Tuesday, March 23, 2010

Recent Ohio Supreme Court Decision Now Makes It Legal For Employers To Knowingly Injure Employees

How can a law limiting employers' liability for workplace injuries be declared unconstitutional twice and now be suddenly declared constitutional? This week, The Ohio Supreme Court, in Kaminski v. Metal And Wire Products Inc, upheld a 2005 Ohio law that prohibits injured workers and their families from suing unless the employer deliberately intended to injure its employees. You can read about what some pundits assign as a major reason for the Ohio Supreme Court's recent decison throwing out essentially all workplace injury lawsuits here, but first some examples of the way the law used to be before Kaminski...


Three examples show what kind of evidence was necessary in Ohio to hold an employer liable for certain workplace injuries:

Example No 1: You complain to your boss that the machine you are working on is malfunctioning and you are afraid you'll be injured if you continue working on it. You are told by your boss to get back to work or they'll find someone else to replace you. You return to the machine and it entraps your arm and amputates it two days later.

Example No 2: Two employees are responsible for climbing down a manhole to inspect it. No safety masks are provided to either of them. One climbs down the manhole and is overcome by fumes and is lying motionless at the bottom. The supervisor ties a rope around the second employee, who climbs down the manhole in an affort to tie the rope around the passed out employee and lift him out of the manhole. The second employee is overcome by fumes as well. Both employees die before EMS arrives.

Example No. 3: A laborer is shoveling dirt in a narrow, excavated ditch in order to lay some undergorund pipe. There is no bracing of the walls of the ditch in clear violation of OSHA standards. The walls of the ditch collapse, suffocating the worker to death. This is the second time the employer has allowed a ditch to collapse on a worker due to a lack of safety bracing. The first instance, however, did not result in serious injury.

Before the Kaminski decision, employers in Ohio could be sued for knowingly exposing workers to serious injuries or death or deliberately ignoring safety standards or legitimate employee complaints of workplace hazards. Not any more.

Strangely, the Court in Kaminski bypassed at least four previous Supreme Court cases that held employers liable if they knew with "substantial certainty" that employees would be injured and nevertheless exposed them to workplace dangers. In fact, on two prior occasions, The Supreme Court threw out as unconstitutional previous attempts by The Ohio Legislature to narrow employers' liability to a "deliberate intent to injure the employee" standard.

Not happy with these decisions, The Ohio Legislature, for a third time, passed another "deliberate intent to injure" law in 2005. Apparently not subscribing to the "three strikes and you're out" adage, The Ohio Supreme Court has now curiously upheld this law.


What does the Kaminski decision now mean for workers injured on the job? If the machine or workplace practice in question has a known history of injuries or problems and the employer does nothing, allowing employees to be injured, too bad. If the employer willfully violates workplace safety rules and employees are maimed or killed, that's OK too. No liability for the employer-- period.

What does the new "deliberate intent to injure" standard mean as a practical matter? You can't sue your employer for a workplace injury unless your employer specifically intended to injure you. How drastic is that standard? It's the same proof required to prove a murder or a criminal assault. In other words, unless your supervisor intentionally runs you over with a forklift or deliberately smashes you with a pipe or hammer, you can't sue your employer.

Why was this law passed in 2005? The business community and special interests like The Manufacturers' Association and The Chamber Of Commerce pushed for it as being "good for Ohio businesses." You know, the typical legal "predictibility" and "fairness to businesses" tort reform rhetoric that makes businesses want to flock to Ohio because of these laws, so these groups say. And now, after ruling on two previous occasions that this law was UNCONSTITUTIONAL, The Ohio Supreme Court has done a judicial 180 and blessed it as constitutional.

The Cleveland Plain Dealer said it best with this headline. According to business groups, laws like this one, and business friendly rulings from Ohio courts, are supposed to drive businesses and jobs back to Ohio. I'm sure once word of this decision gets out, businesses and jobs will come pouring in to The Buckeye State (insert sarcasm here). Never mind that injured Ohio workers will have no full recourse against companies that take safety shortcuts. Just another price to pay for making Ohio "attractive for business" I guess.

Meanwhile, we Ohioans keep waiting for all the benefits of Ohio tort reform laws almost a decade old now. You know, the decreased health, auto, and homeowners' insurance premuims we were promised, less businesses leaving Ohio, more businesses coming, and the flood of jobs...waiting...waiting...still waiting...

My headline is a little different: "Welcome To Ohio Inc."

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