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SAFETY AGENCY FOUND NEGLIGENT IN FATAL CONSTRUCTION ACCIDENT

TUCSON, Ariz.--In one of the first cases of its kind, a stste jury has found that Arizona's state-run workplace safety agency was partially at fault for the death of a worker at a construction site the agency inspected weeks before the accident.

The decision is one of the first times--if not the very first--that a state-run workplace safety agency has been held liable for a workplace accident, said an official with the U.S. Occupational Safety and Health Administration in Washington.

In August, a federal court in New Hampshire held OSHA liable for a 1979 workplace injury, which may have been the first time OSHA has been held responsible for a workplace accident, said Ann Rosenthal, an OSHA attorney. Shortly before the accident, OSHA had evaluated the worksite but did not inspect a machine that later malfunctioned and injured a worker.

The case against the Industrial Commission of Arizona's Division of Occupational Safety and Health was similar. In its Dec. 12 verdict, a Pima County Superior Court jury in Tucson found that Arizona OSH was 15%liable for the death of 62-year-old Rodolfo D. de la Cruz in a 1993 construction site accident. A chain link fence that secured a 16-foot dirt embankment above an excavation area gave way, burying the worker beneath the fence and three feet of dirt.

Mr. de la Cruz's family argued that a so-called "comprehensive" Arizona OSH inspection of the worksite 29 days before the incident should have detected safety problems with the embankment. But, the inspector did not evaluate the embankment or onsite files that revealed problems with the embankment security system, said plaintiff's attorney Michael Aboud of Aboud & Aboud P.C. in Tucson. The agency's own inspection shortly after the incident revealed several major safety violations with the embankment security system, Mr. Aboud noted.

Industrial Commission Director Larry Etchechury said the embankment area was not inspected before the accident because there was no ongoing work in the area. The agency routinely does not evaluate such areas, though he said it is considering either ending that practice or better annotating it in inspection reports.

The jury ordered Arizona OSH to pay Mr. de la Cruz's family $225,000.

The family previously settled with two contractors involved in the project for undisclosed sums. The Industrial Commission also previously fined those two contractors and a third one, Mr. de la Cruz's employer, a total of $120,000.

The state has not decided whether to appeal, said Assistant Attorney General Charles R. Pyle. But, he said there could be two grounds for appeal. One issue is whether the agency should have been held to a gross negligence standard, rather than a straight negligence standard, because the first inspection was random rather than the result of a complaint. The second issue is whether workers legally can rely on the agency's inspections.