Shelton v. Industrial Commission

• Decision Date: 20 April 1976
• Citation: 51 Ohio App.2d 125,367 N.E.2d 51
• Parties: , 5 O.O.3d 286 SHELTON et al., Appellants, v. INDUSTRIAL COMMISSION of Ohio et al., Appellees. *
• Court: Ohio Court of Appeals

Page 125

51 Ohio App.2d 125

367 N.E.2d 51, 5 O.O.3d 286

SHELTON et al., Appellants, v. INDUSTRIAL COMMISSION of Ohio et al., Appellees. ^*

Court of Appeals of Ohio, Tenth District, Franklin County.

April 20, 1976.

Syllabus by the Court

There is no cause of action against the state in the Court of Claims for the negligent failure of a state agency to inspect places of business or boilers and to enforce safety standards.

O'Brien & Bauer, Findlay, for appellants.

William J. Brown, Atty. Gen., and Gene W. Holliker, Columbus, for appellees.

McCORMAC, Judge.

On March 14, 1975, appellants, Glen E. and Barbara E. Shelton, filed a complaint in the Court of Claims against the Bureau for the Prevention of Industrial Accidents and Diseases of the Industrial Commission of Ohio, the Industrial Commission of Ohio, the Division of Boiler Inspection and the Division of Workshops and Factories, alleging that these state agencies were negligent in the performance of their statutory duties to make various inspections and investigations. Appellants alleged that as a result of the negligence of appellees an inherently dangerous condition was permitted to exist at the Northern Ohio Sugar Company, a sugar processing plant where appellant Glen E. Shelton worked, and that defendants knew or should have known of the inherently dangerous condition. Appellants allege that as a result thereof an accident occurred, apparently an explosion of a boiler, rendering Glen E. Shelton blind, burning him over ninety per cent of his body and totally disabling him. The demand was for damages in the sum of $3,500,000. Appellees filed a motion to dismiss for a failure to state a claim upon which relief could be granted.

The Court of Claims entered judgment in favor of the appellees, holding that the state agencies involved did not owe a duty of care to appellants sufficient to give rise to a claim for negligence. Appellants have filed a timely notice of appeal, setting forth the following assignments of error:

"1. To sustain a motion to dismiss for failure to state a claim under Ohio Rules of Civil Procedure Rule 12(B)(6) there must be on the face of the complaint no set of facts which might permit recovery for the plaintiff.

"2. The state of Ohio has waived immunity from suit for governmental functions requiring the exercise of discretion.

"3. Even if the state of Ohio has not waived immunity from suit for governmental functions requiring the exercise of discretion, the acts complained of herein do not fall within the scope of such exception.

"4. The defendant-appellee state agencies in this case owed a legal duty to the plaintiffs-appellants sufficient to state a cause of action for negligence."

The assignments of error will be discussed together as they are interrelated.

Plaintiffs' claim is based on an alleged breach of duty on the part of various governmental agencies to perform statutory duties of inspection of places of employment, boilers, etc., and enforcement of safety standards for the protection of an employee who works at that place.

Examples of statutes setting forth duties of the agencies who are named as defendants are listed below.

R.C. 4123.17 provides, in relation to the duties of the Bureau for the Prevention of Industrial Accidents and Diseases, in relevant part, as follows:

" * * * The superintendent of the bureau for the prevention of industrial accidents and diseases, under the direction of the commission, shall conduct investigations and researches for the prevention of industrial accidents and diseases, and shall print and distribute such information as may be of benefit to employers and employees. * * * "

As such relate to the Industrial Commission, the following duties are set forth in R.C. 4121.13, as follows:

"(A) Investigate, ascertain, and declare and prescribe what hours of labor, safety devices, safeguards, or other means or methods of protection are best adapted to render the employees of every employment and place of employment and frequenters of every place of employment safe, and to protect their welfare as required by law or lawful orders * * *

"(B) Ascertain and fix such reasonable standards and prescribe, modify, and enforce such reasonable orders for the adoption of safety devices, safeguards, and other means or methods of protection to be as nearly uniform as possible as may be necessary to carry out all laws and lawful orders relative to the protection of the life, health, safety, and welfare of employees in employments and places of employment or frequenters of places of employment;

"(C) Ascertain, fix, and order such reasonable standards for the construction, repair, and maintenance of places of employment as shall render them safe * * *."

As defined in R.C. 4121.01, "place of employment" is an expansive term which includes almost every conceivable place of business, commerce or employment in the state.

The Division of Boiler Inspection has the statutory duty to inspect all power boilers, high pressure boilers and low pressure boilers. R.C. 4104.11.

The Division of Workshops and Factories has the duty of inspecting as follows:

R.C. 4107.06:

" * * * (T)he sanitary conditions, system of sewerage, situation and condition of water closets, system of heating, lighting, and ventilating rooms where persons are employed at labor, and the means of exit in case of fire or other disaster, within or connected with such shops or factories. He shall examine the belting, shafting, gearing, drums, and machinery in and about such shops and factories, and see that they are not so located as to be dangerous to employees when engaged in their ordinary duties, and, so far as practicable, securely guarded. He shall see that each vat, pan, or structure filled with molten metal or hot liquid is surrounded by proper safeguards for preventing accident or injury to persons employed at or near them."

In summary, the defendant agencies are given broad responsibilities for inspection and establishment of safety standards relating to virtually every place where business, commerce or employment is carried on in the state. Appellants' contention is that a breach of these duties, either by a failure to inspect or prescribe acceptable safety standards, or in failing to ascertain or correct unsafe conditions which result in injury to an employee such as Glen E. Shelton, makes the state liable for those injuries. In this particular case, the state has been sued for $3,500,000 for very tragic injuries to an employee who was injured apparently through a boiler explosion. If the General Assembly has clearly provided for liability for the failure of the defendant agencies to effectively carry out statutory duties of inspection and promulgation of safety duties, a claim is stated, notwithstanding...