Opinion
No. 90-377
Submitted April 16, 1991 —
Decided August 14, 1991.
APPEAL from the Court of Appeals for Franklin County, No. 87AP-630.
On March 24, 1983 decedent, Frederick C. Lutz, and co-worker Raymond S. Harvey were using a forklift and lift cage to hang aisle markers from the roof girders inside the Heath, Ohio warehouse of appellant, Northern Petrochemical Company, Nortech Division. Only authorized personnel were permitted to use the lift and cage. Authorization required successful completion of appellant's forklift training program. Participants viewed the manufacturer's training film and received operational literature. Hands-on instruction was provided by Fred N. Greulich, appellant's maintenance and production supervisor. Participants had to pass a ninety-nine question written examination prepared by the manufacturer and supplemented by Greulich. Participants were also given a driving test supervised by Greulich. Periodic retesting was required. Both decedent and Harvey had successfully completed this program and were authorized lift operators.
On the date of the accident, it was necessary to attach the cage to the forklift and raise the cage approximately twenty feet. The cage had a manual spring-loaded locking mechanism that secured it to the lift and kept it from tipping or sliding off the forks. Once the cage was locked, employees were instructed to shake or attempt to dislodge the cage to test whether it was indeed secure. As a reminder to employees, large placards were prominently attached to the cage's front and side, which read:
"WARNING
" WORKSTAGE SAFETY PRECAUTIONS.
"1. SECURE WORKSTAGE TO FORKLIFT BEFORE USE.
"2. PARKING BRAKE MUST BE APPLIED BEFORE ELEVATING WORK STAGE.
"3. DO NOT TILT MAST FORWARD WITH PERSONNEL IN WORKSTAGE.
"4. DO NOT TRANSPORT PERSONNEL IN ELEVATED WORKSTAGE."
For reasons unknown, neither decedent nor Harvey locked the cage to the lift on the date of the accident. Decedent was killed when the cage slipped off the raised lift and threw him to the floor.
Following allowance of a workers' compensation death claim, decedent's widow-claimant, appellee Donna L. Lutz, applied to appellee Industrial Commission for an additional award, alleging a violation of former specific safety requirement ("VSSR") Ohio Adm. Code 4121:1-5-13(I). A commission staff hearing officer found a violation of 4121:1-5-13(I)(1) (failure to secure cage to lift), stating, in part:
"The evidence shows that the employer did make an attempt to comply with 4121:1-5-13(I)(1) by instructing personnel in the use of forklifts and cages. The employer also had a warning sign on the cage saying `secure work station [ sic] to forklift before use.' The Staff Hearing Officer has taken these attempts into consideration in determining the amount of the violation award.
"However, the Staff Hearing Officer finds that these efforts by the employer do not rise to the level required by 4121:1-5-13(I)(1). The code provides that a lift truck with forks for lifting of personnel `shall have' a platform (cage) `securely fastened' to the lifting forks.
"It is clear from the evidence that a locking mechanism was present, but, that due to employee negligence, the lock had not been engaged to fasten the cage to the lift. Although the employer told their employees through training and signs, to secure the cage to the lift that was not enough. If the employer's actions were sufficient, then the language of this section would have to state merely that the employer shall provide means of fastening. The language of that section provides an obligation on the employer that cannot be transferred to the employee * * *." (Emphasis sic.)
This finding was confirmed by members of the commission. Appellant's rehearing request was denied.
Appellant filed a complaint in mandamus in the Court of Appeals for Franklin County, alleging that the commission abused its discretion in finding that Ohio Adm. Code 4121:1-5-13(I)(1) had been violated. The court disagreed and denied the writ.
This cause is now before this court upon an appeal as of right.
Benesch, Friedlander, Coplan Aronoff, James F. DeLeone and John F. Stock, for appellant. Lee I. Fisher, Attorney General, Michael L. Squillace and Jetta Mencer, for appellee Industrial Commission.
W. Michael Shay, for appellee Donna L. Lutz.
Former Ohio Adm. Code 4121:1-5-13(I)(1) (now 4121:1-5-14[F][4][a]) stated:
"(I) Lifting of personnel.
"Lift trucks equipped with vertical only, or vertical and horizontal travel controls using a limited carriage or forks for lifting of personnel shall:
"(1) Have a platform with standard guardrails, intermediate rail, and toeboards, and a mast guard seventy-two (72) inches in height, all securely fastened to the lifting carriage or forks[.]"
It is undisputed that the cage was not securely attached to the forklift. It is also uncontested that on the date of injury, neither decedent nor Harvey checked to see whether the cage was secured, despite appellant's clear directive to do so. Appellant claims that decedent's unilateral negligence precludes a finding that appellant violated a specific safety requirement. We agree.
In State, ex rel. Frank Brown Sons, Inc., v. Indus. Comm. (1988), 37 Ohio St.3d 162, 524 N.E.2d 482, we found no specific safety violation where an employee did not follow his employer's instructions and was injured as a result. We reasoned that:
"As such awards [VSSRs] are intended to penalize employers for failure to comply with specific safety requirements, only those acts within the employer's control should serve as the basis for establishing a VSSR violation." Id. at 164, 524 N.E.2d at 485.
We thus held:
"* * * A VSSR award is precluded by claimant's unilateral negligence in removing the top cross brace without first installing a corresponding cross brace beneath, contrary to instructions." Id.
The case at bar contains comparable employee negligence. Accordingly, the judgment of the court of appeals is reversed and a writ of mandamus allowed.
Judgment reversed and writ allowed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.