The State ex rel. Quality Tower Service, Inc., Appellant, v. Industrial Commission of Ohio et al., Appellees, 88 Ohio St. 3d 190

Per Curiam. The dispositive issue in this case is: Did QTS comply with Ohio Adm.Code 4121:1-3-08(

G) so that it is not responsible for the alleged VSSRs? For the following reasons, we hold that QTS did comply with this specific safety regulation and that Garaux unilaterally violated the rule. Accordingly, we reverse the court of appeals’ judgment and grant the requested writ of mandamus. QTS contends that it complied with Ohio Adm.Code 4121:1-03-08(

G) because it provided Garaux and Reed “properly marked equipment more than suitable for the job,” Pyron told Garaux on site to use the company’s equipment and not his own, and Garaux ignored the instruction. We agree. This case is an example of what has become known as “unilateral negligence,” a defense to VSSR liability that has been described as applying “only where the claimant deliberately renders an otherwise complying device noncompliant [sic, nonconforming].” (Emphasis added.) State ex rel. R.E.H. Co. v. Indus. Comm. (1997), 79 Ohio St.3d 352, 355, 681 N.E.2d 928, 931; State ex rel.

Martin Painting & Coating Co. v. Indus. Comm. (1997), 78 Ohio St.3d 333, 339, 678 N.E.2d 206, 211; State ex rel. Pressware Internatl., Inc. v. Indus. Comm. (1999), 85 Ohio St.3d 284, 288, 707 N.E.2d 935, 939; State ex rel. Hirschvogel, Inc. v. Miller (1999), 86 Ohio St.3d 215, 218, 714 N.E.2d 386, 388. Unilateral negligence derives from State ex rel. Frank Brown & Sons, Inc. v. Indus. Comm. (1988), 37 Ohio St.3d 162, 524 N.E.2d 482, in which an employer was exonerated from VSSR liability because an employee had removed a part of a scaffold that had been required by a specific safety requirement.

Brown held that (1) employers can be subject to VSSR penalties for “only those acts within the employer’s control,” and (2) a specific safety requirement does not impose a duty of “constant surveillance” just by requiring a securely and rigidly based scaffold. Id. at 164, 524 N.E.2d at 485. QTS relies principally on Brown, whereas the other parties rely mainly on State ex rel. Cotterman v. St. Marys Foundry (1989), 46 Ohio St.3d 42, 544 N.E.2d 887. In Cotterman, an employer was held liable for violating a regulation requiring sufficient chain-sling capacity for suspending overhead loads.

There, a supervisory employee was killed because he selected chains too weak to suspend a huge core. Contrasting Brown, the Cotterman court held, in effect, that this specific safety requirement imposed an absolute duty of compliance notwithstanding the supervisory employee’s mistake. Brown and Cotterman are regularly cited for establishing the boundaries of the unilateral negligence defense, Pressware at 288, 707 N.E.2d at 939; Martin Painting at 339, 678 N.E.2d at 211; State ex rel. Northern Petrochemical Co., Nortech Div. v. Indus.

Comm. (1991), 61 Ohio St.3d 453, 455, 575 N.E.2d 200, 201-202; however, the defense is not actually about an employee’s negligence. The employer instead avoids VSSR liability when “[the] employee unilaterally violates a safety requirement [emphasis added],” Cotterman at 47, 544 N.E.2d at 892; Pressware at 288, 707 N.E.2d at 939, that is, when the employee removes or ignores equipment or instruction that complies with a specific safety requirement. Brown at 164, 524 N.E.2d at 485; Northern Petrochemical.

On the other hand, an employee’s negligence in failing to protect himself from injury due to an employer’s VSSR will never bar recovery because specific safety requirements exist to promote a safe work environment and “to protect employees against their own negligence and folly.” Cotterman and Pressware. Thus, the critical issue in a VSSR claim is always whether the employer complied with the specific safety requirement. Id. Here, it is undisputed that QTS properly labeled and made available synthetic web straps adequate to hoist Garaux, Reed, and the gin pole. This is all that Ohio Adm.Code 4121:1-3-08(

G) required. Thus, QTS complied with this rule and did not commit a VSSR. Moreover, while appellees offer Cotterman as authority for holding QTS responsible for this tragic accident, the absolute duty of compliance recognized in Cotterman is too strict and has not been enforced for this reason. For example, in Northern Petrochemical Co., we found no VSSR liability when an employee died after falling out of an unsecured lift cage.

Since the operating employees had been trained and warned to check that the cage was securely attached to a forklift mechanism, and the accident resulted purely from employee carelessness in failing to adequately inspect, we did not penalize the employer for the employee’s conduct. Similarly, in State ex rel. Mayle v. Indus. Comm. (1999), 86 Ohio St.3d 74, 711 N.E.2d 687, we found no VSSR liability when an employee died after falling off an electrical tower.

Again, the employer complied with the specific safety requirement by supplying safety belts for the employee’s use; the employee just never wore them; Thus again, we refused to penalize the complying employer for the employee’s mistake. QTS did everything that could reasonably be expected to comply with Ohio Adm.Code 4121:l-3-08(G). Pyron provided sufficient equipment and directly ordered Garaux to use it. Pyron did not have to rig the gin pole himself or check Garaux’s work to make sure that Garaux had followed his instructions. Brown.

In view of this compliance, QTS’s actions did not constitute a YSSR or cause Garaux’s death and Reed’s injury. The court of appeals’ judgment, therefore, is reversed, and a writ of mandamus is granted to vacate the commission’s VSSR award. Judgment reversed and unit granted. Moyer, C.J., Pfeifer, Cook and Lundberg Stratton, JJ., concur. Douglas, Resnick and F.E. Sweeney, JJ., dissent. . Ohio Adm.Code 4123:1-3-08(0) provides only that: “Synthetic webbing (nylon, polyester and polypropylene) “

(1) The employer shall have each synthetic web sling marked or coded to show “(

a) Name or trademark of manufacturer. “(

b) Rated capacities for the type of hitch. “(

c) Type of material. “

(2) Rated capacity shall not be exceeded.”