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Matthew D. Kaplan

The February death of a worker at a winery in Dundee, Oregon has resulted in a fine of more than $11,000 being levied by the state Occupational Safety and Health Agency. An OSHA statement issued late last week offered the basic facts of the case, but also left several key questions open.

According to media reports, the victim was a 39-year-old McMinnville man employed as a cellar worker at Corus Estates & Vineyards. The OSHA statement details how the man suffocated and then fell into a 30,000 gallon wine tank as he was moving a portion of the wine from that tank to another. Servicing the tank involved going into a confined space where “low-pressure nitrogen gas was being pumped in from the top of the tank to prevent oxidation of the remnants,” the agency statement explains. “The employee was asphyxiated as a result of the displacement of oxygen due to the low-pressure nitrogen gas in the tank.” After falling in, the worker was found unresponsive.

The total fine of $11,100 was broken down into several parts by the agency, and the details of those elements makes interesting reading. By far the largest portion of the fine – $7500 – was assessed for failing to test the air in the space around the tank before the job got underway and failing to have an attendant and an entry supervisor monitor the work, as required by law. Separate fines of $1200 each were imposed for failures to review and practice safety and rescue procedures, failure to properly renew the required permits and failures of employee training, including not offering safety information in Spanish.

The video is horrific. It shows two toddlers playing on a Peloton treadmill, apparently without adult supervision. The younger of the two, a boy, tries to place a ball on the treadmill’s moving belt and is almost immediately pulled underneath the still-running machine. He manages to extract himself only to be pulled back in a few seconds later – this time further underneath the machine and with his neck bent at a frightening angle.

The whole thing lasts about a minute and at the end the small boy frees himself again before walking out of the picture. The video was posted to the internet by the Consumer Product Safety Commission more than two weeks ago. According to CNN “the agency issued an ‘urgent warning’ for users of the machine. At the time the CPSC said it was aware of at least 39 accidents involving the treadmill including ‘multiple reports of children becoming entrapped, pinned and pulled under’ the device.”

Peloton initially pushed back, calling the CPSC warning “inaccurate and misleading” according to CNN, but reversed course last week, agreeing to recall some 125,000 of the treadmills. Meanwhile, updated CPSC data now indicate that at least one child has died and 70 others have been injured by the devices, which cost between $2500 and $4300.

The Oregonian reported this week that Portland has lowered the speed limit along a 5.5 mile stretch of 122nd Avenue which it describes as “one of the city’s most dangerous roads.” The speed limit reduction from 35 to 30 mph will apply from the intersection with Northeast Sandy Boulevard to the intersection with Southeast Foster Road.

“The reductions mark the latest changes in what’s been a years-long attempt to reduce speeding on neighborhood streets and bust arterials,” the paper notes. It is especially important because “four of the city’s top-ten most dangerous intersections are on 122nd Avenue.”

The Oregonian reports that 54 people died in Portland traffic crashes last year, “the most since 1996.” That statistic highlights an important fact that can often get lost in discussions like this. Though we tend to think of car crashes as high speed incidents, even accidents at the 35 mph, which few Americans think of as a fast driving speed, can be lethal. A Dutch study republished by the US Federal Highway Administration (see link below) dramatically illustrates the relationship between speed and fatality in traffic accidents, especially those involving pedestrians. The study found that once the impact speed passes about 20 mph the fatality risk for pedestrians increases exponentially.

Regular readers of this blog will remember that I have repeatedly highlighted the fact that contracting out prison services to private companies often leads to tragic results. This is especially true when medical services are among the key government responsibilities put out for bidding.

Case law at both the federal and state levels is clear: when the government takes away someone’s freedom it also assumes responsibility for their well-being. Prisoners may not be a popular constituency among politicians, but that does absolve government of its legal and moral duty to offer adequate care for the people it locks up.

The latest example of this trend can be found in Maine. A recent article on the website of Maine Public Broadcasting outlines a lawsuit brought by “the NAACP’s Maine State Prison chapter… raising allegations of inadequate prison healthcare services. In a report that details the stories of anonymous residents, they allege that heart conditions, infections, diabetes and other serious conditions are being neglected or misdiagnosed by prison healthcare provider, Wellpath LLC.”

If you ask a friend to name a dangerous occupation most people would think first of logging, firefighting or, perhaps, law enforcement. But near the top of nearly any list of dangerous jobs is something few of us think about: working in a poultry plant.

That fact was highlighted by a recent incident in Georgia. According to a report in the New York Times, six people died and 11 were injured late last month when “a line carrying liquid nitrogen ruptured.” One of the injured people who required hospitalization was a firefighter responding to the incident.

Union officials accused the plant’s owners of negligence and of ignoring health and safety protocols. According to the newspaper, in 2015 the plant “was fined more than $100,000 for about a dozen safety violations.” Another $40,000 in fines followed the next year and “in 2017, two employees underwent amputations, including one of two fingers after his left hand got caught in machinery that he was cleaning.”

I have used this space more than once to focus on healthcare and prisons, with a particular emphasis on Wellpath. The Tennessee-based company touts itself as “the premier provider of localized, high-quality compassionate care to vulnerable patients in challenging clinical environments.” In plain English, that means they are a for-profit company that provides medical care in jails and prisons nationwide.

As I noted in a post last October, Wellpath is frequently sued for being deliberately indifferent to their patient/inmate’s constitutional right to adequate medical care. A California newspaper reported last year that since 2003 Wellpath has been sued “at least 1,395 times in federal court.” Wrongful death actions figured prominently in this tally.

Recent news from both the east and west coasts has highlighted WellPath’s approach to the COVID-19 pandemic. That news also raises, yet again, questions about whether the company does everything it should to care for the people placed in its charge.

A California newspaper’s investigation of deaths in county jails is shining a light on the issue of both for-profit prisons and outsourced prison healthcare. An investigation by the Redding Record-Searchlight found that “from 2005 to 2019, about 1,960 people died in the custody of California county jails.” Even granted the state’s immense size this is a shocking figure, one that highlights the importance of civil rights laws protecting even an unpopular group such as prisoners.

The figures compiled by the Record-Searchlight work out to roughly 130 jail deaths per year. Last year an investigation by Oregon Public Broadcasting put the 2018 figure for Oregon and Washington combined at 39, and noted that jail deaths have been trending upwards over the last decade. When you adjust for population (about 12 million for our two states versus just under 40 million for California) the overall mortality rate is similar.

I have written about jail deaths here in Oregon before. Both here and in the Record-Searchlight’s reporting one name keeps turning up. Wellpath is a Tennessee-based company which describes itself as “the premier provider of localized, high-quality, compassionate care to vulnerable patients in challenging clinical environments.” In ordinary English that means they are a private, for-profit, health-care company that specializes in offering care for prisoners. The newspaper quotes a psychologist who consults on prison staff training and prison conditions saying that for-profit companies like Wellpath do “an absolutely awful job.”

Few would disagree that today’s cars are safer than cars built in 1967. Still, it is astonishing to discover that a key safety standard applied to virtually every vehicle on America’s roads has not been updated in all that time. The feature is seatback strength, and, as a recent article in The Oregonian’s business section outlines, the standard by which the government assesses it has not changed in 53 years.

Seatback strength is something few car buyers think about. But even if they did, fewer still are in any position to assess it. Auto manufacturers assure customers that car seats meet or exceed all federal safety requirements, without adding that the requirements themselves are so out of date “that a lawn chair could pass it” according to the consumer advocacy organization FairWarning, which authored The Oregonian article.

The organization says engineers who have studied the issue regard the National Highway Traffic Safety Administration (NHTSA) standards for car seats as “laughably weak… In actual rear-end collisions, the seat pushing forward against the weight of a person in the front seat can cause the seat to collapse, sometimes throwing the driver or passenger head-first into the back or out of the rear window, and also endangering anyone in the back seat.”

The death of a 13-year-old boy in a boating accident on Hagg Lake in Washington County has highlighted a number of safety issues we all need to keep in mind during this holiday weekend and in the coming weeks before fall sets in.

According to The Oregonian, the boy died “after he was hit by a motorboat.” A 21-year-old man “was arrested and is facing charges of boating under the influence, second-degree manslaughter and recklessly endangering another person.” The newspaper quotes a Washington County sheriff’s spokesman saying that he was not sure whether the boy was swimming or wading at the time he was struck, but that it is clear the fatal incident occurred “not very far off the shore.”

Terrible tragedies like this always raise a significant number of legal issues. A few of those are touched on by The Oregonian, such as reckless endangerment and BUI (the boating equivalent of DUI), which is specifically governed by ORS 830.325. This statute is far more general than the better known ones governing DUI. A boater violates it by simply operating the boat “under the influence of an intoxicating liquor, cannabis, an inhalant or controlled substance.” The law does not set a legal threshold for “influence”. Related sections explicitly forbid reckless boating (ORS 830.315) and, perhaps significantly, extend liability for reckless activity to the boat’s owner (ORS 830.330).

Oregon’s Occupational Safety and Health Administration (OSHA) has levied $31,000 in fines on two contractors whose irresponsible conduct led to the deaths of two workers at a music festival in Happy Valley in the summer of 2019, according to The Oregonian.

The paper reports that the two men “were up in a boom lift taking down a shade installation (when) the lift, which was on an incline, tilted and fell.” Both were wearing safety gear, the paper reports, but that did little to help them considering the shockingly long list of standard precautions that their employers failed to take.

“OSHA said two alarm devices on the boom lift had been disabled, one of which would have alerted users that the machine was on uneven terrain. The other would have stopped the platform from moving upward if an employee became pinned between the platform and something overhead. Each company was fined $12,000 for disabling the alarms,” according to the newspaper. One of the two companies was given an additional fine “for not following the instructions provided by the boom lift manufacturer – including not raising the lift while on an uneven surface, maintaining a firm footing on the platform’s floor at all times and not putting the lift in a raised position while the counterweight, used for balance, was on the downward side of the slope.”

50 SW Pine St 3rd Floor Portland, OR 97204 Telephone: (503) 226-3844 Fax: (503) 943-6670 Email: matthew@mdkaplanlaw.com
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