State ex rel. Capital City Excavating Co., Inc. v. Industrial Commission, 77-978

Decision Date03 May 1978
Docket NumberNo. 77-978,77-978
Citation375 N.E.2d 778,54 Ohio St.2d 184
Parties, 8 O.O.3d 169 The STATE ex rel. CAPITAL CITY EXCAVATING CO., INC., Appellant, v. INDUSTRIAL COMMISSION of Ohio, Appellee, et al.
CourtOhio Supreme Court

Syllabus by the Court

Rule IC-3-05.03(A)(5) of the Industrial Commission is a specific safety requirement pursuant to Section 35 of Article II of the Ohio Constitution.

The instant cause arises out of an action in mandamus originated in the Court of Appeals for Franklin County by relator, Capital City Excavating Company, Inc. The events leading to that action began on May 18, 1973, when John W. Green, an employee of the relator and the husband of respondent, Lois Fay Green, was electrocuted at a construction site. His widow subsequently applied for and was granted death benefits and an additional award for the violation of specific safety requirement IC-3-05.03. The grant of the death claim was not appealed. Relator instituted an action in mandamus to vacate the specific safety violation award. On July 26, 1977, the appellate court unanimously held that the grant of the additional award by respondent Industrial Commission was supported by the evidence of record, and the court denied the writ of mandamus.

The cause is now before this court pursuant to Section 2(B)(2)(a)(i) of Article IV of the Constitution of Ohio.

Wilcox, Schlosser & Mirras and Jacob A. Schlosser, Columbus, for appellant.

William J. Brown, Atty. Gen., and John F. Livorno, Columbus, for appellee.

WILLIAM B. BROWN, Justice.

The main issue raised by the instant cause is whether mandamus should lie to vacate the order of the Industrial Commission either because Rule IC-3-05.03(A) (5) of the Industrial Commission is not a specific safety requirement pursuant to Section 35 of Article II of the Ohio Constitution 1 or because the commission abused its discretion when it made the specific safety requirement violation award.

I.

Under the workers' compensation scheme, an employee who has been injured because his employer has violated a specific safety requirement is eligible for additional compensation from that employer. Therefore, it is important that such safety requirements be "of a character plainly to apprize 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, paragraph one of the syllabus; State ex rel. Holdosh v. Indus. Comm. (1948) 149 Ohio St. 179, 78 N.E.2d 165; see, also, State ex rel. Rae v. Indus. Comm. (1939), 136 Ohio St. 168, 173, 24 N.E.2d 594; State ex rel. Davidson v. Blake (1945), 145 Ohio St. 102, 105, 60 N.E.2d 664. For that reason Section 35, Article II of the Ohio Constitution requires that safety regulations be specific, and this court has held that, in order to be constitutionally specific, a regulation must demand that some "particular and definite" act or thing be done. State ex rel. Holdosh v. Indus. Comm., supra, at pages 181-182, 78 N.E.2d 165.

The regulation at issue in the instant cause makes such demands. 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.)

The language of IC-3-05.03(A)(5) is mandatory the employer shall take certain steps once it is necessary to work within 12 feet of a conductor , and it is definite the employer must deenergize, move or guard the conductor or guard his own equipment.

Appellant argues that IC-3-05.03(A)(5) is not a specific safety requirement because it is indistinguishable from the requirement held not to be specific in State ex rel. Rae v. Indus. Comm., supra (136 Ohio St. 168, 24 N.E.2d 594).

The rule held to be unconstitutionally general in Rae, supra, reads as follows:

"It shall be the duty of the operator to see that all men employed in the tunnel are supplied, at all times, with such timbers, other materials, equipment and supplies as are necessary to keep their working places in safe condition * * *." (Emphasis added.)

The instant safety regulation and the Rae rule can be easily distinguished. IC-3-05.03(A)(5) does not state that, when it is necessary to work within 12 feet of an electrical conductor, an employer must do what he finds necessary to keep the conductor from hurting his employees. Consequently, although both regulations employ the term "necessary," only the Rae regulation hinges upon it. (In IC-3-05.03(A)(5) the word "necessary" appears only in an introductory clause "when it is necessary to move * * * equipment * * * " ; it does not follow (and undermine) language setting forth the employer's duties. See, also, State ex rel. Fast v. Indus. Comm. (1964), 176 Ohio St. 199, 198 N.E.2d 666, and State ex rel. Hill v. Indus. Comm. (1961), 172 Ohio St. 115, 173 N.E.2d 890, for the proposition that safety rules are not unconstitutionally general merely because they are introduced by phrases such as "whenever practicable" or "when it is necessary.")

Moreover, IC-3-05.03(A)(5) does not leave "the specific thing to be done" or the "method to be employed" to "the judgment of the employers." (Rae, supra, at pages 172-173, 24 N.E.2d 594.) The Rae regulation allowed the employer to decide what precautions to take after his employees were working under hazardous conditions; IC-3-05.03(A)(5) does not. Furthermore, IC-3-05.03(A)(5) does not allow the employer to determine where to take precautions. Instead, it specifically defines the dangerous areas as any space within 12 feet of a conductor. Since IC-3-05.03(A)(5) specifically sets forth both the precautions to be taken and the working area in which they are to be taken, 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. 2 Because IC-3-05.03(A)(5) ultimately obligates the employer to take certain detailed safety precautions, it does not give rise to the unchecked exercise of employer discretion which the Rae opinion decried, and it is distinguishable from the Rae regulation. Since the instant regulation can be distinguished from the Rae rule and since it plainly apprizes the employer of his obligation to deenergize, move or guard the conductor or move his own equipment for the safety of his employees, IC-3-05.03(A)(5) does not violate the constitutional mandate that safety regulations be specific.

II.

Appellant also contends that, even if IC-3-05.03(A)(5) is a valid safety requirement, the commission's grant of the award in effect constituted an abuse of discretion because (1) Green's death was the result of his horseplay and (2) it was not necessary for appellant's employees to come within 12 feet of the electrical wires in the normal course of their duties.

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7 cases
  • State ex rel. Teece v. Industrial Commission of Ohio
    • United States
    • Ohio Supreme Court
    • December 23, 1981
    ...General Motors Corp. v. Indus. Comm. (1975), 42 Ohio St.2d 278, 283 (328 N.E.2d 387), State ex rel. Capital City Excavating Co. v. Indus. Comm. (1978), 54 Ohio St.2d 184, 188-189 (375 N.E.2d 778).' " State ex rel. Dodson v. Indus. Comm. (1980), 62 Ohio St.2d 408, 410, 406 N.E.2d The holding......
  • State ex rel. Cox v. Industrial Commission
    • United States
    • Ohio Supreme Court
    • July 15, 1981
    ...General Motors Corp., v. Indus. Comm. (1975), 42 Ohio St.2d 278, 283, 328 N.E.2d 387; State, ex rel. Capitol City Excavating Co., v. Indus. Comm. (1978), 54 Ohio St.2d 184, 188-189, 375 N.E.2d 778. Mandamus is available only upon a showing of abuse of discretion by the Industrial Commission......
  • State ex rel. Brilliant Elec. Sign Co. v. Industrial Commission, 78-740
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    • Ohio Supreme Court
    • March 14, 1979
    ...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 specif......
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