Oral Argument Preview: Yep. Still More on the Employer Intentional Tort. Larry Hewitt v. The L.E. Myers Co., et al.

Update: On November 20, 2012, the Supreme Court handed down a merit decision in this case. Read the analysis here.

Read the analysis of the oral argument in this case here.

On September 25, 2012, the Supreme Court of Ohio will hear oral argument in the case of Larry Hewitt v. The L.E. Myers Co. et al., 2011-2013. This is yet another statutory construction case in the contentious arena of R.C.2745.01, the employer intentional tort statute. Under subsection (C) of that statute, the deliberate removal of an equipment safety guard by an employer creates a rebuttable presumption that the removal was done with the intent to injure. The case will be argued at Case Western Reserve University in Cleveland as part of the Court’s off-site program.


The main issues on appeal in this case are (1) what constitutes an “equipment safety guard” for the purposes of R.C. 2745.01, and (2) what actions and decisions on the part of an employer constitute “deliberate removal” under the same provision.


Larry Hewitt, an apprentice assigned to help linemen install new electrical wires, was injured while working on a de-energized power line for L.E. Myers, an electrical utility construction contractor. Hewitt turned in response to a safety warning yelled from the ground and accidentally contacted a live power line with a tie wire held in his hand. He was electrocuted by the energized wires, and suffered severe burns to his right arm and torso. Although it was L.E. Myers’ policy to require electrical workers to wear rubber gloves and sleeves, Hewitt alleges that on the day of the accident he was told by a co-worker that he “shouldn’t need” the gloves and sleeves for the job at hand. After receiving workers’ compensation benefits and settling a VSSR claim, Hewitt filed suit against L.E. Myers for an employer intentional tort. The jury awarded Hewitt $597,785. The trial court denied L.E. Myers’ motions for a directed verdict and a judgment notwithstanding the verdict.

Appellate Decision

The Eighth District Court of Appeals affirmed, holding that the presumption of intent should be interpreted broadly to apply to every employee using any equipment that may shield against exposure to any workplace danger. The Appeals Court held that that the protective rubber gloves and sleeves are equipment safety guards under R.C. 2745.01(C) and found there was substantial evidence to support the jury’s verdict. The appeals court noted that L.E. Myers had the opportunity to rebut the presumption in R.C. 2745.01(C), but chose not to present any witnesses.

L.E. Myers’ Arguments

On appeal to the Supreme Court of Ohio, L.E. Myers argues that the lower court’s judgment conflicts with the plain text of the statute and its legislative history. L.E. Myers encourages the Court to hold that an “equipment safety guard” includes only those devices attached to a machine that shield an employee from injury by guarding the point of operation of that machine. Under such a rule, the gloves that Hewitt declined to wear would not constitute “equipment safety guards.”

Additionally, L.E. Myers urges the Court to find that the “deliberate removal” of such a safety guard occurs only when an employer makes a deliberate decision to lift, push aside, take off, or otherwise eliminate that guard from a machine. The Eighth District’s holding that a co-worker’s statement to Hewitt that he shouldn’t need his rubber gloves and sleeves amount to the “deliberate removal” of those items was incorrect, as was its finding that those items were equipment safety guards.

Hewitt’s Arguments

Hewitt argues that to find for the appellant, the Court would be engaging in improper judicial re-writing of a statute: a task reserved for the legislative branch. Hewitt maintains that the plain language of the statute requires a finding – as the lower courts affirmed – that the rubber gloves and sleeves constitute “equipment” under the statute and that L.E. Myers effectively removed a critical safety component. Interpreting the plain language of the text, jurors could justifiably find, too, that L.E. Myers’ management effectively “removed” Hewitt’s access to such equipment. Hewitt urges the Court to leave the jury verdict undisturbed.

Several Amici appear in this case; on behalf of L.E. Myers, the American Insurance Association, First Energy Corp., and the Ohio Chamber of Commerce, – among others – filed briefs urging the Court to reverse the Eighth District. These Amici argue that the kind of uncertainty created by the lower courts’ ruling for businesses, workers, and the court system leaves employees and employers both without an objective standard for determining when an intentional workplace tort had occurred and warn that the slippery slope created by the Court of Appeals will pull more cases into the court.

On behalf of Hewitt, the Ohio Association for Justice filed an Amicus Curiae brief. The OAJ urges the Supreme Court of Ohio to affirm the Eighth District Court of Appeals’ ruling based on the plain and ordinary meaning of the language of the statute, in the interest of allowing redress for victims of such accidents. OAJ also argues that L.E. Myers’ reliance on Fickle is misplaced, as that appeals court decision has broadened its view of what is considered an equipment safety guard.

L.E. Myers’ Proposed Propositions of Law

  1. An “equipment safety guard” under R.C. 2745.01(C) includes only those devices on a machine that shield an employee from injury by guarding the point of operation of that machine.

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 a machine.

Key Precedents

Fyffe v. Jeno’s, Inc. 59 Ohio St. 3d 115, 570 N.E. 2d 1108 (1991)

L. E. Myers argues that under the predecessor to the current statute, the Court held that equipment safety guard means a safety device affixed to a machine.

Fickle v. Conversion Techs. Int’l, Inc.,2011-Ohio-2960 (6t Dist.) The presumption of intent to injure in an employer intentional tort case was not applicable where the emergency stop cable was not deliberately removed from the equipment but was merely disconnected. “Equipment safety guard” includes only “those devices that prevent the worker from physical contact with the `danger zone’ of the machine and its operation.” L.E. Myers sought a conflict certification with this case, which was denied.

Student Contributor: Elizabeth Chesnut