an enclosed structure, or at a [sic] least facility surrounded by a fence, where manual labor is used in conjunction with powered machinery to [1] produce tangible products, or [2] service tangible products, or [3] at least alter (i.e. pack and load) an existing raw product * * *.’
Id. at ¶ 11-12, quoting appended magistrate‘s decision, quoting staff hearing officer‘s order.
{¶ 20} For these reasons, I concur in part and dissent in part with the majority.
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Cassens Corp., Relator, v. Industrial Commission of Ohio et al., Respondents.
No. 21AP-93
(REGULAR CALENDAR)
MAGISTRATE‘S DECISION
Rendered on March 8, 2022
Morrow & Meyer, LLC, Corey Crognale, and Susan Chae, for relator.
Dave Yost, Attorney General, and Andrew J. Alatis, for respondent Industrial Commission of Ohio.
Law Office of Carla A. Lombardo LLC, and Carla A. Lombardo, for respondent Luis Ybarra.
IN MANDAMUS
{¶ 21} Relator, Cassens Corp. (“employer“), has filed this original action requesting this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio (“commission“) to vacate its order that found that the employer violated a specific safety requirement (“VSSR“).
Findings of Fact:
{¶ 22} 1. Respondent Luis Ybarra (“claimant“) sustained a work-related injury on February 5, 2018, when he was struck by a newly manufactured car being driven by another employee, and his workers’ compensation claim was allowed for numerous conditions.
{¶ 23} 2. On the date of injury, claimant was working as a driver for the employer, which provides transport services for automobile manufacturers, transporting newly manufactured vehicles from the manufacturers’ factories to dealerships and sellers. Claimant was working at the outdoor lot of the Chrysler Group Yard in Toledo, Ohio, moving cars from the lot to a staging area, where they would then be loaded onto auto carrier trucks or trains. The parking lot is enclosed by a fence with guarded gates for entry and exit and not open to the general public. The employer‘s activities were always performed outside in the yard.
{¶ 24} 3. After parking a newly manufactured car in the staging area, claimant was walking in the yard to get another car, when he was struck from behind by another newly manufactured car being driven by a coworker. The car had snow covering its window, and the coworker was navigating by sticking his head out of the window. The coworker did not see claimant or honk his horn. The employer has a work rule requiring drivers to clear snow off the windshields, and the employer subsequently fired claimant‘s coworker.
{¶ 25} 4. On September 23, 2019, claimant filed an application for an additional award for VSSR, alleging that the employer had violated
{¶ 26} 5.
(C) General requirements for motor vehicles and mobile mechanized equipment.
* * *
(4) All cab glass shall be safety glass or equivalent with the vision unimpaired by its condition.
{¶ 28} 7. On November 18, 2020, the matter was heard before a staff hearing officer (“SHO“) for the commission. In a December 24, 2020, order, the SHO granted the VSSR application finding the following: (1) Chrysler‘s yard perimeter was fenced with gates for entry and exit, which were guarded and not open to unauthorized people; (2) the employer‘s business operations at the Chrysler yard were always conducted outside in the parking lot within an approximately one-half mile area where vehicles were staged for transport by railcar or carrier truck; (3) the facts are sufficient to classify Chrysler yard as a “workshop,” as that term is defined in State ex rel. Petrie v. Atlas Iron Processors, 85 Ohio St.3d 372 (1999); therefore,
{¶ 29} 8. On February 2, 2021, the SHO denied the request for rehearing.
{¶ 30} 9. On March 3, 2021, the employer filed a complaint for writ of mandamus.
Conclusions of Law and Discussion:
{¶ 31} For the reasons that follow, it is this magistrate‘s decision that this court should not issue a writ of mandamus.
{¶ 32} In order for this court to issue a writ of mandamus, a relator must establish the following three requirements: (1) that relator has a clear legal right to the relief sought; (2) that respondent has a clear legal duty to provide such relief; and (3) that relator has no adequate remedy in the ordinary course of the law. State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967).
{¶ 33} To establish a VSSR, a claimant must prove that: (1) there exists an applicable and specific safety requirement in effect at the time of the injury; (2) the employer failed to comply with the requirements; and (3) the failure to comply was the proximate cause of the injury in question. State ex rel. Trydle v. Indus. Comm., 32 Ohio St.2d 257 (1972).
{¶ 34} The interpretation of a specific safety requirement is within the final jurisdiction of the commission. State ex rel. Berry v. Indus. Comm., 4 Ohio St.3d 193 (1983). However, because a VSSR is a penalty, it must be strictly construed, and all reasonable doubts concerning the interpretation of the safety standard are to be construed against its applicability to the employer. State ex rel. Burton v. Indus. Comm., 46 Ohio St.3d 170 (1989). The question of whether an injury was caused by an employer‘s failure to satisfy a specific safety requirement is a question of fact to be decided by the commission subject only to the abuse of discretion test. Trydle; State ex rel. A-F Industries, ACME-FAB Div. v. Indus. Comm., 26 Ohio St.3d 136 (1986). Furthermore, a safety requirement must be specific enough to plainly apprise an employer of its legal obligations to its employees. State ex rel. Frank Brown & Sons, Inc. v. Indus. Comm., 37 Ohio St.3d 162 (1988).
{¶ 35} In the present matter, the employer first argues that the commission erred and abused its discretion when it found that the Chrysler staging area was a “factory or workshop” within the meaning of
{¶ 36} The employer‘s arguments are without merit. Petrie has clearly found that the specific safety requirements in
{¶ 37} The employer‘s attempt to distinguish Petrie from the current case because the employer‘s actual production operations in Petrie occurred within the confines of the outdoor, fenced-in area, while, here, the employer‘s activity of transporting vehicles within the staging area was only incidental to the manufacture of passenger vehicles, and the vehicles themselves were not a part of the production process, is without merit. Here, the movement and organization of newly manufactured vehicles within the staging area
{¶ 38} The employer next argues that the commission erred and abused its discretion when it found that
{¶ 39} The employer‘s argument is without merit. Initially, there can be little argument that the vehicle that struck claimant is not a “motor vehicle,” as that term is commonly and plainly defined. There is also no Ohio authority, either case law or within the code section itself, that “motor vehicle,” as used in this section, does not apply to over-the-highway vehicles like passenger cars. Thus, the employer‘s argument starts at a disadvantage. Notwithstanding the plain meaning of the term “motor vehicle” and the lack of any supporting Ohio authority, the employer fails to present a compelling argument that the vehicle that struck claimant is not a “motor vehicle” envisioned by
{¶ 40} The employer next argues that the commission erred and abused its discretion when it found that the accumulation of snow constituted a visual impairment of the cab glass for purposes of
{¶ 41} Finally, the employer argues that the commission erred and abused its discretion when it improperly held the employer strictly liable for its employee‘s failure to clear off the snow from his windshield, even though the employee violated a work rule requiring him to clear the windshield and was discharged as a result of his violation. The employer contends that a worker‘s “unilateral negligence” precludes a finding that the employer violated a specific safety requirement, because there must be some act or omission under the control of the employer to justify a VSSR penalty, and the employer cannot be found strictly liable for the unforeseen negligent acts of its employees, citing State ex rel. N. Petrochemical Co., Nortech Div. v. Indus. Comm., 61 Ohio St.3d 453 (1991), and State ex rel. Frank Brown & Sons, Inc. v. Indus. Comm., 37 Ohio St.3d 162 (1988). The employer points out that it maintained a work rule requiring employees to
{¶ 42} The employer‘s argument is without merit. The defense of unilateral negligence by an employee is available to an employer in a VSSR case only if the employer has complied with the specific safety requirement, and the employee has unilaterally violated it. State ex rel. Byington Builders, Ltd. v. Indus. Comm., 156 Ohio St.3d 35, 2018-Ohio-5086, ¶ 39-40. “Because the critical issue in a VSSR claim is always whether the employer complied with the [specific safety requirement], an employee‘s conduct, even if negligent, is not relevant to a VSSR determination unless the injury is caused by the claimant‘s deliberate circumvention or disabling of a safety device or refusal to use employer-provided safety equipment.” (Citations omitted.) State ex rel. Sunesis Constr. Co. v. Indus. Comm., 152 Ohio St.3d 297, 2018-Ohio-3, ¶ 29. The unilateral negligence defense is viable when an employee “removes or ignores equipment or instruction that complies with a specific safety requirement.” State ex rel. Quality Tower Serv., Inc. v. Indus. Comm., 88 Ohio St.3d 190, 193 (2000). It must be kept in mind that specific safety requirements are intended to protect employees from their own negligence, folly, and stupidity, in addition to providing them with a safe working environment. State ex rel. Blystone v. Indus. Comm., 14 Ohio App.3d 238 (10th Dist.1984).
{¶ 43} In the present case, the employer did not initially satisfy the specific safety requirement. The employer did not, in the first instance, satisfy its obligation of providing cab glass with the vision unimpaired by its condition. The glass was covered in snow preceding claimant‘s injury, and the employer did not provide claimant‘s coworker with cab glass with unimpaired vision. Importantly, in the cases relied upon by the employer, “the claimant‘s conduct was the sole cause of his injuries; however, in this case, the claimant did not contribute to his injuries.” State ex rel. Weich Roofing, Inc. v. Indus. Comm., 69 Ohio App.3d 281, 285 (10th Dist.1990) (finding that a coworker‘s switching of the original ladder with safety feet for a replacement ladder without safety feet did not fall under the unilateral negligence rule, and the employer‘s ultimate responsibility to comply with specific safety regulations and provide a safe working environment does not shift to an employee unless the employer complies with the applicable safety regulations in the first instance and the claimant‘s unilateral negligence causes the injury). In Northern
{¶ 44} Accordingly, it is the magistrate‘s decision that this court should deny the employer‘s petition for writ of mandamus.
/S/ MAGISTRATE THOMAS W. SCHOLL III
NOTICE TO THE PARTIES