[Cite as Hewitt v. L.E. Myers Co., 2011-Ohio-5413.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 96138
LARRY HEWITT PLAINTIFF-APPELLEE
vs.
THE L.E. MYERS CO., ET AL. DEFENDANTS-APPELLANTS
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-711717
BEFORE: Kilbane, A.J., Blackmon, J., and Celebrezze, J.
RELEASED AND JOURNALIZED: October 20, 2011 ATTORNEYS FOR APPELLANT
Benjamin C. Sassé Mark F. McCarthy Tucker Ellis & West L.L.P. 1150 Huntington Building 925 Euclid Avenue Cleveland, Ohio 44115
ATTORNEYS FOR APPELLEES
For Larry Hewitt
Frank Gallucci III David E. Gray II Michael D. Schroge Plevin & Gallucci Co., L.P.A. 55 Public Square - Suite 2222 Cleveland, Ohio 44113
Paul W. Flowers Paul W. Flowers Co., L.P.A. Terminal Tower - 35th Floor 50 Public Square Cleveland, Ohio 44113
For Bureau of Workers’ Compensation and Ohio Attorney General
Adam J. Bennett Andrew Cooke & Associates, L.L.C. 243 North Fifth Street - Third Floor Columbus, Ohio 43215 MARY EILEEN KILBANE, A.J.:
{¶ 1} Defendant-appellant, The L.E. Myers Co. (L.E. Myers), appeals from the
trial court’s judgment denying its motion for directed verdict and motion for judgment
notwithstanding the verdict. Finding no merit to the appeal, we affirm.
{¶ 2} The instant appeal arises from a workplace intentional tort action filed by
Larry Hewitt (Hewitt) against L.E. Myers; the Administrator, Bureau of Workers’
Compensation (BWC); and the former Ohio Attorney General, Richard Cordray (OAG).1
Hewitt filed his complaint in December 2009, and was granted leave to amend on April
14, 2010.2
{¶ 3} The amended complaint alleges that in June 2006, Hewitt, a second-step
apprentice lineman for L.E. Myers, was electrically shocked after he was instructed by his
supervisor to work alone in an elevated lift machine (bucket) with energized high-voltage
power equipment and without wearing his protective safety equipment. He alleges his
superiors told him that he did not have to wear his protective rubber gloves and sleeves
while replacing the high-voltage electrical line with a new line. Hewitt claims that
unbeknownst to him, the lines were not all de-energized and he inadvertently contacted an
energized wire. Hewitt alleges L.E. Myers knew with a substantial certainty that he
1The BWC was included in the lawsuit as a result of subrogation rights it asserted and the OAG was included because of constitutional issues relating to R.C. 2721.12. 2 Hewitt previously filed his workplace intentional tort claim against L.E. Myers in June 2008, but then dismissed the case without prejudice in December 2008. would be injured when working alone in an elevated lift machine with live high-voltage
power transmission equipment and without proper safety equipment or training. Hewitt
claims that as a result of this incident, he sustained multiple and permanent injuries,
emotional distress, pain and suffering, and other damages.3
{¶ 4} L.E. Myers moved to dismiss the first amended complaint, or in the
alternative, leave to file a motion for summary judgment. The trial court denied the
motion to dismiss and leave to file a motion for summary judgment. L.E. Myers asked
the trial court to reconsider the denial of its motion for leave to file for summary
judgment. The trial court granted L.E. Myers’ request and L.E. Myers filed its motion
for summary judgment in July 2010. However, L.E. Myers’ motion for summary
judgment was subsequently stricken from the record for failing to comply with the court’s
discovery orders. The matter proceeded to a jury trial, at which the following evidence
was adduced.
{¶ 5} In early 2005, Hewitt enrolled in the American Line Builders
Apprenticeship Training Program (ALBAT). When he completed this program, Hewitt
became certified as an apprentice and began working with L.E. Myers. L.E. Myers hired
Hewitt, through a local union, to assist with the installation of new electrical wires along
Route 60 in New London, Ohio.
3InCount 2, which has not been appealed, Hewitt sought a declaration that R.C. 2745.01 is unconstitutional. {¶ 6} At the time of the incident, Hewitt was a second-step apprentice, which
meant that he was in the early stages of his apprenticeship. At the second step, a person
learns the trade and how to climb utility poles under a journeyman lineman’s supervision.
A second-step apprentice is not certified to work around any voltage greater than 500
volts. There are seven steps in the ALBAT program before an apprentice completes the
apprenticeship program and becomes a lineman.
{¶ 7} On June 14, 2006, Hewitt reported to the New London worksite with his
coworkers. Journeyman lineman Dennis Law (Law) supervised Hewitt that day and
informed Hewitt that he would be replacing the wiring on the poles alone in the bucket
above, while Law directed traffic below. Law testified the crew was short-staffed, so he
was instructed to direct traffic in addition to supervising Hewitt. Law asked Hewitt if he
had a problem working alone in the bucket. Hewitt was nervous and replied, “yeah, I
never been up by myself.” Law told him that he “would be okay.” Hewitt testified Law
then told him that he “shouldn’t need no rubbers [protective gloves] going up to work on
the line” because he would not be working with energized wires. Thus, Hewitt believed
that he was not going to be working with any energized lines that day.
{¶ 8} Hewitt maneuvered his bucket near the wires and removed the neutral wire
wearing his leather gloves. Law was flagging traffic while simultaneously attempting to
supervise Hewitt alone in the bucket 35 feet above. He yelled “hey” to Hewitt, which
caused Hewitt to look over his shoulder. Law intended to tell Hewitt to put on his rubber
gloves. As Hewitt looked back, the tie wire he held in his right hand touched an energized wire, causing him to be electrically shocked. Hewitt then maneuvered himself
to the ground. He tried to pull up his sleeve, but his shirt was stuck to his arm. Hewitt
testified that his arm looked like a burnt cigarette. Hewitt’s burns cover his entire arm,
underneath his underarm, around his shoulder, and onto his back.
{¶ 9} Foreman Julian Cromity (Cromity) testified that on that morning he had a
discussion with crew foreman Steve Dowdy (Dowdy) that it would be good experience
for the apprentices to clip in the wire without wearing their rubber gloves and sleeves
because it was hot that day and the primary line was de-energized. However, Law
testified that he told Hewitt to wear rubber gloves and sleeves and Dowdy told everyone
to wear rubber gloves and sleeves. L.E. Myers District Superintendent Jack Ehle
investigated the incident. Following his investigation, L.E. Myers terminated three
employees: Law, Dowdy, and foreman Jeff Erman (Erman).
{¶ 10} Hewitt filed a workers’ compensation claim that was allowed for a number
of conditions, including secondary burns to the right: forearm, axilla, thumb, and wrist,
third degree burns to the right hand and arm, right median nerve injury, major depression,
moderate posttraumatic stress disorder, and Reflex Sympathetic Dystrophy (RSD) of the
right upper limb.
{¶ 11} At the conclusion of Hewitt’s case, L.E. Myers moved for directed verdict,
raising four issues. L.E. Myers argued it was entitled to judgment as a matter of law with
respect to: (1) liability under R.C. 2745.01; (2) future injury; (3) past non-economic
damages; and (4) punitive damages. The trial court denied L.E. Myers’ motion with respect to future injury, past non-economic damages, and punitive damages. However,
the trial court found that Hewitt failed to prove his case with respect to R.C. 2745.01(A)
and (B). As a result, this limited Hewitt’s theory of recovery to R.C. 2745.01(C). L.E.
Myers did not present any witnesses, and its renewed motion for directed verdict was
denied by the trial court. The jury returned a verdict in Hewitt’s favor, awarding him
$597,785 in compensatory damages. L.E. Myers then moved for judgment
notwithstanding the verdict (JNOV), which the trial court denied.
{¶ 12} L.E. Myers now appeals, raising the following two assignments of error for
review.
ASSIGNMENT OF ERROR ONE
“The trial court erred in denying [L.E. Myers’] motion for directed verdict and JNOV.”
ASSIGNMENT OF ERROR TWO
“In the alternative, L.E. Myers was entitled to partial JNOV on Hewitt’s claim for future damages.”
Standard of Review
{¶ 13} We employ a de novo standard of review when reviewing a motion for
directed verdict and a JNOV because these motions present questions of law and not
factual issues. Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm, 73 Ohio St.3d 107,
108, 1995-Ohio-214, 652 N.E.2d 684; Grau v. Kleinschmidt (1987), 31 Ohio St.3d 84, 90,
509 N.E.2d 399.
Directed Verdict and Judgment Notwithstanding the Verdict {¶ 14} Civ.R. 50 sets forth the standard for granting a motion for a directed verdict
and a motion for JNOV:
“When a motion for directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to each party, the court shall sustain the motion and direct a verdict for the moving party as to that issue. Id. at (A)(4).4
“Whether or not a motion to direct a verdict has been made or overruled * * * a party may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion; or if a verdict was not returned, such party, * * * may move for judgment in accordance with his motion. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative.” Id. at (B).
{¶ 15} In Posin v. A.B.C. Motor Court Hotel, Inc. (1976), 45 Ohio St.2d 271, 275,
344 N.E.2d 334, the Ohio Supreme Court stated:
“The test to be applied by a trial court in ruling on a motion for judgment notwithstanding the verdict is the same test to be applied on a motion for a directed verdict. The evidence adduced at trial and the facts established by admissions in the pleadings and in the record must be construed most strongly in favor of the party against whom the motion is made, and, where there is substantial evidence to support his side of the case, upon which reasonable minds may reach different conclusions, the motion must be denied. Neither the weight of the evidence nor the credibility of the witnesses is for the court’s determination in ruling upon either of the above motions. McNees v. Cincinnati Street Ry. Co. (1949), 152 Ohio St. 269, 89 N.E.2d 138; Ayers
4“The ‘reasonable minds’ test of Civ.R. 50(A)(4) calls upon the court only to determine whether there exists any evidence of substantial probative value in support of that party’s claim.” Ruta v. Breckenridge-Remy Co. (1982), 69 Ohio St.2d 66, 69, 430 N.E.2d 935, citing Hamden Lodge v. Ohio Fuel Gas Co. (1934), 127 Ohio St. 469, 189 N.E. 246. v. Woodard (1957), 166 Ohio St. 138, 140 N.E.2d 401; Civ.R. 50(A) and (B).”
Employer Intentional Tort Statute
{¶ 16} R.C. 2745.01, the employer intentional tort statute, provides in pertinent
part:
“(A) In an action brought against an employer by an employee * * * for damages resulting from an intentional tort committed by the employer during the course of employment, the employer shall not be liable unless the plaintiff proves that the employer committed the tortious act with the intent to injure another or with the belief that the injury was substantially certain to occur.
“(B) As used in this section, ‘substantially certain’ means that an employer acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.
“(C) Deliberate removal by an employer of an equipment safety guard or deliberate misrepresentation of a toxic or hazardous substance creates a rebuttable presumption that the removal or misrepresentation was committed with intent to injure another if an injury or an occupational disease or condition occurs as a direct result.”
{¶ 17} L.E. Myers states that “[t]he sole liability issue in this appeal is whether
Hewitt presented sufficient evidence to trigger the rebuttable presumption of intent to
injure associated with the ‘[d]eliberate removal by an employer of an equipment safety
guard’ where ‘an injury * * * occurs as a direct result.’” However, L.E. Myers had the
opportunity to present evidence to rebut this presumption, but instead rested its case
without presenting any witnesses. {¶ 18} L.E. Myers argues the trial court erred when it found that R.C. 2745.01(C)
“‘doesn’t mean’ that L.E. Myers is entitled to judgment as a matter of law where ‘people
in a supervisory capacity’ instructed Hewitt ‘that the use of rubber gloves and sleeves was
not necessary * * * on that morning.” L.E. Myers claims that the trial court’s
construction is inconsistent with the plain text of the statute. L.E. Myers contends the
phrase “equipment safety guard” applies to items that not only have as their object the
safety of the employee, but are also a part of a piece of equipment. As a result, it claims
that R.C. 2745.01(C) is limited to cases involving the deliberate removal of a safety guard
from equipment.
{¶ 19} L.E. Myers further claims that its interpretation of R.C. 2745.01(C) is
supported by the Ohio Supreme Court’s ruling in Fyffe v. Jeno’s Inc. (1991), 59 Ohio
St.3d 115, 570 N.E.2d 1108. In Fyffe, the court interpreted similar language in former
employer intentional tort statute, R.C. 4121.80(G)(1), which provided that:
“‘[d]eliberate removal by the employer of an equipment safety guard * * * is evidence,
the presumption of which may be rebutted, of an act committed with the intent to injure
another * * *.’” Id. at 119.5 The Fyffe court stated that the “deliberate removal by the
employer of an equipment safety guard” means “that the employer has deliberately
removed a safety guard from equipment which employees are required to operate[.]” Id.
5R.C. 4121.80 was declared unconstitutional by the Ohio Supreme Court in Brady v. Safety-Kleen Corp. (1991), 61 Ohio St.3d 624, 576 N.E.2d 722. {¶ 20} We note that the General Assembly has not provided a definition of
“equipment safety guard” or “deliberate removal” for the purposes of R.C. 2745.01(C).
L.E. Myers would have us construe R.C. 2745.01(C) in a way that limits recovery to
situations only where employees are injured while working with equipment, such as a
machine or press. We decline to do so.
{¶ 21} Had the General Assembly envisioned that the presumption would be
limited to injuries attributable to a “safety guard” that should have been attached to
machinery “which employees are required to operate,” then such terms would have been
included in R.C. 2745.01(C). A reading reveals that these terms are absent from the
statute. If we accept L.E. Myers’ interpretation, then employees who, by the very nature
of their profession, work with equipment other than a machine or press would be barred
from recovery under R.C. 2745.01(C). Hewitt points out this court’s recent decision in
Houdek v. ThyssenKrupp Materials N.A., Inc., Cuyahoga App. No. 95399,
2011-Ohio-1694, where we stated that the “employer tort has not been abolished, but
rather constrained. Whether an employer tort occurs in the workplace depends on the
facts and circumstances of each case.” Id. ¶11. For the following reasons, we find that
there was substantial evidence that L.E. Myers deliberately removed an equipment safety
guard.
{¶ 22} When interpreting a statute, “a court’s paramount concern is the legislative
intent in enacting the statute. In determining legislative intent, the court first looks to the
language in the statute and the purpose to be accomplished. Words used in a statute must be taken in their usual, normal, or customary meaning. It is the duty of the court to give
effect to the words used and not to insert words not used. Where the language of a
statute is plain and unambiguous and conveys a clear and definite meaning, there is no
need to apply rules of statutory interpretation.” (Internal citations and quotations
omitted.) State ex rel. Richard v. Bd. of Trustees of the Police & Firemen’s Disability &
Pension Fund, 69 Ohio St.3d 409, 411-412, 1994-Ohio-126, 632 N.E.2d 1292.
{¶ 23} Furthermore, “[t]he presumption always is, that every word in a statute is
designed to have some effect, and hence the rule that, ‘in putting a construction upon any
statute, every part shall be regarded, and it shall be so expounded, if practicable, as to
give some effect to every part of it.’” Turley v. Turley (1860), 11 Ohio St. 173, 179,
citing Commonwealth v. Alger (Mass.1851), 61 Mass. 53, 7 Cush. 53, 89. (Emphasis in
original.) See, also, R.C. 1.47(B), which provides that: “[i]n enacting a statute, it is
presumed that * * * [t]he entire statute is intended to be effective.”
{¶ 24} We find the recent interpretation of the phrases “deliberate removal” and
“equipment safety guard” by the Sixth District Court of appeals in Fickle v. Conversion
Technologies Intl., Inc., Williams App. No. WM-10-016, 2011-Ohio-2960, instructive.
In Fickle, the plaintiff was injured “when her left hand and arm became caught in the
pinch point of a roller at the rewind end of a Gravure Line adhesive coating machine[,
which is equipped with a ‘jog/continuous’ switch].” Id. at ¶2. The Fickle court relied
on the plain and ordinary meaning of the undefined terms in R.C. 2745.01(C) and found
that: “‘[D]eliberate’ as used in the statute means “‘characterized by or resulting from careful and thorough consideration – a deliberate decision.’” [Forwerck v. Principle Business Ents., Inc., Williams App. No. WD-10-040, 2011-Ohio-489], quoting Merriam-Webster’s Collegiate Dictionary (10 Ed.1996) 305.
“* * *
“‘[R]emove’ is defined in Merriam-Webster’s Collegiate Dictionary (10 Ed.2000) 987 as ‘to move by lifting, pushing aside, or taking away or off’; also ‘to get rid of: ELIMINATE.’” Contrary to the assertions of [the employer], however, this does not mean that a guard must ‘be taken off of the equipment and made unavailable for use for there to be a rebuttable presumption of intent [to injure].’ Removal of a safety guard does not require proof of physical separation from the machine, but may include the act of bypassing, disabling, or rendering inoperable.
“Combining the above definitions, and considering the context in which the phrase is used in the statute, we find that ‘deliberate removal’ for purposes of R.C. 2745.01(C) means a considered decision to take away or off, disable, bypass, or eliminate, or to render inoperable or unavailable for use. Id. at ¶30-32.6
“With respect to ‘equipment safety guard,’ * * * [t]he General Assembly has not manifested any intent to give ‘equipment safety guard’ or its component terms a technical meaning. There is nothing in the statute or the case law that suggests the General Assembly intended to incorporate any of the various equipment-specific or industry-specific definitions of guard appearing throughout the
6In footnote 2, the Fickle court noted “that R.C. 2745.01(C) does not require proof that the employer removed an equipment safety guard with the intent to injure in order for the presumption to arise. The whole point of division (C) is to presume the injurious intent required under divisions (A) and (B). It would be quite anomalous to interpret R.C. 2745.01(C) as requiring proof that the employer acted with the intent to injure in order create a presumption that the employer acted with the intent to injure. Such an interpretation would render division (C) a nullity.” administrative or OSHA regulations, or for any agency or regulatory measure to be considered a definitional source.
“In some cases, courts have given a technical meaning to an undefined term where the statute regulates a specialized industry or field of practice and the term has acquired a technical or particular meaning in that industry or field. See Hoffman v. State Med. Bd. of Ohio, 113 Ohio St.3d 376, 865 N.E.2d 1259, 2007-Ohio-2201, ¶26; State v. Rentex, Inc. (1977), 51 Ohio App.2d 57, 365 N.E.2d 1274, paragraph one of the syllabus. But R.C. 2745.01 is not regulatory in nature and is not directed at the removal of an equipment safety guard in any particular industry or from any particular type of machine. Moreover, the term ‘guard’ has not acquired a particular meaning as a ‘barrier’ under the regulations. Depending on the type of equipment and industry, acceptable methods of ‘guarding’ under the regulations include various devices and mechanisms that do not constitute a physical barrier erected between the employee and the danger, such as two-hand controls, pull-back guards, hold-back guards, inch controls, and electronic eye safety circuits. See, e.g., Ohio Adm.Code 4123:1-5-11(E) and 4123:1-5-10(C); Section 1910.255(b)(4), Title 29, C.F.R.
“In Bishop v. Dayton (Feb. 5, 1990), 2d Dist. No. 11634, Grady, J., concurring, explained that the principle of construing undefined statutory terms according to their generally accepted meaning should be applied in defining “equipment safety guard” under former R.C. 4121.80(G)(1) * * *:
‘The General Assembly has not provided a definition of “equipment safety guard” as that term is used in the statute. A review of the legislative history, staff notes, and Committee Reports, also fail [sic] to provide any guidance or understanding of the meaning of that term. Therefore, it can only be defined according to the common understanding of the meaning of the words used.’
“‘Guard’ is defined as ‘a protective or safety device; specif: a device for protecting a machine part or the operator of a machine.’ Merriam-Webster’s Collegiate Dictionary, supra, at 516. ‘Safety’ means ‘the condition of being safe from undergoing or causing hurt, injury, or loss.’ Id. at 1027, 365 N.E.2d 1274. And ‘equipment’ is defined as ‘the implements used in an operation or activity: APPARATUS.’ Id. at 392, 365 N.E.2d 1274.” Id. at ¶33-38. {¶ 25} The appellants in Fickle argued that the term equipment safety guard is
“‘any device designed to prevent injury or to reduce the seriousness of injury.’” The
court stated it agreed with appellants that a “safety guard” encompasses something more
than an actual physical structure or barrier erected between the employee and the danger,
but did not agree with appellants’ definition. Id. The Fickle court concluded that “as
used in R.C. 2745.01(C), an ‘equipment safety guard’ would be commonly understood to
mean a device that is designed to shield the operator from exposure to or injury by a
dangerous aspect of the equipment.” Id. at ¶43.
{¶ 26} In applying its interpretation of deliberate removal of an equipment safety
guard to the facts of the case, the Fickle court found that under R.C. 2745.01(C), “[t]he
jog control and emergency stop cable * * * were not designed to prevent an operator from
encountering the pinch point on the rewind roller and, therefore, are not equipment safety
guards[.]” Id. at ¶44.
{¶ 27} While we do not agree with the limitation the Fickle court placed on the
definitions to those devices that prevent the worker from physical contact with the
“danger zone” of the machine and its operation, we find the definitions persuasive.
{¶ 28} We note the Sixth District Court of Appeals examined another employer
intentional tort case under R.C. 2745.01(C) in McKinney v. CSP of Ohio, LLC, Wood
App. No. WD-10-070, 2011-Ohio-3116, and found that the appellant, McKinney,
established a rebuttable presumption that the employer removed an equipment safety
guard with the intent to injure. Id. at ¶28. {¶ 29} In McKinney, a coworker of McKinney’s, with over 25 years of experience,
advised her supervisor that the machine press she was assigned to was not working
properly. The supervisor advised the coworker to continue working the press and that he
would call maintenance. However, maintenance never came to check on the machine
press. When her shift ended, the coworker forgot to tell McKinney that the press was not
working properly. McKinney, who recently started working at CSP, was injured shortly
after she began working on the press. Relying on Forwerck and Fickle, the McKinney
court stated that:
“It is undisputed that the press at issue was improperly programmed at the time of [McKinney’s] injury. It is also undisputed that had the press been properly programmed, certain safety devices would have been in place and [McKinney] would not have been injured. To that end, we agree with [McKinney] that the improper programming amounted to the removal of a safety device in that the result was to render the T-stand button and the safety curtains inoperable.
“Given the deposition testimony in this case that a supervisor was notified there was a problem with the press, a complaint he either ignored or did not appreciate the seriousness of, and, given the testimony that the workers were told to keep running the press after the complaint, and given the testimony from [the employer’s] supervisor that ‘none of the right people were present’ to ensure that the two safety measures were on press 5 the night of [McKinney’s] accident, we find that [McKinney] has established a rebuttable presumption that the removal was committed with intent to injure.” Id. at ¶27-28.
{¶ 30} Turning to the instant case, we find that the trial court properly denied L.E.
Myers’ motion for directed verdict and motion for JNOV. Given the definitions above,
we find that the protective rubber gloves and sleeves are equipment safety guards under
R.C. 2745.01(C). The protective rubber gloves and sleeves are equipment designed to be a physical barrier, shielding the operator from exposure to or injury by electrocution (the
danger). By virtue of Hewitt’s profession, these are the equipment safety guards he has
to protect himself while working on energized lines.
{¶ 31} Hewitt, a second-step apprentice, was injured after his supervisor instructed
him to work alone and unsupervised in the bucket, without his safety equipment. Hewitt
did not wear his equipment safety guards because Law told him that he “shouldn’t need
no rubbers going up to work on the line.” Hewitt expressed his concern about working
alone in the bucket, but Law assured him that he would be okay. Cromity confirmed that
he and crew foreman Dowdy discussed that the weather was expected to be hot that day
and made the decision to instruct the apprentices not to wear their rubber gloves and
sleeves since the primary line was de-energized. As a result of this incident, L.E. Myers
terminated three employees, Law, Dowdy, and Erman.
{¶ 32} Moreover, according to ALBAT safety regulations, a second-step
apprentice lineman should not work with greater than 500 volts of electricity and should
not work alone in a bucket. The energized line that Hewitt touched carried
approximately 7,200 volts. Ehle testified the work that Hewitt had been assigned
required him to wear his rubber gloves and sleeves, regardless of the fact that he was
working on de-energized lines because it was possible that the lines could become
energized. He acknowledged that working on primary lines without rubber gloves
“would be like committing suicide.” {¶ 33} In addition, OSHA regulations require “[e]mployees working in areas
where there are potential electrical hazards shall be provided with, and shall use,
electrical protective equipment that is appropriate for the specific parts of the body to be
protected and for the work to be performed.” 29 C.F.R. 1910.335(a)(1)(i).
{¶ 34} Just as in McKinney, in the instant case, L.E. Myers’ actions cannot be
described as reckless. Rather, after thorough consideration, L.E. Myers’ supervisors
made a deliberate decision to place Hewitt in close proximity to energized wires without
wearing protective rubber gloves or sleeves. Their actions amounted to the deliberate
removal of an equipment safety guard when they instructed Hewitt, a second-step
apprentice lineman, not to wear his protective gloves and sleeves and by sending him
alone and unsupervised up in the bucket to work with excessive amounts of electricity,
despite the known safety measures and risks.
{¶ 35} Finally, L.E. Myers had the opportunity to rebut the presumption in
R.C. 2745.01(C), but instead chose not to present any witnesses. When a rebuttable
presumption exists, such presumption prevails until rebutted by evidence to the contrary.
See Biery v. Pennsylvania RR. Co. (1951), 156 Ohio St. 75, 99 N.E.2d 895, paragraph
two of the syllabus (“In an action based on negligence, the presumption exists that each
party was in the exercise of ordinary care and such presumption prevails until rebutted by
evidence to the contrary). See, also, Ferrando v. Auto-Owners Mut. Ins. Co., 98 Ohio
St.3d 186, 2002-Ohio-7217, 781 N.E.2d 927, ¶ 91 (In cases where the insured breaches
the subrogation clause in an underinsured motorist policy, “a presumption of prejudice to the insurer arises, which the insured party bears the burden of presenting evidence to
rebut”). Likewise, under R.C. 2745.01(C), a presumption exists that the deliberate
removal by an employer of an equipment safety guard was committed with intent to injure
another if an injury occurs as a direct result. In the instant case, L.E. Myers failed to
sustain its burden and present evidence to the contrary. Thus, the trial court did not err
when it denied L.E. Myers’ motion for directed verdict and motion for JNOV.
{¶ 36} Accordingly, the first assignment of error is overruled.
Future Damages
{¶ 37} In the alternative, L.E. Myers argues in its second assignment of error that
the trial court erred when it denied its motion for JNOV with respect to Hewitt’s claim for
future damages. L.E. Myers argues the trial court erred when it failed to sever and
deduct from the $597,785 judgment those portions of Hewitt’s award that represented
future economic ($283,500) and non-economic ($15,000) loss. It further argues there
was insufficient evidence as to the permanency of Hewitt’s injuries to send that issue to
the jury. L.E. Myers cites Day v. Gulley (1963), 175 Ohio St. 83, 191 N.E.2d 732, in
support of its argument.
{¶ 38} In Day, the Ohio Supreme Court reviewed the judgment in a personal injury
action and held that:
“[W]here the plaintiff’s injuries are subjective in character and there is no expert medical evidence as to future pain, suffering, permanency of injuries or lasting impairment of health, it is prejudicial error for the trial court to charge the jury in its general instructions that, ‘in determining the amount of damages, the jury should consider the nature and extent of the injuries, whether or not the injuries are in all probability permanent or temporary only; the pain and suffering plaintiff has endured and with reasonable certainty will endure in the future.’” Id. at syllabus.
{¶ 39} The Day court further stated:
“‘[I]f the injury is of an objective nature (such as the loss of an arm, leg, or other member) the jury may draw their conclusions as to future pain and suffering from that fact alone (the permanency of such injury being obvious); whereas there must be expert evidence as to future pain and suffering or permanency where the injury is subjective in character.’” Id. at 86, quoting 115 A.L.R. 1149, 1150.
{¶ 40} In Powell v. Montgomery (1971), 27 Ohio App.2d 112, 119, 272 N.E.2d
906, the Fourth District Court of Appeals interpreted the Day decision to mean that “an
injury is ‘objective’ when, without more, it will provide an evidentiary basis for a jury to
conclude with reasonable certainty that future damages, such as medical expenses will
probably result.” Id., citing Spargur v. Dayton Power & Light Co. [1959], 109 Ohio
App. 37, 163 N.E.2d 786; see, also, Hammerschmidt v. Mignogna (1996), 115 Ohio
App.3d 276, 281-282, 685 N.E.2d 281 (where this court held “[a]n award of future
damages is limited to damages reasonably certain to occur from the injuries”).
{¶ 41} L.E. Myers contends the injury due to RSD was subjective in nature and
there was no expert medical testimony establishing that the pain experienced by Hewitt
was permanent in nature or would continue in the future. We disagree.
{¶ 42} In the instant case, Hewitt submitted evidence that RSD is an “objective”
injury. Doctor Kevin Trangle, M.D. (Dr. Trangle) testified that he is board certified in
internal, occupational, environmental, and preventative medicine. The majority of his
practice is focused on work-related injuries. We note that L.E. Myers initially retained Dr. Trangle to examine Hewitt, but later he testified as an expert witness for Hewitt. He
confirmed that the BWC allowed claims for: secondary burns to the right forearm, axilla,
thumb, and wrist, third degree burns to the right hand and arm, right median nerve injury,
major depression, moderate posttraumatic stress disorder, and RSD.
{¶ 43} Dr. Trangle examined Hewitt in September 2008. He testified that he
based his diagnosis on his examination of Hewitt and several medical criteria, in
conjunction with the 32 records and reports he reviewed for the evaluation, which
included injury reports, BWC records, medical records, psychological records,
occupational therapy records, and work ability reports.
{¶ 44} Dr. Trangle testified that Hewitt had very dark, thick skin covering his
entire right arm, from his wrist to his underarm. The coloration of Hewitt’s skin resulted
from the burn scarring. Dr. Trangle determined with an objective degree of medical
certainty that Hewitt suffers from RSD as a result of touching the energized wire. He
testified that RSD is caused by a break in the “feedback loop” from the nerves at the
injury to the spinal cord causing people to stop using their extremity. Over time, people
with RSD suffer from changes in skin color, definition, and elasticity, swelling, and
atrophy. In addition, the victim can suffer intractable pain, which “doesn’t respond
easily to medication or other methods of treatment.”
{¶ 45} Hewitt suffered injuries to his right hand, wrist, arm, and underarm in the
form of burn scarring and limited mobility, with the permanency of those injuries being
obvious. Furthermore, expert testimony from Dr. Trangle established the objective nature of Hewitt’s injuries. Thus, Hewitt provided an evidentiary basis for a jury to
conclude with reasonable certainty that future damages will probably result.
{¶ 46} Based on the foregoing, we are unpersuaded that the trial court erred in
allowing Hewitt’s claim for future damages to go to the jury and in refusing to grant a
JNOV on the issue of future damages.
{¶ 47} Thus, the second assignment of error is overruled.
{¶ 48} Accordingly, judgment is affirmed.
It is ordered that appellee recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE PATRICIA A. BLACKMON, J., and FRANK D. CELEBREZZE, JR., J., CONCUR