Ohio Supreme Court Yet Again Limits Employers' Liability for Intentional Torts

On December 18, 2014, the Ohio Supreme Court issued another opinion limiting employers’ liability for intentional torts in the workplace. This decision is the latest in a series of cases that narrowly interpret Ohio’s intentional tort statute, R.C. 2745.01, and make it very difficult for employees to bring these claims.

In Pixley v. Pro-Pak Indus., Inc., the plaintiff worked in the maintenance department of a company that manufactured containers, boxes and packaging materials. On the day of his injury, the plaintiff was examining a malfunctioning motor on a conveyer line. Meanwhile, his coworker was operating a transfer car, which is a vehicle that transports materials between areas in the facility. Unfortunately, the coworker failed to notice the plaintiff kneeling in his path and accidentally drove the transfer car into him, severely injuring the plaintiff’s leg.

The plaintiff brought an intentional tort suit against his employer under R.C. 2745.01, which limits claims against employers to circumstances demonstrating a deliberate intent to cause injury to an employee. The plaintiff relied on part (C) of the statute, which provides for a rebuttable presumption of intent to injure if the employer deliberately removes an equipment safety guard. The plaintiff argued that the employer deliberately bypassed the transfer car’s safety bumper. This bumper was designed to compress when force was applied and shut off power to the transfer car’s motor.

The Supreme Court held that summary judgment for the employer was proper because the plaintiff failed to establish an intentional tort claim. The Court noted that the “deliberate removal” of an equipment safety guard occurs when an employer makes a “deliberate decision to lift, push aside, take off, or otherwise eliminate that guard from the machine.” The mere failure of an equipment safety guard is insufficient to raise the presumption that the employer intended to injure the employee. Rather, the employee must show a “careful and thorough decision to get rid of or eliminate an equipment safety guard.”

Here, there was some evidence that the safety bumper failed to operate on the day of the accident. However, the plaintiff failed to present any evidence showing that the employer deliberately removed it or otherwise caused it to fail. The plaintiff did not offer any evidence of tampering or evidence that the employer disabled or eliminated the safety bumper. To the contrary, employees were required to routinely inspect the safety bumper and make repairs as necessary. Therefore, the plaintiff could not establish the existence of an intentional tort.

The Court declined to address the other issue for submitted review: whether the definition of equipment safety guard is limited to protecting “operators” only. Regardless, the Court’s decision is another victory for employers in the ongoing battle over Ohio’s intentional tort statute. At least for now, a majority of the justices are determined to recognize the General Assembly’s decision to restrict liability for intentional tort claims.



Ohio Supreme Court Rules Former Testimony in a Products Liability Suit is Inadmissible in a Worker’s Compensation Suit

Donald Burkhart was employed as a maintenance worker for H.J. Heinz Company from 1946 to 1986. While employed at Heinz, Burkhart was frequently exposed to asbestos, including times where he was instructed to collect fallen asbestos, beat it into small pieces, mix it into a paste, and reapply it to pipes. Mr. Burkhart was subsequently diagnosed with mesothelioma and died in 2007.

Prior to his death, he gave deposition testimony in a product liability action filed against several asbestos manufacturers whom he believed were responsible for his diagnosis. Following his passing, his wife filed a claim against H.J. Heinz Company seeking workers’ compensation death benefits (Heinz was not named in the suit against the asbestos manufacturers). In bringing this suit, the widow of Mr. Burkhart attempted to use this prior deposition to show that Heinz injuriously exposed him to asbestos. The Industrial Commission denied her claim, and the case eventually made its way to the Ohio Supreme Court.

Mrs. Burkhart attempted to introduce the deposition under Rule 404(B)(1) of the Ohio Rules of Evidence, which permits former testimony of an unavailable declarant, provided the party against whom the testimony is offered is a predecessor-in-interest and had an opportunity to examine the declarant in the prior preceding, and that the two entities would have had similar motive to develop the testimony by direct, cross, or redirect examination.

Mrs. Burkhart contended that the manufacturers of the asbestos litigation could be considered predecessors-in-interest to Heinz because the workplace exposure would concern both entities. She also argued that Heinz could not object to the use of the deposition testimony because they were also using it to disprove Burkhart’s exposure claim.    

The Supreme Court held that the deposition was inadmissible, as “neither H.J. Heinz nor any predecessor-in-interest to H.J. Heinz had an opportunity to cross-examine Burkhart in the prior products-liability litigation, nor was there a similar motive to develop his testimony during his depositions.” The Court held that a similar interest in the material facts and outcome of an asbestos case is not enough to create a predecessor-in-interest relationship. This represents yet another important decision in the ever-growing list of asbestos related litigation.


Employees Now Allowed to Use Company-Provided Email Systems for Union Organizing

The National Labor Relations Board, by a 3-2 vote, just reversed legal precedent to declare that workers have a right to use their employers’ email systems for non-business purposes, including union organizing. The Board specifically stated, “We decide today that employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.”

This change in law only applies to workers who have access to their employer’s email system and only grants employees the right to use their employer’s email system for non-work purposes during non-working time. Employees may still be prohibited from using company email for non-work purposes during working time, and employees without email access may still be prohibited from accessing the email system. Further, a complete ban on non-work use of email may be lawful, so long as necessary and consistently enforced.

This ruling, Purple Communications, Inc. 361 NLRB No. 126 (2014), has been expected for quite some time, and is perhaps the first of a flurry of pro-union rulings to be released between now and the end of the year when pro-union Board Member Nancy Schiffer’s term expires. Member Schiffer’s appointment gives the Board a strong 3-2 pro-union slant.

Matt Austin