Login | April 19, 2024
9th District rules safety violations an intentional tort
SCOTT PIEPHO
Legal News Reporter
Published: April 8, 2013
An employer’s deliberate violation of safety standards can give rise to an intentional tort claim, the 9th District Court of Appeals ruled recently. In so doing, the court clarified a new state statute limiting employer intentional tort actions and the Ohio Supreme Court cases finding the statute constitutional.
The plaintiff in Smith v. Ray Esser and Sons Inc., Ryan Smith, had just begun working as an intern through a high school-sponsored program. His first days on the job, his employer and defendant in the action, Ray Esser and Sons, put him to work on a job repairing a leaking fire hydrant.
The employer had dug a trench approximately seven feet deep around the hydrant. For the next two days, rain water accumulated in the trench. When the work crew was able to return to the site, they pumped the rain water out and put Smith to work. The crew needed to remove the thrust block, a below-ground cement block that anchored the pipes feeding the hydrant. Smith was in the trench breaking down the thrust block with an electric chipping tool.
As he was working, his hand became trapped by shifting debris and at the same time the trench began filling with water. At that time, Ryan was alone in the trench and only one other person, his foreman Clouser, was on the site with him. Smith was able to escape from the trench, but his hand was severely injured.
Smith brought an intentional tort action against Esser and Sons. Normally, worker’s compensation is the exclusive remedy for a workplace injury, but Ohio law makes an exception when the employer commits an intentional tort against an employee. Traditionally, employees could bring an action under Ohio common law if an employer was aware that a task was substantially certain to result in an injury to the worker and assigned the task regardless.
Several times the Ohio legislature attempted to change the standard for employer intentional torts by statute. Twice the Ohio Supreme Court found those statutes unconstitutional. The legislature tried again, passing R.C. 2745.01(A). At the time Ryan’s case was before the trial court, the Ohio Supreme Court was considering whether the statute was constitutional.
In an earlier appeal, the 9th District had overturned the trial court’s first grant of summary judgment. During the pendency of Esser and Sons’ original motion for summary judgment, the Supreme Court found the statute constitutional in a pair of companion cases including Kaminsky v. Metal and Wire Products Co. In a reply brief Esser and Sons cited the statute and Kaminsky for the first time.
The court granted summary judgment, citing the statute and Kaminsky without further comment. On appeal from that decision the 9th District ruled that because Smith had not been given adequate notice of the grounds on which Esser and Sons was asking for summary judgment.
The statute R.C. 2745.01(A) provides that in an intentional tort action “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.”
In subsection (B) the statute defines, “substantially certain” to mean “that an employer acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.”
The statute also provides that “deliberate removal by an employer of an equipment safety guard or deliberate misrepresentation of a toxic or hazardous substance creates a rebuttable presumption that the removal or misrepresentation was committed with intent to injure another if an injury or an occupational disease or condition occurs as a direct result.”
The 9th District opinion cites several factual allegations which show that the defendant intentionally disregarded safety standards. First, the trench walls were nearly vertical in violation of OSHA regulations. Second, regulations require that when removing water from a trench, a qualified supervisor must oversee the operation; Clouser was not qualified to fill this role. Third, trench featured no safety devices such as shoring or a safety box.
Summarizing the employer’s actions, the court stated, “It is clear that Esser intentionally decided not to take necessary safety precautions with Ryan despite the fact that it had made a practice of putting such protections in place on prior projects.”
The court held that the employer’s actions could therefore give rise to an intentional tort claim and that Smith raised sufficient factual issues to avoid summary judgment. “[R]easonable minds could conclude that Esser was substantially certain that sending Ryan into the trench would result in injury.