Injured by Unsafe Equipment at Work: Why Ohio's Intentional-Tort Law Is So Narrow After Pixley v. Pro-Pak

Published December 29, 2014 · Ohio Supreme Court

Phillip Pixley was a maintenance worker at a Toledo packaging plant. On July 2, 2008, he knelt beside a conveyor line to write down a part number for a broken motor. A co-worker started a transfer car from its rear control station, could not see over the load, and drove it into Mr. Pixley, pinning his leg against the conveyor. The car's safety bumper, which was supposed to cut the power on impact, did not stop it. His right leg was stripped of skin and tissue from knee to ankle, with broken and chipped bones. On December 18, the Ohio Supreme Court held that he cannot sue his employer. The decision is a hard one, and every injured worker in Ohio should understand what it means and what it does not.

The law: workers' compensation, with one narrow exception

Ohio's workers' compensation system pays an injured employee's medical bills and partial wages regardless of fault, and in return bars most lawsuits against the employer. The one exception is the "employer intentional tort," a claim that the employer did not merely act carelessly but intended to hurt the worker.

In 2005 the General Assembly rewrote that exception in R.C. 2745.01. Under division (A), the employer is not liable unless the worker proves the employer acted "with the intent to injure another or with the belief that the injury was substantially certain to occur." Division (B) then defines "substantially certain" to mean the employer acted with "deliberate intent" to cause the injury. The Supreme Court upheld that statute in 2010, as we explained in our post on Ohio's employer intentional-tort law, and it has been applying it strictly ever since.

Division (C) is the one lifeline the statute gives workers. It says that the "deliberate removal by an employer of an equipment safety guard" creates a rebuttable presumption that the employer intended to injure, if an injury results. The idea is sensible: an employer that strips the guard off a machine and sends workers to run it should not be heard to say it did not mean for anyone to get hurt.

What the Court held in Pixley

Mr. Pixley's case turned on division (C). His lawyers retained two engineering experts who reviewed OSHA's video of the transfer car taken the day after the injury. The video showed the safety bumper dragging on the floor and partially collapsing without stopping the car. The experts concluded that the only way the bumper could compress that far without cutting power was if the proximity switch had been deliberately bypassed. The Sixth District Court of Appeals held that was enough to create a jury question and reversed summary judgment for the employer.

The Supreme Court reversed, 5-2, in Pixley v. Pro-Pak Industries, Inc., 2014-Ohio-5460. The majority applied its 2012 definition: "deliberate removal" of a safety guard occurs when the employer makes a deliberate decision to lift, push aside, take off, or otherwise eliminate the guard. The failure of a guard, by itself, is not evidence that the employer removed it. The Court found no physical or scientific evidence of tampering, no testimony that anyone at Pro-Pak decided to disable the bumper, and testimony from the installer and the plant's maintenance manager that the bumper could compress several inches before tripping and still worked when dragging. A maintenance technician testified the only way to disable it was with a jumper wire, and there was no evidence that had ever been done. With no evidence of deliberate removal, the presumption never arose, and without the presumption Mr. Pixley could not prove deliberate intent to injure. Summary judgment for the employer was reinstated.

Two justices dissented. Justice O'Neill wrote that there was conflicting expert evidence on a material fact and that resolving it against the worker at the summary-judgment stage invaded the jury's role. Justice Pfeifer would have held that division (C) protects any employee injured by a removed guard, not only the machine's operator. The majority expressly declined to decide that question.

What "deliberate removal" evidence looks like

We will not pretend this decision is anything but bad for injured workers. A man lost the use of a leg because a safety device failed to do its job, and the law says that unless he can prove his employer chose to disable it, he is limited to workers' compensation. The practical lesson is about evidence, and it needs to be gathered immediately after a machine injury.

• Physical evidence of tampering. Jumper wires, bypassed interlocks, removed guards sitting on a shelf, zip-tied switches, and modified controls. The machine must be inspected and photographed before the employer repairs or "tests" it, as Pro-Pak did the same day.
• Decisions, not accidents. Testimony or documents showing that a supervisor ordered a guard removed, told workers to run a machine with a guard off, or ignored a known bypass to keep production moving. Work orders, maintenance logs, and prior OSHA citations are where this lives.
• Co-worker witnesses. Employees who saw the guard removed or know who removed it and why. Memories fade and employment pressures mount, so statements must be taken early.

Without this kind of proof, a safety-device failure is a workers' compensation case and nothing more.

The paths that remain

The employer is rarely the only party responsible for a machine injury, and the intentional-tort statute protects only the employer.

Third-party claims. The manufacturer of the transfer car, the company that installed or serviced it, the maker of a defective proximity switch, or an outside contractor whose work contributed to the injury can be sued for ordinary negligence or product defect, with full damages for pain and suffering and lost earnings. Workers' compensation does not bar those claims, though the BWC will assert its subrogation lien against the recovery, as we explained in our post on work-vehicle crashes and third-party claims. In a serious equipment injury, the third-party claim is often the only route to full compensation.

Workers' compensation itself. The claim should be pursued aggressively, including applications for permanent partial and, where warranted, permanent total disability, and a violation-of-specific-safety-requirement award, which increases compensation when the employer violated a specific safety rule.

Public employers. For workers employed by a city, county, or other political subdivision, the Supreme Court held last year in Vacha v. North Ridgeville that an intentional-tort claim is not barred by governmental immunity, which we covered in our post on public employees and intentional torts. The Pixley standard still applies to the merits.

What this means for you

If you were hurt by a machine at work, the clock on the evidence starts the moment the injury happens. Employers repair, retest, and sometimes replace equipment within hours. OSHA investigates quickly and its records are obtainable, but the agency's photographs will not capture a jumper wire that was pulled before the inspector arrived. Before you assume the only remedy is workers' compensation, have a lawyer evaluate whether there is evidence of deliberate removal and, more often, whether a manufacturer or contractor shares responsibility. Learn more about how we handle serious injury claims.