OSHA 3’rd Party Jurisdiction
July 01, 2011 at 5:14 AM
OSHA 3’rd Party Jurisdiction
Whether OSHA regulations apply only to employers who must provide safe working conditions for their employees, or also has application as a standard of care due third parties in the same work area…is a matter of vigorous dispute.
With the exception of Nevada, my experience shows that most States agree that OSHA standards do apply as a standard of care for 3rd parties in the work space.
In Nebraska[1], the court ruled: “While Occupational Safety and Health Act (OSHA) regulations are written to protect employees, an unsafe practice for an employee applies equally well to a person who legitimately finds himself in the same space as an employee, and OSHA standards are relevant to the safety of a work place, even if the injured party is not an employee.
In Montana[2], when a sales person entered the second floor of an apartment building under construction and fell through an uncovered hole in the floor, he was protected by OSHA’ same standards.
Likewise in Indiana[3], when a home owner rode his bicycle through an open excavation on a golf course pathway protected only by the irrigation contractor’s yellow tape, he was also able to recover damages from the same ruling attributable to OSHA’s standards. In this case, the bicycle rider suffered a head injury and permanent disability that cost him his job, his home, and his way of life.
In New Mexico[4], the driver of a backhoe was observed backing up a ramp out of a steep excavation. When the operator positioned his seat facing backwards as he traveled up the ramp, the front section of the backhoe broke loose, swung around, and crushed the safety inspector who was standing to one side, causing death. Three observers from companies unrelated to the excavation contractor did nothing to stop this occurrence. Each employer of the three observers was cited by OSHA for failing to provide a competent person. This was a federal project for DOE at White Sands New Mexico, and the contracting firm doing the excavation was owned by a well-known minority firm. Attorneys for the 3 employers argued that OHSAS does not have jurisdiction since their employees were not associated with the employer of the backhoe operator, and had nothing to do with the excavation.
The Secretary of Labor issued a brief supporting the three citations. In this case OSHA showed that a hazard has been created, and that the area of the hazard was accessible not only to the employees of the cited employer, but also to other employers engaged in a common undertaking[5]. Because the three observers failed to recognize the hazard and did nothing to mitigate its occurrence, they were cited.
In Nevada however, the opposite happened. A contractor built a flimsy handrail attached to a plywood walkway over temporary piping installed on top of an asphalt parking area behind a restaurant. As the owner of the restaurant walked along the plywood walkway carrying a bag of salt on his shoulder for the dishwasher, he grabbed the wobbly handrail to steady himself. It broke, and he fell unto the temporary piping. Getting back up, and feeling dizzy, he grabbed the other side of the handrail. It also broke, and this time he did not get up. Serious injury resulted causing multiple operations, nerve damage and unimaginable pain. My report cited OSHA’s 200 pound requirement for structural integrity of handrails, together with related OSHA requirements.
The contractor’s attorney argued that OSHA applies only to employees of the contractor, and has no jurisdiction to the owner of the restaurant who just happened to be in the same work area. He further argued that a handrail was not required by any building code since the walking/working surface of the plywood was less than two feet from the surface of the asphalt. The Nevada court ruled that OSHA does not have jurisdiction in this case.
With that as a given, the trial lasted 5 days. I testified that it didn’t matter what the code was, if a handrail was built, it must be strong enough to support someone leaning on it. Having built temporary handrails all over the country, this was the worst I’ve ever seen. The jury ruled that since there was no code violation, the contractor was not accountable for the accident no matter how flimsy the handrail. This case is now under appeal.
Epilog: A judge once interrupted a young attorney during trial arguing vehemently for justice to prevail: Young man, this has nothing to do with justice, this court is about the law.
[1] Orduna v. Total Const. Services, Inc. 271 Neb. 557, 713 N.W.2d 471 (Neb. 2006)
[2] from client attorney
[3] Stephen and Jean Bickel v Mud Creek Golf Course
[4] Almodovar, et al. v. Denco, Inc.
[5] Rulings in Brennan v.Underhill Construction Corp., 513 F.2d 1032 (2d Cir.1975), and Beatty Equipment Leasing v. Secretary of Labor, etc., 577 F.2d 534 (9th Cir.1978) supported this position.