Articles Posted in Industrial Accidents

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.

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.”

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.”

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.

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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