Filmmakers must pay a $70,000 workplace safety violation fine after a 2014 deadly train accident on the set of their Allman Brothers biopic, “Midnight Rider,” a federal appeals court ruled ( Film Allman, LLC v. Sec’y of Labor , 2017 BL 85661, 11th Cir., No. 15-15720, unpublished 3/20/17 ).
Film Allman LLC willfully violated Section 5(a)(1) of the Occupational Safety and Health Act, also called the “general duty clause,” a panel of the U.S. Court of Appeals for the Eleventh Circuit affirmed in a March 20 unpublished opinion.
The case has has specific implications for the independent film and new media industries, said Howard Mavity, co-chair of Fisher Phillips LLP’s Workplace Safety and Catastrophe Management Practice Group in Atlanta. He called the case “underappreciated” and the filmmakers’ conduct “outrageous.”
“The film industry has started tracking safety and health more closely since the accident,” he told Bloomberg BNA. “This case highlights that the awareness of safety and health in new and independent media trails the big studios, which are usually consistent on safety.”
He said the ruling isn’t legally significant in terms of opening the floodgate of general duty clause violations.
A freight train killed a 27-year-old camera assistant and injured eight other crew members who were setting up to shoot a scene, based on a book by Gregg Allman, on an active train trestle owned by CSX Transportation and spanning the Altamaha River in Jesup, Ga. The train, traveling at 55 mph, struck a bed frame that had been placed on the tracks, and shrapnel from the frame struck and killed Sarah Jones.
After the Feb. 20, 2014, accident, the Occupational Safety and Health Administration conducted an inspection of the site and 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 to Film Allman for failing to implement safety procedures for filming on the trestle and exposing employees to the hazard of being struck by a train.
Three of Film Allman’s management employees, including Director Randall Miller, were convicted of criminal trespass and involuntary manslaughter in Wayne County (Ga.) Superior Court. Miller served one year of a two-year sentence, and the others received probation.
Administrative Law Judge Sharon D. Calhoun affirmed the citations and assessed $74,900 in penalties ( Sec’y of Labor v. Film Allman, LLC , OSHRCJ, No. 14-1385, 10/30/15 ).
Film Allman “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.”
Calhoun wrote that the gravity of the general duty clause violation was of “the highest order.”
The commission did not direct Calhoun’s decision for review.
The Eleventh Circuit rejected Film Allman’s argument that Calhoun improperly upheld David Michaels’, then the assistant secretary for OSHA, use of the informer’s privilege to withhold portions of witness statements obtained by OSHA. Calhoun had ruled that the privilege applies to non-employees and former employees.
The court also rejected Film Allman’s arguments that the evidence did not support a willful violation and the ALJ improperly imposed the statutory maximum penalty. Substantial evidence supported both the classification and penalty, according to the court.
“They really couldn’t come up with a good way to spin this without coordination with the railroad,” Mavity said. “The film industry is quirky, but it isn’t unusual to shoot where there are struck-by hazards, such as a highway or railroad, and coordination is a must for hazard abatement.”
Amanda R. Clark of Garland Samuel & Loeb PC, Atlanta, argued for Film Allman.
Amy S. Tryon of the Department of Labor, Washington, D.C., argued for the Secretary of Labor.
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The opinion of the U.S. Court of Appeals for the Eleventh Circuit in Film Allman, LLC v. Secretary of Labor is available at http://src.bna.com/nbJ.
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
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