Rely on Occupational Safety & Health ReporterSM for full news coverage and documentation of federal and state workplace safety and health programs, standards, legislation,...
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In an unpublished per curiam opinion, a panel of the U.S. Court of Appeals for the Eleventh Circuit held that Occupational Safety and Health Review Commission’s determination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.
To contact the reporter on this story: Lars-Eric Hedberg in Washington at email@example.com
To contact the editor responsible for this story: Larry Pearl at firstname.lastname@example.org
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.
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)