A road crew worker was struck by a truck at a work site and killed. OSHA issued a General Duty Clause violation, saying the company didn’t take precautions to make sure the worker wouldn’t be struck. Was the violation upheld in court?
Alex Diaz worked for Pepper Contracting Services Inc. of Tampa, FL. The company conducted milling operations on roads.
On one project, a foreman wanted to make sure a telecommunications box at the side of the road was fully exposed and visible to the milling machine operator.
The foreman showed Diaz how to properly expose the box and told him to uncover it. The foreman thought this would take only three or four minutes. He left Diaz, who was wearing a safety vest, to complete the task. The foreman didn’t tell any of the company’s dump truck drivers that Diaz was working on the box ahead of the trucks.
Soon, the milling operation resumed. One truck driver honked his horn because he noticed his dump truck was too close to another one. The driver of the second dump truck sped forward and struck Diaz who was still standing by the box. The distance from where the truck started to where it struck Diaz was about 85 feet.
Diaz died from the injuries he suffered.
OSHA issued Pepper a serious General Duty Clause (GDC) violation that alleged “employees were exposed to the hazard of being struck by vehicular traffic inside a work zone.” The fine was $5,600.
The OSHA investigator’s report said the absence of “internal traffic control plans” and “a flagger to clear out the path of dump trucks before the truck started to move forward” were contributing factors in Diaz’s death.
Pepper appealed the citation. An administrative law judge (ALJ) of the Occupational Safety and Health Review Commission (OSHRC) upheld the violation and fine. The company appealed to a federal court.
Was there a hazard?
To prove a violation of the GDC, OSHA must show:
- the employer failed to render its workplace free of a hazard
- the hazard was recognized
- the hazard caused or was likely to cause death or serious physical harm, and
- the hazard was preventable.
Pepper primarily challenged whether a hazard existed. The company argued OSHA didn’t present enough evidence to show that there was a struck-by hazard.
The federal appeals court noted that Pepper:
- left Diaz to perform a task while standing in the path of a convoy of dump trucks
- permitted the milling convoy to begin operating while Diaz was still working and in the trucks’ path, and
- didn’t inform any of the truck drivers that Diaz was working up ahead along the side of the road.
Pepper argued the ALJ failed to consider:
- Diaz’s distance from the hazard
- the time anticipated for him to complete his task, and
- the usual slow pace of the convoy.
The appeals court didn’t buy Pepper’s arguments. In particular, the court said the company’s resumption of milling while Diaz was in his assigned work location put the worker at risk since he was in the path of the moving convoy.
The violation and fine against Pepper were upheld.
What do you think about the court’s decision? Let us know in the comments.
(Pepper Contracting Services v. OSHA, U.S. Circuit Crt. 11, No. 14-0714, 7/25/16)
