What’s on Their Minds: The Deliberate Removal of an Equipment Safety Guard. Larry Hewitt v. The L.E. Myers Co., et al.

Update: On November 20, 2012, the Supreme Court handed down a merit decision in this case.  Read the analysis here.

On September 25, 2012, the Supreme Court of Ohio heard oral argument in the case of Larry Hewitt v. The L.E. Myers Co. et al., 2011-2013.  This is an employer intentional tort case. The issue is what constitutes the deliberate removal of an equipment safety guard, thus creating a rebuttable presumption of intent to injure under R.C.2745.01(C).


Hewitt was a second-step apprentice lineman, assigned by the union to work on a project replacing power lines for L.E.Myers, an electrical utility construction contractor. He was working on de-energized power lines.  While the facts were very much in dispute, Hewitt claims he was told by management foremen that he didn’t need to use his protective rubber gloves and sleeves that day, which were required by company policy.  Although Hewitt was working on de-energized power lines, he accidentally touched a live wire with a tie wire he held in his hand, and was electrically shocked, suffering serious burns.  After receiving workers’ compensation benefits and settling a VSSR claim, Hewitt filed suit against L.E. Myers for an employer intentional tort. At the end of Hewitt’s case, the trial judge granted L.E. Myers’ motion for a directed verdict in part, finding Hewitt failed to prove his case with respect to R.C. 2745.01(A) and (B), and thus limited Hewitt’s theory of recovery to R.C. 2745.01(C). The jury awarded Hewitt $597,785.  After the verdict, the trial court denied the company’s motion for a j.n.o.v.

The Eighth District Court of Appeals affirmed, finding that that the protective rubber gloves and sleeves constituted equipment safety guards under R.C. 2745.01(C) and that the actions of company supervisors sending Hewitt into close proximity with live wires without his rubber gloves and sleeves amounted to the deliberate removal of an equipment safety guard.

At the Oral Argument

L.E.Myers’ position

Counsel for L.E. Myers argued that the Supreme Court should reverse the court of appeals, which read far too much into the presumption of intent for the deliberate removal of an equipment safety guard. Hewitt’s personal gloves and sleeves are not equipment safety guards. They were not on a machine, and they weren’t part of a piece of equipment. They are personal protective gear. Since the gloves and sleeves remained available at the workplace that day, they were not deliberately removed.  An employee being told he didn’t have to wear the gloves and sleeves is very different in kind from being told he could not wear them or having the safety gear removed from the worksite.

L.E.Myers also argued that although it was pre-statute, the syllabus of Fyffe v. Jeno’s, Inc. is  still good law, and it requires that to prove an intentional tort, there must be evidence to show the employer has deliberately removed a safety guard from equipment which an employee is required to operate—clearly not the case here.

Hewitt’s position

Hewitt’s counsel argued that it is undisputed that Hewitt was required to wear the rubber gloves and sleeves. The jury was instructed on the exact words in the statute and properly found that what happened fell within the statute. There is no ambiguity in this statute, and the jury properly understood it. And the court of appeals correctly determined that gloves and sleeves can also serve as equipment safety guards because they serve as a barrier between an electrician and a known hazard. In this case we have an apprentice told by two management level employees that he didn’t need to use the gloves and sleeves—and as an apprentice he took that to mean, don’t use them.

What Was on Their Minds

To Be, Or Not To Be An Equipment Safety Guard.  That is the Question.

Justice O’Donnell asked, if gloves and sleeves aren’t safety guards, what are they? Is an equipment safety guard defined in the statute? Was there a deliberate removal here? What evidence was there at all as to the removal?

Should the Court define equipment safety guard as a piece of the original safety equipment that is on a machine and is purposely removed? Is this limited to machines, asked Chief Justice O’Connor. (yes, said the company’s lawyer). And does a jury just commonly know what an equipment safety guard is? Isn’t the statute about a dangerous aspect of the equipment that has a built-in safety guard that is a barrier,  which in some cases is removed and that removal is the subject of the dispute? Later, in  a key exchange of the day, she commented to Hewitt’s lawyer that she thought the crux of the matter was whether rubber gloves and sleeves were on a par with the definition of safety equipment. She didn’t seem to think so.

What’s the Point of Gloves and Sleeves?

Don’t people doing this work universally wear gloves and sleeves for their protection, asked Justice Pfeifer. Isn’t this required in a manual?

Wouldn’t the gloves and sleeves have protected the plaintiff, asked Chief Justice O’Connor. But in the past, haven’t others forgone the safety equipment? And where were the gloves and sleeves that day?

Let Me Explain to You the History…

As L.E. Myers’ counsel went into a long explanation of all the employer intentional tort background, culminating in upholding the constitutionality of the latest statute in Kaminski and Stetter, Justice Pfeifer interrupted him, with some hostility, saying, “we have a long case history in this area (that’s putting it mildly!) and it’s always been contentious, so let’s get down to the facts of this case.”

How would plaintiff’s counsel get around Fyfee v. Jeno’s, asked Justice Lanzinger (answer—it was pre-statute.)

Doesn’t the fact that the plaintiff was an apprentice matter?

Asked Justice Pfeifer. And didn’t L.E. Myers fire three people up the chain over this, presumably for what the company did or didn’t do in terms of instructing this apprentice?

VSSR Award

Was there one in this case, asked Justice Lanzinger. (yes, a settlement)

What’s the effect of a VSSR award in an employer intentional tort case, asked Justice Pfeifer. And would it be appropriate to introduce evidence that there was a violation of a specific safety rule (irrelevant, said L.E. Myers counsel, and improper to introduce).

What about the Joint Stipulation to the Jury that this was an Accident?

Asked the Chief, relentlessly, to Hewitt’s counsel. And doesn’t “accident” mean there wasn’t any intent to harm??

The Jury Instruction

Was the jury just turned loose with the statute, asked Justice McGee Brown.  Did it receive any specific instruction about the removal of safety equipment?

The jury was told, here’s the statute, you figure out the facts and apply it—how is that a valid jury endeavor, asked the Chief?

That Ever Elusive Definition of Intent

The Chief Justice asked, if a foreman or supervisor had said to Hewitt, don’t wear your gloves, just leave them on the ground—intentional tort? (answer from L.E. Myers—that would be deliberate removal but we’d still have the issue of whether it was an equipment safety guard.) Following up, Justice Lanzinger commented that no one took the equipment away from Hewitt and said he couldn’t use it.

And Justice Cupp, with evident disgust, said to Hewitt’s counsel, so they did what they did because they wanted to injure their employee? Was that what Hewitt was saying?

What Happens in the Event of a Reversal?

Several justices, led by Justice Stratton asked this, and the lawyers sharply disagreed.  Hewitt’s lawyer said the case would have to go back to the court of appeals to see if there was sufficient evidence to sustain the verdict on the alternative basis of a substantial certainty intentional tort. The jury was instructed on both prongs. No way, said L.E.Myers lawyer. The case was only sent to the jury on the deliberate intent prong, and no cross appeal was taken from that decision. If it’s reversed, judgment must be entered for L.E. Myers.

How it Looks from the Bleachers

This definitely looks like a reversal, and if so, probably judment for L.E.Myers, although that part depends on the record.  The employer intentional tort has a long and contentious history, and Justice Pfeifer is all that remains of the heyday when the Court struck down attempt after attempt by the legislature to limit this tort. The new order was manifest in Stetter and Kaminski. Justice Cupp, author of both, clearly has no sympathy whatsoever with the plaintiff’s position.  He asked the same question at oral argument  in Houdek et al v. ThyssenKrupp Materials, N.A., another recently-argued employer intentional tort case–Is deliberate intent the same thing as an employer wanting an employee to be injured?

While this was clearly a safety violation—hence the VSSR settlement—equating telling an employee he didn’t need his protective gear with deliberate removal of an equipment safety guard seems a stretch. This Court isn’t one to get fancy with what the legislature said, and is likely to limit the meaning of “equipment safety guard” to a piece of equipment on a machine, that is deliberately removed, and to find that the safety gloves and sleeves just don’t meet the statutory definition.  Justice Pfeifer will clearly dissent.

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