An actor was shot in the head and seriously injured because a real bullet was mistaken for a blank. Now a judge has decided whether an OSHA fine is valid, or if this was a case of unpreventable employee misconduct.
OSHA had fined Wild West City (WWC) in Stanhope, NJ, $1,250 in connection with the shooting of an actor on July 7, 2006. The employer appealed the fine to the Occupational Safety and Health Review Commission (OSHRC).
What happened: Scott Harris, an actor, was shot in the forehead by a 17-year-old actor who mistakenly loaded his .22-caliber handgun with live bullets instead of blanks.
The shooter used bullets that had been left in a changing room by another actor who brought two boxes of ammunition to work: one with blanks, one with live rounds.
OSHA issued a serious citation for a violation of the General Duty Clause (GDC), for exposing employees to a hazard of being struck by bullets or projectiles when firearms were used by employees reenacting shootouts.
WWC contested the validity of the GDC fine and argued this was a case of unpreventable employee misconduct.
To prove a GDC case, OSHA must show:
- the condition presented a hazard
- the employer or the industry recognized this as a hazard
- the hazard was likely to cause harm
- there are feasible means to eliminate or reduce the hazard, and
- the employer knew or should have known about the hazard.
WWC argued there was no hazard because it had a policy prohibiting the use of live ammunition and that in 49 years it didn’t have any injuries. The OSHRC judge noted neither of these two facts eliminated a hazard.
WWC also argued that because it went 49 years without an injury, the measures it used before the shooting were effective.
However, the judge noted that actors were allowed to bring their personal guns to use in the reenactments, including ones capable of firing real bullets. The guns were inspected only once, when an actor first starting using one. They weren’t inspected on a daily basis.
The judge rejected WWC’s arguments regarding use of the GDC.
To prove unpreventable employee misconduct, an employer must show four things, that it:
- had established work safety rules
- communicated the rules to employees
- had taken steps to discover violations, and
- enforced the rules when violations were discovered.
The judge said WWC met the burden for the first two.
However, WWC failed to conduct appropriate inspections, according to the judge, because it didn’t check guns actors brought from home after they were inspected just once.
And the judge ruled WWC failed to enforce its own rule that live ammunition wasn’t to be used. The judge noted that, after finding that an employee brought live ammunition into the changing area, it took WWC three weeks to fire him.
The OSHRC judge upheld OSHA’s $1,250 penalty.
According to published reports regarding a criminal trial in this case, actor Harris suffered extensive head injuries from being shot. He’s partially paralyzed and has to use a wheelchair.
A New Jersey judge ordered WWC to pay a $7,500 fine for unlawful possession of a handgun without a carry permit. The company pleaded guilty to the third-degree charge.
WWC now has a policy that the only type of guns to be used in their reenactments are ones that only shoot blanks.
Harris has filed a civil suit against WWC. In a bizarre turn of events, WWC now claims the shooting may have been intentional, not accidental.
(Secretary of Labor v. Western World Inc., OSHRC Docket No. 07-0144, 12/27/13)
