ORIGINAL

No. 2011-2013

In the Supreme Court of Ohio

APPEAL FROM THE COURT OF APPEALS

EIGHTH APPELLATE DISTRICT

CUYAHOGA COUNTY, OHIO

CASE No. 10-96138

LARRY HEWITT,Plaintiff-Appellee,

V.

THE L.E. MYERS COMPANY.,Defendant-Appellant.

MERIT BRIEF OFAMICUS CURIAE COUNCIL OF SMALLER ENTERPRISES("COSE")

Paul W. Flowers (0046625)PAUL W. FLOWERS CO., L.P.A.50 Public Square, Suite 3500Cleveland, Ohio 44113Tel: 216.344.9393Fax: 216.344.9395E-mail: pwf@pwfco.com

Attorneyfor Plaintiff-AppelleeLarry Hewitt

RMMAY14 2012

Benjamin C. Sasse (0072856)(COUNSEL OF RECORD)Mark F. McCarthy (0013139)TUCKER ELLIS & WEST LLP1150 Huntington Building925 Euclid AvenueCleveland, OH 44115-1414Tel: 216.592.5000Fax: 216.592.5009E-mail: mark.mccarthygtuckerellis.com

benj amin. s as s egtuckerellis. com

Attorneys for Defendant-AppellantThe L.E. Myers Co.

CLERK OF COURTSUPREME

CLERK OF CQURTSUPREME COUR1 CF OHIO

Frank L. Gallucci, III (0072680)Michael D. Shroge (0072667)David E. Gray,1I (0071114)PLEVIN & GALLUCCI CO., L.P.A.55 Public Square, Suite 2222Cleveland, OH 44113Tel: 216.861.0804Fax: 216.861.5322E-mail: fQallucci@pglawyer.com

mshroge@pglawyer.comclgrayna,p q1aw V er. com

Additional Counsel for Plaintiff-AppelleeLarry Hewitt

Preston J. Garvin (0018641)(COUNSEL OF RECORD)Michael Hickey (0021410)GARVIN & HICKEY, LLC181 E. Livingston Ave.Columbus, OH 43215Tel: 614.225.9000Fax: 614.225.9080E-mail: wclawna,garvin-hickey.com

Attorneys for Amicus Curiae Ohio Chamber ofCommerce

Elizabeth A. Crosby (0041433)(COUNSEL OF RECORD)LICATA & TOEREK6480 Rockside Woods Blvd., SouthSuite 180Independence, OH 44131Tel: 216.573.6000Fax: 216.573.6333E-mail: eac(a)completecounsel.com

Attorney forAmicus Curiae Council ofSmaller Enterprises (COSE)

RobertA. Minor (0018371)(COUNSEL OF RECORD)VORYS, SATER, SEYMOUR

AND PEASE LLP42 E. Gay St.P.O. Box 1008Columbus, OH 43216-1008Tel: 614.464.6410Fax: 614.719.4874E-mail: raminor@vorys.com

Attorney for Amicus Curiae Ohio Self-InsurersAssociation

Thomas R. Sant (0023057)(COUNSEL OF RECORD)BRICKER & ECKLER, LLP100 S. Third St.Columbus, OH 43215-4291Tel: 614.227.2331Fax: 614.227.2790E-mail: tsant(41bricker.com

AttorneyforAmicus Curiae Ohio Chapter ofthe National Federation ofIndependentBusiness

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..........................................................................................................II

1. INTRODUCTION ..............................................................................................................1

II. STATEMENT OF THE FACTS ......................................................................................2

III. STATEMENT OF INTEREST OF AMICUS CURIAE COSE ....................................2

IV. ARGUMENT ......................................................................................................................4

Proposition of Law No. 1 .....................................................................................................4

An "equipment safety guard" under R.C. 2745.01(C) includes only those deviceson a machine that shield an employee from injury by guarding the point ofoperation of that machine .........................................................................................4

Proposition of Law No. 2 .....................................................................................................6

The "deliberate removal" of such an "equipment safety guard" occurs when anemployer makes a deliberate decision to lift, push aside, take off orotherwise eliminate that guard from a machine .......................................................6

A. The Text, Structure and History of R.C. 2745.01 Confirm that"Deliberate Removal" Means a Deliberate Decision to Eliminate AnEquipment Safety Guard . .....................................................................................6

V. CONCLUSION ..................................................................................................................8

CERTIFICATE OF SERVICE ........................................................................................................9

TABLE OF AUTHORITIES

Constitutional Provisions.Section 35, Article II of the Ohio Constitution ............................................................... 5, 7

CasesFickle v. Conversion Technologies Internatl, Inc. 6^' Dist. No. WM-10-016, 2011-Ohio-

2960, 2011 WL2436750 ¶48 ..................................................................................... 7, 11Hubble v. Haviland Plastic Prods. Co., 3d Dist. No 11-10-07, 2010-Ohio-6379,

2010WL5541117, ¶9 ................................................................................................. 7, 11Kaminski u Metal & Wire Prods Co., 125 Ohio St.3d250, 2010-Ohio-1027, 927 N.E.2d

1066, at ¶ 100 . ................................................................................................................. 4McCarthy v. Sterling Chems, Inc. 193 Ohio App.3d 164, 2011-Ohio-887, 951 N.E.2d 441,

¶14 .............................................................................................................................7, 11Meadows v. Air Craft Wheels, LLC (January 26, 2012), 2012-Ohio-269, 96782.¶18 .. 7, 10Roberts v. RMB Ents., Inc. 12th Dist. No. CA2011-03-060, 2011-Ohio-6223, 2011 WL

6017958 ..................................................................................................................... 7, 11Shanklin v. McDonald's USA, LLC, Licking App. No. CA 00074, 2009- Ohio-251 .......... 7Smith v. Inland Paperboard & Packaging, Inc., Portage App. No. 2008-P-0072, 2009-

Ohio-3148, ¶33 ................................................................................................................ 7Stembridge Builders v. Industrial Commission, 201 IL.Dec. 656, 636 N.E.2d 1088

(III.App.2d Dist. 1994) ................................................................................................ 4, 7Van Fossen v. Babcock & Wilcox Co., 36 Ohio St. 3d 100, 103 (1988) . ............................ 9Warren v. Libbey Glass, Inc., Lucas App. No. L-09-1040, 2009-Ohio-6686 ..................... 7

Statutes29 CFR 1926.95(a) .......................................................................................................... 7, 829 CFR 1910.243 ................................................................................................................ 729 CFR 1917.151 ................................................................................................................ 729 CFR 1926.28(a) .............................................................................................................. 729 CFR 1926.303 ................................................................................................................ 7R.C. 2745.01 .............................................:.................................................................. 4, 7, 9

Other Authorities6 Larson's Workers'Compensation Law (2008) ............................................................. 3, 4

I. INTRODUCTION

In 1983 this Court determined that when an employer intentionally injures his or her

employee, that conduct is not afforded the protections of the Ohio Workers' Compensation Act.

Blankenship v. Cincinnati Milacron Chems., Inc., 69 Ohio St.2d 608 (1982). Since then, Ohio's

common pleas and appellate courts have grappled with defming the concept of "intent".

Likewise, the General Assembly has repeatedly drafted statutory language with the same goal,

and yet, thirty years later, the confusion remains.

We know that "intent" is beyond simple negligence and even wrecklessness. 6 Larson's

Workers'Compensation Law (2008), Section 103.03; Kaminski v. Metal & Wire Prods

Co., 125 Ohio St.3d250, 2010-Ohio-1027, 927 N.E.2d 1066, at ¶ 100. It has been

described as "quasi-criminal" behavior. See Stembridge Builders v. Industrial Commission, 201

IL.Dec. 656, 636 N.E.2d 1088 (III.App.2d Dist. 1994) Even with those parameters however, the

definition seems to defy simple explanation.

It stands to reason therefore, that if lawyers and judges cannot agree on the term "intent",

business owners and jurors are certainly ill-equipped to comply with the law. This appeal

therefore permits this Court to further refine and make clear that which courts before it have

failed to accomplish.

Specifically, this appeal emanates from the Eighth District Court of Appeals'

interpretation of R.C. 2745.01 and its expansion of the plain language set forth therein. The

Eighth District broadened and effectively redefined the statutory language of R.C. 2745.01 such

that "deliberately removes" now means "fails to insist on use" and "an equipment safety guard"

now includes personal protective equipment. The court dulled the razor-sharp edges that once

separated intentional, tortious conduct from everything less than that.

1

Here, Mr. Hewitt was injured while working on a de-energized power line. He claims he

was told by a co-worker that he "shouldn't need" rubber gloves and sleeves. When a co-worker

yelled to him from the ground, he turned in response and accidentally contacted a live power line

with a tie wire held in his hand. The Eighth District held, that the co-worker's off-hand opinion

"amounted to" the "deliberate removal" of an "equipment safety guard," triggering the

presumption of intent that was the basis of a liability in this case. (App. Op. at 18.)

The Eighth District's judgment conflicts with the plain text of the statute, its legislative

history and intent, the structure of the workers' compensation system created under Section 35,

Article II of the Ohio Constitution, the compensation law policies supporting that system, and the

holdings of every other Ohio appellate district to address the scope of R.C. 2745.01(C).

R.C. 2745.01 is a remedy designed to compensate injuries that didn't happen by accident.

Professor Larson says that "what is being tested * * * is not the gravity or depravity of the

employer's conduct, but rather the narrow issue of the intentional versus accidental quality of the

precise event producing the injury." 6 Larson, Larson's Workers'Compensation Law, Section

103.03, at 103-08 (2011).

. It should not be strained to include those acts for which the workers' compensation

system was designed to supply the exclusive remedy - workplace accidents. The judgment

below should be reversed and judgment entered in L.E. Myers' favor as a matter of law.

II. STATEMENT OF THE FACTS

Amicus Curiae COSE adopts by reference the Statement of Facts set forth in Appellant's

Merit Brief.

III. STATEMENT OF INTEREST OFAMICUS CURIAE COSE

The Council of Smaller Enterprises' ("COSE") is the region's largest small business

support organization. COSE boasts more than 15,000 members and is dedicated to advocating

2

on behalf of Ohio's small business community. COSE is recognized both nationally and

throughout Ohio as a respected voice for small business and a leader in attracting business and

commerce to Ohio.

Workplace liability is a key component in an employer's ability to compete in the national

and global marketplace. As such, it is also a critical consideration for companies looking for a

location in which to establish or expand business. COSE's interests in the issues presented in this

case are twofold. First, COSE believes that clear, unambiguous, and consistent definitions of tort

liability for workplace activities, processes and property are essential in creating an even playing

field for industry. Operation of a table saw should have the same consequences in a

woodworking factory as it does on a construction site or in a steel mill. Likewise, operating that

same table saw in Hamilton County should have identical requirements and consequences in

Cuyahoga County.

This is important for two reasons. First, an employer cannot adapt its conduct to liability

standards that vary depending on a court's ad hoc determination about which safety devices are

necessary, given the nature of an employee's occupation. Particularly when, as here, the liability

standard is framed in terms of "intent," that standard must be phrased in a manner that clearly

apprises an employer of his responsibility. Second, only when standards are uniformly applied to

ALL employers is it possible for each to fairly compete.

Additionally, COSE believes that intentional tort liability should be reserved for the most

egregious, quasi-criminal acts, easily distinguishable from lapses in judgment, sloppy work

habits or supervisor distraction. Only by making a clear distinction between intent to injure, and

everything less than that, can companies feel secure in operating and expanding business in

Ohio.

3

IV. ARGUMENT

Proposition of Law No. 1

An "equipment safety guard" under R.C. 2745.01(C) includesonly those devices on a machine that shield an employee frominjury by guarding the point of operation of that machine.

This proposition of law supplies this Court with an opportunity to adopt a bright-line rule

that is consistent with well-established principles of federal OSHA laws contained in several

sections of the Code of Federal Regulations, which define "safety guards" for purposes of the

applicable OSHA regulations. See 29 CFR 1926.303 (Guarding of tools-hand and power); 29

CFR 1917.151 (Machine guarding); 29 CFR 1910.243 (Guarding of portable power tools); 29

CFR 1910.241 (Guarding of hand-held equipment). In each section of the CFR, the definition of

"guarding" is consistent: a device that shields or prevents an operator from coming into contact

with a point of operation of equipment.

Likewise, Ohio courts have consistently found that the term "equipment safety guard"

refers to physical devices that were designed to protect operators from the risk of harm inherent

in the use of machinery and industrial equipment. See Smith v. Inland Paperboard & Packaging,

Inc., Portage App. No. 2008-P-0072, 2009-Ohio-3148, ¶33; Warren v. Libbey Glass, Inc., Lucas

App. No. L-09-1040, 2009-Ohio-6686; Shanklin v. McDonald's USA, LLC, Licking App. No. CA

00074, 2009- Ohio-251. Key in these definitions are the terms "physical devices", "machinery"

and "industrial equipment".

Indeed, personal protective equipment, such as rubber gloves and sleeves at issue here,

have never been considered a "safety guard", much less an "equipment safety guard."

Federal OSHA regulations define and mandate the use of personal protective equipment.

29 CFR 1926.28(a) states: "The employer is responsible for requiring the wearing of appropriate

4

personal protective equipment in all operations where there is an exposure to hazardous

conditions or where this part indicates the need for using such equipment to reduce the hazards to

the employee." 29 CFR 1926.95(a) describes personal protective equipment as protection

equipment for the eyes, face, head and extremities, protective clothing, respiratory devices, and

protective shields and barriers.

Noticeably absent in discussions involving personal protective equipment is the use of the

term "safety guard". Likewise, in defining "guarding" the CFR fails to include any reference to

those items included in the definition of personal protective equipment. In short, law makers

have always distinguished between personal protective equipment on the one hand, and

machine/industrial equipment guarding on the other - adopting different rules for each category

based on the particular risks and benefits posed.

These definitions are important for many reasons, but primarily because employers

charged with abiding by safety regulations must have a common, uniform understanding of the

terms used in statutory and administrative regulations. Otherwise, compliance would be based

on case by case events, the personal interpretations of those charged with enforcement, the whim

or political inclinations ofjudges and the creativity of legal counsel. This is not justice but rather

anarchy. It is dangerous for our judiciary and a death knell to the Ohio business community.

It is therefore this Court's obligation to pronounce to Ohio's administrative agencies, its

trial courts and its appellate courts, a clear, unambiguous definition of "equipment safety guard"

that reflects the common, accepted application of that term, and that is consistent with OSHA

usage. Most importantly, in permitting renegade definitions of specific safety terminology, the

court below facilitates the erosion of our "exclusive" workers' compensaton system of providing

for both employer and employee workplace injury protection in favor of runaway tort litigation.

5

More law suits, more appeals, more conflicting decisions, in sum more chaos.

Proposition of Law No. 2

The "deliberate removal" of such an "equipment safety guard"occurs when an employer makes a deliberate decision to lift,push aside, take off or otherwise eliminate that guard from amachine.

The Eighth District concluded that a journeyman lineman's alleged decision to 1) send

Hewitt "alone and unsupervised" up in an insulated bucket to "work with excessive amounts of

electricity" while 2) advising Hewitt that he "shouldn't need" his rubber gloves and sleeves

"amounted to" the "deliberate removal" of those items. (App. Op. at 17-18.) Even if the panel

were correct in concluding that Hewitt's personal rubber gloves and sleeves are "equipment

safety guards" (and it is not), the judgment below must be reversed because the conduct of a co-

worker does not rise to the level of intent.

A. The Text, Structure and History of R.C. 2745.01 Confirm that"Deliberate Removal" Means a Deliberate Decision to Eliminate AnEquipment Safety Guard.

"Words used by the Ohio General Assembly are to be construed according to their

common usage." Van Fossen v. Babcock & Wilcox Co., 36 Ohio St. 3d 100, 103 (1988). This

means that the reader does not create similes or metaphors for a word, but rather applies only that

meaning which is basic to its understanding.

In this context, "deliberate" is an adjective describing "removal". Merriam Webster

defmes "deliberate", when used as an adjective, as "(1) characterized by or resulting from careful

and thorough consideration; (2) characterized by awareness of the consequences; (3) slow,

unhurried, and steady as though allowing time for decision on each individual action involved."

"Removal" is an action noun with its root in the verb "remove". According to Merriam

Webster, "remove" means "(1) to change the location, position, station, or residence of; (2) to

6

move by lifting, pushing aside, or taking away or off; (3) to get rid of something:

ELIMINATE".

These are the meanings that Ohio lawmakers intended when crafting R.C. 2745.01.

These are also the meanings, the parlance, of Ohio employers and employees. When the

legislature proscribes conduct described as "deliberate removal", those vested with complying

with the term assume it means to actively move or eliminate something.

Because the text, structure, and history of R.C. 2745.01(C) do not support the Eighth

District's holding that Law's alleged statement to Hewitt that he "shouldn't need" his rubber

gloves and sleeves "amounted to" the "deliberate removal" of those items (App. Op. at 17-18,

Appx. 19-20), the Eighth District's judgment should be reversed and judgment entered as a

matter of law in L.E. Myers' favor.

It bears noting that a more recent decision by the Eighth District appears to correct the

Hewitt court's decision, and more accurately reflects the importance of construing R.C. 2745.01

narrowly:

... [W]e cannot ignore the restraints placed on employerintentional tort law. Barring showing of a rebuttable presumptionunder R.C. 2745.01(C), a claim necessarily fails in the absence ofevidence of a specific intent to injure. While the evidence reflectsACW's conduct amounted to a reckless disregard for the safety ofits employees, its conduct did not rise to the level of an employerintentional tort. Meadows, at ¶18

In reaching this conclusion, the Meadows court conducted an extensive analysis

relying on Hubble v. Haviland Plastic Prods. Co., 3d Dist. No 11-10-07, 2010-Ohio-

6379, 2010WL5541117, ¶9 (even where an employer is aware of a dangerous condition

and fails to take action to correct the situation, such conduct does not meet the statutory

requirements without evidence of an actual intent to cause injury); McCarthy v. Sterling

7

Chems, Inc. 193 Ohio App.3d 164, 2011-Ohio-887, 951 N.E.2d 441, ¶14 (failure to

provide protective equipment and the failure to adequately train and supervise do not rise

to the level of a deliberate intent to cause injury); see also Fickle v. Conversion

Technologies Internatl, Inc. 6th Dist. No. WM-10-016, 2011-Ohio-2960, 2011

WL2436750 ¶48; and Roberts v. RtLIB Ents., Inc. 12`h Dist. No. CA2011-03-060, 2011-

Ohio-6223, 2011 WL 6017958 (deficiencies in training, safety procedures, safety equipment,

instructions or warnings ... are insufficient to create a genuine issue of material fact as to

deliberate intent).

These courts understand the vast difference between "intent to injure" and the less

malicious activities of wrecklessness, negligence, distractedness and carelessness. Ohio

employers understand these distinctions as well.

V. CONCLUSION

For all of the above reasons, this Court should reverse the judgment of the Eighth District

and enter judgment as a matter of law in L.E. Myers' favor.

Respectfully submitted,

Crosby [0041483]Licata &'1'oerek '6480 Rockside Woods Blvd. SouthSuite 180Independence, OH 44131216.573.6000216.573.6333 (fax)eac@completecounsel.com

Attorneys forAmicus Curiae COSE

8

CERTIFICATE OF SERVICE/Zl

A copy of the foregoing Merit Brief of Amicus Curiae COSE has been served this ^

day of May, 2012, by U.S. Mail, postage prepaid, upon the following:

Paul W. Flowers Attorney for Plaintiff-AppelleePAUL W. FLOWERS CO., L.P.A. Larry Hewitt50 Public Square, Suite 3500Cleveland, Ohio 44113

Frank L. Gallucci, III Attorneysfor Plaintiff-AppelleeMichael D. Shroge Larry HewittDavid E. Gray, IIPLEVIN & GALLUCCI CO., L.P.A.55 Public Sq., Ste. 2222Cleveland, OH 44113

Benjamin C. SasseMark F. McCarthyTUCKER ELLIS LLP925 Euclid Avenue, Suite 1150Cleveland, OH 44115-1414

Attorneys for Appellant L.E. Myers

Robert A. Minor Attorney for Amicus Curiae Ohio Self-InsurersVORYS, SATER, SEYMOUR Association

AND PEASE LLP42 E. Gay St.P.O. Box 1008Columbus, OH 43216-1008

Preston J. Garvin Attorneys forAmicus Curiae Ohio Chamber ofMichael Hickey CommerceGARVIN & HICKEY, LLC181 E. Livingston Ave.Columbus, OH 43215

Thomas R. Sant Attorney for Amicus Curiae Ohio Chapter ofBRICKER & ECKLER, LLP the National Federation oflndependent100 S. Third St. BusinessColumbus, OH 43215-4291