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A film crew for the uncompleted movie, ‘Midnight Rider,’ was setting up a scene on train tracks over water when a train barreled through the set, killing a 27-year-old camera assistant and injuring eight other crew members.
The makeshift 2014 set had been on an active train trestle owned by CSX Transportation in Georgia and was being used without the train company’s permission.
Three management employees, including director Randall Miller, were convicted of criminal trespass and involuntary manslaughter in Wayne County Superior Court.
Although the criminal case garnered the headlines, the Occupational Safety and Health Administration also became involved.
OSHA issued citations for serious violations of 29 C.F.R. 1910.23(c)(1) and 29 C.F.R. 1910.23(e)(1) for failing to adequately guard the sides of the trestle and exposing employees to fall hazards. The agency also issued a willful violation of the general duty clause, Section 5(a)(1) of the Occupational Safety and Health Act, to the production company for failing to protect employees from being struck by a train.
Administrative Law Judge Sharon D. Calhoun of the Occupational Safety and Health Review Commission affirmed the citations and assessed $74,900 in penalties.
The film’s supervisors “knew the railroad tracks were live tracks, in active use by CSX, and that CSX had refused permission to film on the tracks,” Calhoun wrote. “Supervisors Miller, Savin, Sedrish, Schwartz, and Ozier were aware no CSX representatives were present at the site to control train traffic while the employees were on the trestle. None of Film Allman’s supervisors informed the crew and cast members that CSX would not be on site and would not be controlling train traffic while they were filming on the tracks.”
The U.S. Court of Appeals for the Eleventh Circuit affirmed the ruling ( Film Allman, LLC v. Sec’y of Labor , 2017 BL 85661, 26 OSHC 1491, 11th Cir., No. 15-15720, unpublished 3/20/17 ).
“Unfortunately, this is one of the problems and a common one,” Monona Rossol, an industrial hygienist and safety officer at the International Alliance for Theatrical Stage Employees told Bloomberg BNA. “People don’t get permission to shoot a scene when they need it from the authority with jurisdiction over a particular place, such as a city or railroad. All common sense is somehow forgotten in a rush to get a shot.”
The film and television industry may not be a priority for federal and state safety and health regulators, and it generally has a good safety record.
But accidents do happen, and companies both large and small must remain diligent with their compliance efforts and ensure employees are trained, attorneys tell Bloomberg BNA.
“A film set isn’t the same as a factory or smelter in terms of the risk of injury,” Cole Wist, a shareholder in the Denver office of Ogletree Deakins and state representative from Arapahoe County, told Bloomberg BNA. “But folks in the industry are employers at the end of the day, and they have a duty to provide a workplace free from hazards. If productions are going to push the envelope, especially in terms of effects, then they need to be aware” of hazards and standards.
The risk of injury may not be as high, but fatal accidents like the one on the set of ‘Midnight Rider’ illustrate how OSHA becomes involved.
A search of standard business classifications of OSHA’s inspection data reveals Cal/OSHA has conducted six inspections this year of film and video productions. Three complaints and three accidents triggered the inspections. Federal and state safety and health agencies conducted 19 inspections in 2016, which resulted in citations for 15 violations.
In comparison, the new single family home construction industry has had 670 inspections as of May 5 and had 1,954 in 2016.
“It’s fair to say the film and television industry isn’t a particular target for Cal/OSHA, and hasn’t been a big focus of enforcement in general,” Jeff Tanenbaum, a partner at Nixon Peabody’s office in San Francisco and chair of the firm’s OSHA practice. “We tend to see enforcement after the fact, especially if an accident catches the public’s attention, then the agency follows up as a result.”
Federal and state safety agencies may not be conducting many inspections because there is no special emphasis on film and video production.
“OSHA doesn’t have mandatory inspections unlike the Mine Safety and Health Administration,” so right away there is less of a chance of inspection, Wist said. “Unless there is a serious accident, fatality or complaint, productions could go years without an inspection. There’s a risk of complacency.”
Instead, the agencies take targeted approaches to inspections.
“The agencies look at where accidents have occurred in the past or accident trends resulting in injury, so production companies should be cognizant of accidents being experienced by their peers” Wist added. “OSHA looks at injury rates and, based on its findings, places a special emphasis on certain hazard categories, such as combustible dust and amputations from hazardous machinery.”
Howard Fabrick, of counsel in the Los Angeles office of Barnes & Thornburg LLP, told Bloomberg BNA that the industry’s proactive approach to safety and reporting also affects its relationship with regulators.
“Cal/OSHA is comfortable that the industry is doing a good job of policing itself,” Fabrick said. “It is taking affirmative, aggressive steps [in training and reporting] instead of reacting to tragedy.”
Fabrick is previously the vice president of labor relations and personnel at Columbia Pictures, and vice president and counsel at the Association of Motion Picture and Television Producers.
Traditional OSHA inspection and enforcement practices do not mesh well with the film and television industry, according to Rossol, who represents United Scenic Artists Local USA 829 in the safety business.
“General OSHA procedures do not work for the film industry,” she said. “OSHA receives a complaint about workplace safety and health conditions and then sends a letter to the employer, and the employer responds to that letter. Meanwhile, the shoot may be done within two weeks, before an inspection can even take place.”
The employer-employee relationship also complicates matters.
“Our people don’t have a single employer like most people do,” she said. “They are involved in different productions and are moving around a lot. It really makes OSHA regulations and enforcement hard to administer.”
Cal/OSHA relies on complaints, accidents and referrals to learn about potential violations at smaller productions, Peter Melton, a spokesman at Cal/OSHA, told Bloomberg BNA.
Whereas large studios for the most part “have a handle on safety,” one-off productions in particular may run into problems, according to Fabrick.
For a variety of reasons, smaller companies may find it more difficult to come into compliance with OSHA and Cal/OSHA standards.
“One-off independent productions don’t have permanent infrastructure and are more likely to run into problems due to budget constraints,” Fabrick said. “They need a good assistant director and unit production manager” to ensure the production meets health and safety standards.
These smaller production companies also may not have safety professionals or someone on staff with knowledge of OSHA issues, Wist and Rossol said.
YouTube impresarios create even more safety and health questions, Fabrick said.
“The amount of content today is huge, but I can’t really address amateur stuff,” he said. “Amateurs shooting at home, I just hope they have common sense and don’t do silly things.”
Although the industry doesn’t have specific safety and health standards, a number of standards apply to activities on a film or television set.
Set construction may implicate, among others, scaffolding, fall protection, lockout-tagout and electrical standards, Wist said. Special effects may bring chemicals, hazardous substances and airborne contaminant standards into play. OSHA is also concerned about musculoskeletal disorders in the workplace brought about by repetitive stress, he added.
Because the industry doesn’t have a specific set of standards, according to Wist, OSHA is likely to use the general duty clause, which requires employers to provide their employees with a place of employment that “is free from recognizable hazards that are causing or likely to cause death or serious harm to employees.”
“It’s a dangerous industry all the way around, and shooting on location creates issues apart from studios,” Rossol said. “Many shoots, at least in New York City, are done in abandoned buildings. They may have structural issues, as well as lead, asbestos and rodents.”
However, an evolving industry may affect the relevancy of these traditional standards to the industry.
“We are seeing less and less set construction due to digital technology, compositing, green screens and computers,” Fabrick said. “So the employment of riggers, electricians and carpenters is down. It is an evolutionary change in the industry through technology and really affecting workplace safety and health.”
“Following a scaffolding collapse at 20th Century Fox and other periodic incidents, the producers negotiated with guilds and labor groups and set up an industry collection fund in 1965 to address safety in the industry,” Fabrick said. “The Contract Services Administration Trust Fund is really controlled by the Alliance of Motion Picture and Television Producers,” which appoints its board.
The 14-year-old program has conducted over one million training hours for production professionals in 22 unions, according to the trust fund. The International Alliance for Theatrical Stage Employees, Teamsters and Basic Crafts Unions and the Directors Guild of America represent those being trained.
Assistant directors, unit production managers, associate directors and stage managers working in California must complete the training, according to the directors guild website. The guild also has a safety hotline for questions and concerns.
“Whoever the production contract designates takes the lead on safety and health,” Rossol said. “It is often the unit production manager. Unfortunately, they usually don’t have the knowledge or time to recognize hazards.”
Rossol said her organization is working with the trust fund to improve the “cursory” training modules.
Although Cal/OSHA doesn’t require the program, completion may be used to defend against a citation such as evidence that a violation did not occur, Tanenbaum said.
Fabrick said that film schools, such as the University of Southern California, the University of California at Los Angeles and Columbia University are teaching production safety so that students have a sensitivity for and exposure to safety issues.
Rossol, however, questioned the effectiveness and thoroughness of these efforts.
“The real problem is many film and theater schools don’t teach safety and health,” Rossol said. “They touch on it, but what they really need is a formal class.”
Since at least 2012, USC’s School of Cinematic Arts does not require undergraduate students to take a safety and health course, according to the school’s website.
“These students can’t think OSHA is a small town in Wisconsin,” Rossol said. “They need to know how the regulations work and how to read material safety data sheets. These schools are setting requirements for production so high that there is no time for safety classes.”
She pointed to Yale University’s School of Drama as an example of a school that requires a safety and health course, although only at the graduate level.
To obtain a master of fine arts in stage management or technical design and production, a student must take a theater safety class. The class fulfills “the requirements for the OSHA-10 Outreach Course in General Industry, and students who successfully complete the course receive an Outreach Card from OSHA,” according to the course catalog.
It should be noted that a graduate student in the drama school was killed in 2007 while unloading materials from a truck for a stage performance.
Wist said that safety compliance in the industry, as in any other, must be thought of from a proactive standpoint.
“It is important for employers to conduct self-audits and know which areas of operation create hazards,” he said. “If an employer doesn’t have a safety and health background, it should visit the OSHA website on programs, familiarize itself with regulations and find safety professionals to consult with.”
He also said employers shouldn’t cut corners with employee misconduct and should train their workforces to make decisions to avoid potential hazards.
Smaller productions can bridge a safety and health knowledge gap in a number of ways, Rossol said.
“They can cooperate with unions, utilize hygienists and attend trainings,” she said. “Help is out there, but they must take the time to ask what can go wrong. We’ll be there in five minutes if our union thinks there’s a problem, and they can’t keep us off location because we’re business reps.”
Beyond OSHA compliance, there are other reasons for film and television productions to maintain a safe workplace, Fabrick said.
“Productions open themselves to unlimited liability if they’re shooting in public areas and someone outside of the filming gets hurt. That person can sue under state tort law and the cost of the production company’s third party liability insurance will shoot up,” Fabrick said. “Accidents to the public will also make city managers shy about allowing productions to shoot in public spaces.
“Production companies also want to minimize harm to their own employees involved in the production, because while liability is limited under worker’s compensation laws, the cost of worker’s comp insurance is high in California,” he added.
The Directors Guild of America and Alliance of Motion Picture and Television Producers declined Bloomberg BNA’s requests for comment on this story.
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