An actor at a wild west theme park was accidentally shot in the head during a performance because live ammunition was used instead of blanks. OSHA issued a General Duty Clause (GDC) fine to the park which appealed. How did a court recently rule in this case?
Scott Harris, an employee of Wild West City (WWC) in Stanhope, NJ, was shot in the forehead and seriously injured 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 the live ammunition to work.
WWC appealed to the Occupational Safety and Health Review Commission (OSHRC). An administrative law judge (ALJ) upheld the fine, and the entire OSHRC refused to hear an appeal. Recently, a federal appeals court looked at the case.
Unpreventable employee misconduct?
WWC argued this was a case of unpreventable employee misconduct. To prove that, an employer must show it has:
- established work rules designed to prevent the violation
- adequately communicated these rules to its employees
- taken steps to discover violations, and
- effectively enforced the rules when violations have been discovered.
The ALJ found WWC hadn’t satisfied the third and fourth points because it had allowed employees to use their own firearms and ammunition which was supposed to be blanks and there was insufficient evidence of discipline of violators.
In this case, WWC found which worker had brought the live ammunition to work, but the park took three weeks to fire him.
The appeals court found the ALJ’s findings were supported by substantial evidence, writing:
“It is inexplicable that WW would allow employees to bring their own firearms and blank ammunition into the Park without inspection to ensure that these firearms were not loaded with live ammunition … the fact that it took three weeks to terminate [the employee] after WW management discovered that he brought live ammunition into the Park, in violation of its stated policy, demonstrates that WW did not effectively enforce its posted rules.”
WWC also argued that the ALJ erred by finding the company violated the GDC.
To prove a GDC violation, OSHA must show:
- a condition or activity in the employer’s workplace presented a hazard to employees
- the cited employer or the employer’s industry recognized the hazard
- the hazard was causing or likely to cause death or serious physical harm, and
- feasible means existed to eliminate or materially reduce the hazard.
WWC said the ALJ failed to show the first and third points were satisfied in this case.
The ALJ determined WWC employees were exposed to a hazardous working environment because it permitted them to use their own firearms capable of firing live ammunition. The ALJ also found the hazard – being struck by a live bullet – was likely to cause death or serious harm.
WWC noted that in the 43 years it operated, approximately 580,500 rounds of ammunition were fired by performers, resulting in a 0.00017% chance for an employee to be struck by a live bullet. However, the appeals court said the GDC requirement addressed probability of death or serious injury, not the probability of an incident.
So the federal appeals court denied WWC’s petition for review, letting the violation and fine stand.
Chalk up another successful defense by OSHA in a GDC case when a specific regulation doesn’t cover a workplace hazard.
What do you think about the decision in this case? Let us know in the comments below.
(Western World Inc. v. Secretary of Labor, U.S. Circuit Crt. 3, No. 14-1838, 3/20/15)