Medina County Courthouse

Monday, March 08, 2010

Ohio Supreme Court Decision on Scaffolds and Safety Requirements

By Ohio Supreme Court Justice Paul Pfeifer

Outside of the construction business it’s probably safe to say no one pays much attention to scaffolding. But solid, safe scaffolding is so integral to construction that the Ohio Administrative Code contains a number of specific safety requirements that apply to scaffolds. Those safety requirements were at the center of a case that we reviewed here – at the Supreme Court of Ohio.

The case involved a man named John W. Johnson who was installing safety rails on a scaffold that was in the process of being erected. Several of Johnson’s co-workers were starting to enclose this assembled portion of the scaffold in plastic, which was meant to protect workers from the winter elements.

Johnson was on either the first or second level of the scaffold – between six and 16 feet off the ground – when a gust of wind got underneath the plastic. The gust tipped the scaffold, and threw Johnson to the ground.

Johnson’s workers’ compensation claim was allowed, but he also alleged that his employer – Buckner & Sons Masonry, Inc. – had violated, among other things, three specific safety requirements related to bracing and anchorage of a scaffold. A staff hearing officer of the Ohio Industrial Commission, the entity that handles such claims, reviewed his allegations.

The staff hearing officer found that the specific safety requirements that Johnson alleged had been violated did not apply in this instance because the scaffold was not fully assembled.

In his report, the staff hearing officer wrote: “All three of these rules are designed to ensure that completed scaffolds must be safe in that the anchorage, poles, and legs of a completed scaffold must be properly secured to prevent swaying and diagonal braces must be used to secure a completed scaffold.”

The staff hearing officer went on to say that “while the cited rules don’t specifically state that these safety rules only apply to completed or finished scaffolds…it is obvious that these rules should only apply to already completed scaffolds so that employees working on them will be safe.

“To hold otherwise, that is, to find that these rules apply not only to already completed scaffolds, but also to scaffolds still being built, would subject employers to safety standards that would be clearly premature because the required safety rules contemplate a review of existing and completed scaffolds to ensure that completed scaffolds meet pre-determined safety regulations.”

After a rehearing was denied, Johnson filed a complaint with the court of appeals. He argued that by declaring the safety requirements applicable only to fully erected scaffolds, the Industrial Commission was impermissibly inserting language into the safety code. He asserted that the Commission’s interpretation not only produced an illogical result but also encouraged employers to circumvent safety regulations by simply leaving a scaffold partially completed.

But the magistrate who considered Johnson’s complaint recommended that it be denied. According to the magistrate, the Commission’s finding that the rules were inapplicable does not give rise to a patently illogical result, as Johnson claimed.
“There is no evidence that Buckner was attempting to avoid the applicability of the rules relating to scaffolding by deliberately delaying the completion of the scaffold,” the magistrate wrote in his report. “In fact, the undisputed evidence shows that Buckner was endeavoring to complete or finish the erection of the scaffold at the time of the injury.”

The court of appeals adopted the magistrate’s findings of fact and conclusions of law. The court of appeals denied Johnson’s complaint, prompting his appeal to our court for a final review.

We did not share the court of appeals’ view of this case. In our opinion – a six-to-one vote – the Industrial Commission’s order was more conclusory than explanatory. The staff hearing officer, who declared that it was “obvious” that the regulations applied only to completed scaffolds, apparently believed that no explanation was necessary.

If there was an explanation to be garnered from the order, it more likely derived from this statement: “It is obvious that these rules should only apply to already completed scaffolds so that employees working on them will be safe.”

The troubling aspect of this logic is the assumption that employees work only on or around completed scaffolds. Scaffolds, however, do not erect themselves – workers erect them level by level. To do that, they must be on and around unfinished assemblies.

This fact leads to a second point. Workers on or around unfinished assemblies need appropriate protection just as much as workers on finished assemblies. An employee assigned to install cross braces on the second level of an incomplete scaffold is exposed to at least as much risk of injury as an employee working on the second level of a finished scaffold.

An unstable scaffold is also a danger to everyone working on the ground in the event of a collapse. The scaffolding regulations at issue are intended to ensure that the scaffold is always plumb, secured, and rigid. These are not features that should apply to some scaffolds and not others.

We recognized the court of appeals’ reluctance to impose liability for violation of specific safety requirements on an employer who was installing the very safety devices required by the safety code at the time the accident occurred. We do not, however, agree that the answer is to decline to apply the code altogether.

The answer, in our opinion, is to apply the code and then determine whether the employer either complied – or was in the process of complying – with the safety provisions at issue, taking into account the stage of construction and the reasonableness and practicality of being able to comply with the safety provisions at that stage of installing the scaffolding.

We thus concluded that the pertinent section of the Ohio Administrative Code applies to all scaffolds, regardless of the stage of construction. We reversed the court of appeals’ judgment and returned the case to the Industrial Commission to determine whether the employer satisfied the specific safety requirements at issue.

EDITOR’S NOTE: The case referred to is: State ex rel. Johnson v. Indus. Comm., 122 Ohio St.3d 289, 2009-Ohio-3453. Case No. 2008-1089. Decided July 21, 2009. Majority opinion Per Curiam.

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