Scaffolding at a construction site hadn’t been secured to a building. Three workers used it, and one fell to his death. Can his widow sue the employer outside of workers’ comp?
Wilbur Johnson was one of three workers installing veneers on the exterior of a building for International Masonry. After finishing one phase of their work, the three employees went to the next section of the building.
At the next section, scaffolding was installed, but it hadn’t been secured to the building as required by OSHA.
Within five minutes, the scaffolding collapsed when a bracket gave way. Johnson died. The other two workers survived.
The workers’ supervisor hadn’t told them to work in the section where the scaffolding collapsed, but he hadn’t told them not to work there either. The two surviving workers said they believed it was their responsibility to “keep busy” even if they finished their assigned work, so they continued working and used the unsecured scaffold.
Johnson’s widow sued International for intentional harm to her husband. The employer sought to have the case thrown out, arguing that workers’ comp was the exclusive remedy in this case. A trial court threw out the lawsuit. Johnson’s widow took the case to an appeals court in Ohio.
Did employer intend to harm employee?
On appeal, Johnson’s widow argued some of the company’s employees knew the scaffold hadn’t been released for use and didn’t tell the three workers not to use it. That demonstrated the employer deliberately intended to harm the three workers, according to the lawsuit.
Ohio law says to prove intentional harm against an employee, the worker or his dependent survivors must show the employer committed the act “with the intent to injure another or with the belief that the injury was substantially certain to occur.” The law defines “substantially certain” as “with deliberate intent to cause an employee to suffer an injury.”
In this case, the appeals court said:
“No more can be inferred from the evidence before the court than that the employer knew, or should have known, that Johnson might extend his work activities on the day of his fall to the area where the unsecured scaffolding was present … and that the employer did not affirmatively tell Johnson or the other two workers to avoid using the scaffolding, although aware that the scaffolding was not ready for use. At most … those circumstances may create a genuine issue of material fact as to negligence or recklessness; they do not as to deliberate intent to harm.”
Given that, the appeals court upheld the trial court’s order to throw out the lawsuit.
Some states’ workers’ comp laws contain procedures for injured workers or their survivors to sue outside of the workers’ comp system. But as this case shows, it’s often difficult to reach the level of proof to do so.
(Delores Johnson v. International Masonry, Court of Appeals of Ohio, 10th App. Dist., No. 12AP-966, 7/8/13)
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