No Intent to Remove Safety Device in Employer Intentional Tort Claim|[OH CT APP]|

The decedent was a laborer working for a construction employer on a highway bridge project on I-70 near Newark, Ohio. To remove a sixty-foot I-beam from the bridge’s frame, the deceased elevated himself up to the bridge with an aerial lift and cut the beam. After he rigged the I-beam with slings connected to a crane, the deceased retracted the aerial lift to permit the crane to carry away the I-beam. Although the employer had clevis shackles at its shop approximately forty-five minutes away, none were used on the crane during this operation. During removal, the crane’s sling cable slid out of its hook, causing one side of the I-beam to fall on the aerial lift. The deceased crashed to the ground and suffered fatal injuries.

After OSHA issued citations against the employer for its failure to stop operations when danger was apparent, the administratrix of the deceased’s estate filed an employer intentional tort complaint claiming that the employer forced the deceased to work in the absence of required safety guard which amounted to a deliberate intent to injure pursuant to R.C. 2745. Specifically, the administratrix claimed that the failure to use a clevis shackle was a deliberate removal of a guard necessary to ensure the deceased’s safety. The Licking County Court of Common Pleas granted the employer’s motion for summary judgment. The administratrix appealed.

In BREITENBACH v. DOUBLE Z CONSTRUCTION CO., LLC., 2016-Ohio-1272, 2016 WL 1188696 (5th Dist. Ct. App. March 24, 2016), the court of appeals affirmed the trial court’s ruling after finding no evidence that the employer deliberately intended to injure the deceased. Under R.C. 2745, a plaintiff can prove specific intent by way of an employer’s substantial certainty that injury will occur or its deliberate removal of an equipment safety guard required for an employee’s safety. Although such removal of a safety guard creates a presumption that the employer intended to harm, the court found that a clevis was not an equipment safety guard and that the employer’s conduct did not constitute deliberate removal for the purposes of the law. The court defined an equipment safety guard as a device that is designed to shield an operator from exposure to or injury by a dangerous aspect of the equipment. Conversely, the court held that a clevis, though safety-related, is not specifically designed to shield crane operators. Regarding the employer’s conduct, the court found no indication of intent to injure. Against the administratrix’s argument that the beam was improperly rigged and nevertheless removed, the court ruled that reckless conduct was insufficient for an employer intentional tort claim. Moreover, the availability of a clevis at the employer’s office overcame the claim of deliberate removal. Lastly, the court denied evidence of intent citing the OSHA violations as proof. OSHA citations alone do not demonstrate an intent to injure for purposes of R.C. 2745.

Best Practices:

1. Ensure equipment is operated with all safety guards required by manufacturer or law – Checklists or reminders placed conspicuously on equipment can increase safety and reduce claims of deliberate removal.
2. Continue to provide safety training – Although the court found that a failure to provide safety training as insufficient for an employer intentional tort claim, it maintained that such conduct may amount to gross negligence or recklessness.

– Christian H. Robertson II

All materials have been prepared for general information purposes only to permit you to learn more about construction law. The information presented is not legal advice, is not to be acted on as such, may not be current and is subject to change without notice.