Safety and OSHA News

Did OSHA citation make company vulnerable to lawsuit?


Workers’ comp is usually the “exclusive remedy” when an employee is injured on the job, meaning the worker can’t sue the company. But when OSHA issues a willful citation, does that open the door for a successful lawsuit?

Kenneth Van Dunk was a construction worker.

A construction project was on deadline and had already experienced delays because of record rainfalls.

A trench had to be lined with a special fabric. Workers were having trouble stretching the fabric over the 18-to-20-foot deep trench.

Van Dunk volunteered to go into the trench and “fix” the fabric. His supervisor stopped him, saying he was concerned for his safety because the trench wasn’t shored.

After more attempts to spread the fabric failed, the supervisor directed Van Dunk to go into the trench, which collapsed in less than five minutes, causing him to suffer serious injuries.

Van Dunk sued the company, James Construction, saying this was an “intentional wrong,” and therefore fell outside the workers’ comp exclusive remedy.

James filed to get the case thrown out, and a court did so. Van Dunk appealed.

Van Dunk argued this was an intentional wrong because OSHA issued James a willful citation for failing to protect employees from cave-ins, not properly sloping the excavation and sending the employee into an unprotected trench that was 20 feet deep.

The company said the OSHA fine had nothing to do with whether Van Dunk could sue for intentional wrong.

The appeals court refused to throw out the case and said it should go to a jury.

While the OSHA fine wasn’t necessarily enough to prove intentional wrong, the court said a jury could use that as a factor. It said the lower court didn’t give significant credit to the OSHA citation. The court also said this case was “a close call.”

Now the case will either go to a jury trial or possibly be settled out of court for a substantial sum.

This case opens the door for OSHA’s willful citations to be taken into consideration in this state and possibly others when it comes to deciding whether an injured employee or the family of an employee who was killed can sue an employer for intentional wrong — an exception to the workers’ comp exclusive remedy.

And under administrator David Michaels, OSHA has been issuing more willful citations.

What do you think about the court’s decision? Let us know in the Comments Box below.

Van Dunk v. Reckson Associates Realty Corp., Superior Court of NJ, Appellate Div., No. A-3548-08T2, 8/30/10.

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  1. Shouldn’t need the OSHA violation, the contractor was wrong! There is not enough info in his injuries to say whether he should sue or not, I mean is he expected to recover fully, or is he disabled? If he’s looking for a free ride the jury will see that.
    James Const. should have had an Engineered JHA and there should have been sloping or shoring, it’s in the book!


  2. George Colby says:

    All the more reason to be proactive with compliance. It’s unfortunate that OSHA has to ‘force the companie’s hand’ by issuing willful violations, but if that’s what it takes to get real, practical attention to safety, then so be it.

    Why the hell didn’t the construction crew put in shoring? If the supervisor recognized it was a danger to put an employee into the trench, why the hell didn’t he shore up the trench, or better yet wait for it to stop raining and re-evaluate.

  3. The worker in question at first volunteered to go in, and the supervisor refused. Afterwards, the worker was ordered to go in. Yes, the trench definitely should have been sloped, but will the jury take into account that he volunteered first? It is a close call, but I think the fact that he volunteered has a bearing on the case.

  4. The only goal is employee safety. However, we live in a litigous society. And some employers do not put safety first. Therefore, there needs to be an additional motivation for employers to abide by employee safety first and this case could be an example. But, unfortunately all are painted with the same stroke. Furthermore, I think this administration has sided with unions and lawyers first and not employees. This is one of the many reasons that jobs are so hard to find. The answer is found in safety professionals. We must insist on safe work environments and not take no or “later” for the answer. We must be diligent and proactive and find ways to insure the safety of our people. I have found that the vast majority of employers are or will commit to safety if shown the cost advantage and that safety does work and accidents can be prevented. In the end I do not think willful citations and lawsuits will insure safety. What these will do is insure fewer jobs for all.

  5. It is amazing that these kind of accidents continue to happen? They were both aware, Van Dunk and the Supervisor. The employee is just as guilty as the Supervisor. So I do not think the company should be sued, unless the employee was forced to enter the trench. The Supervisor should be fired for allowing this to happen.

  6. George Colby says:

    I think Bill Lee has the right handle on it…the supervisor should be held accountable. Regardless of whether or not the employee volunteered (some employees will volunteer for ANYTHING, dangerous or not, simply to prove themselves) the supervisor’s job is to keep them safe, even from themselves. The employee should have been educated and reminded that the construction company WILL NOT KNOWINGLY put employees in danger. If the company does not have a policy like that, they are doomed to fail anyways.

    I shake my head and have to remind myself that people sometimes ignore reality and safety, simply in an attempt to get something done. Whatever gets accomplished is never worth the risk (or cost!)of bodily harm.

  7. The fact that he volunteered has no bearing, the fact that the supervisor knew it” WAS NOT” safe and stopped him then willfully sent him in whithout proper saftey protocols is the problem. It sounds like he was looking for a solution but made the wrong one. Al

  8. By refusing to allow the employee to go in the first time because it was unsafe the supervisor is basicly admiting to putting the worker in a dangerous situation by ordering him in the second time. The volenteer part is irrelevent,an employee who volenteers to do something stupid or dangerous is still just an employee and not in a position to make that call, that is why there are supervisors and foreman in place , to make those kinds of calls.

  9. Rising Star says:

    Unfortunately for the company, when the Supervisor recognized a hazard and failed in his duty to protect the worker – it became a “willful” violation of safety protocols. This violation has NO need to take into account the volunteering of the worker to go into the trench – the hazard was recognized and protection should have been provided. Now – that’s the OSHA view. The Court will no doubt let the jury recognize the hazard and the willful citation – they may instruct them to disregard the volunteering of the employee because that isn’t a trial issue.


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