Safety-Related Jury Verdict in Nevada Lacked Common Sense
Personal injury case juries are known for their generosity toward injured individuals, but a current case where I'm an expert witness for the plaintiff shows that juries can be unpredictable.
The case involves a hotel that was getting a heating and cooling system upgrade in Las Vegas. Because the case is under appeal, I can't reveal the name of the case or the parties. I can tell you enough about it to show you how far off course this Nevada state court jury strayed in ruling against the injured person suing a general contractor for damages.
During the work in 2004, the contractor placed temporary refrigeration pipes on the ground out in back of the hotel. The contractor also built a walking surface, a ramp and handrails over the pipes.
One day the owner of the restaurant in the hotel went out back to get a sack of salt from his car. Holding the sack on his shoulder, he made his way back to the restaurant but lost his balance on the ramp. The restaurant owner grabbed a handrail but it flexed, then broke and he fell. Regaining his feet but feeling wobbly, the owner then grabbed another handrail and it flexed, broke and he fell again. Since then he's struggled with numerous injuries, operations and severe migraine headaches.
The issue is whether employers must comply with Occupational Safety and Health Administration standards only for their employees, or do standards of care apply to those who find themselves in the same workspace? My experience shows that most states agree that OSHA standards do apply.
For example, a Nebraska state court ruled in Orduna v. Total Const. Services Inc. in 2006 that while 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.” OSHA standards, the court added, are relevant to injured non-employees.
In New Mexico in 2008, OSHA cited three employers with staff present when the front section of a backhoe broke loose at a Dept. of Energy project at White Sands. The backhoe section crushed a safety inspector standing alongside. OSHA cited employers of the three staff members for failing to provide a competent person who could recognize and fix the hazard.
Lack of Association
Attorneys for the employers who witnessed the accident argued that the employers weren't liable because their staff members were not associated with the employer of the backhoe operator. But OSHA showed that a hazard had been created and that the area of the hazard was accessible not only to the employees of the cited employer but to workers of other employers engaged in the common undertaking. The U.S. secretary of labor wrote a brief supporting OSHA citations.
There are even instances where state courts have ruled in favor of injured parties who were not part of the construction project. For example, an Indiana homeowner who rode his bicycle through an open excavation on a golf course pathway was able to recover damages from an irrigation contractor. The excavation had been protected only with yellow tape, and the bike rider's injuries were severe.
Back in Nevada, I made a report for the restaurant owner and cited OSHA's 200-pound requirement for handrail structural integrity.
The contractor's attorney argued that OSHA standards apply only to employees of the contractor, and that they have no jurisdiction to the restaurant owner who just happened to be in the same area. Interestingly, he also argued that the contractor didn't need to construct a handrail because the plywood walking/working surface was less than two feet from the surface of the asphalt behind the restaurant.
Here is where I see the miscarriage of justice. During the trial, 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. I'd built temporary handrails all over the country, but I'd never seen one as bad as this one. The jury had other ideas. It decided that since there was no code violation, the contractor was not accountable.
All of which reminds me of what a judge once said to a young attorney arguing vehemently for justice. “Young man,” the judge said, “this has nothing to do with justice; this court is about the law.”
Another possibility is that the jury simply didn't give credence to a guy who managed to lose his balance twice on a stationary ramp. Shouldn't the sack of salt be held partially respon...
Bill Pepoon
I would like to know more particulars about the case. For example the combination of the physical characteristics of the man and the sack he was carrying may have been enough to elevate...
Also despite its name, the handrail serves an important safety function as a marker just to point out the path just as the white line on a divided highway does.
Also was the man carrying the sack violating any OSHA rules?. Even if he was not should there be OSHA rules governing weights and placements of shoulder carried loads?.
Even apart from all this it may be significant that it was the restaurant owner and not just an employee that suffered the injury. Owners are more likely to be impatient and work harder than employees. Ask any employee.
As for that too easily tossed phrase "miscarriage of justice", justice is an ideal, a concept, and certainty good well intentioned people have different views of what constitutes justice. Often whats wanted by one party or another or both is far from justice and the law has served and is continuing to function as an instrument that serves both justice and injustice.
The jury did not "stray off course". The jury nailed this one exactly right. Osha rules apply to the workplace and the employer having control over the workplace and the employees who w...
Following this logic if I am walking along a sidewalk suffer a fainting spell and become injured by falling into passing traffic am I justified in seeking compensation because the "fenc...
First and foremost, to quote the Orduna v. Total Const. Services Inc. in 2006, “an unsafe practice for an employee applies equally well to a person who legitimately finds himself in the...
The key words being in that sentence, "...legitimately finds..."
Was this a place that the injured person was suppose to be in the first place?
Was the contract told to put the pipes there by the hotel representative, even after warning them of safety concerns? Do they have evidence to prove it?
Was the contractor completely negligent on following the standards and rules given to build that ramp and handrails? Or did the bag of salt really play factor?
Their is a lot of evidence left out of the article, and I'm sure there is more to considered then just everyone should be legally responsible for everyone else.
It just strikes me that ENR should never have published this opinion piece because as a number of readers have noticed it is practically barren of details; yet readers are encouraged to...
Apart from that the self proclaimed "expert" just manages to cite an OSHA standard pulled from who knows where,that states that handrails have to withstand 200 pounds applied in any direction good - perhaps the unfortunate restaurant owner who for all we know at present was really acting foolhardy because what are the chances that someone would fall when walking (incidentally it would be interesting to know how many construction workers have been hurt or just have fallen carrying 94 pound bags of cement). It is interesting to note that if that unfortunate restaurant owner sat on top of the railing and it broke, that too would constitute an OSHA violation. As for the flexibility of the handrail, which does not violate OSHA standards,
perhaps the standard should be revised or maybe not - it strikes me that if railings at baseball stadiums were flexible, there would be no leaning over to catch baseballs.
I would guess that ENR editors just had a bad day and let this practically barren of fact viewpoint through.
