Could Electrician who Fell through Unmarked Mezzanine Hole Sue Employer?

What Do You Think?

Employees generally can’t sue employers for monetary damages in court. Workers’ compensation is the exclusive remedy, in most cases, and tends to zap those cases right out of court. But consider the situation where an employer sends a worker up to another floor without telling him about the large, unmarked holes there. Depending on the circumstances, that could be an intentional tort, which creates an exception to the exclusivity rule.

That situation occurred in the case of an Ohio electrician whose foreman told him and a coworker to go up to a mezzanine level to assist two other employees. They couldn’t get to the stairs, though, because there was a pipe and a four-foot-tall board blocking the way. On the board was written the word “danger.”

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They returned to the foreman and mentioned the barricade to him. The foreman instructed them that they should still go to the mezzanine level. The foreman knew there were uncovered, unmarked holes in the floor up there, but he allegedly never mentioned them.

The employee and his coworker used a ladder to climb over the barricade and went up to the mezzanine without any safety equipment. Once on the mezzanine, the employee, focused on some other workers, was looking straight ahead and failed to notice the hole in front of him. He fell into the hole and injured himself.

The employee sued the company for negligence. The company asked the court to dismiss the case, arguing that workers’ compensation was the employee’s exclusive remedy.

There is an exception to the exclusivity rule for intentional torts. An employer may be liable for an employee's workplace injury if "the employer committed the tortious act with the intent to injure another or with the belief that the injury was substantially certain to occur." 

If there is no direct evidence of intent, the employee can also create a rebuttable presumption of an employer's deliberate intent by showing the employer deliberately removed an equipment safety guard.

Could the electrician sue the employer?

A. No. The foreman’s apparent negligence or recklessness wasn’t enough to create an exception to the exclusive remedy provision.

B. Yes. The foreman failed to mark or cover the holes, and sent the employee up, despite the barricade.

If you selected A, you agreed with the court in Weitzel v. Bryson/Tucker Electric, LLC, No. L-24-1114 (Ohio Ct. App. 07/2225), which held that there was insufficient evidence that the employer deliberately set out to injure the electrician.

Here, the foreman may have known about the holes. However, merely knowing about a hazardous condition is not enough to show intent to injure. Even an employer's recklessness, failure to provide fall safety protection, or violation of a safety regulation is insufficient to establish the employer's intent.

The foreman’s “instruction to appellant to work in the mezzanine area without warning him of the uncovered, unmarked holes or instructing him to use fall protection put [the employee] into a dangerous situation, and it may have been reckless or violated safety regulations,” the court said. But there was no evidence that the employer specifically intended to harm him or removed safety equipment. 

Affirming the trial court’s decision, the court ruled that workers’ compensation was the electrician’s exclusive remedy.

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