State ex rel. Cotterman v. St. Marys Foundry

• Decision Date: 11 October 1989
• Docket Number: No. 86-387,86-387
• Parties: The STATE, ex rel. COTTERMAN, Appellant, v. ST. MARYS FOUNDRY et al., Appellees.
• Court: Ohio Supreme Court

Page 42

46 Ohio St.3d 42

544 N.E.2d 887

The STATE, ex rel. COTTERMAN, Appellant, v. ST. MARYS FOUNDRY et al., Appellees.

No. 86-387.

Supreme Court of Ohio.

Submitted June 26, 1989.

Decided Oct. 11, 1989.

Syllabus by the Court

An employer does not escape liability for violation of a specific safety requirement by giving a supervisory employee the responsibility to comply with such safety requirement. The ultimate responsibility remains with the employer.

On May 19, 1980, Donald E. Cotterman, the decedent, and Charles Greenwalt, both employees of appellee St. Marys Foundry, were in the process of cleaning excess sand from a core which was suspended from an overhead crane about six and one-half feet above the floor. The core (weighing at least 4,700 pounds) was suspended by a quadruple chain, which consisted of four chains each being approximately five-eighths inch thick. These four chains came to a turnbuckle, or ring, which was four to five inches in diameter and about one-half inch thick. Threaded adjusting links hung from the turnbuckle, to which four smaller one-quarter inch steel chains were attached. These smaller chains hooked onto the core and were positioned in such a manner as to hold the core evenly. Each chain had a load limit of 1,000 pounds, for a total limit of 4,000 pounds.

After having cleaned the sand from the core, both the decedent and Greenwalt started to walk out from underneath the core. At that time, two of the hooks apparently straightened, causing the core to fall. Greenwalt was hit on the back by the core and was knocked to safety. The decedent, however, was crushed under the core and died almost immediately.

A death claim by the decedent's widow, Marie Cotterman, appellant herein, was allowed. On July 24, 1981, appellant applied for an additional award for violation of a specific safety requirement ("VSSR"). Appellant alleged that St. Marys Foundry violated Ohio Adm.Code 4121:1-5-15(A), (B)(1) through (31), (C)(1) through (12), and (D)(1) through (5), and Tables 15-A and 15-B. An investigation was conducted by the appellee Industrial Commission of Ohio and on September 24, 1984, the commission mailed an order denying the application for an additional award.

Appellant filed a complaint in mandamus in the Court of Appeals for Franklin County contending that the commission abused its discretion in denying her application for an additional award. The referee's report recommended denial of appellant's writ of mandamus. The court of appeals adopted the referee's report and denied the writ.

This cause is now before this court upon an appeal as of right.

Knepper, White, Arter & Hadden, Douglas M. Bricker and Michael L. Maxfield, Columbus, for appellant.

Smith & Schnacke, Gary Auman, Dayton, and Steve C. Carr, Canton, for appellee St. Marys Foundry.

Anthony J. Celebrezze, Jr., Atty. Gen., Janet E. Jackson, Columbus, and Richard C. Slavin, Worthington, for appellee Indus. Comm'n.

ALICE ROBIE RESNICK, Judge.

Mandamus will not lie to vacate an order of the Industrial Commission unless such order constitutes an abuse of discretion. See State, ex rel. Mees, v. Indus. Comm. (1972), 29 Ohio St.2d 128, 130, 58 O.O.2d 319, 320, 279 N.E.2d 861, 862; State, ex rel. Harris, v. Indus. Comm. (1984), 12 Ohio St.3d 152, 12 OBR 223, 465 N.E.2d 1286. Where the record shows "some evidence" to support the commission's findings, these findings will not be disturbed. State, ex rel. General Motors Corp., v. Indus. Comm. (1975), 42 Ohio St.2d 278, 283, 71 O.O.2d 255, 258, 328 N.E.2d 387, 390; State, ex rel. Cox, v. Indus. Comm. (1981), 67 Ohio St.2d 235, 241, 21 O.O.3d 147, 150, 423 N.E.2d 441, 445.

Appellee St. Marys Foundry initially contends that a writ of mandamus is inappropriate because appellant did not exhaust her administrative remedies. Specifically, St. Marys Foundry argues that appellant cannot seek a writ of mandamus because she did not file a motion for a rehearing pursuant to Ohio Adm.Code 4121-3-20(G). This section gives either party the right to file a motion requesting a rehearing within thirty days of the receipt of the commission's order deciding the issues in an application for a VSSR award.

However, a motion for rehearing will be granted only if one of two circumstances is found:

"(a) In order to justify a rehearing of the commission's order, the motion shall be accompanied by new and additional proof not previously considered and relevant to the specific safety requirement violation.

"(b) A rehearing may also be indicated in exceptional cases where the order was based on an obvious mistake of fact." Ohio Adm.Code 4121-3-20(G)(1)(a) and (b).

The record does not show that appellant had any new and additional proof or that the order was based on any obvious mistake of fact. Because neither criterion is met, the motion for rehearing necessarily would be denied. See Ohio Adm.Code 4121-3-20(2).

While it is true that mandamus relief will be denied if administrative avenues are not exhausted, see, e.g., State, ex rel. Schindel, v. Rowe (1971), 25 Ohio St.2d 47, 54 O.O.2d 173, 266 N.E.2d 569, and State, ex rel. Foreman, v. City Council (1965), 1 Ohio St.2d 132, 30 O.O.2d 485, 205 N.E.2d 398, it also is true that a person need not pursue administrative remedies if such an act would be futile. See State, ex rel. Killeen Realty Co., v. East Cleveland (1959), 169 Ohio St. 375, 8 O.O.2d 409, 160 N.E.2d 1. See, also, Kaufman v. Newburgh Heights (1971), 26 Ohio St.2d 217, 55 O.O.2d 462, 271 N.E.2d 280 (failure to exhaust administrative remedies may be a defense only if there is a remedy effectual to afford the relief sought). Thus, in this case, appellant's failure to move for a rehearing will not preclude her action in mandamus.

Appellees next contend that the commission did not abuse its discretion in denying the VSSR award.

Authority to award additional compensation to an employee injured or killed because of an employer's alleged violation of a specific safety requirement arises from Section 35, Article II of the Ohio Constitution. ¹ It has been held that "[t]he term, 'specific requirement,' * * * does not comprehend a general course of conduct or general duties or obligations flowing from the relation of employer and employee, but embraces such lawful, specific and definite requirements or standards of conduct as are prescribed by statute or by orders of the Industrial Commission, and which are 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, 61 O.O.2d 488, 291 N.E.2d 748, paragraph one of the syllabus.

A specific requirement, therefore, is one that " * * * (1) was enacted either by the General Assembly or by an order of the Industrial Commission and (2) * * * is specific as opposed to general and (3) * * * is for the protection of the lives, health, or safety of employees." Id. at paragraph two of the syllabus.

Appellant in her original complaint in mandamus alleged that appellee violated Ohio Adm.Code 4121:1-5-15(C), (1), (4), (6), and (9); 4121:1-5-15(D)(1)(a); and 4121:1-5-15(D)(2). On appeal to this court, however, appellant states that the violation at issue specifically concerns Ohio Adm.Code 4121:1-5-15(D)(2). This requirement, at the time relevant herein, provided that:

"Alloy steel chain slings shall not be used with loads in excess of the rated capacities prescribed in table 15-A. Other alloy steel chain slings not included in this table shall be used in accordance with manufacturer's recommendations."

Hence, Ohio Adm.Code 4121:1-5-15(D)(2) qualifies as a specific requirement as found in Section 35, Article II of the Ohio Constitution. Ohio Adm.Code 4121:1-5 is an "order" of the Industrial Commission " * * * providing reasonable safety for life, limb, and health of employees" in workshops and factories. Ohio Adm. Code 4121:1-5-01(A). Ohio Adm. Code 4121:1-5-15(D)(2) specifically referred to a detailed table in which load limits for alloy steel chain slings were listed, or in the alternative, to manufacturer's recommendations. An employer referring to this section would know what the maximum limits were and know what its obligations were regarding alloy steel chain slings.

Once a requirement is determined to be a specific safety requirement, the employee has the burden of showing a violation of this specific safety requirement. See State, ex rel. Watson, v. Indus. Comm. (1986), 29 Ohio App.3d 354, 29 OBR 483, 505 N.E.2d 1015. The Industrial Commission in its findings and order of September 24, 1984 stated that "claimant's application for violation of a specific safety requirement be denied for the reason that claimant has cited no specific safety requirement which was violated when decedent sustained his death."

However, the commission appears to have based its decision that there was no VSSR solely upon the fact that the decedent was a foundry superintendent at St. Marys Foundry with forty-four years of experience with that company. In fact, the commission stated that "[h]ad the decedent's actions resulted in injury or death to a subordinate worker the Hearing Officer would have found a safety violation and made an appropriate award." (Emphasis added.) Moreover, it appears that the commission indeed found that Ohio Adm.Code 4121-5-15(D)(2) had been violated because "[b]oth the weight of the evidence and common sense lead to the conclusion that the cause of the straightening of the hooks and the resultant fall of the core was that the load placed on the chain sling was in excess of its limits." If the load placed on the chain sling was in excess of its limits, then it violated Ohio Adm.Code 4121:1-5-15(D)(2). Where the uncontested evidence shows that an employer has violated a specific safety requirement which results in the injury or death to an employee, then the commission's "denial of an employee's application for an additional award for...