The Ohio Supreme Court has failed workers again, this time in Hewitt v. L.E. Myers Company and Houdek v. ThyssenKrupp Materials, N.A., Inc. In each of the cases, workers were severely injured on the job and brought “employer intentional tort” actions against their employers under Ohio Revised Code section 2745.01.
While generally injured workers in Ohio are limited to recourse via the Ohio workers’ compensation system, the employer intentional tort statute allows an injured worker to file an action directly against the employer when there is evidence of a “deliberate intent to injure.” The 2005 statute specifically states that “[d]eliberate 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.”
In Hewitt the employer had told the employee to wear leather (not rubber) gloves while working on high voltage powers lines. Mr. Hewitt was subsequently electrocuted and sustained severe injuries that never would have occurred had he been wearing rubber gloves. The Ohio Eighth District Court of Appeals held that the failure to provide Mr.
Hewitt with rubber gloves while working on power lines constituted the deliberate removal of a safety guard, but the Supreme Court disagreed and reversed.
Houdek involved an employee injury in a warehouse where Mr. Houdek’s leg was crushed by a sideloader and had to be amputated. The Ohio Eighth District Court of Appeals agreed that his injury was the result of the removal of a safety guard – safety cones and lighting – but the Supreme Court disagreed and reversed.
In Hewitt and Houdek the Supreme Court sent a clear message to employees and plaintiff’s lawyers alike: proving an employer intentional tort is nearly impossible. While there is still a chance that a small number of the most egregious cases could potentially be successful, Hewitt and Houdek will act as a strong deterrent for anyone seeking to bring an employer intentional tort action.
Plaintiff’s lawyers will likely decline to take these cases in light of the time and expense required coupled with the slim chance of success.
Attorney Charles Boyk of the plaintiff’s law firm The Charles E. Boyk Law Offices, LLC in Toledo stated, “What the Supreme Court has done here is close off the courts to workers who are grievously injured after egregious actions of an employer such as failing to provide basic safety equipment. It is a tough blow for the injured worker in Ohio.
Justice J. Pfeifer was the only dissenting justice on both cases, stating:
“One of these days a company is going to surprise me and act honorably and with compassion,” Pfeifer wrote in the Hewitt case. “They are going to acknowledge their complicity in the grievous injuries suffered by their employee, they are going to adequately compensate their employee for his or her injuries, and they are going to do so without resort to every countervailing stratagem that their high-priced counsel can devise. Today is not that day.”
If you or someone you know has been injured or hurt at work you need information. Contact our Ohio Workers’ Compensation attorneys at 800.637.8170 to order your free copy of “The Ohio Workers’ Compensation Book”.