Home > Uncategorized > On Trampolines and Serious and Willful Misconduct (Part 3 of 3)

On Trampolines and Serious and Willful Misconduct (Part 3 of 3)

February 15th, 2013

So, last time we had discussed that maybe, just maybe, Sasha could argue that she had enough of a defense to avoid Serious and Willful (S&W) liability for the injuries sustained by her window-cleaner employees after they fell from San Francisco sky-scrapers with no safety-equipment except her garage-sale acquired trampolines several floors below.

Then Sasha brought up Cal/OSHA.

California’s Division of Occupational Safety and Health provides various safety regulations for work sites and seeks to have them enforced.  Violating Cal/OSHA regulations, with or without resulting injuries, can lead to fines, stop-work orders, and a whole host of other problems for employers.  This includes possible jail time.

Additionally, Labor Code section 4553.1 provides an alternative method of proving S&W misconduct.   By showing that an employer violated a specific Cal/OSHA safety order which resulted in the injury of the employee, and the employer either knew (or it was obvious that) the conditions at the work site made the order applicable, and that the employer’s failure to correct the condition constituted a reckless disregard for the probable consequences, the employee might prevail on a S&W claim.

But don’t be fooled – this can be harder for an employee to do than it might seem.

Cal/OSHA has tons of rules and it’s hard to follow them all.  Some rules are administrative in nature and relate to record keeping – an employer can easily violate this rule but it’s hard to prove that the failure to keep records of past citations proximately caused an employee’s injury.  In negotiating with Cal/OSHA, an employer might agree to offer no contest to safety order violations that wouldn’t prove up the injury in exchange for a dismissal on safety order violations that might.

In Ford Construction Company v. WCAB (2010, unpublished), an employee sustained injury (and death) when a ripper shank weighing more than 2000 pounds fell from a suspension cable.  Even though the employer had violated various Safety Orders, the Court of Appeal had found that those violations did not justify a finding of S&W misconduct on the part of the employer because it was not the violation of the relevant safety orders that caused the workers’ injury.

However, simply complying with the relevant Safety Orders is not a defense either.  For example, in the case of C.C. Meyers v. WCAB (2012, unpublished), the Court of Appeal concurred with the defendant that it had followed the relevant safety orders with respect to providing back-up sirens on an excavator.  However, even though there was no relevant Cal/OSHA safety order violation, the Court still found S&W misconduct on the part of the employer for failure to provide a spotter in a loud and tight work environment where a back-up siren might not be heard.

For example, Safety Order 1670 requires a personal fall arrest system for workers operating more than 7.5 feet from the ground.   So an employee might show that (1) Sasha violated the order by not providing harnesses; and (2) the failure to provide a harness proximately caused the injury (because of the fall).  However, if Sasha didn’t know about the safety order, the theory might fail under section 4553.1.

What do you think, dear readers?  Did poor Sasha commit serious and willful misconduct by replacing safety harnesses with trampolines and sending her brave and blindly loyal employees to clean the sky-scrapers of San Francisco?

WCDefenseCA URGES its readers and friends to not do what Sasha did – use all possible safety equipment to protect your workers; obey Cal/OSHA Safety Orders; and don’t rely on trampolines to save workers falling from skyscrapers. 

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