OSHA fine May Not End Workplace Death Case

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.

The 1996 case of Kilminster v. Day Management Corporation (323 Or 618) established clear standards for when someone who has been injured in a workplace accident can make a legal claim arguing that the defendant deliberately intended to injure the person seeking justice. In that case a young man died after falling from a radio tower on which he was working. The evidence showed that the victim had complained on several previous occasions about the worksite safety arrangements including the quality of the safety equipment with which his employer provided him. The key fact was that the employer knew, as the Oregon Supreme Court summarized it, that if it did not provide adequate safety equipment and training a fatal accident might be the result. The court held that consciously ignoring facts such as these fit the legal definition of “deliberate”. Subsequent cases have clarified that related actions or inactions – such as not offering adequate training, or establishing a workplace environment in which safety violations are routine or even expected of employees – also fits the legal definition of “deliberate.”

It is easy to see how the circumstances in this more recent Portland workplace industrial accident fit the criteria established by the Oregon Supreme Court two decades ago. In Kilminster the victim’s family showed that he had been following established company procedure. Similarly, in this case, according to The Oregonian, the owner of the company has formally acknowledged that he knew he was operating an unsafe worksite. In legal terms, this is no different from deliberately attempting to harm someone.

An Oregon wrongful death claim might also eventually be a part of any legal action that arises from the man’s workplace death last May. But to note that fact is merely to note that the law often offers multiple ways of looking at a particular situation. As a Portland personal injury attorney it seems to me that the most important element surrounding this incident is the fact that the employer understood the situation he had created and chose to do nothing to fix it.

As the AFL-CIO notes in its most recent annual report on workplace fatalities (see link below) around 150 US workers die every day as a result of hazardous working conditions. In many cases these deaths are preventable. It is the duty of our legal system to hold employers to account and ensure that if they will not do the right thing simply because it is right then there will be a price to pay.


The Oregonian: Oregon OSHA fines excavating company $142,800 for fatal cave-in

AFL-CIO 2016 ‘Death on the Job’ Report

Kilminster v Day Management Corp. (323 Or 618) at Justia.com


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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