Page 39 - MetalForming September 2009

tion lever that would start and stop the spindle attached to the cutters that made the requisite cuts. The lever vibrated out of position, so it was secured by rubber bands. The lever was not original to the mill, but was a replacement longer than the original. The lever, approximately 3 ft. long, was located at chest level of an employee of average height. Moving the lever to the right activated the spindle. The lever could vibrate out of position because it was not properly secured by rubber bands, the speed of the mill was not correctly set, or both.
• The plaintiff was assigned to the job of using the Cincinnati mill to cut grooves. On that day, the plaintiff found that the cutters’ tips were broken because the lever had vibrated out of position.
• At the time of the accident, the plaintiff was setting up the mill. He adjusted the speed dial to establish the correct cutter speed. Because the speed dial was not reliable, he had to go to the side of the mill and engage the spindle activation lever to rotate the cutters so that he could observe the rotating cut- ters and adjust the speed.
• The plaintiff does not recall what occurred after he went to the side of the mill, and there are no witnesses. The plaintiff ’s left hand and arm became entangled in the cutters. The cutters were rotating when the plaintiff was injured, which indicates that the spindle activation lever had been activated. If the plaintiff intentionally activated the spindle activation lever, he would have activated it with his right hand. The plaintiff has no idea how his left hand and arm got into the cutters, except that it was inadvertent. The plaintiff was wearing gloves, which were common for operators to wear when operating the Cincinnati mill. The company had supplied the gloves, though it was not required that the plaintiff wear them.
• When the plaintiff was found, he was flush against the mill, with his body
against the spindle activation lever, holding it in the “on” position. His gloved left hand was caught in and shredded by the mill’s unguarded cutters.
• After the accident, the company pulled the mill out of service and moved it to a different part of the plant and out of the general work area.
• Thirty years prior to the incident, the plaintiff was in a car accident and suffered injury as a result, resulting in a limp that caused him to drag his left foot. The problems with his limp got worse as he aged. The plaintiff never requested special accommodations and never told anyone that there were some operations he could not perform because of his limp. He was not required to wear any special equipment nor use a cane or crutch. It is unknown whether the plaintiff stumbled into the mill or if a stumble played a part in his accident.
• The company was cited by OSHA because “Point(s) of operation of machinery were not guarded to pre- vent employee(s) from having any part of their body in the danger zone(s) dur- ing operating cycle(s).” The citation stated that the point of operation on the Cincinnati mill was not guarded and an employee’s left arm was caught in the unguarded cutting blades.
For an Ohio intentional workplace tort to exist, an injured employee must demonstrate three elements:
1) Knowledge by the employer of the existence of a dangerous process, procedure, instrumentality or condi- tion within its business operation;
2) Knowledge by the employer that if the employee is subjected by his employment to such dangerous process, procedure, instrumentality or condi- tion, then harm to the employee will be a substantial certainty; and
3) That the employer, under such circumstances, and with such knowl- edge, did act to require the employee to continue to perform the dangerous task.
In the key second element of “sub- stantial certainty,” the District Court held that the employer’s knowledge of that element had to be actual knowledge of the exact dangers that ultimately caused the employee’s injury. The court analyzed four conceivable alternative scenarios for the accident. The court overcame this uncertainty by deter- mining that the closeness of the point- of-operation unguarded cutters (less than 12 in. from the replacement lever) meant that if the plaintiff tripped or slipped during or after the engagement of the replacement lever, there was a risk that he would fall into the machine.
Then, despite the facts that no one previously had been injured or com- plained about the machine and that it had not been cited by OSHA nor found by the plant safety committee to present any hazard, the federal court found that employer knowledge of “substantial cer- tainty” existed. It concluded that:
• The company knew that the work- er had to operate a replacement lever on the Cincinnati mill that was less than 12 in. from unguarded cutters;
• Its machine operator wore gloves, and those gloves made the operation of the machine more dangerous;
• This particular machine operator had a tendency to trip and stumble, which made it dangerous for him to work near the unguarded cutters; and
• The company received an OSHA citation earlier for having a similar unguarded situation on a different machine, which amounted to an aware- ness of a dangerous situation.
This last historical citation infer- ence illustrates the problem of leaving OSHA guarding citations unappealed. They become potential admissions in civil cases as well as under OSHA. And, one might think of OSHA citations on the specifically referenced cited machine as applying to all machines similar to it. MF
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