May 9, 2012
A Fatal Fall

by Justice Paul E. Pfeifer

In the late summer of 2004, Patrick Donohoe was working in the construction business for the Kenny Huston Company. The company was doing masonry work on a construction project at a military base.

On August 30, two Huston employees – Todd Jenkins and Burt Selby – were assigned to lay the brick on the building’s south vestibule parapet wall, which required them to work from a temporary platform about 13 feet above the ground.

About 13 feet behind the two men was the building’s one-story exterior wall that, in one spot, extended only a foot or two above the work platform. Adjacent to and slightly below the outside of the exterior wall was a partially assembled scaffold with no guardrails along the platforms. The scaffold, which was apparently being dismantled, was not considered part of the south parapet work area.

Patrick was assisting Selby and Jenkins. As a laborer, his main task was to keep the masons supplied with brick, mortar, and other materials. By midafternoon the supplies started to run low, which prompted Selby and Jenkins to repeatedly call out for Patrick to replenish them.

When Patrick didn’t respond, the two men eventually started to look for him. Peering over the exterior wall behind them, they saw Patrick lying on the ground. He had obviously fallen, lost his hardhat during the descent, and struck his head on either a concrete footer or the ground surrounding it. Patrick later died from those injuries.

After the accident, Patrick’s widow – Catherine – filed a workers’ compensation death claim, which was allowed. In addition to that, she also filed a VSSR (“violation of specific safety requirements”) application with the Industrial Commission of Ohio, which handles such claims. Specific safety requirements, as the name suggests, are more detailed and specific in nature than general workplace safety rules.

In filing her VSSR application, Catherine alleged that Patrick’s accident had occurred because Huston had not complied with numerous specific safety requirements pertaining both to scaffolding particularly and, more generally, to work done at a specified height above the ground.

Catherine and Huston agreed that Patrick had fallen from the scaffold. But they disagreed on how far he fell and whether it was a short distance from the scaffold’s cross-braces or from one of its high unguarded platforms.

There was evidence suggesting that Patrick had fallen from a height of 12 feet or more, meaning that he was either on the scaffold’s cross-braces or one of its platforms. But there was other evidence that indicated a fall from a height as low as one to three feet could have caused the fatal head trauma.

The second scenario would have ruled out the possibility that Patrick had fallen from one of the higher, unguarded scaffold platforms. And it would also have rendered inapplicable the specific safety requirements – such as guardrails and safety harnesses – that govern work at heights.

At an Industrial Commission hearing, the Huston Company argued that Patrick may have sustained his injuries in a short-distance fall from the scaffold’s cross-braces. If true, Huston argued, it would negate the applicability of many of the specific safety requirements Catherine had cited, and, Patrick’s presence on the cross-braces would constitute negligence on his part, which would bar any VSSR finding.

Catherine, on the other hand, maintained that her husband had fallen a much greater distance, and that even if he had fallen from the cross-braces, he was on them only because Huston had provided no other way to reach the mason’s work platform. According to her argument, Huston could not successfully assert a unilateral-employee-negligence defense because Huston failed to first comply with a regulation requiring safe access to scaffolds.

In her report, the staff hearing officer said that since no one saw Patrick fall, no one knows where it happened. Did he, she asked, “fall from the scaffold or did he fall climbing up/down the scaffold?” The hearing officer concluded that Catherine “can not prove by a preponderance of the evidence that there was a violation of a specific safety requirement,” that caused Patrick’s death. The hearing officer thus denied the VSSR application.

After that, Catherine filed a complaint in the court of appeals alleging that the Commission had abused its discretion.  She argued that the Commission had denied her application solely because there were no eyewitnesses who could definitively identify the point from which Patrick fell.

She maintained that a lack of eyewitnesses should not defeat her claim and that the hearing officer was required to draw inferences from the evidence presented and essentially pick one side’s version. Since the hearing officer didn’t do that, Catherine argued that it could mean only that the hearing officer did not review the evidence.

The court of appeals agreed and issued a judgment in Catherine’s favor. After that, the case came before us – the Ohio Supreme Court – for final review.

The court of appeals had reached its conclusion based on two things. First, the hearing officer’s preoccupation with the lack of eyewitnesses to Patrick’s fall, and second, her declaration that Catherine “can not” prove her case.

To the court of appeals, the focus on eyewitness testimony could be explained only by the hearing officer’s mistaken belief that such evidence was legally required to prove a VSSR. It is not required, but only the belief in such a rule would justify the hearing officer’s conclusion that Catherine “can not” – as opposed to “did not” – carry her burden of proof.

If that’s what the hearing officer believed, then she would have had no reason to review the rest of the evidence.  We therefore concluded – by a seven-to-zero vote – that an order that is potentially based on an erroneous belief that a VSSR cannot be proved in the absence of eyewitnesses is clearly an abuse of discretion.

We therefore determined that the court of appeals was correct in returning the case to the Commission for clarification and consideration of all the evidence if the hearing officer did not do so previously.

EDITOR'S NOTE: The case referred to is State ex rel. Donohoe v. Indus. Comm., 130 Ohio St.3d 390, 2011-Ohio-5798. Case No. 2010-0734. Decided November 17, 2011. Opinion Per Curiam.