Work place safety subject matter experts can help clarify job safety responsibilities in cases involving work place injury or death.  Work place safety is governed by either the Occupational Safety Health Administration (OSHA) or Mine Safety Health Administration, (MSHA).  Both of these federal work place safety organizations have regulatory safety standards which have been interpreted and enforced by administrative hearings and federal courts.  But these two governmental agencies also rely on non-governmental organizations who’ve developed safety practices/procedures carrying the same legal authority as an OSHA or MSHA regulation.

Generally, the responsibility of work place safety puts the onus of duty of care upon the employer.  But all is not as it seems.  There are situations where a non-employer may be responsible. There exists in the employee a duty to follow and observe safety rules. And finally, each industry has its own “best safety practices” which are recognized as being influential in issues in workplace safety standard of care.

When lawyers face a civil matter related to a work injury/fatality two of the significant issues is duty and standard of care.  Essentially, who owed what duty to whom and what standard applies.  A good source of duty and standard of care are safety rules like OHSA, MSHA, American National Standards Institute (ANSI), American Petroleum Institute (API) among others.  Such safety standards apply to the work place.  For example, there are safety standards for forklift operation, heavy equipment, ladder use, fall protection, work place chemicals, flammable conditions, stairways, walking surfaces, etc.

A safety expert can assist the lawyer in clarifying who should have done what to avoid/prevent an injury or fatality.  Each industry, like oil and gas, manufacturing, construction and mining have their own safety rules addressing common hazards peculiar to those work places.   It is easy, given the nature of our adversarial judicial system, to face arguments which may have little support in actual safety regulations, policies and practices.   Demonstrating not only what the standard of care is but who owes that care to  whom is addressed in OSHA/MSHA as well as other nationally recognized safety practice formulating entities.


Some examples of how a safety expert assisted lawyers in their cases may be beneficial in this discussion.


Example #1.  An employee is descending one of his employer’s petroleum tank stairways and falls.  Employee, seeking to extend liability beyond employer/employee relationship argues the stairway manufacturer was noncompliant with industry safety standards.  At issue is whether a third-party stair manufacturer is capable of breaching a work place safety standard of care.   Safety expert witness need answer the following questions for the lawyer: What do OSHA General Industry stairway safety standards call for?  What, if any, responsibility does a product manufacturer have to customers using their products under OSHA or any other work place safety standards? What responsibility rests in an employer to assure a safe work place for employees? What responsibility does an employee have to obey safety rules? What petroleum industry (American Petroleum Institute) safety standards apply to petroleum tank stairways?

Based on deposition testimony and produced documents the expert opinion report demonstrated that not only was the stairway in compliance with American Petroleum Institute safety rules but that OSHA General Industry stairway safety regulations as well.  In fact, the OSHA General Industry stairway safety regulations included a diagram of the exact same stairs employee alleged caused his injury.

Our safety research also showed that manufacturers cannot be held to OSHA standards regarding their products used by third parties.  OSHA and other safety standards protecting employees in the work place do not extend to manufacturers of the products used in the place of employment.  Rather, this burden falls upon the employer to assure safety of its employees from conditions, work practices and materials/products used in the work place.

Finally, the employee has an obligation to obey all OSHA, API and work place safety practices implemented by employer.


Example #2.  A high school student working as a part time mechanic for a local repair shop was asked by his boss to help a building contractor who was expanding the mechanic’s shop.  The student fell through a ceiling hitting the concrete floor 20 feet below while assisting the contractor.  Issue was contractor or mechanic employer responsible for worker’s safety.   Safety expert witness need answer the following questions for the lawyer:  What OSHA safety rules applied to the mechanic whose employee was loaned to the contractor?  What safety obligations existed in both/either the contractor and mechanic employer for the young man who fell?  Does OSHA have safety rules addressing fall protection, and if yes, how do those rules apply to either or both mechanic and/or contractor as regards the young man?  These questions are pertinent since both mechanic and contractor pointed the finger at the other for responsibility.

Safety research yielded both mechanic and contractor had OSHA safety obligations to the young man.  Both “employers” were bound by OSHA to make sure the work place was free of recognized hazards. Both were required to assure that proper fall protection training was provided the young man, that fall protection equipment which was available on site be provided the young man and proper training on how to use such equipment.


Example #3.  An oil well owner hired a pumper to oversee operation of its wells.  Pumper hired a contractor to rebuild one of well owner’s well pumps.  Pumper was on site checking the project progress when he was asked by the contractor to turn on the electrical power to the well pump which had been rebuilt.  The contractor’s supervisor told one of its employees to “push” the drive belt attached to the electrical pump motor when pumper turned on the switch.  The pump started while contractor employee had his hands on the drive belt, injuring employee. Issue: Was pumper responsible for safety of the contractor employee.    Safety expert witness need answer the following questions for the lawyer: What OSHA obligation rests in contractor towards its employees?  Does OSHA Lock Out Tag Out (LOTO) rules apply to this situation?  Who was obligated to control the LOTO of the pump, contractor or pumper?  Are there OSHA safety rules regarding hand protection and power equipment applicable in this instance?  Had contractor trained injured employee on LOTO and hand protection around powered equipment and did supervisor and/or employee follow that training at time of injury?

Safety research showed both employer and employee failed to observe the standard OSHA LOTO and hand protection safety training involving moving machinery.  Contractor had provided this safety training to its employees but the employee and contractor supervisor failed to follow that training.  Pumper did not violate any OSHA safety rules.


Example #4.  A young man (19 years old), along with several others, trespassed on to an abandoned mine site to swim in the water pit.  Mine owner had fenced the property, posted “No Trespass” and “Danger” signs around the abandoned mine perimeter.  The young man drowns in the water pit.  Issue: Whether MSHA safety rules apply to a closed/abandoned mine, and what standard of care did abandoned mine owner have to trespassers.    Safety expert witness need answer the following questions for the lawyer: Does the Mine Safety Health Act (MSHA) have rules regulating closed/abandoned mines? Do MSHA safety rules extend to trespassers?  Does MSHA have jurisdiction over abandoned mines?

Safety research yielded that generally MSHA does not have jurisdiction over abandoned mines.  That MSHA safety rules do not address abandoned mine sites other than MSHA mandatory inspections need not take place.   MSHA safety rules typically do not apply to trespassers of an abandoned mine.   Mine operators are required to notify MSHA in the event of a death on site, including that of a trespasser.  If the mine is abandoned at time of death MSHA still need be notified which will determine what action, if any, it should take.

Facts presented supported the fact that the mine was abandoned.  Furthermore, that the mine operator, who placed and maintained a fence and warning signage and sought local law enforcement assistance in keeping trespassers out which were strong and reasonable steps from a safety stand point.  That MSHA safety rules do not generally apply to trespassers where appropriate fencing and signage are in place.


Example #5.  A mine operator hired a contractor to repair a damaged fall protection device  on site for use by truckers needing to access the top hatches of their trailers.  The mine operator supervised and controlled the manner in which contractor workers carried out the repair and provided the materials for the repair work.  The repair work undertaken by contractor was specifically and closely directed by mine operator maintenance manager.  The maintenance manger accepted the final work placing the fall protection device back in service for use. During the repair work contractor employees repeatedly pointed out defects (wrong materials) in the repair work.  The repaired fall protection equipment ultimately failed several months later resulting in a serious injury to a truck driver.  Issue: Whether a mine operator is solely responsible for mine site safety and condition. Safety expert witness need answer the following questions for the lawyer:  Does MSHA place work place safety responsibility soley in the mine operator?  What responsibility does the mine operator have for safety on its mine site under MSHA?   Does MSHA hold the mine operator solely responsible for pre work shift work place exams?  Did mine operator’s pre work shift exams satisfy MSHA pre work inspection requirements?  What is the contractor’s duty from an MSHA perspective to correct obvious defective repairs/conditions arising from orders issuing by the mine operator?  What is mine operator’s responsibility under MSHA to correct obvious work place defects brought to its attention?

Under MSHA mandatory safety rules research demonstrated the mine operator was solely responsible to assure all conditions and equipment on a mine site comply with safety rules.   The mine operator is required to seek out unsafe conditions (through pre sift work place exams) and promptly repair unsafe conditions.   Others on a mine site, for example, a contractor who point out safety defects put mine operator on notice of a hazard triggering in the mine operator the responsibility to correct such defect(s) promptly.  Mine safety is the exclusive obligation of the mine operator and no one else.


Example #6.  An oil and gas well owner hired another company (contractor) to manage and oversee the flow back process on a just fracked well site.  The wells were known to produce flammable gases and in fact a day before a flash fire/explosion one of the contractor’s employees personal gas monitor alarmed multiple times for dangerous/hazardous level presence of flammable gases. The contractor did not establish a “red zone” where in ignition sources (i.e. vehicle engines) would be kept at a safe distance from the flowback tanks (in fact contractor allowed its own employees to park and leave idling vehicle engines close to the flowback tanks), did not alert other contractors entering/working on site of the known flammable gas presence and did not have any signage alerting others on site of the presence of flammable gases. Driver of a tanker truck did not ground his truck and was burned in a flash fire.

Issue: Whether contractor fulfilled its safety duty of care on a petroleum well site regarding flammable gas safety.   Safety expert witness need answer the following questions for the lawyer: What are the general OSHA safety requirements when working on a flammable gas well site?  What is a “red zone” and when is it necessary? Who is responsible for implementing a “red zone” on a well site? What grounding requirements exist on flammable gas/liquid sites?   In addition to OSHA, what other safety rules and practices (i.e., American Petroleum Institute) apply to the presence of flammable gases on a well site?  What safety obligations exist to warn those entering/working on a well site of hazards (i.e. flammable gases)?

Safety research showed the contractor did not arrange or post a “red zone” which would have alerted others to the flammable hazard present on the well site as required by OSHA.  The contractor did not require its own employees to obey and observe safety rules under OSHA and API when it allowed employee vehicles to idle while near known flammable gases.  The ignition source, while not conclusive, was strongly believed to have originated by the idling employee vehicle parked close the frac tanks.  Contractor, despite actual knowledge of the presence of flammable gas on site, took no steps to alert others entering the site, either through verbal communication or posted danger signs, of the known presence of flammable gas on site.  Well site managers/owners need have grounding in place when flammable gas/liquids are transferred/moved.


Copyright, 2019, ©, all rights reserved, Rocky Mountain Safety Consulting, Inc., by Greg Gerganoff, CSP, Esq., (303) 330-4616