Merit Decision. Court Continues to Dismantle the Employer Intentional Tort. Pixley v. Pro-Pak Industries, Inc.

On December 18, 2014, the Supreme Court of Ohio handed down a merit decision in Pixley v. Pro-Pak Industries, Inc., 2014-Ohio-5460. There were two issues in this employer intentional tort case–whether the definition of equipment safety guard is limited to protecting only operators of equipment, and whether there is a genuine issue of material fact of deliberate intent to injure in this case. In a splintered decision written by Justice O’Donnell, the court declined to address the first issue, and found no genuine issue of material fact on the second. Justices Kennedy and French joined Justice O’Donnell in the entire decision.  Chief Justice O’Connor concurred in judgment only.  Justice Lanzinger concurred in judgment only, but also joined in Justice Pfeifer’s dissent that R.C. 2745.01(C) should be interpreted to protect both operators and non-operators of equipment.  Justice O’Neill dissented separately. The case was argued May 14, 2014.

Case Background

Pro-Pak Industries manufactures corrugated containers, boxes, and packaging materials. Philip Pixley was a maintenance worker in one of Pro-Pak’s plants. Materials are transferred on rollers to various parts of a plant by conveyor lines and by manually operated transfer cars that run on fixed pathways perpendicular to the conveyor lines. The transfer cars are equipped with safety bumpers that are supposed to stop the car automatically if compressed by an impact. Once the safety bumper has collapsed, the car cannot operate until the bumper is reopened, the circuit is completed, and the system has been manually re-set.

Pixley was in the process of writing down a number for a replacement part for a malfunctioning conveyor-line motor. His right knee was in the pathway of a transfer car. The operator of the transfer car couldn’t see Pixley kneeling in the pathway. The car ran into Pixley’s leg, pinning it against the conveyor line, but the safety bumper did not collapse and the car did not shut down.  The operator manually stopped the transfer car after he realized Pixley had been injured. The injury to Pixley’s leg was severe.

That same day, the company tested the transfer car and determined everything was working properly, and put the car back in service without doing anything to it. The next morning an OSHA investigator had an employee test the car over and over, and each time the safety mechanism operated properly and stopped the car.

Pixley’s Intentional Tort Claim

Pixley filed an employer intentional tort claim against Pro-Pak, alleging that it had deliberately bypassed the transfer car’s safety bumper, causing the shut-off mechanism to fail.  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 moved for summary judgment on the ground that Pixley could not prove deliberate intent to injure. The trial court granted summary judgment to Pro-Pak.

Pixley appealed to the Sixth District Court of Appeals, which 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 and the analysis of the argument here.

Key Precedent

R.C. 2745.01 – Liability of employer for intentional tort – intent to injure required – exceptions.

(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.

(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.

Houdek v. Thyssen Krupp Materials N.A., Inc., 2012-Ohio-5685 (R.C. 2745.01 limits claims against employers for intentional torts to circumstances demonstrating a deliberate intent to cause injury to an employee).

Hewitt v. L.E. Myers Co., 2012-Ohio-5317 (“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.  “Equipment safety guard” means a device designed to shield the operator from exposure to or injury by a dangerous aspect of the equipment. )

Position of the Parties

Pro-Pak argued that the safety bumper is not an equipment safety guard as defined by the court in Hewitt, that the rebuttable presumption set forth in R.C. 2745.01(C) only arises if the operator of the equipment is injured, and that there is no evidence in this case that Pro-Park deliberately removed or disabled the safety bumper on the transfer car.

Pixley argued that the statutory presumption in R.C. 2745.01(C) does not expressly differentiate between operators and non-operators, nor did Hewitt require the court to decide if the presumption applied only to operators; rather pertinent rules and regulations require equipment safety guards to protect all employees. Pixley also asserts that the transfer car could not operate with the bumper dragging on the floor unless the safety mechanism had been deliberately by-passed.


The court accepted this appeal on these two 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.

The court began its decision with the surprising position that since it found the second issue dispositive of the appeal, the first was moot. In short, it found that even if there were a factual dispute about the operation of the bumper car on the day of the accident, there was simply no evidence in the record that Pro-Pak had deliberated removed or disabled the safety bumper on the transfer car or that it deliberately intend to cause injury to Pixley. So, Pixley failed to establish the existence of what remains of the intentional tort in the case. End of story. Court of appeals reversed, summary judgment for Pro-Pak reinstated.

Justice Pfeifer’s dissent

Pfeifer’s most significant disagreement with the majority is its failure to address the question of whether R.C. 2745.01(C) applies to non-operators injured by an employer’s removal of an equipment safety guard. To him, it clearly does because the statute does not differentiate between injuries to operators and non-operators, and contains no limitation about the employee to whom the injury must occur.  Justice Lanzinger joined him on this point.  Pfeifer also believes there is a genuine issue of material fact in the case on the question of whether Pro-Pak deliberately bypassed the safety bumper.  Justice Lanzinger did not join him on this point.

Justice O’Neill’s dissent

Justice O’Neill also thinks summary judgment was inappropriate in this case (“there are enough disputed facts in this case to write a law school journal article.”) Like Pfeifer, O’Neill sees a genuine issue of material fact on whether Pro-Pal deliberately bypassed the safety bumper, given the conflicting expert testimony on the subject.  He chides the majority for asserting there is no genuine issue of material fact in the case “after it identifies and resolves the factual question in favor of Pro-Pak.”

Both Pfeifer and O’Neill would affirm the court of appeals.

Case Syllabus


Concluding Observations

I think once the majority ducked the question of the applicability of R.C. 2745.01(C) to non-operators of safety guard equipment, it engaged in error correction pure and simple, and one in which in case it isn’t already painfully obvious, the court wants yet again to make it clear that it is almost impossible for a plaintiff to prevail in an employer intentional tort case.

I wrongly predicted that the justices—whom I noted, that with the exception of Justices Pfeifer and O’Neill, have been notoriously unsympathetic to employer intentional tort cases—would at least accept the idea of R.C. 2745.01(C) applying to non-operators as well as operators. As Justice O’Donnell asked at argument, “Why wouldn’t we want all people protected and not just operators?”  I still think a majority, if not all of the justices, would buy that argument, but apparently, not in this case. Since that issue is likely to recur, I have no idea why the court  chose not to decide it in this case, since there was no other issue of any significance to decide. I also incorrectly thought the plaintiff might squeak by summary judgment because he offered the only affidavits in the case about how the malfunction occurred.



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