In Seaton v. City of Willoughby, 2018-Ohio-77, an employee of the City of Willoughby, who was an operator of an asphalt roller, died while working on a paving project to patch potholes. While parked on a hill, the asphalt roller unexpectedly began to roll down a hill, causing the employee to jump off the roller. The employee hit his head and he subsequently died from his injuries. The administrator of his estate filed a wrongful death action.
The city filed a motion for summary judgment on the basis that it had immunity under R.C. 4123.74 as to survivorship and wrongful death claims. The trial court denied the motion on the ground there was a question of fact as to whether the city deliberately removed a safety guard from the asphalt roller under R.C. 2745.01. The city appealed to the 9th district court of appeals alleging the trial court erred when it denied the city immunity under R.C. 4123.74.
During discovery, it was determined the city had modified the emergency parking brake of the roller. Expert opinions disagreed whether making alterations would make the parking brake inoperable. The City maintained it should be immune from an intentional tort action because there was no evidence the City deliberately removed or disabled the emergency parking brake. The Court of Appeals noted a large amount of evidence from the trial court that the city did modify the emergency parking brake.
Under R.C. 2745.01, an employer is liable for an intentional tort for the deliberate removal of an equipment safety guard. An equipment safety guard means “a device designed to shield the operator from exposure to or injury by a dangerous aspect of the equipment.” Further, “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.” On appeal, the City did not challenge whether the emergency parking brake was, by definition, an equipment safety guard. Ultimately, the court of appeals found there was a question of fact whether the City deliberately disabled the parking brake.
It appears the court of appeals lost its way by shifting the issue from immunity to liability under the intentional tort statute. In addition, it is questionable whether modification of a parking brake amounts to removal of an equipment safety guard as contemplated by the intentional tort statute. The court of appeals’ decision seems inconsistent with the Ohio Supreme Court’s holding in Pixley v. Pro-Pak Industries, 142 Ohio St.3d 203, 2013-Ohio-0797. The city appealed to the Supreme Court. However, the Supreme Court declined jurisdiction over the appeal.