COLUMBUS, Ohio (Legal Newsline) - Air with very little oxygen that killed a man trapped in it wasn't "toxic," the Ohio Supreme Court has ruled, though a dissenting justice says that finding "flies in the face of reason."
The court reached that conclusion May 7 in the Workers' Compensation case of Kenneth Ray Jr., who died while inspecting fire extinguishers for his employer TimkenSteel, now known as Metallus.
Ray was in a sealed room to prevent contaminants from interfering with machinery but its air system had failed, leaving an excess of nitrogen in the air. He died seconds after entering the room of asphyxiation in air that contained only 4.7% oxygen.
Air with 19.5% oxygen is considered dangerous. And though TimkenSteel paid death benefits to Sharmel Culver, she sought more money by alleging the company had violated specific safety requirements (VSSR) like not giving him respiratory equipment.
Her VSSR claim was rejected by Industrial Commission of Ohio, but the Tenth District Court of Appeals revived it. The commission then appealed to the state Supreme Court, which was asked to decide whether nitrogen could be considered "toxic."
The law required Culver to show TimkenSteel should have equipped her husband with a respirator in the presence of air contaminants, which were defined at the time as "hazardous concentrations of fibrosis-producing or toxic dusts, toxic fumes, toxic mists, toxic vapors, or any combination of them when suspended in the atmosphere."
"Toxic" wasn't defined though, and was removed from state law three months after Ray's accident. A staff hearing officer for the commission found in 2022 that since the air we breathe is 78% nitrogen, it can't be considered toxic.
"Culver's position is essentially that Ray died because of a hazardous concentration of nitrogen gas in the atmosphere; ergo, nitrogen gas is an 'air contaminant,'" the majority opinion says.
"But the definition of 'air contaminant' in effect at the time of Ray's death included only 'toxic' gases. Inherent in the use of the qualifying term 'toxic' is the recognition that some gases are not toxic, for which the employer cannot be held accountable under these specific regulations."
Justice Jennifer Brunner dissented from her colleagues, turning to the dictionary to consider "toxic" as "having the character or producing the effects of a poison..." Also taking from the dictionary, Brunner said "poison" means "a substance that inhibits the activity of another substance or the course of a reaction or process."
"To dispel any doubt about the toxicity of nitrogen gas, we should take notice of the fact that nitrogen gas is now being used in the United States to conduct executions of death-row inmates," Brunner wrote.
"Notably, Alabama has executed four inmates using nitrogen gas since January 2024, while Louisiana has executed one."
And regulations requiring respiratory equipment in oxygen-deprived air also suggest nitrogen is toxic, Brunner wrote. One section of her dissenting opinion is titled "Holding that nitrogen gas is never a toxic gas flies in the face of reason."