State ex rel. Morrissey v. Industrial Com'n of Ohio

• Decision Date: 24 July 1985
• Docket Number: No. 84-601,84-601
• Citation: 18 Ohio St.3d 285,480 N.E.2d 810
• Parties: , 18 O.B.R. 336 The STATE, ex rel. MORRISSEY, v. INDUSTRIAL COMMISSION OF OHIO et al.
• Court: Ohio Supreme Court

Page 285

18 Ohio St.3d 285

480 N.E.2d 810, 18 O.B.R. 336

The STATE, ex rel. MORRISSEY, v. INDUSTRIAL COMMISSION OF OHIO et al.

No. 84-601.

Supreme Court of Ohio.

July 24, 1985.

Lang, Horenstein & Dunlevey, Bruce I. Nicholson and Stephen A. Watring, Dayton, for relator.

Anthony J. Celebrezze, Jr., Atty. Gen., and Jeffery W. Clark, Columbus, for respondent Industrial Com'n.

Smith & Schnacke Co., L.P.A., Michael F. Krall, Steve C. Carr, Sherry J. Cato and Gary W. Auman, Dayton, for respondent Federal Flooring Co.

PER CURIAM.

By this original action in mandamus, relator maintains the commission abused its discretion by failing to find a violation of the following safety requirements contained in Ohio Adm.Code 4121:1-3-12:

"(E) Minimum instructions for qualifying operators.

"Instructions to operators in order to teach them the use of portable explosive-actuated fastening tools shall include, but shall not be limited to the following items:

"(1) Before using a tool, the operator shall inspect it to determine that it is clean, that all moving parts operate freely, and that the barrel is free from obstructions.

"(2) When a tool develops a defect during use, the operator shall immediately cease to use it until it is properly repaired.

" * * * "(5) In case of a misfire, the operator shall hold the tool in the operating position for no less than thirty seconds, and then try to operate the tool a second time. The operator shall wait another thirty seconds, holding the tool in the operating position and only then shall proceed to remove the explosive load which shall be done in strict accordance with the manufacturer's instructions. Misfired cartridges shall be placed carefully in a metal container filled with water, and returned to the supervisor for disposal.

" * * *

"(7) Fasteners shall not be driven into very hard or brittle materials, including but not limited to cast iron, glazed tile, surface-hardened steel, glass block, living rock, face brick, or hollow tile.

" * * *

"(14) Any tool found not in proper working order shall be immediately removed from service. The tool shall be inspected at regular intervals and shall be repaired in accordance with the manufacturer's specifications."

Relator first contends the commission erred with regard to its interpretation of the instructional requirements placed upon employers pursuant to Ohio Adm.Code 4121:1-3-12(E)(1) through (7) set forth above. The record unequivocally demonstrates that Federal Flooring did not provide operational instructions relative to the explosive actuated fastening tools to relator or to other apprentices and journeymen. Instead, the employer contributed, pursuant to contract, seven cents for each hour worked by an apprentice or journeyman to the employees' union. ⁵ In return, the union agreed to train apprentices and journeymen in the application of their trade, as well as in instructional specific safety requirements. Based upon this contract, the commission denied relator's asserted breach of an instructional safety requirement, stating that "training was the responsibility of the union [not the employer]."

Relator submits that Federal Flooring cannot delegate its liability for failure to comply with a specific safety requirement to a third party, regardless of whether the delegation is accomplished pursuant to contract with a union in which the employee is a member. We agree. Pursuant to Section 35, Article II of the Ohio Constitution, the burden rests with "employer[s] to comply with any specific requirement for the protection of the lives, health or safety of employes, enacted by the General Assembly or in the form of an order adopted by such board * * *."

As was recognized in State, ex rel. Blystone, v. Indus. Comm. (1984), 14 Ohio App.3d 238, 239, 470 N.E.2d 495:

"The duty to comply with a specific safety standard is constitutionally that of the employer to provide for the protection of the lives, health or safety of employees. Section 35, Article II, Ohio Constitution."

Thus, while an employer is certainly at liberty to contract with third parties to insure compliance with specific safety requirements, the ultimate responsibility for the failure to comply with such a requirement remains with the employer when, as here, an employee seeks compensation for the failure to abide by the safety requirement.

The resolution of the instructional issue, however, in relator's favor does not, by itself, justify the issuance of the writ, for the commission further concluded that even if the requisite instruction had been provided it "would not have prevented or lessened the injury." Thus, a causational issue was presented which the commission ultimately resolved against relator.

The seminal case in which this court has considered the issue of causation and the violation of a specific safety requirement is State, ex rel. Haines, v. Indus. Comm. (1972), 29 Ohio St.2d 15, 278 N.E.2d 24 . Therein, it was stated at 17, 278 N.E.2d 24:

" * * * [T]he explicit language of Section 35, Article II of the Constitution of Ohio, requires not only that there be a 'failure of the employer to comply with any specific requirement for the lives, health and safety of the employ[ees] * * * in the form of an order adopted by such board [Industrial Commission],' but also that the injury, disease or death 'resulted because of such failure by the employer.'

"As a matter of constitutional interpretation, we reject the assertion of appellant that:

" 'Where a specific safety requirement has been violated and an accidental injury occurs under circumstances which permit a reasonable inference that compliance with the requirement could probably have avoided the injury (although the same facts might also permit the inference that the injury could have occurred despite compliance), an additional award is mandatory.'

"The question of whether an injury, disease or death 'resulted because of such failure by the employer' is a question of fact to be decided by the Industrial Commission, subject only to the 'abuse of discretion' test."

According to relator, the industrial injury occurred when the power fastener misfired while pressed against the concrete ceiling. It is relator's contention that after the misfire, he did not hold the power fastener in the operating position (pressed against the ceiling) since he was not made aware of this procedure. See Ohio Adm.Code 4121:1-3-12(E)(5). Instead, relator claims he lowered the fastener before the expiration of thirty seconds, at which time the power tool fired and the pin ricocheted off the concrete ceiling striking him in the head. There were no witnesses to the injury.

Conversely, Federal Flooring contended before the commission that the power fastener was pressed against the ceiling when the tool was activated and that the ricochet occurred when the steel pin came into contact with a stone lodged in the concrete surface. This position was supported by the affidavit of Jack Neargarder, a vice president of Federal Flooring, as well as by an...