Bill Kenealy | Business Insurance | February 27, 2015
An Ohio appellate court judge has found that a painting contractor is not liable for the 2011 death of a worker even though the company was cited for safety violations in relation to the worker’s fatal fall.
In a ruling issued on Thursday, Judge Melody J. Stewart of the Court of Appeals of Ohio, Eighth District, Cuyahoga County, upheld a 2014 decision made by the Cuyahoga County Court of Common Pleas.
Worker William Head was paralyzed in November 2011, after slipping from a flat roof approximately 11 feet above ground level while working for Cleveland Heights, Ohio-based Reilly Painting & Contracting Inc. Mr. Head later died from complications resulting from injuries suffered in the fall.
Sabrina Head, the executor of Mr. Head’s estate, subsequently filed an intentional tort action against Reilly Painting, Michael Reilly, the owner of Reilly Painting, and Peter Lukas, the job foreman, on grounds that they failed to provide Mr. Head with a safety harness in violation of U.S. Occupational Health and Safety Administration rules.
In statements made to OSHA investigators following the accident, the company admitted that contrary to OSHA regulations, which require workers to wear a safety harness for work performed over six feet off the ground, Mr. Head was not wearing a harness when he fell. Mr. Lukas, the foreman on the job, said although safety harnesses were available he did not believe they were necessary because the roof was flat and not pitched.
Upon completing its investigation, OSHA cited Reilly Painting for safety violations.
In her ruling, Judge Stewart agreed with the lower court that there was no evidence that the individual defendants knew that Mr. Head was “substantially certain” to be injured while working on the roof.
“We agree with the court that Reilly Painting’s OSHA violations do not, standing alone, create an issue of fact as to whether those violations were made with the specific intent to injure Head,” the ruling states. “The undisputed evidence showed that the job foreman considered it safe to work on a flat roof and that safety harnesses were unnecessary.”
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