Ohio Supreme Court Declines to Find Intentional Tort Where Employee was Advised not to Wear Protective Gloves

The current version of Ohio’s employer intentional tort statute requires that the plaintiff demonstrate that the employer committed the tortious act with the intent to injure or with the belief that the injury was substantially certain to occur.  ORC 2745.01.  The statute further provides that “deliberate removal by an employer of an equipment safety guard” creates a rebuttable presumption that the removal was committed with intent to injure.  The Ohio Supreme Court recently addressed whether protective gloves and sleeves constitute “equipment safety guards.”  Hewitt v. L.E. Myers Co., 2011-Ohio-5413.

The Hewitt case involved an apprentice electric lineman, Larry Hewitt.  Mr. Hewitt was injured when he accidentally brought an unenergized wire into contact with an energized line, causing severe burns.

Prior to the injury, Mr. Hewitt was told by his supervisor that protective rubberized gloves were unnecessary because he would be handling unenergized lines. Mr. Hewitt filed an intentional tort action against his employer.  A jury found in favor of Mr. Hewitt.  The employer appealed, and the Eight District Court of Appeals affirmed the decision.  However, the Ohio Supreme Court granted review of the case.

The Ohio Supreme Court disagreed with the Court of Appeals and held that “free-standing items that serve as physical barriers between the employee and potential exposure to injury, such as rubber gloves and sleeves, are not ‘an equipment safety guard’ for purposes of RC 2745.01.”  The Court went on to explain that “deliberate removal” of an equipment safety guard occurs when an employer makes a deliberate decision to take off or otherwise eliminate that guard from a machine.  According to the Court, the failure to instruct an employee to wear protective gloves does not constitute a “deliberate removal.”

This decision provides valuable clarity regarding the scope of the definition of “equipment safety guard” in an employer intentional tort context. Of course, employers should still provide any personal protective equipment necessary to prevent employee injury.