Nitrogen not toxic, Ohio Supreme Court rules in denying benefits to widow ...Middle East

COLUMBUS, Ohio (WCMH) -- In a 6-1 decision, the Ohio Supreme Court this week denied additional death benefits to the widow of a security guard who died of asphyxiation seconds after walking into a room filled with nitrogen gas.

The widow of Kenneth Ray Jr. had accused TimkenSteel Corporation of failing to provide the proper respiratory and safety equipment while requiring him to conduct safety checks in a pressurized, sealed control room.  

In the per curiam opinion, the majority found that nitrogen is "not toxic and is not a poison as those terms are commonly understood" because nitrogen appears naturally in ambient air. But in a scathing dissent, Justice Jennifer Brunner said the nitrogen gas fell within the definition of "poison" when it displaced oxygen in the room to a toxic level, causing Ray "to die from oxygen deprivation" within seconds.  

Follow this link to read the full decision

Brunner wrote, "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."  

Attorney David Steiger, who represented Ray's widow, Sharmel Culver, criticized what he called "the Republican stranglehold" on the Court. "It's disgusting the length the current Supreme Court will go to protect industry over people."

Chief Justice Sharon L. Kennedy and Justices Patrick F. Fischer, R. Patrick DeWine, Joseph T. Deters, Daniel R. Hawkins, and Megan E. Shanahan joined the majority opinion, reversing the Tenth District Court ruling that Ray's widow was entitled to additional benefits. The Ohio Industrial Commission earlier concluded that rules in effect at the time of the 2016 accident required respiratory equipment when "toxic gases" were present, but because nitrogen is not considered a toxic gas, no rules violation occurred.

Steiger told NBC4 that rule was changed three months after Ray's death to remove the word "toxic," meaning under current standards, Ray's widow would be entitled to compensation.

Watch the full interview with Attorney David Steiger below

It is not disputed that Ray's death was caused by a malfunction in an air-handling unit that uses bursts of compressed nitrogen to dislodge debris from the filter. Steiger said the danger only came in an industrial environment and workplace safety codes should have protected Ray.

He said for the Court to find nitrogen gas is not toxic in the workplace required "legal somersaults and twists and turns to say the very gas that displaced the oxygen in the very room he was required to be in is not toxic -- even though it killed him. "

Steiger compared the decision in the Culver case to a 2024 Supreme Court holding that a restaurant patron who ordered boneless chicken wings should reasonably expect to find bones in the chicken.

"This is like Part 2 of the boneless chicken holding" he said of the court finding "nitrogen is not a toxic gas even though it's deadly."

In a response to an NBC4 request for comment, an Ohio Supreme Court spokesperson said, "The legal reasoning of the Court is written between the pages of the opinion. The judiciary operates under a framework where the Court communicates its determination exclusively through formal orders, decisions, and opinions. This protocol ensures that the legal process remains impartial and adheres strictly to the rule of law."

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