Monday, January 10, 2011

Cuyahoga County Jury Bucks Ohio's Employer Intentional Tort Statute

On December 7, 2010, The L.E. Myers Company, an Illinois-based employer specializing in installation of transmission lines, appealed the decision of a Cuyahoga County jury who awarded almost $600,000.00 in damages to a company employee who was electrocuted while on the job.  The award represents the jury's disregard of a statute the Ohio Legislature enacted in 2005 and the Supreme Court of Ohio's upholding of that statute as constitutional in 2010. 
Article II, Section 35 of the Ohio Constitution provides for a state-run workers' compensation program mandatory for Ohio employers in order to compensate employees for injuries, occupational diseases, or death resulting from certain workplace accidents or hazards.  In return for participation in this mandatory program, Ohio employers yield the benefit of protection from certain lawsuits.  The Constitution states, "Such compensation shall be in lieu of all other rights to compensation, or damages, for such death, injuries, or occupational disease, and any employer who pays the premium or compensation provided by law, passed in accordance herewith, shall not be liable to respond in damages at common law or by statute for such death, injuries or occupational disease."  The workers’ compensation program is a trade-off, so to speak, of speedy relief for injured workers in return for limited liability for employers in the court system.
Ohio courts and the legislature have been doing a clumsy dance for the few decades trying to nail down the circumstances under which an employer would be exposed to civil litigation for damages above and beyond the compensation and benefits awarded within the workers' compensation system.  The Legislature has enacted several different "intentional tort" statutes which reflect the spirit of the Constitutional limitations on employers' civil liabilities only to be shot down by the Supreme Court, who in turn finds some fatal flaw in each version of the intentional tort statute.  Until 2010, that is. 
On March 23, 2010, the Ohio Supreme Court, in "sister" decisions regarding the constitutionality of the Legislature's latest version of the employers intentional tort statute O.R.C. 2745.01, finally found a statute they could live with.  In a final bow ending the awkward dance, the Court nodded satisfaction that the 2005 statute, trimmed of its earlier cancerous appendages, had passed the test.  You can view the two decisions here and here
Key portions of this brief statute require that an injured employee prove that the employer caused the injury or hazard with the intent to injure or with the belief that injury was substantially certain to occur.  Further, the statute clarifies "substantially certain" to mean that the employer deliberately intended to cause an employee to suffer an injury, disease, or death.  It does not take a law degree to glean from reading 2745.01 that it would be the very rare occasion indeed that would give rise to successful litigation that meets this standard.  An employer who acts in a negligent fashion would not suffer the consequences of 2745.01.  An employer would have to mean for an employee to get injured or die in order for there to be liability for damages outside of the workers' compensation framework. 
Yet, even after years of back and forth between the Legislature and the Court, an eight person jury of lay people, in deciding the matter of Larry Hewitt v. L.E. Myers Co., took that painfully crafted statute and chucked it out the window. 
Mr. Hewitt was working as an apprentice lineman when he hit a wire, causing electrical burns and nerve damage.  The injured worker's attorneys alleged that his safety was ignored by allowing him to be in a lift bucket without a supervisor and to work near lines that carried in excess of 500 volts. More important, it was the employer's instruction to apprentices to wear leather gloves rather than rubber gloves that the jury believed was the required  "deliberate intent" to injure Mr. Hewitt.  (See source here.)
Was it stupid for L.E. Myers Co. to instruct apprentices to wear leather rather than rubber gloves?  Certainly.  Was it negligent?  Probably was.  But for a jury to contend that the company deliberately intended for this to happen is stretching what is a reasonable conclusion way too far. 
Mr. Hewitt, pending the outcome of the appeals process, gets double recovery from his employer:  once through his workers' compensation claim and once through his lawsuit.  Isn't that just what the Article II, Section 35 seeks to prevent?
This verdict puts employers and insurance companies in a panic, for the protection they’ve enjoyed in return for paying into an expensive workers’ compensation system seems for naught.  To be certain, L.E. Myers Co.’s appeal will be closely followed with amici curiae briefs abound.
Check back with Dawson Disantis & Myers LLC as we follow this case through the Eighth Circuit Court of Appeals.