State ex rel. Brilliant Elec. Sign Co. v. Industrial Commission

• Decision Date: 14 March 1979
• Docket Number: No. 78-740,78-740
• Citation: 11 O.O.3d 214,57 Ohio St.2d 51,386 N.E.2d 1107
• Parties: , 11 O.O.3d 214 The STATE ex rel. BRILLIANT ELECTRIC SIGN COMPANY, Appellant, v. INDUSTRIAL COMMISSION of Ohio et al., Appellees.
• Court: Ohio Supreme Court

Page 51

57 Ohio St.2d 51

386 N.E.2d 1107, 11 O.O.3d 214

The STATE ex rel. BRILLIANT ELECTRIC SIGN COMPANY, Appellant, v. INDUSTRIAL COMMISSION of Ohio et al., Appellees.

No. 78-740.

Supreme Court of Ohio.

March 14, 1979.

This cause arises out of an action in mandamus originating in the Court of Appeals and instituted by relator, Brilliant Electric Sign Company.

On September 6, 1972, Stanley Kuzma, an employee of relator and husband of claimant, Joy Ann Kuzma, was engaged, in the course of his employment, in erecting and washing a sign being installed by relator. After erecting the sign by use of a Sky-Hook, crane with a telescopic power boom, Kuzma began to wash the sign while suspended in a sling seat from the boom. In order to accomplish this task the boom would have to come within at least 20 feet of a high voltage electrical line. In all probability, if the crane operator had been careful, the job could have been successfully completed without the boom coming within 12 feet of the electrical lines. However, in attempting to move the crane, the operator accidentally hit the controls, causing the boom to move upwards into the overhead electrical lines. Kuzma died from electrocution.

Claimant subsequently applied for and was granted death benefits and an additional award for the violation of specific safety requirement IC-3-05.03(A) (5). Relator then commenced the instant mandamus action seeking a declaration that the appellee Industrial Commission abused its discretion in granting the additional award, and to vacate that award. The Court of Appeals denied the writ, and appellant brings this appeal as a matter of right.

William M. Goldstein, Cleveland, for appellant.

William J. Brown, Atty. Gen., Michael J. Hickey and William Naperstick, Asst. Attys. Gen., for appellee.

Fontana, Ward & Kaps and William J. Melvin, Columbus, for appellee claimant.

PER CURIAM.

The sole issue raised by the instant cause is whether the Industrial Commission misconstrued Rule IC-3-05.03(A)(5) so as to violate the command of Section 35 of Article II of the Ohio Constitution ^* that safety requirements be specific.

Rule IC-3-05.03(A)(5) provides in pertinent part:

"When it is Necessary to move or operate derricks, cranes, or any other type of hoisting apparatus or construction equipment within twelve (12) feet of an electrical conductor carrying 110 volts or more, the employer shall:

"(a) Arrange * * * to deenergize the conductor(s) or,

"(b) Arrange * * * to move the conductor(s) or,

"(c) Arrange * * * to guard the conductor(s) * * * or,

"(d) Install an insulated type guard about the boom or arm of the equipment * * *." (Emphasis added.)

In State ex rel. Capital City Excavating Co. v. Indus. Comm. (1978), 54 Ohio St.2d 184, 187, 375 N.E.2d 778, 780, this court held that this safety requirement satisfies the constitutional mandate of specificity because "the employer's right to exercise his discretion Ends and his duty to deenergize, move or guard the conductor or guard his equipment Begins once it becomes necessary for his employees to operate within 12 feet of a conductor in the normal course of their duties." (Emphasis added in part.)

In the proceedings below the Industrial Commission found that, inasmuch as the boom did in fact come in contact with high voltage lines, appellant had violated rule IC-3-05.03(A)(5). There was no evidence that, in order to successfully erect and clean the sign, the boom would be required to come within 12 feet of the electrical lines, or that it was even likely to enter that 12 foot zone. On the contrary, the Court of Appeals admitted that "in all probability, the job could have been accomplished without the boom entering the 12 foot zone if the crane operator had been careful." Thus it appears that appellee adopted a result-oriented approach in its determination that Rule IC-3-05.03(A)(5) was violated by appellant. The Court of Appeals sanctioned this approach when it stated that "the proper interpretation of necessary, 'is that when crane operation in fact comes within twelve feet of an electrical line, appropriate protection must be utilized * * * ' " (citing State ex rel. Capital City Excavating Co. v. Indus. Comm. (Franklin Co. Ct.App., July 26, 1977, No. 77AP-10), unreported, affirmed 54 Ohio St.2d 184, 375 N.E.2d 778 (1978)). We disagree with this interpretation of the safety requirement, and to the extent that our opinion in Capital City Excavating may be construed to approve of that approach, it will no longer be followed. This court has repeatedly held that, in order for safety regulations to comply with the constitutional requirement of specificity they must be "of a character plainly to apprise an employer of his legal obligation toward his employees." State ex rel. Trydle v. Indus. Comm. (1972), 32 Ohio St.2d 257, 291 N.E.2d 748, 750, paragraph one of the syllabus; State ex rel. Holdosh v. Indus. Comm. (1948), 149 Ohio St. 179, 182, 78 N.E.2d 165. The safety requirement must be such as to "forewarn the employer and establish a standard which he may follow." State ex rel. Rae v. Indus. Comm. (1939), 136 Ohio St. 168,...