The Eleventh Circuit has affirmed an OSHA fine against an employer, who failed to predict that its employee would be run-over by a dump truck. Pepper Contracting Svcs. v. OSHA, No. 14-0714, 2016 WL 3971718 (11th Cir. Jul. 25, 2016).
In Pepper, a construction company was re-paving a roadway. Part of the re-paving involved “milling” the road — a process by which old asphalt is removed from the road and deposited in a dump truck. If you’ve ever been stuck in a construction zone, you know this is a slow process — proceeding 10 feet per minute, or under 3 miles per hour. A foreman directed an employee, Alex Diaz, to clear a roadside obstruction approximately 90 feet in front of the milling activities. That duty required Diaz to stand in the road while working with a shovel. The foreman did not inform the milling crew that Diaz was working ahead of the project.
Two dump trucks were located in the area where the milling was occurring. One of the dump truck operators honked his horn at the other driver. The second driver was startled, accelerated his truck away from the milling operations, and struck Diaz who was 83 to 88 feet away.
This seems like a tragic, unpredictable accident. Nevertheless, OSHA fined Pepper Contracting for failing to furnish its employees with a place of employment free of recognized hazards that are likely to cause injury or death. The Eleventh Circuit affirmed that decision. The Court relied upon three critical facts: (1) the foreman left Diaz standing in the path of the milling convoy; (2) the foreman permitted the milling convoy to continue work even though Diaz was in the path; and, (3) the foreman failed to warn the dump truck drivers that Diaz was in their path.
Pepper demonstrates the difficulties faced by employers in industries using heavy equipment. A random, unpredictable series of events can lead to tragic consequences, and potential liability.