Hewitt v. L.E. Myers Co.

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

HEWITT, APPELLEE, v. L.E. MYERS COMPANY, APPELLANT, ET AL.

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

Workers’ compensation—Immunity of complying employer—Intentional tort by

employer—R.C. 2745.01—“Equipment safety guard” construed.

(No. 2011-2013—Submitted September 25, 2012—Decided November 20, 2012.)

APPEAL from the Court of Appeals for Cuyahoga County,

No. 96138, 2011-Ohio-5413.

__________________

SYLLABUS OF THE COURT

As used in R.C. 2745.01(C), “equipment safety guard” means a device designed

to shield the operator from exposure to or injury by a dangerous aspect of

the equipment, and 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.

__________________

LUNDBERG STRATTON, J.

{¶ 1} We are asked to decide whether “equipment safety guard” for

purposes of R.C. 2745.01(C) includes only those devices on a machine that shield

an employee from injury by guarding the point of operation of that machine and

whether the “deliberate removal” of such 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.

{¶ 2} For the reasons that follow, we hold that as used in R.C.

2745.01(C), “equipment safety guard” means a device designed to shield the

operator from exposure to or injury by a dangerous aspect of the equipment, and

the “deliberate removal” of an equipment safety guard occurs when an employer

SUPREME COURT OF OHIO

makes a deliberate decision to lift, push aside, take off, or otherwise eliminate that

guard.

{¶ 3} Protective rubber gloves and sleeves are personal items that an

employee controls and do not constitute “an equipment safety guard” for purposes

of R.C. 2745.01(C). An employee’s failure to use them, or an employer’s failure

to require an employee to use them, does not constitute the deliberate removal by

an employer of an equipment safety guard. Consequently, the plaintiff failed to

establish a rebuttable presumption of intent pursuant to R.C. 2745.01(C), and the

defendant was entitled to judgment as a matter of law. We reverse the judgment

of the court of appeals and enter judgment in favor of appellant.

Facts and Procedural History

{¶ 4} Appellee, Larry Hewitt, was working as an apprentice lineman for

appellant, the L.E. Myers Company, an electrical-utility construction contractor.

Hewitt was a second-step apprentice, meaning that he had completed the first two

steps in a seven-step program, and he was now working in the field.

{¶ 5} On June 14, 2006, Hewitt was assigned to an L.E. Myers crew that

was replacing old electrical power lines along Route 60 near New London, Ohio.

The crew met that morning for a short daily job briefing. Workers who attended

the briefing signed a daily job-briefing log. Hewitt claimed that he was late and

missed the meeting that morning; nevertheless, his signature appeared on the log.

{¶ 6} Hewitt’s job that day was to tie in the new power line, which was

de-energized. Because the crew was short one person, Hewitt had to work by

himself in an elevated bucket even though he was only an apprentice. According

to the daily job-briefing log, workers were required to use protective rubber

gloves and sleeves that day, which was consistent with L.E. Myers’s policy, in

case the lines became energized. Hewitt admitted that gloves were available, but

he claimed that Dennis Law, a lineman on the job, told him that he should not

2

January Term, 2012

need the protective rubber gloves and sleeves because the line was de-energized.

Law disputed the conversation. Hewitt did not wear them.

{¶ 7} Law was directing traffic and supervising Hewitt’s work from the

ground that day. At some point, Law yelled to Hewitt from the ground. When

Hewitt turned in Law’s direction, the wire in his right hand came in contact with

an energized line and he received an electric shock, which caused severe burns.

{¶ 8} Hewitt applied for and received workers’ compensation benefits.

He also filed a claim alleging a violation of a specific safety requirement, and the

parties settled that case.

{¶ 9} Hewitt filed this action against L.E. Myers alleging a workplace

intentional tort in violation of R.C. 2745.01 and common law. He alleged that

L.E. Myers knew with substantial certainty that he would be injured when

working alone in an elevated lift bucket near energized high-voltage power lines

without the use of protective rubber gloves and sleeves. Hewitt alleged that L.E.

Myers in effect removed the protective rubber gloves and sleeves that were safety

guards creating a barrier between him and the electrical current.1

{¶ 10} The case proceeded to a jury trial. At the conclusion of the

plaintiff’s case, L.E. Myers moved for a directed verdict as to liability under R.C.

2745.01. The trial court concluded that there was insufficient evidence to

demonstrate a direct intent to harm as required by R.C. 2745.01(A) and (B). So

the court limited the plaintiff’s theory of recovery to R.C. 2745.01(C), according

to which the employer’s deliberate removal of an equipment safety guard creates

a rebuttable presumption of an intent to injure.

{¶ 11} The jury returned a verdict in favor of Hewitt. The court overruled

L.E. Myers’s motion for judgment notwithstanding the verdict.

1. Hewitt also named as defendants the Bureau of Workers’ Compensation to the extent of its

subrogation rights and the Ohio attorney general because the complaint asserted a challenge to the

constitutionality of R.C. 2721.12. They are not parties in this appeal.

3

SUPREME COURT OF OHIO

{¶ 12} L.E. Myers appealed the court’s denial of a directed verdict and

judgment notwithstanding the verdict. The court of appeals affirmed. The court

reasoned that 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. Thus, the appellate court

concluded, this established a rebuttable presumption under R.C. 2745.01(C) of an

intent to injure Hewitt, and L.E. Myers had presented no evidence to rebut the

presumption.

{¶ 13} The cause is before this court upon the acceptance of a

discretionary appeal. 131 Ohio St.3d 1456, 2012-Ohio-648, 961 N.E.2d 1135.

Analysis

{¶ 14} A cause of action for an employer intentional tort is governed by

R.C. 2745.01, which provides:

(A) In an action brought against an employer by an

employee * * * for damages resulting from an intentional tort

committed by the employer during the course of employment, the

employer shall not be liable unless the plaintiff proves that the

employer committed the tortious act with the intent to injure

another or with the belief that the injury was substantially certain

to occur.

(B) As used in this section, “substantially certain” means

that an employer acts with deliberate intent to cause an employee

to suffer an injury, a disease, a condition, or death.

(C) Deliberate removal by an employer of an equipment

safety guard or deliberate misrepresentation of a toxic or hazardous

4

January Term, 2012

substance creates a rebuttable presumption that the removal or

misrepresentation was committed with intent to injure another if an

injury or an occupational disease or condition occurs as a direct

result.

{¶ 15} Today, we review the phrase “deliberate removal by an employer

of an equipment safety guard” in R.C. 2745.01(C).2 L.E. Myers argues that “an

equipment safety guard” means a safety device attached to a machine that is

intended to guard an employee from injury and that “deliberate removal” occurs

when an employer makes a deliberate decision to eliminate that guard from the

machine.

{¶ 16} When construing a statute, our primary goal is to ascertain and

give effect to the intent of the General Assembly. State v. Hairston, 101 Ohio

St.3d 308, 2004-Ohio-969, 804 N.E.2d 471, ¶ 11. We begin with the plain

language and apply it as written in the statute. State v. Chappell, 127 Ohio St.3d

376, 2010-Ohio-5991, 939 N.E.2d 1234, ¶ 17. In doing so, we read words and

phrases in context and according to the rules of grammar and common usage, and

they must be given a technical or particular meaning if appropriate. R.C. 1.42.

A. Definition of “An Equipment Safety Guard”

{¶ 17} R.C. 2745.01(C) does not define these terms, so we look to the

plain and ordinary meaning of the words. Van Fossen v. Babcock & Wilcox Co.,

36 Ohio St.3d 100, 103, 522 N.E.2d 489 (1988). The court of appeals used the

following definitions:

2. The trial court ruled that Hewitt had presented insufficient evidence of a direct intent to injure

necessary to recover under R.C. 2745.01(A) and (B), and the court limited the plaintiff’s theory to

the presumption of intent in R.C. 2745.01(C). The issue of direct intent is not before us.

5

SUPREME COURT OF OHIO

“ ‘Guard’ is defined as ‘a protective or safety device;

specif: a device for protecting a machine part or the operator of a

machine.’ Merriam-Webster’s Collegiate Dictionary [516 (10th

Ed.1996)]. ‘Safety’ means ‘the condition of being safe from

undergoing or causing hurt, injury, or loss.’ [Id. at 1027.] And

‘equipment’ is defined as ‘the implements used in an operation or

activity: APPARATUS.’ [Id. at 392.]”

2011-Ohio-5413, ¶ 24, quoting Fickle v. Conversion Technologies Internatl., Inc.,

6th Dist. No. WM-10-016, 2011-Ohio-2960, ¶ 38.

{¶ 18} The word “guard,” a noun, is modified by the adjectives

“equipment” and “safety.” Reading the words in context and according to the

rules of grammar as we must, R.C. 1.42, we determine that the phrase “an

equipment safety guard” means a protective device on an implement or apparatus

to make it safe and to prevent injury or loss.

{¶ 19} The Sixth District Court of Appeals so interpreted the phrase in

Fickle, 2011-Ohio-2960, modified, Beyer v. Rieter Automotive N. Am., Inc., 6th

Dist. No. L-11-1110, 2012-Ohio-2807, 973 N.E.2d 318. In that case, the

plaintiff’s hand and arm were caught in a roller on an adhesive-coating machine.

She alleged that her employer had failed to train her to use a jog switch that would

stop the roller when not depressed and also had disconnected an emergency stop

cable. The Fickle court concluded that these devices were not “equipment safety

guards,” because they did not prevent the plaintiff’s hands from being exposed to

the dangerous point of operation of the machinery she had been operating. Id. at

¶ 42. Thus, the court concluded that these facts did not demonstrate a “[d]eliberate

removal by an employer of an equipment safety guard” to establish a presumption

of intent under R.C. 2745.01(C).

6

January Term, 2012

{¶ 20} Fickle rejected the argument that “equipment safety guard”

included “ ‘any device designed to prevent injury or to reduce the seriousness of

injury.’ ” Id. at ¶ 39. “The General Assembly did not make the presumption

applicable upon the deliberate removal of any safety-related device, but only of an

equipment safety guard, and we may not add words to an unambiguous statute

under the guise of interpretation.” Id. at ¶ 42. Thus, Fickle defined “equipment

safety guard” as a “device that is designed to shield the operator from exposure to

or injury by a dangerous aspect of the equipment.” Id. at ¶ 43.

{¶ 21} Other appellate districts in this state have similarly construed this

phrase. See Beary v. Larry Murphy Dump Truck Serv., Inc., 5th Dist. No. 2011-

CA-00048, 2011-Ohio-4977, ¶ 21 (“equipment safety guard” commonly means a

device designed to shield the operator of equipment from exposure to injury by a

dangerous aspect of the equipment; a vehicle’s backup alarm does not guard

anything); Barton v. G.E. Baker Constr., 9th Dist. No. 10CA009929, 2011-Ohio-

5704 (a trench box to secure the sides of a trench from collapse is not “an

equipment safety guard” because it is not a piece of equipment designed to protect

an operator of equipment); Roberts v. RMB Ents., Inc., 197 Ohio App.3d 435,

2011-Ohio-6223, 967 N.E.2d 1263, ¶ 24 (12th Dist.) (a tire bead and bead taper,

alleged safety features of a wheel-assembly unit, do not constitute “equipment

safety guards,” because they are not devices designed to shield the operator from

exposure to or injury by a dangerous aspect of the equipment).

{¶ 22} The court below did not agree that the “safety guard” must be

attached to machinery. The court reasoned that that interpretation would limit

recovery for injured employees who did not work with equipment. 2011-Ohio-

5413, ¶ 20. Likewise, Hewitt advocates that the phrase should apply broadly to

any safety-related item that may serve as a barrier between the employee and

danger, citing Beyer, 2012-Ohio-2807, 973 N.E.2d 318, in support.

7

SUPREME COURT OF OHIO

{¶ 23} In Beyer, the Sixth District Court of Appeals agreed with the

Eighth District’s expanded interpretation in Hewitt and concluded that even

“personal protection equipment” such as a face mask at a manufacturing plant was

“an equipment safety guard” because the masks were used to prevent the

employee’s exposure to toxic dust. Beyer modified Fickle and held that

“equipment safety guard” as used in R.C. 2745.01(C) may also include free-

standing equipment. Id. at ¶ 12–13.

{¶ 24} We do not agree. To construe “equipment safety guard” to include

any generic safety-related item ignores not only the meaning of the words used

but also the General Assembly’s intent to restrict liability for intentional torts. As

the Ninth District observed in Barton v. G.E. Baker Constr., 2011-Ohio-5704,

¶ 11, “[f]rom these common dictionary definitions, it becomes apparent that not

all workplace safety devices are ‘equipment safety guards’ as that term is used in

Section 2745.01.”

{¶ 25} A broad interpretation of the phrase does not comport with the

General Assembly’s efforts to restrict liability for intentional tort by authorizing

recovery “only when an employer acts with specific intent.” Stetter v. R.J.

Corman Derailment Servs., L.L.C., 125 Ohio St.3d 280, 2010-Ohio-1029, 927

N.E.2d 1092, ¶ 26; Kaminski v. Metal & Wire Prods. Co., 125 Ohio St.3d 250,

2010-Ohio-1027, 927 N.E.2d 1066, ¶ 56. As we explained in Kaminski, the

statutory restriction of intentional-tort liability “is supported by the history of

employer intentional-tort litigation in Ohio and by a comparison of the current

statute to previous statutory attempts.” Id. at ¶ 57. It is not our role to second-

guess the policy matters set by the General Assembly. Stetter at ¶ 35.

Consequently, we refrain from expanding the scope of the rebuttable presumption

of intent in R.C. 2745.01(C).

{¶ 26} Free-standing items that serve as physical barriers between the

employee and potential exposure to injury, such as rubber gloves and sleeves, are

8

January Term, 2012

not “an equipment safety guard” for purposes of R.C. 2745.01(C). Instead, rubber

gloves and sleeves are personal protective items that the employee controls. We

adopt the definition in Fickle and hold that as used in R.C. 2745.01(C),

“equipment safety guard” means “a device that is designed to shield the operator

from exposure to or injury by a dangerous aspect of the equipment.” Fickle, 2011-

Ohio-2960, ¶ 43.

B. Definition of “Deliberate Removal”

{¶ 27} The court of appeals concluded that the employer’s decision to

place Hewitt close to energized wires without requiring him to wear protective

rubber gloves or sleeves amounted to the deliberate removal of an equipment

safety guard. We disagree.

{¶ 28} The court below defined the words as follows: “deliberate” means

“ ‘characterized by or resulting from careful and thorough consideration—a

deliberate decision,’ ” and “remove” means “ ‘to move by lifting, pushing aside,

or taking away or off’; also ‘to get rid of: ELIMINATE.’ ” 2011-Ohio-5413 at

¶ 24, quoting Fickle at ¶ 30–31.

{¶ 29} Thus, the “deliberate removal” referred to in R.C. 2745.01(C) may

be described as a careful and thorough decision to get rid of or eliminate an

equipment safety guard. Hewitt argues that “removal” is a broad term that

encompasses more than just a physical removal. Although “removal” may

encompass more than physically removing a guard from equipment and making it

unavailable, such as bypassing or disabling the guard, an employer’s failure to

train or instruct an employee on a safety procedure does not constitute the

deliberate removal of an equipment safety guard. Fickle at ¶ 45. See also

Wineberry v. N. Star Painting Co., 7th Dist. No. 11MA103, 2012-Ohio-4212, 978

N.E.2d 221 (employer’s failure to place guardrails around a perch and scaffolding

was not a deliberate removal when the guardrails were never in place).

9

SUPREME COURT OF OHIO

{¶ 30} Consequently, 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

within the meaning of R.C. 2745.01(C) so as to create a rebuttable presumption of

intent.

{¶ 31} Finally, Hewitt argues that the meaning of the terms in R.C.

2745.01(C) is a question for the trier of fact to determine. According to Hewitt,

jurors could reasonably conclude that the protective rubber gloves and sleeves

qualified under R.C. 2745.01(C) as “equipment safety guard[s]” that were

“effectively eliminated” when Hewitt was told he did not have to wear them.

Because the interpretation of undefined terms within a statute is a question of law

for the court, we reject this argument. Akron Centre Plaza, L.L.C. v. Summit Cty.

Bd. of Revision, 128 Ohio St.3d 145, 2010-Ohio-5035, 942 N.E.2d 1054.

Conclusion

{¶ 32} The protective rubber gloves and sleeves in this case do not, as a

matter of law, constitute an equipment safety guard within the meaning of R.C.

2745.01(C). Consequently, we reverse the judgment of the court of appeals and

order judgment in favor of appellant.

Judgment reversed.

O’DONNELL, LANZINGER, and CUPP, JJ., concur.

O’CONNOR, C.J., and MCGEE BROWN, J., concur in judgment only.

PFEIFER, J., dissents.

__________________

10

January Term, 2012

PFEIFER, J., dissenting.

{¶ 33} One of these days, a company is going to surprise me and act

honorably and with compassion. They are going to acknowledge their complicity

in the grievous injuries suffered by their employee, they are going to adequately

compensate their employee for his or her injuries, and they are going to do so

without resorting to every countervailing stratagem that their high-priced counsel

can devise. Today is not that day. Even though L.E. Myers has implicitly

acknowledged its complicity by firing every person involved in the incident that

caused Larry Hewitt’s injuries, even though L.E. Myers knows that, through its

employees, it acted irresponsibly, L.E. Myers does not have to suffer the

consequences; only its apprentice does.

I

{¶ 34} The majority opinion ultimately concludes that “ ‘an equipment

safety guard’ means a protective device on an implement or apparatus to make it

safe and to prevent injury or loss.” Majority opinion at ¶ 18. This is a plausible,

though not the best, conclusion. For one thing, it reads words into the statute,

something courts are not supposed to do. See Columbus-Suburban Coach Lines,

Inc. v. Pub. Util. Comm., 20 Ohio St.2d 125, 127, 254 N.E.2d 8 (1969), where we

stated that this court has a duty “to give effect to the words used [in a statute], not

to delete words used or to insert words not used.”

{¶ 35} R.C. 2745.01(C) refers to “[d]eliberate removal by an employer of

an equipment safety guard.” The definition that the majority opinion has chosen

to favor could have easily been written into the statute by changing three words:

deliberate removal by an employer of a safety guard attached to equipment. That

is the definition the majority opinion prefers, but it is not the statute that was

enacted.

{¶ 36} Instead of adding words to the statute that the General Assembly

could have easily added, instead of attempting to divine what the General

11

SUPREME COURT OF OHIO

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.

{¶ 37} The General Assembly chose not to define “equipment safety

guard.” In my opinion, that is because they did not want an unduly restrictive

meaning—one that they surely would have enacted had they chosen to. There are

many “equipment safety guards” that absent the majority opinion’s new

constrictive interpretation would give rise to a rebuttable presumption of intent to

injure. Remember, the presumption is rebuttable, whereas the absence of the

presumption is often, as in this case, dispositive.

{¶ 38} One example of an “equipment safety guard” the removal of which

should give rise to a presumption to injure is a kill switch. Most dangerous

machines have them. Hitherto, most reasonable people would have thought that

removing a kill switch would give rise to a rebuttable presumption of intent to

injure. Not anymore. Employers are now free to remove kill switches without

troubling over R.C. 2745.01(C). Helmets, facemasks, and visors are other

examples of equipment used as a safety guard, the removal of which will no

longer lead to a rebuttable presumption of intent to injure. Governors, which

prevent certain machines from operating too quickly, may now be removed

without concern that injuries that result will give rise to a rebuttable presumption

pursuant to R.C. 2745.01(C). None of these equipment safety guards fit within

the majority opinion’s draconian interpretation of R.C. 2745.01(C). The scope of

the majority opinion is staggering and dangerous for employees.

{¶ 39} The short-term consequences of affirming the court of appeals’

decision would be de minimis. True, the employer would have to pay some

12

January Term, 2012

money to its injured apprentice. But this is an employer whose experienced

supervisors told an apprentice that he shouldn’t wear gloves and sleeves,

equipment safety guards designed specifically to prevent the type of injury that

occurred. Everyone involved with this case knows that the use of the equipment

safety guards at issue would have prevented the apprentice’s injuries.

{¶ 40} For the injured apprentice, the damages are a considerable amount

of money, but for the employer, the sums involved are not significant. L.E.

Myers’s parent company, MYR Group, has a market capitalization of over $450

million and earned over $18 million in profits in 2011. The long-term

consequences of reversing the court of appeals and imposing an unduly restrictive

interpretation of “equipment safety guard” are potentially calamitous for Ohio’s

workers because companies will have less incentive to ensure that their

employees operate as safely as possible.

II

{¶ 41} Larry Hewitt sought recovery based on three grounds: that L.E.

Myers acted with the specific intent to injure him, R.C. 2745.01(A); that L.E.

Myers knew that its actions were substantially certain to injure him, R.C.

2745.01(A) and (B); and that L.E. Myers was presumed to have intended to injure

him, R.C. 2745.01(C). The trial court indicated that it was going to limit the

claim to the statutory presumption, though the court did not memorialize that

conclusion in an entry. In the event, the court instructed the jury as to the

“specific intent” and “substantially certain” grounds contained in R.C. 2745.01(A)

and (B). Furthermore, the interrogatories addressed the concepts of substantially

certain injury and conscious disregard for worker safety and did not address the

statutory presumption. There is no reason to assume that the jury confined itself

to consideration of the statutory presumption. To the contrary, there is ample

reason to conclude that the jury considered the totality of R.C. 2745.01 in

13

SUPREME COURT OF OHIO

reaching its conclusion. The majority opinion does not even mention the jury

instructions or interrogatories.

{¶ 42} Even with the majority opinion’s conclusion regarding R.C.

2745.01(C), the case should not be decided on the motion for a directed verdict.

Instead, it should be returned to the court of appeals to consider whether the jury’s

conclusions with respect to R.C. 2745.01 (A) and (B) are sustainable.

{¶ 43} I dissent.

________________

Plevin & Gallucci Co., L.P.A., Frank L. Gallucci III, and Michael D.

Shroge; and Paul W. Flowers Co., L.P.A., and Paul W. Flowers, for appellee.

Tucker, Ellis & West, L.L.P., and Benjamin C. Sassé, for appellant.

The Mismas Law Firm, L.L.C., and John D. Mismas, urging affirmance

for amicus curiae Ohio Association for Justice.

Reminger Co., L.P.A., and Brian D. Sullivan, urging reversal for amicus

curiae Ohio Association of Civil Trial Attorneys.

Roetzel & Andress, Denise M. Hasbrook, and Emily Ciecka Wilcheck,

urging reversal for amicus curiae FirstEnergy Corporation.

Garvin & Hickey, L.L.C., Preston J. Garvin, and Michael J. Hickey,

urging reversal for amicus curiae Ohio Chamber of Commerce.

Bricker & Eckler, L.P.A., and Robert R. Sant, urging reversal for amicus

curiae Ohio Chapter of the National Federation of Independent Business.

Licata & Toerek and Elizabeth A. Crosby, urging reversal for amicus

curiae Council of Smaller Enterprises.

______________________

14