# State ex rel. Cincinnati Drum Service, Inc. v. Industrial Commission

> Ohio Supreme Court · June 27, 1990 · 52 Ohio St. 3d 135

URL: https://www.frixlaw.com/law-library/cases/6762501

## Case

- **Full name:** The State, ex rel. Cincinnati Drum Service, Inc. v. Industrial Commission of Ohio
- **Court:** Ohio Supreme Court
- **Decided:** June 27, 1990
- **Citations:** 52 Ohio St. 3d 135; 556 N.E.2d 459; 1990 Ohio LEXIS 275
- **Precedential status:** Published
- **Opinion:** Dissent by Holmes
- **Judges:** Brown, Douglas, Holmes, Moyer, Nick, Res, Sweeney, Wright
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6762501

## Opinion text

Holmes, J.,
dissenting. The majority here cites the proper standard to be applied in specific safety requirement cases but then proceeds to avoid its application. An award for a violation of a specific safety requirement is deemed a penalty against the employer, and thus is subject to a rule of strict construction with all reasonable doubts concerning the interpretation of the safety requirement to be construed against its applicability to the employer. State, ex rel. Watson, v. Indus. Comm. (1986), 29 Ohio App. 3d 354, 358 , 29 OBR 483, 487, 505 N.E. 2d 1015, 1019 . As stated correctly within the court of appeals’ majority opinion, but then incorrectly applied by such majority, “under this standard, the requirement of guarding the belt and pulley against accidental contact does not impose a duty to provide a guard that is effective against any contact but only to provide a guard in those areas where accidental contact could reasonably be expected. If this belt was so guarded, there was no violation of the specific safety standard.”
I endorse the words and philosophy of Judge Strausbaugh in his dissent below, in which he set forth the appropriate standard for the specific safety requirements to be applied here:
“Ohio Adm. Code 4121:1-5-04(A) [sic, (C)(3)] provides that ‘Vee belts and their pulleys, where exposed to contact, shall be guarded.’ (Emphasis added.)
“The definition of ‘guarded’ in the definition section, Ohio Adm. Code 4121:1-5-01(B)(17), provides: ‘ “Guarded” means that the object is covered, fenced, railed, enclosed, or otherwise shielded from accidental contact.’ (Emphasis added.)
*140 “If the design of the specific safety standard was to protect employees from their own ‘negligence, folly or stupidity’ as stated in the majority opinion, then the regulation should have been drafted to so state, instead of referring to ‘accidental contact.’ Inasmuch as the regulations must be strictly construed, it is manifestly unfair to the employer to be held liable for a penalty of which it has not been apprised. Here, the belt was guarded against accidental contact. The employee had to intentionally reach around the three-sided guard to come in contact with the belt. The proximate cause of the injury was not that the belt was unguarded, but was because of the intentional conduct of the employee which the regulation did not require the employer to guard against.” (Emphasis sic.)
For the foregoing reasons, I would reverse the judgment of the court of appeals.
Moyer, C.J., and Wright, J., concur in the foregoing dissenting opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6762501. Public record. Not legal advice.