[Cite as Hewitt v. L.E. Myers Co., 134 Ohio St.3d 199, 2012-Ohio-5317.] 

HEWITT, APPELLEE, v. L.E. MYERS COMPANY, APPELLANT, ET AL. 

[Cite as Hewitt v. L.E. Myers Co., 134 Ohio St.3d 199, 2012-Ohio-5317.] 

Workers’ compensation—Immunity of complying employer—Intentional tort by 

employer—R.C. 2745.01—“Equipment safety guard” construed. 

(No. 2011-2013—Submitted September 25, 2012—Decided November 20, 2012.) 

APPEAL from the Court of Appeals for Cuyahoga County, 

No. 96138, 2011-Ohio-5413. 

__________________ 

SYLLABUS OF THE COURT

As used in R.C. 2745.01(C), “equipment safety guard” means a device designed 

to shield the operator from exposure to or injury by a dangerous aspect of 

the equipment, and the “deliberate removal” of an equipment safety guard 

occurs when an employer makes a deliberate decision to lift, push aside, 

take off, or otherwise eliminate that guard. 

__________________ 

LUNDBERG STRATTON, J. 

{¶ 1} We are asked to decide whether “equipment safety guard” for 

purposes of R.C. 2745.01(C) includes only those devices on a machine that shield 

an employee from injury by guarding the point of operation of that machine and 

whether the “deliberate removal” of such an “equipment safety guard” occurs 

when an employer makes a deliberate decision to lift, push aside, take off, or 

otherwise eliminate that guard from the machine. 

{¶ 2} For the reasons that follow, we hold that as used in R.C. 

2745.01(C), “equipment safety guard” means a device designed to shield the 

operator from exposure to or injury by a dangerous aspect of the equipment, and 

the “deliberate removal” of an equipment safety guard occurs when an employer 
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makes a deliberate decision to lift, push aside, take off, or otherwise eliminate that 

guard. 

{¶ 3} Protective rubber gloves and sleeves are personal items that an 

employee controls and do not constitute “an equipment safety guard” for purposes 

of R.C. 2745.01(C). An employee’s failure to use them, or an employer’s failure 

to require an employee to use them, does not constitute the deliberate removal by 

an employer of an equipment safety guard. Consequently, the plaintiff failed to 

establish a rebuttable presumption of intent pursuant to R.C. 2745.01(C), and the 

defendant was entitled to judgment as a matter of law. We reverse the judgment 

of the court of appeals and enter judgment in favor of appellant. 

Facts and Procedural History 

{¶ 4} Appellee, Larry Hewitt, was working as an apprentice lineman for 

appellant, the L.E. Myers Company, an electrical-utility construction contractor. 

Hewitt was a second-step apprentice, meaning that he had completed the first two 

steps in a seven-step program, and he was now working in the field. 

{¶ 5} On June 14, 2006, Hewitt was assigned to an L.E. Myers crew that 

was replacing old electrical power lines along Route 60 near New London, Ohio. 

The crew met that morning for a short daily job briefing. Workers who attended 

the briefing signed a daily job-briefing log. Hewitt claimed that he was late and 

missed the meeting that morning; nevertheless, his signature appeared on the log. 

{¶ 6} Hewitt’s job that day was to tie in the new power line, which was 

de-energized. Because the crew was short one person, Hewitt had to work by 

himself in an elevated bucket even though he was only an apprentice. According 

to the daily job-briefing log, workers were required to use protective rubber 

gloves and sleeves that day, which was consistent with L.E. Myers’s policy, in 

case the lines became energized. Hewitt admitted that gloves were available, but 

he claimed that Dennis Law, a lineman on the job, told him that he should not 
January Term, 2012 

3 

need the protective rubber gloves and sleeves because the line was de-energized. 

Law disputed the conversation. Hewitt did not wear them. 

{¶ 7} Law was directing traffic and supervising Hewitt’s work from the 

ground that day. At some point, Law yelled to Hewitt from the ground. When 

Hewitt turned in Law’s direction, the wire in his right hand came in contact with 

an energized line and he received an electric shock, which caused severe burns. 

{¶ 8} Hewitt applied for and received workers’ compensation benefits. 

He also filed a claim alleging a violation of a specific safety requirement, and the 

parties settled that case. 

{¶ 9} Hewitt filed this action against L.E. Myers alleging a workplace 

intentional tort in violation of R.C. 2745.01 and common law. He alleged that 

L.E. Myers knew with substantial certainty that he would be injured when 

working alone in an elevated lift bucket near energized high-voltage power lines 

without the use of protective rubber gloves and sleeves. Hewitt alleged that L.E. 

Myers in effect removed the protective rubber gloves and sleeves that were safety 

guards creating a barrier between him and the electrical current.1

 

{¶ 10} The case proceeded to a jury trial. At the conclusion of the 

plaintiff’s case, L.E. Myers moved for a directed verdict as to liability under R.C. 

2745.01. The trial court concluded that there was insufficient evidence to 

demonstrate a direct intent to harm as required by R.C. 2745.01(A) and (B). So 

the court limited the plaintiff’s theory of recovery to R.C. 2745.01(C), according 

to which the employer’s deliberate removal of an equipment safety guard creates 

a rebuttable presumption of an intent to injure. 

{¶ 11} The jury returned a verdict in favor of Hewitt. The court overruled 

L.E. Myers’s motion for judgment notwithstanding the verdict. 

 

1. Hewitt also named as defendants the Bureau of Workers’ Compensation to the extent of its 

subrogation rights and the Ohio attorney general because the complaint asserted a challenge to the 

constitutionality of R.C. 2721.12. They are not parties in this appeal. 
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{¶ 12} L.E. Myers appealed the court’s denial of a directed verdict and 

judgment notwithstanding the verdict. The court of appeals affirmed. The court 

reasoned that the protective rubber gloves and sleeves were equipment safety 

guards within the meaning of R.C. 2745.01(C) and that the decision by Hewitt’s 

supervisor to place Hewitt alone in an elevated bucket close to energized wires 

without requiring him to wear protective rubber gloves or sleeves amounted to the 

deliberate removal of an equipment safety guard. Thus, the appellate court 

concluded, this established a rebuttable presumption under R.C. 2745.01(C) of an 

intent to injure Hewitt, and L.E. Myers had presented no evidence to rebut the 

presumption. 

{¶ 13} The cause is before this court upon the acceptance of a 

discretionary appeal. 131 Ohio St.3d 1456, 2012-Ohio-648, 961 N.E.2d 1135. 

Analysis 

{¶ 14} A cause of action for an employer intentional tort is governed by 

R.C. 2745.01, which provides: 

(A) In an action brought against an employer by an 

employee * * * for damages resulting from an intentional tort 

committed by the employer during the course of employment, the 

employer shall not be liable unless the plaintiff proves that the 

employer committed the tortious act with the intent to injure 

another or with the belief that the injury was substantially certain 

to occur. 

 (B) As used in this section, “substantially certain” means 

that an employer acts with deliberate intent to cause an employee 

to suffer an injury, a disease, a condition, or death. 

 (C) Deliberate removal by an employer of an equipment 

safety guard or deliberate misrepresentation of a toxic or hazardous 
January Term, 2012 

5 

substance creates a rebuttable presumption that the removal or 

misrepresentation was committed with intent to injure another if an 

injury or an occupational disease or condition occurs as a direct 

result. 

 

{¶ 15} Today, we review the phrase “deliberate removal by an employer 

of an equipment safety guard” in R.C. 2745.01(C).2

 L.E. Myers argues that “an 

equipment safety guard” means a safety device attached to a machine that is 

intended to guard an employee from injury and that “deliberate removal” occurs 

when an employer makes a deliberate decision to eliminate that guard from the 

machine. 

{¶ 16} When construing a statute, our primary goal is to ascertain and 

give effect to the intent of the General Assembly. State v. Hairston, 101 Ohio 

St.3d 308, 2004-Ohio-969, 804 N.E.2d 471, ¶ 11. We begin with the plain 

language and apply it as written in the statute. State v. Chappell, 127 Ohio St.3d 

376, 2010-Ohio-5991, 939 N.E.2d 1234, ¶ 17. In doing so, we read words and 

phrases in context and according to the rules of grammar and common usage, and 

they must be given a technical or particular meaning if appropriate. R.C. 1.42. 

A. Definition of “An Equipment Safety Guard” 

{¶ 17} R.C. 2745.01(C) does not define these terms, so we look to the 

plain and ordinary meaning of the words. Van Fossen v. Babcock & Wilcox Co., 

36 Ohio St.3d 100, 103, 522 N.E.2d 489 (1988). The court of appeals used the 

following definitions: 

 

 

2. The trial court ruled that Hewitt had presented insufficient evidence of a direct intent to injure 

necessary to recover under R.C. 2745.01(A) and (B), and the court limited the plaintiff’s theory to 

the presumption of intent in R.C. 2745.01(C). The issue of direct intent is not before us. 
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“ ‘Guard’ is defined as ‘a protective or safety device; 

specif: a device for protecting a machine part or the operator of a 

machine.’ Merriam-Webster’s Collegiate Dictionary [516 (10th 

Ed.1996)]. ‘Safety’ means ‘the condition of being safe from 

undergoing or causing hurt, injury, or loss.’ [Id. at 1027.] And 

‘equipment’ is defined as ‘the implements used in an operation or 

activity: APPARATUS.’ [Id. at 392.]” 

2011-Ohio-5413, ¶ 24, quoting Fickle v. Conversion Technologies Internatl., Inc., 

6th Dist. No. WM-10-016, 2011-Ohio-2960, ¶ 38. 

{¶ 18} The word “guard,” a noun, is modified by the adjectives 

“equipment” and “safety.” Reading the words in context and according to the 

rules of grammar as we must, R.C. 1.42, we determine that the phrase “an 

equipment safety guard” means a protective device on an implement or apparatus 

to make it safe and to prevent injury or loss. 

{¶ 19} The Sixth District Court of Appeals so interpreted the phrase in 

Fickle, 2011-Ohio-2960, modified, Beyer v. Rieter Automotive N. Am., Inc., 6th 

Dist. No. L-11-1110, 2012-Ohio-2807, 973 N.E.2d 318. In that case, the 

plaintiff’s hand and arm were caught in a roller on an adhesive-coating machine. 

She alleged that her employer had failed to train her to use a jog switch that would 

stop the roller when not depressed and also had disconnected an emergency stop 

cable. The Fickle court concluded that these devices were not “equipment safety 

guards,” because they did not prevent the plaintiff’s hands from being exposed to 

the dangerous point of operation of the machinery she had been operating. Id. at 

¶ 42. Thus, the court concluded that these facts did not demonstrate a “[d]eliberate 

removal by an employer of an equipment safety guard” to establish a presumption 

of intent under R.C. 2745.01(C). 
January Term, 2012 

7 

{¶ 20} Fickle rejected the argument that “equipment safety guard” 

included “ ‘any device designed to prevent injury or to reduce the seriousness of 

injury.’ ” Id. at ¶ 39. “The General Assembly did not make the presumption 

applicable upon the deliberate removal of any safety-related device, but only of an 

equipment safety guard, and we may not add words to an unambiguous statute 

under the guise of interpretation.” Id. at ¶ 42. Thus, Fickle defined “equipment 

safety guard” as a “device that is designed to shield the operator from exposure to 

or injury by a dangerous aspect of the equipment.” Id. at ¶ 43. 

{¶ 21} Other appellate districts in this state have similarly construed this 

phrase. See Beary v. Larry Murphy Dump Truck Serv., Inc., 5th Dist. No. 2011-

CA-00048, 2011-Ohio-4977, ¶ 21 (“equipment safety guard” commonly means a 

device designed to shield the operator of equipment from exposure to injury by a 

dangerous aspect of the equipment; a vehicle’s backup alarm does not guard 

anything); Barton v. G.E. Baker Constr., 9th Dist. No. 10CA009929, 2011-Ohio5704 (a trench box to secure the sides of a trench from collapse is not “an 

equipment safety guard” because it is not a piece of equipment designed to protect 

an operator of equipment); Roberts v. RMB Ents., Inc., 197 Ohio App.3d 435, 

2011-Ohio-6223, 967 N.E.2d 1263, ¶ 24 (12th Dist.) (a tire bead and bead taper, 

alleged safety features of a wheel-assembly unit, do not constitute “equipment 

safety guards,” because they are not devices designed to shield the operator from 

exposure to or injury by a dangerous aspect of the equipment). 

{¶ 22} The court below did not agree that the “safety guard” must be 

attached to machinery. The court reasoned that that interpretation would limit 

recovery for injured employees who did not work with equipment. 2011-Ohio5413, ¶ 20. Likewise, Hewitt advocates that the phrase should apply broadly to 

any safety-related item that may serve as a barrier between the employee and 

danger, citing Beyer, 2012-Ohio-2807, 973 N.E.2d 318, in support. 
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{¶ 23} In Beyer, the Sixth District Court of Appeals agreed with the 

Eighth District’s expanded interpretation in Hewitt and concluded that even 

“personal protection equipment” such as a face mask at a manufacturing plant was 

“an equipment safety guard” because the masks were used to prevent the 

employee’s exposure to toxic dust. Beyer modified Fickle and held that 

“equipment safety guard” as used in R.C. 2745.01(C) may also include freestanding equipment. Id. at ¶ 12–13. 

{¶ 24} We do not agree. To construe “equipment safety guard” to include 

any generic safety-related item ignores not only the meaning of the words used 

but also the General Assembly’s intent to restrict liability for intentional torts. As 

the Ninth District observed in Barton v. G.E. Baker Constr., 2011-Ohio-5704, 

¶ 11, “[f]rom these common dictionary definitions, it becomes apparent that not 

all workplace safety devices are ‘equipment safety guards’ as that term is used in 

Section 2745.01.” 

{¶ 25} A broad interpretation of the phrase does not comport with the 

General Assembly’s efforts to restrict liability for intentional tort by authorizing 

recovery “only when an employer acts with specific intent.” Stetter v. R.J. 

Corman Derailment Servs., L.L.C., 125 Ohio St.3d 280, 2010-Ohio-1029, 927 

N.E.2d 1092, ¶ 26; Kaminski v. Metal & Wire Prods. Co., 125 Ohio St.3d 250, 

2010-Ohio-1027, 927 N.E.2d 1066, ¶ 56. As we explained in Kaminski, the 

statutory restriction of intentional-tort liability “is supported by the history of 

employer intentional-tort litigation in Ohio and by a comparison of the current 

statute to previous statutory attempts.” Id. at ¶ 57. It is not our role to secondguess the policy matters set by the General Assembly. Stetter at ¶ 35. 

Consequently, we refrain from expanding the scope of the rebuttable presumption 

of intent in R.C. 2745.01(C). 

{¶ 26} Free-standing items that serve as physical barriers between the 

employee and potential exposure to injury, such as rubber gloves and sleeves, are 
January Term, 2012 

9 

not “an equipment safety guard” for purposes of R.C. 2745.01(C). Instead, rubber 

gloves and sleeves are personal protective items that the employee controls. We 

adopt the definition in Fickle and hold that as used in R.C. 2745.01(C), 

“equipment safety guard” means “a device that is designed to shield the operator 

from exposure to or injury by a dangerous aspect of the equipment.” Fickle, 2011-

Ohio-2960, ¶ 43. 

B. Definition of “Deliberate Removal” 

{¶ 27} The court of appeals concluded that the employer’s decision to 

place Hewitt close to energized wires without requiring him to wear protective 

rubber gloves or sleeves amounted to the deliberate removal of an equipment 

safety guard. We disagree. 

{¶ 28} The court below defined the words as follows: “deliberate” means 

“ ‘characterized by or resulting from careful and thorough consideration—a 

deliberate decision,’ ” and “remove” means “ ‘to move by lifting, pushing aside, 

or taking away or off’; also ‘to get rid of: ELIMINATE.’ ” 2011-Ohio-5413 at 

¶ 24, quoting Fickle at ¶ 30–31. 

{¶ 29} Thus, the “deliberate removal” referred to in R.C. 2745.01(C) may 

be described as a careful and thorough decision to get rid of or eliminate an 

equipment safety guard. Hewitt argues that “removal” is a broad term that 

encompasses more than just a physical removal. Although “removal” may 

encompass more than physically removing a guard from equipment and making it 

unavailable, such as bypassing or disabling the guard, an employer’s failure to 

train or instruct an employee on a safety procedure does not constitute the 

deliberate removal of an equipment safety guard. Fickle at ¶ 45. See also

Wineberry v. N. Star Painting Co., 7th Dist. No. 11MA103, 2012-Ohio-4212, 978 

N.E.2d 221 (employer’s failure to place guardrails around a perch and scaffolding 

was not a deliberate removal when the guardrails were never in place). 
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{¶ 30} Consequently, we hold that the “deliberate removal” of an 

equipment safety guard occurs when an employer makes a deliberate decision to 

lift, push aside, take off, or otherwise eliminate that guard from the machine. 

Here, the employer’s failure to instruct Hewitt to wear protective items such as 

rubber gloves and sleeves and requiring Hewitt to work alone in an elevated 

bucket do not amount to the deliberate removal of an equipment safety guard 

within the meaning of R.C. 2745.01(C) so as to create a rebuttable presumption of 

intent. 

{¶ 31} Finally, Hewitt argues that the meaning of the terms in R.C. 

2745.01(C) is a question for the trier of fact to determine. According to Hewitt, 

jurors could reasonably conclude that the protective rubber gloves and sleeves 

qualified under R.C. 2745.01(C) as “equipment safety guard[s]” that were 

“effectively eliminated” when Hewitt was told he did not have to wear them. 

Because the interpretation of undefined terms within a statute is a question of law 

for the court, we reject this argument. Akron Centre Plaza, L.L.C. v. Summit Cty. 

Bd. of Revision, 128 Ohio St.3d 145, 2010-Ohio-5035, 942 N.E.2d 1054. 

Conclusion 

{¶ 32} The protective rubber gloves and sleeves in this case do not, as a 

matter of law, constitute an equipment safety guard within the meaning of R.C. 

2745.01(C). Consequently, we reverse the judgment of the court of appeals and 

order judgment in favor of appellant. 

Judgment reversed. 

O’DONNELL, LANZINGER, and CUPP, JJ., concur. 

O’CONNOR, C.J., and MCGEE BROWN, J., concur in judgment only. 

PFEIFER, J., dissents. 

__________________ 
January Term, 2012 

11 

PFEIFER, J., dissenting. 

{¶ 33} One of these days, a company is going to surprise me and act 

honorably and with compassion. They are going to acknowledge their complicity 

in the grievous injuries suffered by their employee, they are going to adequately 

compensate their employee for his or her injuries, and they are going to do so 

without resorting to every countervailing stratagem that their high-priced counsel 

can devise. Today is not that day. Even though L.E. Myers has implicitly 

acknowledged its complicity by firing every person involved in the incident that 

caused Larry Hewitt’s injuries, even though L.E. Myers knows that, through its 

employees, it acted irresponsibly, L.E. Myers does not have to suffer the 

consequences; only its apprentice does. 

I 

{¶ 34} The majority opinion ultimately concludes that “ ‘an equipment 

safety guard’ means a protective device on an implement or apparatus to make it 

safe and to prevent injury or loss.” Majority opinion at ¶ 18. This is a plausible, 

though not the best, conclusion. For one thing, it reads words into the statute, 

something courts are not supposed to do. See Columbus-Suburban Coach Lines, 

Inc. v. Pub. Util. Comm., 20 Ohio St.2d 125, 127, 254 N.E.2d 8 (1969), where we 

stated that this court has a duty “to give effect to the words used [in a statute], not 

to delete words used or to insert words not used.” 

{¶ 35} R.C. 2745.01(C) refers to “[d]eliberate removal by an employer of 

an equipment safety guard.” The definition that the majority opinion has chosen 

to favor could have easily been written into the statute by changing three words: 

deliberate removal by an employer of a safety guard attached to equipment. That 

is the definition the majority opinion prefers, but it is not the statute that was 

enacted. 

{¶ 36} Instead of adding words to the statute that the General Assembly 

could have easily added, instead of attempting to divine what the General 
SUPREME COURT OF OHIO

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Assembly intended, the better course is to read the statute as enacted and consider 

“equipment safety guard” as a unitary term. Viewed in that light, “equipment 

safety guard” has a simple meaning: equipment that is used as a safety guard. 

There is no need to add words to the statute. There is no need to divine intent. 

There is only a conclusion that the majority opinion does not want to 

countenance. 

{¶ 37} The General Assembly chose not to define “equipment safety 

guard.” In my opinion, that is because they did not want an unduly restrictive 

meaning—one that they surely would have enacted had they chosen to. There are 

many “equipment safety guards” that absent the majority opinion’s new 

constrictive interpretation would give rise to a rebuttable presumption of intent to 

injure. Remember, the presumption is rebuttable, whereas the absence of the 

presumption is often, as in this case, dispositive. 

{¶ 38} One example of an “equipment safety guard” the removal of which 

should give rise to a presumption to injure is a kill switch. Most dangerous 

machines have them. Hitherto, most reasonable people would have thought that 

removing a kill switch would give rise to a rebuttable presumption of intent to 

injure. Not anymore. Employers are now free to remove kill switches without 

troubling over R.C. 2745.01(C). Helmets, facemasks, and visors are other 

examples of equipment used as a safety guard, the removal of which will no 

longer lead to a rebuttable presumption of intent to injure. Governors, which 

prevent certain machines from operating too quickly, may now be removed 

without concern that injuries that result will give rise to a rebuttable presumption 

pursuant to R.C. 2745.01(C). None of these equipment safety guards fit within 

the majority opinion’s draconian interpretation of R.C. 2745.01(C). The scope of 

the majority opinion is staggering and dangerous for employees. 

{¶ 39} The short-term consequences of affirming the court of appeals’ 

decision would be de minimis. True, the employer would have to pay some 
January Term, 2012 

13 

money to its injured apprentice. But this is an employer whose experienced 

supervisors told an apprentice that he shouldn’t wear gloves and sleeves, 

equipment safety guards designed specifically to prevent the type of injury that 

occurred. Everyone involved with this case knows that the use of the equipment 

safety guards at issue would have prevented the apprentice’s injuries. 

{¶ 40} For the injured apprentice, the damages are a considerable amount 

of money, but for the employer, the sums involved are not significant. L.E. 

Myers’s parent company, MYR Group, has a market capitalization of over $450 

million and earned over $18 million in profits in 2011. The long-term 

consequences of reversing the court of appeals and imposing an unduly restrictive 

interpretation of “equipment safety guard” are potentially calamitous for Ohio’s 

workers because companies will have less incentive to ensure that their 

employees operate as safely as possible. 

II 

{¶ 41} Larry Hewitt sought recovery based on three grounds: that L.E. 

Myers acted with the specific intent to injure him, R.C. 2745.01(A); that L.E. 

Myers knew that its actions were substantially certain to injure him, R.C. 

2745.01(A) and (B); and that L.E. Myers was presumed to have intended to injure 

him, R.C. 2745.01(C). The trial court indicated that it was going to limit the 

claim to the statutory presumption, though the court did not memorialize that 

conclusion in an entry. In the event, the court instructed the jury as to the 

“specific intent” and “substantially certain” grounds contained in R.C. 2745.01(A) 

and (B). Furthermore, the interrogatories addressed the concepts of substantially 

certain injury and conscious disregard for worker safety and did not address the 

statutory presumption. There is no reason to assume that the jury confined itself 

to consideration of the statutory presumption. To the contrary, there is ample 

reason to conclude that the jury considered the totality of R.C. 2745.01 in 
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reaching its conclusion. The majority opinion does not even mention the jury 

instructions or interrogatories. 

{¶ 42} Even with the majority opinion’s conclusion regarding R.C. 

2745.01(C), the case should not be decided on the motion for a directed verdict. 

Instead, it should be returned to the court of appeals to consider whether the jury’s 

conclusions with respect to R.C. 2745.01 (A) and (B) are sustainable. 

{¶ 43} I dissent. 

________________ 

 Plevin & Gallucci Co., L.P.A., Frank L. Gallucci III, and Michael D. 

Shroge; and Paul W. Flowers Co., L.P.A., and Paul W. Flowers, for appellee. 

 Tucker, Ellis & West, L.L.P., and Benjamin C. Sassé, for appellant. 

The Mismas Law Firm, L.L.C., and John D. Mismas, urging affirmance 

for amicus curiae Ohio Association for Justice. 

Reminger Co., L.P.A., and Brian D. Sullivan, urging reversal for amicus 

curiae Ohio Association of Civil Trial Attorneys. 

 Roetzel & Andress, Denise M. Hasbrook, and Emily Ciecka Wilcheck, 

urging reversal for amicus curiae FirstEnergy Corporation. 

 Garvin & Hickey, L.L.C., Preston J. Garvin, and Michael J. Hickey, 

urging reversal for amicus curiae Ohio Chamber of Commerce. 

 Bricker & Eckler, L.P.A., and Robert R. Sant, urging reversal for amicus 

curiae Ohio Chapter of the National Federation of Independent Business. 

 Licata & Toerek and Elizabeth A. Crosby, urging reversal for amicus 

curiae Council of Smaller Enterprises. 

______________________