Update: On December 18, 2014, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.
On May 14, 2014, the Supreme Court of Ohio heard oral argument in the case of Phillip E. Pixley v. Pro-Pak Industries, Inc., et al., 2013-0797. This issues are whether the definition of equipment safety guard is limited to protect only operators of equipment, and whether there is a genuine issue of material fact of deliberate intent to injure in this case.
Philip Pixley, a maintenance worker for Pro-Pak Industries, was injured in a corrugated box plant when a transfer car, equipped with a safety bumper, trapped his leg. When the car runs into something of sufficient weight, the bumper is supposed to compress and stop the car, but that did not happen here.
Pixley filed an intentional tort claim under RC 2745.01(C), which establishes a rebuttable presumption of intent to injure if an employee can prove the employer deliberately removed an equipment safety guard. Pixley provided the affidavits of two expert mechanical engineers who opined that the only way the bumper could have been compressed without shutting off power to the car was if the proximity switch had been deliberately bypassed. Pro-Pak argued there was no evidence that the proximity switch was deliberately bypassed.
The trial court granted summary judgment to Pro-Pak.
Pixley appealed to the Sixth District Court of Appeals. The court reversed summary judgment, finding 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. The appeals court also held that the definition of equipment safety guard should not be limited to protecting operators only, but should extend to all employees. Read the oral argument preview of this case here.
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.)
At Oral Argument
Chief Justice O’Connor was absent from the argument, but Justice Pfeifer, acting chief in her absence, announced she will watch and fully participate in the decision. It was interesting how much of her take-charge mark the Chief has made—the Court at times seemed listless and rudderless.
The legislature has made it quite clear that its intent in enacting R.C. 2745.01 was to significantly restrict employer intentional tort litigation. The constitutionality of this statute has been upheld in the companion cases of Kaminski v. Metal & Wire Prods. Co., 2010-Ohio-1027, and Stetter v. R.J. Corman Derailment Servs., L.L.C., 2010-Ohio-1029, and in these cases the court acknowledged that legislative intent. The court of appeals decision in this case results in a significant expansion rather than a significant restriction of this tort, and creates a burden of proof on deliberate removal in a case where there is no evidence the employer did anything.
The appellate decision fails to follow the definition of equipment safety guard as articulated in Hewitt v. L.E. Myers Co. 2012-Ohio-5317,that worker just does not get the statutory presumption set forth in subsection (C), but can proceed under sections (A) or (B).
The facts of this case show no knowledge by the employer and no deliberate removal of an equipment safety guard, and the plaintiff’s expert affidavits are insufficient to overcome these requirements. There is no evidence that the safety bumper had ever malfunctioned or failed to work before the day Pixley was injured, and absolutely no evidence whatsoever of any deliberate removal. The car was tested immediately after the accident, and the bumper was acting perfectly fine. OSHA issued no citations. The only recommendation OSHA made—to add a laser beam for added protection—the company did.
Legislative intent must be determined by the words actually used in a statute. The language of 2745.01(C) does not distinguish between operators and non-operators. There is no reason the legislature would make such a distinction, and the defense offers none, other than to try and cut off legitimate claims. Nothing in the language of Hewitt limits the rebuttable presumption in subsection (C) to operators only. The definition of a safety guard is not determined by the title of the person who is injured.
This is a circumstantial evidence case. We know from the fact of the injury itself that at that moment the bumper guard was not working, and we also know that immediately afterward it was inspected and was working properly. The video shows that. The only explanation for how the machine was able to strike the plaintiff and roll over his leg without deactivating is human intervention.
Employers don’t generally admit these things—this must be inferred from the circumstantial evidence presented. The only explanation for what happened in this case came from the plaintiff’s two experts. The defense has offered no alternative explanation. Summary judgment was therefore improper in this case.
What Was On Their Minds
Exactly How the Accident Happened
Was the bumper in place at the time of the incident, asked Justice O’Donnell? Was it removed, or just not functioning? Was it tested afterwards? What were the results? Was there evidence that the proximity switch was bypassed without shutting off power to the transfer car?
Was the machine operating properly the day of the injury, asked Justice O’Neill? (yes, defense counsel insisted). Yet the machine was still running when the plaintiff was hit? Isn’t there also the possibility that the device was simply malfunctioning, he asked later, commenting that the OSHA video shows when it wasn’t stopping when it should have.
Who Says only Operators Are Protected?
The trial court found the bumper was not an equipment safety guard because it did not shield the operator. Is that the law in Ohio? If so, why, asked Justice O’Neill? Is the defense asking the court to adopt such a rule? (it already has, in Hewitt, replied defense counsel).
Following up on that, and in a key question of the day, Justice O’Donnell asked, why is the appellate court interpretation wrong? Safety guards are presumably to keep people safe. Why wouldn’t we want all people protected and not just operators? Is the defense view that it was not a safety guard because it wasn’t protecting an operator? (answer: it wasn’t, under the definition set by the court in Hewitt, said defense counsel, staying on message.) Are there cases that show other workers are meant to be protected?
Wasn’t Hewitt a completely different fact situation from what we have here, asked Justice Pfeifer?
In another key exchange of the day, Justice Lanzinger commented that the court in Hewitt had not limited equipment-safety-guard protection just to operators. Without doing violence to the statute, couldn’t the protection be expanded beyond operators to anyone who could potentially be injured by the equipment? She commented that the legislature could re-define the term equipment safety guard if it disagreed. (The term is not defined in the statute).
Must there be a factual determination about the purpose of the safety guard—whose safety was it really guarding? Is that necessary in this case, asked Justice French?
What exactly are the uncontested facts in the case asked Justice Lanzinger?
Was there a factual question as to whether those guards were working? Or had they been manipulated so that they were not working, asked Justice O’Donnell?
In a key exchange of the day on this issue, Justice Pfeifer commented that the case seemed to turn on whether the plaintiff had brought forth enough to avoid summary judgment, commenting that it was still a tough case against the employer—could it instead be a products liability case against the manufacturer of the machine? Had the plaintiff brought forth enough to avoid summary judgment? If the plaintiff can’t offer persuasive evidence that the employer or someone did something to override the safety device, did the plaintiff lose? (answer from plaintiff’s counsel: yes)
Why was the Supreme Court weighing all these facts? Shouldn’t this just go back for trial, asked Justice O’Neill?
What is the employer’s burden here, asked Justice French?
What record evidence is there of deliberate removal, asked Justice Lanzinger? Could it have just been a maintenance problem, rather than deliberate removal?
Was there any direct evidence in the record that the safety equipment had been removed because workers were stepping on it, asked Justice French?
How it Looks from the Bleachers
To Professor Bettman
Needless to say, this crowd, with the exception of Justice Pfeifer, and now Justice O’Neill, has not been sympathetic to employer intentional tort claims, although the two who seemed least sympathetic, Justices Cupp and Stratton, are gone from the court. Nevertheless, the idea that equipment safety guards are intended to protect operators only makes no sense. I am going to predict that interpretation will be unanimously rejected, and that the court will find that Hewitt does not compel that result. But that is the easy part.
There is no point in revisiting how difficult it has become for plaintiffs to prevail in an employer intentional tort case under R.C. 2745.01. Columbus attorney Frank Ray does a beautiful and succinct job of that in the May/June issue of Ohio Lawyer (Vol.28, No.3) in an article entitled “The demise of employer intentional tort claims in Ohio: A trial lawyer’s perspective.” (Thanks to the OSBA for permission to use this)
Subsection (C) of the statute creates a rebuttable presumption of intent to injure, but before the plaintiff gets there the plaintiff must prove deliberate removal of the equipment safety guard. The plaintiff may squeak by summary judgment here, because he offered the only affidavits in the case about how the malfunction occurred, namely by deliberate bypassing of the safety bumper. The defense did not provide an alternative explanation. But even Justice Pfeifer seemed skeptical about proving deliberate intent here. Justices Lanzinger and French clearly weren’t buying it. Even if Pixley does get past summary judgment, he has a real uphill battle on the merits.
To Student Contributor Elizabeth Chesnut
Although the evidence of Pixley’s claim is circumstantial at best, the justices seem willing to let this case go to trial. Their decision will ultimately come down to the fact that the language of the statute does not distinguish between operators and other employees, and such a distinction would not make sense.