Update: On December 18, 2014, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.
Yep. The employer intentional tort is back again. On May 14, 2014, the Supreme Court of Ohio will hear oral argument in the case of Phillip E. Pixley v. Pro-Pak Industries, Inc., et al., 2013-0797. This case deals with the question of whether the definition of equipment safety guards is limited to those that protect only operators of the equipment.
Phillip Pixley worked for Pro-Pak, a box and packaging manufacturer, in its maintenance department. He was severely injured when a company transfer car trapped his leg. The transfer car is equipped with a safety bumper designed to shut off power to the car when compressed. However, the Pro-Pak employee driving the transfer car had to manually stop it when it pressed up against Pixley’s leg, because the safety bumper did not shut off the car. Pixley filed an employer intentional tort claim, relying on RC 2745.01(C). The statute establishes a rebuttable presumption of intent to injure if an employee can prove the employer deliberately removed an equipment safety guard. The trial court granted summary judgment to Pro-Pak.
Pixley appealed to the Sixth District Court of Appeals. The court found that a genuine issue of material fact existed as to whether Pro-Pak deliberately removed an equipment safety guard by intentionally bypassing the proximity switch on the safety bumper. Therefore, summary judgment was inappropriate. In its opinion, the court held that the definition of equipment safety guards should not be limited to protecting operators only, but should extend to all employees.
R.C. 2745.01 – Liability of employer for intentional tort – intent to injure required – exceptions.
(C) Deliberate removal by an employer of an equipment safety guard…creates a rebuttable presumption that the removal…was committed with intent to injure another if an injury… occurs as a direct result.
Hewitt v. L.E. Myers Co., 2012-Ohio-5317
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.
First, Pro-Pak argues that the appellate court failed to follow binding precedent in Hewitt that defined “equipment safety guard” under RC 2745.01(C). The plain language of the statute, according to Pro-Pak, does not allow for a presumption of intent upon the deliberate removal of any safety-related device, but only of an equipment safety guard. An employer cannot anticipate or intend to injure anyone other than the operator of the machine from which the employer deliberately removes a guard.
Second, Pro-Pak argues that, in the absence of a deliberate removal of an equipment safety guard by the employer, the employee must establish that the employer acted with specific intent to injure. Deliberate removal occurs only when an employer makes a decision to lift, push aside, take off, or otherwise eliminate that guard from the machine. Here, there is no evidence that Pro-Pak made a deliberate decision to bypass the safety bumper. The bumpers on the transfer cars were checked by Pro-Pak employees on a monthly basis as part of the company’s preventative maintenance program.
Because Pixley failed to establish a genuine issue of material fact under the terms of the statute, Pro-Pak requests the Court to reverse the judgment of the Sixth District Court of Appeals and reinstate the trial court’s summary judgment in favor of Pro-Pak.
Pixley first argues that Pro-Pak’s distinction between operators and employees is purely artificial, with no support in the statutory language. The statute does not differentiate between operators and non-operators, and it should be enforced under its plain and ordinary meaning. The Court in Hewitt did not consider such a distinction and should not be relied upon to this end. If accepted by this Court, Pixley warns, such an arbitrary distinction would quickly produce absurd results, and legislation should never be interpreted in such a manner. As countless federal and state safety regulations show, guarding is not just to protect operators, but all other workers who are in harm’s way.
Next, Pixley suggests that reasonable minds could reach different conclusions on whether the bumper safety guard had been deliberately removed by Pro-Pak before Pixley’s injury. According to Pixley, it is clear from comprehensive engineering analysis that Pro-Pak intentionally by-passed the safety features of the transfer car.
Because the statute does not support a distinction between operators and employees, and because Pro-Pak has not met its burden of showing that no genuine issues of material fact exist, Pixley urges the court to affirm the Sixth District Court of Appeals.
Amici submitted briefs on both sides of the case. For Pro-Pak, the Ohio Association of Civil Trial Attorneys and the Ohio Chamber of Commerce, among others, argue that the appellate court improperly expanded the presumption of intent to injure provision beyond the plain language of the statute. They argue that the safety bumper is not an equipment safety guard, and even if it were, Pixley was injured because he was struck by a transfer car operated by someone else, not because of the removal of anything from the car.
For Pixley, the Ohio Association of Claimants’ Counsel and the Ohio Association for Justice argue that the Sixth District correctly concluded that the safety bumper on the transfer car was designed to protect employees, as well as operators, from a dangerous aspect of the equipment and also met the definition of “equipment safety guard.” They also argue that there is a genuine issue of material fact about whether Pro-Pak intentionally removed the safety guard.
Pro-Pak’s Proposed Propositions of Law
1. The Hewitt Court’s definition of equipment safety guard is limited to protecting operators only.
2. The deliberate removal of an equipment safety guard occurs only when there is evidence the employer made a deliberate decision to lift, push aside, take off, or otherwise eliminate the guard from the machine.
Student Contributor: Elizabeth Chesnut