A worker was seriously burned when he was sprayed with hot glycerin. Could the worker sue the company by showing it knew an injury was substantially certain to occur because a safety device was removed from a machine?

Theodore Knight was a machinist at a Procter & Gamble facility in Ohio. He was responsible for maintaining equipment including pumps for the glycerin the facility manufactured.

On the day he was injured, Knight noticed a slow leak coming from a pump. To find the leak, Knight had to remove an insulation blanket. As he did that, the blanket hit a ball valve attached to the pump, causing a strong stream of 360-degree glycerin to spray out and hit Knight.

Knight was hospitalized for two months with serious burns.

The valve was supposed to have a cap, but it was uncapped at the time of Knight’s injury.

Originally, the pump also had a sample box — a device workers used to take glycerin samples. P&G had removed the box more than four years before Knight’s injury and replaced it with the valve.

Normally when an employee is injured, workers’ comp protects a company from being sued by the worker.

However, there is the “intentional tort” exception. To be able to sue, a worker must be able to show that the company took an action that made an injury substantially likely to occur — a high hurdle for an employee to meet.

Knight sued, claiming intentional tort.

Ohio law says in cases like this one, the burden shifts to the company to show deliberate removal of a safety guard would not cause an injury.

P&G asked for summary judgment, and a trial court granted it, effectively throwing the case out.

Knight took his case to a state appeals court.

Safety training factors in

There’s no doubt in this case P&G removed the sample box and replaced it with a valve. The only question is whether this made an injury likely to occur.

The appeals court noted that P&G took steps to ensure safety and prevent contact with the hot glycerin. Its standard operating procedure required caps to be placed on all uncapped pipes.

Knight received extensive and ongoing training on using equipment and personal safety, including a P&G policy that workers do a mental risk assessment before performing work.

Knight admitted he didn’t do a risk assessment before starting work on the leaky valve and that the uncapped pipe was in plain view.

The court said if Knight had performed a risk assessment, he would have seen that the pipe was uncapped and he would not have been injured.

Knight also argued the cap was a safety guard and its removal put P&G on the hook.

But the court said there was no evidence P&G removed the cap. The company knew its employees sometimes left lines uncapped, but the record contained no evidence that employees did that at P&G’s direction.

In a third argument, Knight says P&G should have used a locking mechanism on the pipes instead of the caps.

Once again, his argument failed. The court said the caps and requirements about risk assessment, as well as other safety policies, were sufficient to make the pipes safe.

The appeals court upheld the previous ruling that Knight could not sue P&G for intentional tort.

The take-home: When modifications to equipment have to be made that might impact safety, it’s imperative to train and retrain employees on proper procedures, both for their own safety and to protect the company when employees disregard safety rules.

(Knight v. Procter & Gamble, First Appellate District Court of Ohio, No. C-110593, 9/28/12) (PDF)

Tags: intentional tort, safety device, serious burns, Workers' comp