Burden of Proof of Remains High to Establish Presumption of Intentional Tort
Last month, the Ohio Supreme Court held in Pixley v. Pro-Pak Industries, 2014-Ohio-5460, that an intentional tort claim will fail if there is no evidence the employer deliberately removed an equip-ment safety guard. Under R.C. 2745.01(C), there is a rebuttable presumption that the employer acted with the intent to injure an-other if an injury occurs as a direct result of the deliberate removal of an equipment safety guard.
Pixley, a maintenance worker, suffered a severe degloving injury to his right leg. As he was kneeling in the path of a transfer car, Pixley’s leg was pinned between the end of a conveyor line and the car. The safety bumper did not stop the car. After realizing he had struck Pixley, the operator manually stopped the car. Post-accident tests revealed the safety bumpers functioned properly. Pixley filed an intentional tort action against Pro-Pak, alleging Pro-Pak deliberately bypassed the safety bumper, thereby causing Pixley’s injury.
In the trial court, Pro-Pak filed for summary judgment on the ground there was no evidence the company deliberately removed an equipment safety guard or otherwise intentionally injured Pixley. Pixley submitted affidavits of two experts who opined the proximity switch in the safety bumper had been deliberately bypassed causing the safety bumper to be inoperable. The trial court granted summary judgment finding no evidence Pro-Pak had specific intent to harm Pixley or that Pro-Pak deliberately removed an equipment safety guard.
The court of appeals reversed. Relying on expert affida-vits, the court of appeals held there was a question of fact whether Pro-Pak deliberately removed an equip-ment safety guard. The court also held an “equipment safety guard” is a device designed to shield not only the operator, but also any employee from exposure to or in-jury by a dangerous aspect of the equipment. The Ohio Supreme Court accepted Pro-Pak’s discretionary appeal.
Ohio Supreme Court
Pro-Pak’s appeal to the Supreme Court garnered significant interest from both employer and plaintiff advocacy groups. The Ohio Chamber of Commerce, Ohio Self-Insurers Association, Ohio Association of Claimant’s Counsel, and Ohio Association for Justice were among the groups filing “friends of the court” briefs.
On December 18, 2014, the Supreme Court issued its decision reversing the court of ap-peals. The Court held Pixley failed to establish his intentional tort claim because he provided no evidence Pro-Pak deliberately removed an equipment safety guard on the transfer car. Although the experts concluded the proximity switch in the safety bumper must have been bypassed, there was no evidence that Pro-Pak bypassed the switch. Because Pixley failed to establish Pro-Pak deliberately removed an equipment safety guard, the Court found it un-necessary to address whether an equipment safety guard is designed to protect only the op-erator, as opposed to all employees, for purposes of the rebuttable presumption under the statute.
On December 29, 2014, Pixley moved the Court for reconsideration. The Court rarely grants motions for reconsideration because the motion must show an obvious error in the court’s decision or raise a new issue that was not considered by the Court.
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Independent Contractor Status Determined by Common Law Test
The 10th District Court of Appeals held that inde-pendent contractor status in workers’ com-pensation claims should be determined by the common law test in non-construction cases. In State ex rel. Ugicom Ents., Inc. v. Buehrer, 2014-Ohio-4942, a company, which provided cable installation had classified its cable line installers as independent contractors and paid premiums to the Bureau accordingly. Pursu-ant to the Bureau audit, the Bureau deter-mined the installers were employees and ret-roactively assessed premiums to the compa-ny in the amount of almost $350,000. The Bureau utilized the 20 factor independent contractor test set forth in R.C. 4123.01(A)(1)(c), which applies to construction work. The employer’s protest to the Bureau was denied, causing the employer to file a mandamus ac-tion in the court of appeals.
The court of appeals determined R.C. 4123.01(A)(1)(c) applies only to construction contracts. The court wrote: “if the General Assembly had intend-ed for the twenty factor test to apply to or be considered in non-construction type cases, the legislature would not have limited the ap-plication of R.C. 4123.01(A)(1)(c) solely to construction contracts.” Because the statute is inapplicable to non-construction cases, the court held the proper test is the common law control test, which weighs who controls the means and manner of the work.
Ugicom is an important case for state fund employers in premium disputes before the Bureau, as well as all employers challenging the employer/employee relationship in claim allowances before the Industrial Commission. Generally, the Commission has followed the 20 factor test in R.C. 4123.01(A)(1)(c). If you have any questions regarding independent contractor status in workers’ compensation matters, please contact a workers’ compensa-tion attorney in our office by clicking here.