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July 25 — A federal appeals court affirmed July 25 a citation for a serious “general duty clause” violation issued by the Occupational Safety and Health Administration after a dump truck fatally struck a highway construction worker in Tampa, Fla. ( Pepper Contracting Servs. v. OSHRC , 2016 BL 237337, 11th Cir., No. 16-10302, 7/25/16 ).
In an unpublished per curiam opinion, a panel of the U.S. Court of Appeals for the Eleventh Circuit held that Occupational Safety and Health Review Commission’s determination that a hazard existed on the worksite was supported by substantial evidence. The commission had also issued a $5,600 penalty to Pepper Contracting Services, a general construction contractor and supervisor at the site.
Pepper and two subcontractors were conducting milling operations. As part of the operations, a milling machine removed road and deposited it in a convoy of rotating dump trucks.
On Oct. 29, 2013, Pepper's Alex Diaz and the foreman walked ahead of the trucks to a Verizon pole marker, where they found a telecommunications box overgrown with grass. The foreman showed Diaz how to uncover the box with a shovel to ensure its visibility to the milling operator and left Diaz to complete the task.
When the driver of one of the trucks noticed his truck was too close to the truck in front of him, he honked his horn. The driver of the front truck, an employee of the subcontractor, sped away and struck Diaz, who died as a result of his injuries.
In April 2014, OSHA issued a citation for a serious violation of the “general duty clause,” found at Section 5(a)(1) Occupational Safety and Health Act. An employer violates the clause when it fails to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
The administrative law judge affirmed the citation and the review commission did not direct the matter for review.
To establish a violation of the clause, the Department of Labor must establish that the employer did not render its worksite free of hazard; the hazard was recognized; it caused or was likely to cause serious harm or death; and it was preventable.
Primarily at issue was the first element—Pepper argued that a hazard did not exist.
Based on witness testimony, the commission ALJ reasonably determined that a hazard existed on the worksite, the court of appeals ruled.
“In sum, their testimony established three critical facts: (1) Pepper left decedent Diaz to perform a task while standing in the path of the milling convoy without any supervisory protocol to account for his whereabouts as the milling convoy prepared to start again; (2) Pepper permitted the milling convoy to begin operating again while Diaz was still working and standing in the convoy’s path; and (3) Pepper did not inform any of the dump truck drivers that Diaz was located in their path,” the court of appeals wrote.
The court decided the appeal without oral argument.
Williams Parker Harrison Dietz & Getzen, Sarasota, represented Pepper.
The Department of Labor's Office of the Solicitor represented the department.
The Occupational Safety and Health Review Commission represented the review commission.
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The opinion of the U.S. Court of Appeals for the Eleventh Circuit in Pepper Contracting Services. v. OSHRC is available at http://src.bna.com/g6d.
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