Ohio Employer Not Liable in Tort Following Fatal Trench Collapse
An Ohio appellate court recently affirmed a state trial court’s grant of summary judgment in favor of an employer that had been sued in tort following the death of an employee resulting from the collapse of a trench where the decedent and others had been previously working [Estate of Mennett v. Stauffer Site Servs., LLC, 2020-Ohio-4355, 2020 Ohio App. LEXIS (Sept. 8, 2020)]. Acknowledging that following the accident, OSHA had issued a citation and notification of penalty to the employer for multiple violations, the appellate court, quoting Larson’s Workers’ Compensation Law, § 103.03, the court nevertheless agreed with the trial court that the decedent’s estate had presented no evidence of an intentional tort under Ohio’s version of the “substantially certain” rule [see Ohio Rev. Code § 2745.01]. In fact, the evidence indicated the employer had ceased all work on the trench and had sent representatives to get one or more trench boxes to be used at the site. There was no evidence presented that the decedent was ordered back into the trench in the meantime.
Background
During a construction project, the employer had dug a trench that was approximately nine and one-half feet deep. As two supervisors and a city public works superintendent arrived at the job site one day, they determined that the side of the trench was unstable. The employer’s represented all work in the trench to stop. The employer’s representative and the city supervisor left the site to locate trench boxes from the city to help secure the sides of the trench. As they returned approximately 20-30 minutes later, the trench collapsed and buried the decedent, who had returned to the bottom of the trench at some point after the work-stop order was issued. The decedent was dug out of the trench alive but passed away two days later from his injuries.
The decedent’s estate filed a wrongful death/survivorship action and discovery ensued. The employer defended on exclusive remedy grounds and later filed a motion for summary judgment, which was granted by the trial court. The trial court noted that generally actions for injuries sustained in the course of the employment must be addressed within the framework of Ohio’s workers’ compensation statutes, but that in limited circumstances, an employee or the employee’s estate may institute an intentional tort claim against the employer pursuant to Ohio’s Employer Intentional Tort statute as codified in R.C. 2745.01.
Appellate Court Decision
The appellate court indicated that it was undisputed from the record that the project was lacking safety measures in the form of trench boxes and that, following the accident, the employer was cited by OSHA. Quoting Larson’s Workers’ Compensation Law, however, the court added that the lack of safety measures and training, or even citations and violations, did not raise genuine issues of material facts absent proof of deliberate and conscious attempt to injure. The court concluded that, according to the record, no such proof existed.
The court continued that according to uncontroverted deposition testimony, all workers took a break from work on the trench once the employer’s representative issued the stop-work order. One worker went to a nearby fire station to fill his water bottle, one worker went to use the restroom, and another worker made a phone call. No work was being performed on the trench once the representative and the city supervisor left to procure trench boxes.
The court stressed that there was no explanation of record to show why the decedent made the choice to reenter the trench. His job was to spread gravel in the bottom of the trench and help lay pipe, but at the time of the accident, neither gravel nor pipe were present at the work site. More importantly, said the court, there was no evidence in the record that the decedent’s reentering the trench was at the behest of the employer. The appellate court agreed with the trial court that the decedent’s death, while unquestionably tragic, was not caused by any specific intent to cause injury by the employer or its representatives. Summary judgment was appropriate.