• OSHA Wins: Zone of Danger Creates Employer Liability
  • May 7, 2013 | Author: Faith A. Alejandro
  • Law Firm: Sands Anderson PC - Richmond Office
  • On a construction site, isn’t it enough to protect employees from existing hazards? And what does it matter if no one actually got hurt? The Sixth Circuit recently answered these questions: “No it’s not enough,” and “Absolutely, it matters.”

    In All Erection & Crane Rental Corp. v. OSHRC, a crane rental company supplied a crane to a general contractor that was building a bridge in Ohio. The bridge collapsed during construction, but for reasons unrelated to the crane. When the Occupational Safety and Health Administration (“OSHA”) investigated the collapse, it noted that the area behind the crane’s swing radius was barricaded, in part, merely by two wooden pallets leaning against each other. The OSHA inspector issued a citation against All Crane for failing to barricade the swing radius according to federal regulations.

    On appeal of the citation, the administrative law judge (“ALJ”) reviewed the four-part test for imposing liability:

    (1) Does the cited standard apply to the cited violation?

    (2) Were the terms of the cited standard met by the employer?

    (3) Were employees exposed to the cited violation? and

    (4) Did the employer have knowledge about the violation?

    On the first question, the ALJ easily found that the regulation at hand, 29 C.F.R. § 1926.550(a)(9), applied to cranes.

    Under the second question, the ALJ also easily found that All Crane violated the standard’s terms because All Crane’s employee conceded that he did not properly barricade the swing radius of the crane.

    On the fourth question, the ALJ also found that All Crane had knowledge of the violation because its employee who acknowledged the violation clearly had knowledge and was considered to be a supervisor.

    On the third inquiry, however, the ALJ reached a surprising conclusion.

    Up until the Sixth Circuit’s ruling, this third question focused on whether the employee had any actual exposure to the hazardous condition. However, in All Crane, the Sixth Circuit took issue with the presence of employees who had access to the area of the crane’s swing radius and walked behind and around the crane in proximity to the rotating counterweight. The court stated that OSHA “need only prove that employees had access to the violative condition. The Secretary need not prove that employees were actually exposed to the condition, but only that it was reasonably predictable that employees would be within the zone of danger.” The Sixth Circuit cited to prior decisions of the OSHA Commission that this third element is met if “it is reasonably predictable by operational necessity or otherwise, including inadvertence, that employees have been, are, or will be in the zone of danger.”

    Although the Sixth Circuit’s opinion does not govern the federal courts in Virginia and North Carolina, the argument adds to the debate of “access v. presence” that the Fourth Circuit has before acknowledged but declined to decide. See Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255, 1263 (4th Cir. 1974). In Brennan, the Fourth Circuit considered an OSHA citation for scaffolding and noted the debate on whether a citation can issue merely on the basis of employee access to the danger zone, or whether specific evidence of employee presence in the danger zone is required, stating that the debate “can be answered either way consistent with the statutory purposes of [OSHA].” However, the Fourth Circuit refused to weigh in on the debate, stressing that resolution on “access v. presence” was best left to the OSHA Commission’s expertise. Ultimately, the Fourth Circuit reversed and remanded the case because, among other reasons, the OSHA Commission failed to explain why it adopted a rule that access alone is sufficient to make out a violation. Since Brennan, the Fourth Circuit has simply followed and applied the same OSHA Commission rulings that formed the basis of the Sixth Circuit’s new rule. See, e.g., N&N Contrs., Inc. v. OSHRC, 255 F.3d 122, 127 (4th Cir. 2001). It is likely, therefore, that the Fourth Circuit could follow the Sixth Circuit’s clear mandate to make access enough to form the basis of an OSHA citation.

    For employers, the All Crane case cautions that employers may have a bigger burden to bear in defense of OSHA violations. After all, under the “access alone” rule of the Sixth Circuit, OSHA can establish its case based only on the testimony of an employer’s compliance officer without additional proof about an actual employee’s presence in the zone of danger. This could mean increased costs as employers exercise additional precautions for all potential hazardous conditions. Indeed, employers must consider the need to barricade danger zones as critical to protecting themselves from liability for OSHA violations.