Safety and OSHA News

General duty clause violation or unpreventable employee misconduct?

You’ve provided safety training and your workers perform hazard analyses before starting jobs. Then an employee’s action leads to his death. Is it an OSHA violation or unpreventable employee misconduct?

Otis Elevator Co. was hired to install six elevators in an addition to the Brookwood Women’s Medical Center in Brookwood, AL.

Elevators #4 and #5 shared a hoistway … two shafts next to each other occasionally separated by beams.

Elevator #4 developed a problem and a part was needed to repair it.

Two Otis employees, a mechanic and an apprentice, arrived at the construction site on Sept. 20, 2011. They had to wait for another Otis employee to deliver the replacement part. While they waited, they completed a written job hazard analysis.

The workers had stored their tools in elevator #4 overnight. To retrieve them, the apprentice moved car #4 to the bottom floor. He stood on top of the car to use the “dead man” switches there to lower it.

The mechanic told the apprentice to wait on top of elevator #4 until the replacement part arrived.

While waiting, the mechanic heard a strange noise. The mechanic called to the apprentice. When he didn’t get an answer, the mechanic ran up to the third floor and looked down the elevator #4 shaft. The apprentice was lying on top of the unit with a serious head wound. He was dead.

An OSHA inspector and police determined that the apprentice had climbed onto a railing on top of car #4 and looked into the shaft of adjoining elevator #5. At that moment, car #5 descended and struck him on the head, killing him.

Should’ve used lockout/tagout?

The inspector didn’t recommend a citation against Otis. But OSHA didn’t accept her recommendation and issued one serious violation of the General Duty Clause and a fine of $7,000.

The citation stated, “lockout tagout (LOTO) procedures were not utilized when servicing or maintenance was being performed at the top of an elevator car.”

Otis appealed to the Occupational Safety and Health Review Commission, and an administrative law judge heard the case.

The judge said OSHA must show the hazard was recognized by either the employer or the industry.

“Otis had no actual or constructive knowledge that the apprentice would go over the back corner of the elevator top and stand on the guardrail to peer down into the adjacent shaft,” the judge wrote. For that reason, the judge ruled OSHA failed to establish Otis knew a hazard existed.

An expert testified that the elevator industry is concerned about employees performing work being struck by adjacent elevators.

But in this case, the mechanic had told the apprentice to wait on the elevator roof until the replacement part arrived.

At the time of the incident, the apprentice wasn’t performing any work, the judge said. OSHA “has not established that the elevator industry recognizes a hazard to an employee from an adjacent elevator when the employee is merely … waiting on a replacement part.” So OSHA didn’t show that the industry recognized that to be a hazard.

OSHA also had to show a feasible means was available to eliminate or reduce the hazard. The agency suggested that employees lockout and tagout elevator controls when they’re servicing or performing maintenance on them.

But the judge said at the moment of the injury, there was no work being performed on either elevator, and there was no unexpected startup of either car. So OSHA failed to show use of LOTO was a feasible means to abate the hazard.

Given these two findings, the judge vacated the citation and fine against Otis. This turns out to be a case of unpreventable employee misconduct.

What do you think about the judge’s decision? Let us know in the comments below.

(Secretary of Labor v. Otis Elevator Co., OSHRC No. 12-0817, 11/26/12)

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Comments

  1. I feel the Judge got it right. It’s sad about the accident but the apprentice was there to work on elevator #4 and that should have been his focus. He had no business climbing around and checking out #5

  2. Disagree, it is the fiduciary responsibility of supervision to inform workers of hazards of the work area, not just with their trades. So by instructing the worker to wait on top the elevator, the supervisor had the responsibility to tell the worker the hazard of a functional elevator in a shared shaft.

  3. This individual should have known not to play in an elevator shaft where there is a working elevator. This is the same as telling a road construction worker not to play in traffic. At some point people have to be responsible for their own stupid actions. Unfortunately this one cost him his life, but if you work in the industry this should not be an unknown safety issue.

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