Ohio Supreme Court Limits Definition of “Deliberate Removal of Equipment Safety Guard” for Employer Intentional Tort Claims

On November 20, 2012, the Ohio Supreme Court issued an opinion in Hewitt v. L.E. Myers Company (2012-Ohio-5317) that substantially limits the definition of “deliberate removal of an equipment safety guard” necessary to create a rebuttable presumption of intent under Ohio’s Employer Intentional Tort Statute, R.C. 2745.01(C). Under Ohio law, employers complying with the state’s workers’ compensation laws are afforded immunity against suits brought by employees for injuries sustained in the course of employment. An exception to this immunity arises when an employee is injured as a result of deliberate, intentional conduct on the part of employer to cause such injury. The Ohio Supreme Court previously recognized in Stetter v. R.J. Corman Derailment Servs., L.L.C. (2010-Ohio-1029), and Kaminski v. Metal & Wire Prods. Co., (2010-Ohio-1027) that the General Assembly, in enacting the current version of R.C. 2745.01, intended to restrict an employer’s liability for intentional tort claims by permitting recovery only when an employer acts with specific, deliberate intent.

Employees unable to meet this high standard of proving deliberate intent often attempt to proceed under R.C. 2745.01(C), which creates a rebuttable presumption of deliberate intent, where the employee can show that he or she sustained injuries as a result of the deliberate removal of an equipment safety guard. In Hewitt, the injured employee argued that the employer deliberately removed an equipment safety guard by failing to instruct him to wear protective rubber gloves and sleeves while working near energized electric lines. The Eighth District Court of Appeals accepted this broadened definition of “equipment safety guard,” construing this phrase to include freestanding items of personal protective equipment.

In the Hewitt decision, the Ohio Supreme Court rejected this attempt to broaden the scope of R.C. 2745.01(C), conclusively stating that “‘equipment safety guard‘ means a device designed to shield the operator from exposure to injury by a dangerous aspect of the equipment.” Moreover, the Court limited the definition of “deliberate removal” as used in the statute to mean “a deliberate decision to lift, push aside, take off, or otherwise eliminate that guard.”

In finding that the phrase “deliberate removal of an equipment safety guard” does not encompass the deliberate removal of any safety-related device, the Court explained as follows:

“To construe ‘equipment safety guard’ to include any generic safety-related item ignores not only the meaning of the words used but also the General Assembly’s intent to restrict liability for intentional torts. * * *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 R.C. 2745.01(C). Instead, rubber gloves and sleeves are personal protective items that the employee controls.”
The Supreme Court further limited the definition of “deliberate removal” to an employer’s “deliberate decision to lift, push aside, take off, or otherwise eliminate that guard from the machine.” Thus, an employer’s failure to instruct an employer to wear protective items does not amount to a deliberate removal of an equipment safety guard within the meaning of R.C. 2745.01(C) so as to create a rebuttable presumption of intent.

The Court’s decision brings the definition of “deliberate removal of equipment safety guard” back in line with the intent of the General Assembly in enacting R.C. 2745.01 limiting recovery for employer intentional tort only to those instances where an employer acts with specific intent to cause an injury.

Roetzel & Andress participated in the Hewitt case by submitting an amicus brief. A full copy of the Court’s opinion can be found here:


Contact: Emily Wilcheck


Employee Noncompete Agreements Transfer to the Surviving Company After a Merger

In a recent decision, the Ohio Supreme Court reconsidered and reversed its earlier ruling addressing whether or not a post-merger successor company “stands in the shoes” of the original company with respect to enforcing employee noncompete agreements.

In Acordia I (Acordia of Ohio, L.L.C. v. Fishel, Slip Opinion No. 2012-Ohio-2297), the Court held that when two companies merge and one ceases to exist, the surviving company does not “stand in the shoes” of the disappearing company with regard to enforcing noncompete agreements between the acquired company and its employees unless the agreements included specific language extending the employees’ obligations not to compete not only to the original employer, but also its corporate “successors and assigns.”

On reconsideration, the Court explained that its holding in Acordia I was based on a misreading of a 1971 Ohio Supreme Court opinion and, was therefore, erroneous. Therefore, in Acordia II (Acordia of Ohio, L.L.C. v. Fishel, Slip Opinion No. 2012-Ohio-4648), the Court held that a post-merger successor company does “stand in the shoes” of the original contracting company and may enforce employee noncompete agreements even when “successors and assigns” language is omitted. The Court did, however, reinforce the well-established and traditional principles of law that regulate and govern noncompete agreements by emphasizing that employees may still challenge the continued validity of noncompete agreements based on whether the agreements are reasonable and whether the merger created additional obligations or duties so that the agreements should not be enforced on their original terms.

The Court reached the correct result on reconsideration and, in accordance with R.C. 1701.82(A)(3), it is the law in Ohio that all assets and property, including employment contracts and agreements, and every interest in the assets and property of each constituent entity transfer through operation of law to the resulting company post-merger.

Contact: Alexander Kipp


Mandamus Relief - Orders of the Industrial Commission of Ohio

In State ex rel. KPGW Holding Co., L.L.C. v Indus. Comm., 2012-Ohio-5035 the Tenth Appellate District of the Court of Appeals held that mandamus relief was not available when a party had failed to appeal an order of the Industrial Commission. This was an unusual case as the claimant had filed two claims requesting that each be allowed for bilateral carpal syndrome. The first claim was denied by a District Hearing Officer. Seven months later the claimant filed a claim for the same medical condition and that claim was allowed by a District Hearing Officer. The employer did not appeal this order.

The employer sought mandamus relief to request that the Industrial Commission be ordered to exercise continuing jurisdiction as the employer contended that the second claim was barred by res judicata. In order to be entitled to mandamus relief a party must establish that there is not an adequate remedy in law. Here, the employer had the opportunity to appeal the allowance of the second claim and did not do so. The court held that mandamus relief cannot be provided when the employer had “…an adequate administrative remedy” which was this appeal.

This case shows that all orders of the Industrial Commission and Bureau of Workers’ Compensation must always be closely scrutinized. When in doubt, I suggest that one seek legal counsel and avoid any unexpected results.

Contact: Brian Tarian