Articles Posted in Industrial Accidents

A recent Associated Press article about the deaths of two workers building a new luxury hotel in the Orlando area caught my eye because it is relevant to workplace safety discussions that often take place here in Oregon.

According to the news agency, “two construction workers fell to their deaths when scaffolding collapsed as they were pouring concrete on the seventh floor or a 16-story hotel under construction near Disney World.” A fire and rescue spokesman is quoted saying that the scaffolding “gave way” for reasons that are still under investigation, “sending two workers plummeting to the ground below.” The hotel being built was a Marriott, and it was a spokesman for the Marriott corporation who addressed the media in the wake of the accident. As is often the case in the hotel industry, however, actual ownership of the building lies elsewhere. According to the AP the building is actually “owned and developed by DCS investment holdings, a private equity group based in West Palm Beach, Florida.” DCS is also managing the construction project itself, according to the news agency.

While the article does not explicitly make this point, it is also fair to assume that a number of subcontractors are also involved. We do not know for certain whether one of those might be a scaffolding company, but such an arrangement would be the norm throughout much of the construction industry.

A three-year-old girl was taken to a Corvallis hospital last week after falling off a ride at the Benton County Fair, according to a report from Eugene TV station KVAL. An article posted on the station’s website notes that “deputies received reports that the child fell a short distance off a ride that spun in a circle. The child was alone on the ride.”

“Preliminary investigations have revealed that the lap restraint meant to secure the child failed,” the station writes. “After the accident, the ride was shut down.”

We are at the time of year where traveling carnivals and county fairs are regular fixtures of American life. As such, this accident is a reminder of the degree to which regulation of these potentially dangerous rides varies significantly from state to state (and, to some extent, within states). As a 2016 article from The Oregonian noted: “When it comes to state carnival ride regulation, Oregon falls somewhere in the middle, between California – a state with a dense thicket of amusement park and carnival regulations – and Alabama, where regulation is essentially nonexistent.” (if you are travelling this summer it is worth clicking on the link to that article at the end of this post and scrolling down to the map detailing the extent of carnival regulation state-by-state).

The death of a 28-year-old apprentice electrician at a Klamath Falls mill just before Thanksgiving was recently the subject of a long article in The Oregonian. It explored the victim’s life in detail and also considered the broader workplace safety issues this tragedy raises.

According to the newspaper the man’s death was “Oregon’s 68th workplace fatality of 2017.” State records (see link below) indicate that this number grew to 79 by the end of the year. The paper reports that after answering a call for an electrician late in his shift the man fell “through the lid and into an in-ground vat filled with corrosive liquid heated to 170 degrees, which is used to soften logs before they are processed into plywood.” Doctors say his death would have been instantaneous.

After the incident “the company… installed a railing around the roughly 30-foot long vat,” according to the newspaper, but one must ask why such a basic safety precaution was not in place already. As an apprentice electrician regulations required the man to be supervised in such a dangerous area or to have a supervisory waiver from the state. The paper reports that state records indicate there was no waiver in place. Questions should also be raised about the amount of time that passed before the man’s disappearance at work was reported to the police.

The well-known organic and health-food manufacturer Amy’s Kitchen is based in California but operates a plant here in Oregon. According to a recent article in the Sonoma Press-Democrat the company is being sued “by four former employees who claim the company systematically put workers at risk through overwork and unsafe conditions.”

At first glance this would appear to be a straightforward worker’s comp dispute. According to the newspaper a key allegation in the lawsuit involves injuries allegedly sustained by one plaintiff while handling large and heavy objects in the plant. While the current lawsuit as reported by the Press-Democrat does not seek damages on the basis of third-party liability issues these are worth exploring on a hypothetical level, because they are a potential factor in many workplace deaths and injury cases.

The key case when considering this sort of third-party liability in Oregon is Kilminster v Day Management Corp (323 Or. 618) which was decided by the Oregon Supreme court in 1996. In that case the estate of a man who died on the job contended that the employer “deliberately did not provide its workers, including decedent, with legally-required safety equipment.” The court also found that the company did not offer necessary safety training to employees and did not have a proper safety plan in place.

A recent article in The Oregonian outlined the details of a $142,000 fine leveled against a Portland excavating company for a fatal job site accident last May.

According to the newspaper a 29-year-old worker died when a trench in which he was working caved-in. Referring to an investigation by the Oregon Occupational Safety and Health Agency the newspaper writes: “The investigation found two employees were working in an improperly shored trench that was about 10 feet deep… the excavation was incorrectly braced because two pieces of shoring were spaced too far apart to handle unstable soil.” Critically, the newspaper reports that “the company’s owner, who was on site, said he was negligent in allowing his employees to work in such a situation. He said he saw that the shoring was set up about 15 feet apart and he knew that it was not set up correctly.”

The fact that the OSHA has acted to impose a fine is important, but it does not mean that the legal consequences surrounding this incident are over. From a civil law perspective the admission by the owner that he knew he was asking his employees to work in unsafe conditions opens up a number of important questions. This case represents a clear violation of the Employment Liability Act (ORS 654.305 and ORS 654.325), a law whose entire purpose is to make sure workers are not exposed to dangerous conditions.

Something to consider as summer begins: According to The Oregonian there are “more than 300 carnival rides with valid permits in the state.” But it is worth asking what, exactly, those permits mean. Many Oregonians visiting a traveling carnival this summer may assume that the state permit posted prominently on each ride means it has been inspected by the by a government official for safe operation and maintenance. As the newspaper outlines, however, that is not really the case.

“When it comes to carnival ride regulation, Oregon falls somewhere in the middle, between California – a state with a dense thicket of amusement park and carnival regulations – and Alabama, where regulation is essentially nonexistent,” the newspaper reported recently. “Oregon doesn’t have a government-funded inspection program. Instead it relies on insurance companies to verify that each ride has been inspected and is ready for use.” Carnivals send the forms provided by their insurance companies to the state, pay a $28 fee and, in return, receive their permits from the Oregon Building Codes Division. While federal standards for carnival rides do exist (they are issued by the Consumer Product Safety Commission) adherence to them is voluntary, The Oregonian reports.

According to the newspaper, Oregon is lucky in one respect: because Washington has much stricter rules, and because many inspectors work in both states, “almost by default, Oregon ends up following Washington’s more stringent regulations.” The same inspector would be paid by the carnival operator in Oregon but by the state inspections body when working in Washington.

A logging fatality last month in Chapman, in Columbia County, is a reminder of the ever-present dangers of Oregon industrial accidents. Pamplin Media, citing local law enforcement officials, reports that a 54-year-old Scappoose woman died while she “and another person were felling large fir trees.”

Logging has been an important part of our state’s economy for over a century, and it provides a livelihood for thousands of Oregonians. It also, however, remains one of the most dangerous professions in America and fatalities like this are tragic reminders of why the timber industry still needs to be closely regulated.

Pamplin reports that the Columbia County Sheriff’s office “conducted an investigation and ruled the death an accident,” but adds that the incident “is also being investigated by Oregon’s Occupational Safety and Health Division as an industrial accident.” This is appropriate because, as I have noted frequently on this blog, “industrial accident” is a term that has a very specific meaning in Oregon law.

On this May Day it is appropriate to pause for a moment and give some thought to workplace safety. With that in mind I’d like to highlight a rather stunning statistic that appeared in the pages of The Oregonian this week: more than 54,000 Americans die every year from workplace-linked causes. That figure was part of a report published by the National Council for Occupational Health and Safety, drawing on data gathered by the federal government.

According to the study, in 2013 (the most recent year for which figures are available) 4,585 workers died on the job in the United States. That figure is far too high, but based on what we all know regarding dangerous jobs such as logging, truck driving or working in certain types of industrial facilities it is, perhaps, not overly surprising for a country the size of ours. In addition to that, however: “an additional 50,000 people die each year from long-term exposure to workplace hazards such as asbestos, silica and benzene, according to the U.S. Occupational Safety and Health Administration,” the report said, according to The Oregonian.

That figure is, frankly, stunning, especially when one considers that one of the toxic agents named – asbestos – is a product whose dangers have been known for decades. Add to that the paper’s comment that “proven prevention strategies are available for all the major categories which result in worker deaths, including transportation incidents, contacts with objects and equipment, falls, workplace violence, exposure to harmful substances and environments, and fires and explosions” and one has to ask why these numbers are so high.

A new report by Oregon Public Broadcasting indicates that the Prineville Mill, whose roof collapsed on a snowy morning last November, was warned of the possible danger well in advance. According to OPB the Mill’s own employees raised the alarm to no avail.

Astonishingly, no one was hurt when the roof at Woodgrain Millwork collapsed. That does not, however, change the face that this incident is an almost textbook example of an Oregon industrial accident and a reminder of why our court system is crucial in holding companies to account where their employees safety is concerned.

Plant employees who spoke with OPB “paint a picture of an environment at Woodgrain where building maintenance was lax and the roof leaked for years. The former Woodgrain workers described what they saw as a number of unsafe conditions and potential safety hazards at the mill, even before the roof collapsed.”

With the return of baseball there is also renewed interest this week in “subrogation” – a term that most non-lawyers aren’t familiar with, but one which could ruin the lives of many accident victims here in Oregon and elsewhere even as it enriches their insurance companies.

As outlined in a recent Bloomberg Business story, subrogation, a concept whose origins lie in the American Revolution, is a legal doctrine that allows insurance companies to claim damages from third parties in cases where they must pay claims. “An insurer, for instance, might seek to be repaid by the maker of a faulty furnace that caused a fire in a building the company covered,” the news agency writes. Few would argue with a straightforward example like that, but as is so often the case in modern America big business has turned a well-intentioned legal doctrine on its head in the service of its own bottom lines.

What has brought subrogation into sudden focus is the case of Bryan Stow, the San Francisco Giants fan who was beaten nearly to death in the parking lot of Dodger Stadium on Opening Day four years ago. Last year, Bloomberg reports, Stow won an $18 million judgment against the Dodgers and his two assailants (both of whom are now in prison) but “he has yet to receive any money” because his insurance company is aggressively using the legal system to try to claim millions from the settlement. This is happening even as his medical bills continue to mount, and as the 46-year-old faces a life of hospital visits, physical therapy and expensive ongoing medical care – not to mention decades of lost wages and the long-term emotional effect on him and his family.

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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