State ex rel. Commercial Lovelace Motor Freight, Inc. v. Lancaster

489 N.E.2d 288, 22 Ohio St. 3d 191, 22 Ohio B. 275, 1986 Ohio LEXIS 573

• Court: Ohio Supreme Court
• Decided: February 26, 1986
• Docket: No. 85-649
• Status: Published

Opinions

Per Curiam.

The issue before us, based upon the procedural posture of this case, is whether the commission abused its discretion in finding appellant violated a specific safety requirement.¹ For the attendant reasons, we affirm the judgment below and decline to issue the requested writ.

For this court to grant a writ of mandamus with respect to a decision by the Industrial Commission, it is incumbent upon the relator to demonstrate that the commission committed an abuse of discretion. State, ex rel. Morris, v. Indus. Comm. (1984), 14 Ohio St. 3d 38. An abuse of discretion “implies not merely error of judgment, but perversity of will, passion, prejudice, partiality, or moral delinquency.” State, ex rel. Shafer, v. Ohio Turnpike Comm. (1953), 159 Ohio St. 581,590 [50 O.O.465]. An abuse of discretion will be found only where there exists no evidence upon which the commission could have based its decision. State, ex rel. Morris, v. Indus. Comm., supra, at 39; State, ex rel. GF Business Equip., Inc., v. Indus. Comm. (1981), 66 Ohio St. 2d 446 [20 O.O.3d 379]; State, ex rel. Humble, v. Mark Concepts, Inc. (1979), 60 Ohio St. 2d 77 [14 O.O.3d 275].

The safety requirement in question, Ohio Adm. Code 4121:l-5-13(E)(l) (b) provides, in pertinent part:

“(E) Overhead Protection

“(1) High-lift rider trucks shall have a substantial overhead guard as protection against falling objects, constructed in a manner that does not interfere with visibility. Opening shall not exceed six (6) inches in one of the two dimensions, width or length, and shall extend over the operator under all normal truck operation, including forward tilts.

“(b) Exception

“Where headroom conditions are such that overhead protection cannot be used (such as loading of truck bodies, rail cars, etc.) means of limiting the lift height shall be provided and the load shall not extend above the operator’s head.”

Appellant argues that the tow-motor vehicle used by claimant was in compliance with the exception above, by virtue of its use to unload semitrailer trucks. This contention, however, 'is belied by claimant’s assertion that tow motors had been used successfully prior to the time the overhead protection was removed. Similarly, the staff hearing officer indicated that, in his experience, removal of overhead protection equipment in most if not all instances was neither necessary nor desirable. In contrast, appellant’s vice president, Robert Hamilton, averred that removal of the overhead guards was necessary to give the tow motors clearance to “enter many truck bodies without hitting the tops of trailers and trucks.” The existence of conflicting evidence was sufficient to meet the “some evidence” standard (see, e.g., State, ex rel. GF Business Equip., Inc., supra) and compels us to uphold the commission’s discretionary determination as to the validity of the conflicting evidence. Institutionally, we cannot reweigh the evidence nor can we substitute our own judgment for that of the commission where some evidence exists to support the commission’s determination.

Appellant offers a second argument to support its request for a writ by noting that Ohio Adm. Code 4121:l-5-01(A) indicates that “[ijnstallations or constructions built or contracted for prior to “* * * [August 1, 1977] shall be deemed to comply” (emphasis added) with the Code as long as such installations or constructions complied “with the provisions of any applicable code which was in effect prior to said date.” Since overhead protection on forklifts was not mandated prior to August 1, 1977, appellant argues it should not be penalized by any subsequent administrative provision.

We find this argument unconvincing as did the court of appeals below for two reasons. First, forklift vehicles of the nature in question do not appear to be trade fixtures within the purview of the phrase “installations or constructions.” Second, even if we assume arguendo the tow motors were “installations” or “constructions,” appellant’s assertion of when the tow motor was purchased was not substantiated with any objective specificity, but rather upon claimant’s and co-workers’ estimations of the age of the vehicle. Accordingly, we are compelled to reject this imaginative argument.

For these reasons stated hereinabove we affirm the judgment of the court of appeals and decline to issue the extraordinary writ of mandamus.

Judgment affirmed.

Celebrezze, C.J., Sweeney, Locher, C. Brown and Douglas, JJ., concur. Holmes and Wright, JJ., dissent.

1 Under Ohio law, a claimant must establish the following before an additional award for violation of a specific safety requirement may be granted:

(1) That there exists an applicable and specific safety requirement in effect at the time of the injury; (2) that the employer failed to comply with the requirement; and (3) that the failure to comply was the cause of the injury in question. State, ex rel. Trydle, v. Indus. Comm. (1972), 32 Ohio St. 2d 257 [61 O.O.2d 488]; State, ex rel. Reed, v. Indus. Comm. (1965), 2 Ohio St. 2d 200 [31 O.O.2d 408],

In addition, this court has repeatedly held that safety requirements must be strictly construed in reviewing applications for additional awards. State, ex rel. Whitman, v. Indus. Comm. (1936), 131 Ohio St. 375 [6 O.O. 88]; State, ex rel. Brilliant Electric Sign Co., v. Indus. Comm. (1979), 57 Ohio St. 2d 51 [11 O.O.3d 214],