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An administrative law judge of the Occupational Safety and Health Review Commission vacated a citation against a construction company in the death of one of its employees in a decision published Wednesday.
In September 2015, a superintendent of Cheshire, Connecticut-based The Lane Construction Corp. was killed when he was struck by a dump truck driven by an employee of another company while both companies were performing milling and repaving work on a section of highway in Tampa, Florida. The superintendent, a superintendent in training and the owner of a dump truck company contracted to work on the project were inspecting an oil leak on the roadway when the superintendent stopped to talk on his cellphone while the other two men continued their inspection, according to court documents.
The owner attempted to get the attention of one of his subcontracted dump truck drivers to tell him to get his girlfriend, who was riding in the truck with him, out of the vehicle. He then instructed him to back the truck up, usurping the responsibility of a Lane spotter on the scene who was directing movement of trucks to the milling machine. The driver began backing up, felt a bump that he assumed was roughened asphalt, and continued to back up. He realized he had run over a person when he saw the body of the superintendent in front of his truck, court records show.
An investigation by the U.S. Occupational Safety and Health Administration found the company failed to implement an internal traffic control plan or other method to maximize separation between pedestrians and moving vehicles. The agency issued a citation for a serious violation of the general duty clause with a proposed fine of $7,000, according to documents in Secretary of Labor v. The Lane Construction Corp.
Lane contested the citation.
The administrative law judge found that Lane did have an adequate safety program in place at its worksite and that the precipitating event for the accident was the dump truck company owner’s order to back the truck up, which he was not authorized to do.
“This ‘particular instance’ occurred because of a set of unusual circumstances — the owner of one subcontractor directed a driver for another subcontractor to back up a truck, even though he had last seen, only a few minutes before, Lane’s Superintendent standing in the path of the truck talking on his cell phone. Here, an inexperienced driver recently hired by his uncle found himself suddenly being screamed and cursed at by the man who had hired his boss, ordering him to back up. He had already gotten in trouble for letting his girlfriend sit in the truck. It is unsurprising a driver in that situation would obey, rather than defy, the owner’s authority,” the order said.
“The owner’s officious direction to the driver was an intervening event unforeseen by Lane,” the decision said. “Lane’s safety program and its milling operation as set up the night of the accident were adequate to minimize exposure of its employees on foot to the generic hazard of being struck by vehicles. Lane did not anticipate the particular instance of (the owner’s) commandeering of the spotter’s duty.”
Representatives of the company were not immediately available to comment.
A Missouri plumbing contractor is facing $714,142 in proposed penalties after a 33-year-old worker died while working in an unprotected trench.