R.L. SANDERS ROOFING COMPANY
OSHRC Docket No. 76-2690
Occupational Safety and Health Review Commission
July 24, 1979
[*1]
Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Bobbye D. Spears, Reg. Sol., USDOL
Ira J. Smotherman, for the employer
OPINIONBY: CLEARY
OPINION:
DECISION
CLEARY, Chairman:
A decision of Administrative Law Judge Cecil L. Cutler, Jr., is before the Commission pursuant to two directions for review issued under section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et. seq. ["the Act"]. Judge Cutler vacated a citation alleging a serious violation of section 5(a)(1) of the Act. We reverse his decision for the reasons stated below.
Respondent R.L. Sanders Roofing Company ["Sanders"] has its business office in Atlanta, Georgia. The alleged violation occurred at the North Clayton County High School in College Park, Georgia, construction site, where Sanders was a subcontractor for the roofing work. On May 4, 1976, an accident caused serious injury to one of Sanders' employees. That accident led to an inspection of the construction site from May 19 to May 28, 1976, by OSHA compliance officers. On June 3, 1976, a citation was issued alleging that Sanders violated section 5(a)(1) of the Act, 29 U.S.C. [*2] § 654(a)(1), n1 the general duty clause, by failing to provide its employees a workplace free of receognized hazards causing or likely to cause death or serious physical harm. Specifically, the citation charged that no protection was provided at the open sides and ends of the roof of the school building exposing employees pulling a hot asphalt spreader to falls of 13 feet, falling objects, and burns from hot asphalt.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 Sec. 5. (a) Each employer
(1) Shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The parties stipulated most of the important facts. At the time of the accident, Ollie Young, a Sanders employee, was spreading hot asphalt on the roof of the school building to insulate the roof. The roof was flat. It was approximately 13 feet above the ground and had no guardrails or other perimeter guarding. Mr. Young was using a Universal adhesive spreader to [*3] spread the tar, which was between 300 and 500 degrees in temperature. The spreader had a broken wheel, which made it difficult to push, the normal method of operation. Because of the broken wheel, Mr, Young decided to back up and pull the spreader rather than to push it. As he approached the edge of the roof, some of the hot tar splashed on him and he jumped back. He fell over the edge of the roof and landed on his head. The spreader tipped and the hot tar inside spilled down on Mr. Young, who suffered severe burns on 75% of his body and was hospitalized for over two months. At the hearing, Mr. Young testified that, if there had been guardrails, he would not have fallen.
At the hearing, the Secretary presented a safety expert who testified that the hazard of falling off a flat roof was recognized. The judge, however, found that the testimony and exhibits showed recognition only by the construction industry, not by the roofing industry. The judge held that respondent was part of the roofing industry and that the evidence did not show recognition by that industry.
The judge recited that, in the past, failure to guard the edges of flat roofs had been cited as violations of [*4] a specific standard but that two courts of appeals had held that the standard did not apply to flat roofs n2 and that, as a result of these decisions, the Review Commission had adopted the position of the two courts. n3 The judge further stated that the confusion as to which standards might apply to flat roofs deprived employers of fair notice as to what conduct was required of them.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 See Diamond Roofing Company, Inc. v. O.S.H.R.C., 528 F.2d 645 (5th Cir. 1976) and Langer Roofing & Sheet Metal, Inc. v. Secretary, 524 F.2d 1337 (7th Cir. 1975).
n3 Central City Roofing Company, Inc., 76 OSAHRC 61/A2, 4 BNA OSHC 1286, 1976-77 CCH OSHD P20,761 (No. 8173, 1976).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The judge found that no specific standard applied to the facts of this case, and found no violation of section 5(a)(1) because the hazard involved was not shown to be recognized by the roofing industry and because respondent could not reasonably foresee the chain of events leading to the injury.
Two directions for review were entered in this case. [*5] I directed review on the issues raised in the complainant's petition, including:
Whether the Judge erred in vacating a citation for violation of section 5(a)(1) of the Act on the grounds that:
(a) The Secretary failed to prove that the danger of falling from flat roofs is a recognized hazard;
(b) The Secretary failed to prove that falling from roofs is a hazard likely to cause death or serious physical harm because the Secretary did not prove that there is a substantial danger of falls from flat roofs.
Former Commissioner Moran directed that this case be reviewed "for error," "to determine whether the record fully justifies findings of fact 1 through 10 and conclusions of law 1, 2 and 3."
In its brief, respondent argues that no violation of section 5(a)(1) can be found because a specific standard applies to roofing but does not apply to the flat roof in this case. The standard relied upon by respondent, 29 CFR § 1926.451(u)(3), n4 by its own terms applies only to roofs with slopes of greater than 4 inches in 12, so it does not apply to the roof on which Sanders was working. Respondent also argues that the Secretary's comments when § 1926.451(u)(3) was amended indicate that [*6] there is no hazard presented by roofs sloped less than 4 inches in 12. We have rejected this rationale in Hamilton Roofing Company, Inc., 78 OSAHRC 57/C1, 6 BNA OSHC 1771, 1978-79 CCH OSHD P22,856 (No. 14968, 1978). That case held that the hazard contemplated by § 1926.451(u)(3) is the hazard of falling caused by the slanted roof, not the hazard of working at the edge of the roof. Therefore § 1926.451(u)(3) does not preclude the application of the general duty clause, nor do the Secretary's comments negate the existence of a fall hazard to employees working near the unguarded perimeter of a flat roof. The applicability of section 5(a)(1) to flat roofs was suggested in Central City Roofing Company, Inc., 76 OSAHRC 61/A2, 4 BNA OSHC 1286, 1976-77 CCH OSHD P20,761 (No. 8173, 1976) (Barnako, Chairman, concurring).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n4 That section provides:
(3) A catch platform shall be installed below the working area of roofs more than 16 feet from the ground to eaves with a slope greater than 4 inches in 12 inches without a parapet. In width, the platform shall extend 2 feet beyond the protection of the eaves and shall be provided with a guardrail, midrail, and toeboard. This provision shall not apply where employees engaged in work upon such roofs are protected by a safety belt attached to a lifeline.
[*7]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
In order to establish a violation of the general duty clause, the Secretary must prove that (1) the employer failed to render its workplace free of a hazard (2) which was "recognized" and (3) which was "causing or likely to cause death or serious physical harm," and must show that there were feasible steps the employer could have taken to correct the situation. National Realty & Construction Company, Inc. v. O.S.H.R.C., 489 F.2d 1257, 1265, 1267-68 (D.C. Cir. 1973).
The unusual facts of the accident, the wording of the citation and complaint, and the parties' concentration at the hearing on the chain of events of the accident rather than on the existence of a hazard, have somewhat confused the record. n5
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n5 On review, both parties argue that the foreseeability of the particular accident is not relevant. Complainant's Petition for Discretionary Review, page 6, and Brief for Respondent to Review Commission, page 20. We agree.
- - - - - - - - - - - - - - - - -End Footnotes- [*8] - - - - - - - - - - - - - - - -
In this case, there were two separate and distinct hazards, falling and being burned by hot tar. The particular chain of events came about from the almost simultaneous occurrence of two "accidents" with the injury from each aggravated by the other. While the fall itself may have been precipitated by a burn and the fall injuries compounded by subsequent burns, the method of abatement suggested by the Secretary is directed only at eliminating the fall hazard. Inasmuch as the citation and complaint as well as the evidence and argument of the parties centered on the application of section 5(a)(1) to the hazard of falling from the unguarded edge of a roof our decision is similarly limited. n5a We are satisfied from the record that the fall hazard was recognized within the meaning of section 5(a)(1), even if the unusual chain of events in this case was not foreseeable. n6
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n5a Our lack of discussion of the independent burn hazard should not be construed as condoning in any way Respondent's practices regarding the handling of hot tar. However, the Secretary's pleadings do not address the issue of a feasible means of abating the burn hazard and the parties have not expressly or impliedly tried the issues relevant and necessary to resolve the matter. Therefore, we conclude that allegations pertaining to the burn hazard are not before us.
n6 The United States Court of Appeals for the Eighth Circuit has indicated:
The second basic weakness of the hearing examiner's rationale is that it addresses itself to the foreseeability of the incident as it actually occurred rather than the foreseeability of the general hazard. . . . A violation occurs whenever an employer fails to take reasonable precautionary steps to protect his employees from reasonably foreseeable "recognized hazards" that are causing or are likely to cause death or serious physical injury. Thus, even if the three deaths and two serious injuries involved here were actually the result of an unforeseeable chemical reaction, Vy Lactos may still have been in violation of the general duty clause because of its self-admitted failure to take any precautionary steps whatsoever to protect its employees from the hazard of hydrogen sulfide accumulations that is now apparent. (emphasis in original)
Brennan v. O.S.H.R.C. and Vy Lactos Laboratories, Inc., 494 F.2d 460, 463 (8th Cir. 1974).
[*9]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The question of recognition of a hazard was an issue during the drafting of the Act and has continued to present troublesome questions. The Court of Appeals for the District of Columbia has examined the Act's legislative history and stated:
A recognized hazard is a condition that is known to be hazardous, and is known not necessarily by each and every individual employer but is known taking into account the standard of knowledge in the industry. In other words, whether or not a hazard is "recognized" is a matter for objective determination; it does not depend on whether the particular employer is aware of it. 116 Cong.Rec. (Part 28) 38377 (1970). The standard would be the common knowledge of safety experts who are familiar with the circumstances of the industry or activity in question.
National Realty & Construction Company, Inc. v. O.S.H.R.C., supra, 1265 at n. 32.
The administrative law judge held that respondent's industry was the roofing industry, not the construction industry. We disagree. The Commission held in SSC Corporation, 76 OSAHRC 69/D9, 4 BNA OSHC 1334, 1976-77 CCH [*10] OSHD P2C, 814 (No. 15288, 1976) that an underground utilities contractor working as a subcontractor on a construction site was properly included within the general construction industry for purposes of recognition. The holding in that case governs the facts before us here. Sanders was working on a construction site and was governed by any applicable construction standards; and roofing is categorized as part of the construction industry by the Standard Industrial Classification Manual. n7 Furthermore, we find it inconsistent with the purposes of the Act to assure employees "so far as possible" a safe workplace that a duty would be owed to other workers in the construction industry working at the edge of flat roofs but that no such duty would be owed to roofers. We therefore hold that recognition of a hazard by the construction industry in general constitutes recognition by the various trades within the industry. Employers whose employees engage in construction owe a duty to these employees to protect them from hazards recognized by the construction industry in general.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n7 Office of Management and Budget, Standard Industrial Classification Manual, 54 (1972).
[*11]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
It is well established that falling is a hazard recognized throughout the construction industry. The specific question to be answered here is whether the hazard of falling 13 feet from the edge of a flat roof is recognized. Respondent argues that National Realty, supra, requires that proof of recognition be established by the testimony of safety experts familiar with the industry. We disagree. Recognition by safety experts familiar with an industry may be shown by means other than testimony. In this case, the judge took official notice of several OSHA standards for the construction industry, including 29 CFR § 1926.451(a)(4), n8 and § 1926.500(d)(1). n9 These standards are addressed toward eliminating the hazards of falling 10 feet and 6 feet respectively The standards were drafted by persons familiar with the hazards encountered in construction work. We accept them as evidence of recognition by safety experts familiar with the construction industry that falls of 13 feet are a hazard to construction workers. Additionally, we find abundant evidence in the record, including the testimony [*12] of Mr. Masters and the exhibits introduced through him, that falls from one level to another, such as the fall here, are widely recognized as hazardous throughout the construction industry. Additionally, respondent introduced an exhibit published by the National Roofing Contractors Association, entitled Protection of Roofers from Falling Risks, which indicates the roofing industry's recognition of that hazard. In fact, that exhibit describes a situation very similar to the accident involving Mr. Young. Discussing the use of safety belts and lifelines, that document states, "'Properly secured' means, that the safety line would hold the man as confined above safely, even if he tripped, walked at a fast pace, or ran in panic when splashed accidentally with hot asphalt." Id. at 4-3.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n8 That section provides:
(4) Guardrails and toeboards shall be installed on all open sides and ends of platforms more than 10 feet above the ground or floor, except needle beam scaffolds and floats (see paragraphs (p) and (w) of this section). Scaffolds 4 feet to 10 feet in height, having a minimum horizontal dimension in either direction of less than 45 inches, shall have standard guardrails installed on all open sides and ends of the platform.
n9 That section provides:
(1) Every opensided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(1)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.
[*13]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Having determined that Sanders' employees were exposed to a recognized hazard, we must determine whether the record indicates that the hazard was causing or likely to cause them death or serious physical harm. We do not rely on the occurrence of Mr. Young's injury. The existence of an accident, taken by itself, is not definitive proof of a violation of the Act. See National Realty & Construction Company, Inc., supra.
Although the Commission has previously reviewed 5(a)(1) citations in which the likelihood of an accident was small but the likelihood was great that the consequences would be serious if an accident did occur, our decisions have not always discussed this distinction. To the extent that prior Commission decisions have not clearly defined the phrase "likely to cause" in section 5(a)(1), we do so now. We hold that the proper question is not whether an accident is likely to occur but whether, if an accident does occur, the result is likely to be death or serious physical harm.
Respondent has urged the Commission that an accident must be the likely result of a hazardous condition [*14] and that death or serious injury must be the likely result of such an accident before a violation of section 5(a)(1) can be found. We reject the argument. We believe that the remedial purposes of the Act are better served by interpreting section 5(a)(1) to require that the workplace be kept free of recognized hazards which, if an accident occurs, are likely to cause death or serious physical harm regardless of whether an accident is likely to occur. This interpretation is supported by decisions of those courts of appeals which have considered the question. In Usery v. Marquette Cement Manufacturing Company, 568 F.2d 902 (2d Cir. 1977) the court said, "Here the serious nature of the harm that could result if [an accident occurred] warranted precautions against even the slightest possibility of its occurrence, . . ." 568 F.2d at 910. "In applying the 'likely to cause' element of the general duty clause, it is improper to apply mathematical tests relating to the probability of a serious mishap occurring, . . ." Titanium Metals Corporation of America v. Usery, 579 F.2d 536, 543 (9th Cir. 1978); citing, National Realty & Constr. Co., Inc. v. OSHRC, supra. [*15]
Applying the above rationale to the facts of this case we conclude that even though the occurrence of Mr. Young's accident was unlikely, the injuries resulting from a fall of 13 feet are "likely to cause death or serious physical harm." Therefore, we find that the hazard to which respondents' employees were exposed was of such a nature that if an accident occurred the consequences were likely to be death or serious physical harm. Thus the hazard is the type contemplated by section 5(a)(1).
The final requirement upon the Secretary is that he show that there were feasible steps the employer could have taken to eliminate the hazardous condition. In this case, the Secretary suggested guardrails. In respondent's brief to the Review Commission, Sanders stated that it did not contest the Secretary's recommended abatement method. Respondent agrees that "a standard guardrail outside the perimeter of the roof was the feasible means by which the alleged hazard could have been addressed." Normally, this admission would suffice to settle the issue without further comment. In this case, however, the judge's decision and the argument by respondent suggest that an employer's duty of care to [*16] its employees is determined by the custom or practice of its industry. In Southern Railway Company, 75 OSAHRC 88/C2, 3 BNA OSHC 1657, 1975-76 CCH OSHD P20,091 (No. 5960, 1975), we said,
Respondent claims that because it followed the standard industry practice . . . it fulfilled its duty under section 5(a)(1). We reject this theory. Though the level of hazard recognition required by the "general duty" clause is measured against industry experience and employer knowledge, . . . an abatement order under section 5(a)(1) may require that work practices and safety precautions be upgraded to a feasible level which is above that considered customary or 'reasonable' by an industry. (emphasis in original) (citations deleted).
To the extent that Penrod Drilling Company, 76 OSAHRC 116/B8, 4 BNA OSHC 1654, 1976-77 CCH OSHD P21,072 (No. 5991, 1976) may have suggested differently, we now hold that that case is overruled. Our holding today is consistent with our recent decisions in Continental Oil Company, 78 OSAHRC 63/E1, 6 BNA OSHC 1814, 1978-79 CCH OSHD P22,903 (No. 1829, 1978) and in Ford, Bacon and Davis Construction Corp., 78 OSAHRC 78/D9, 6 BNA OSHC 1910, 1978-79 [*17] CCH OSHD P21,101 (No. 76-665, 1978). We reiterate that an employer's abatement duty under section 5(a)(1) is not controlled by the practices of its industry but is dependent solely upon a showing that there were feasible steps it could have taken to abate the hazardous condition.
The parties stipulated that, if a violation was found, a penalty of $750 would be appropriate. We accept the stipulation of the parties. See Thorlief Larsen & Sons, Inc., 74 OSAHRC 74/C8, 2 BNA OSHC 1256, 1974-75 CCH OSHD P18,826 (No. 370, 1974).
Accordingly, the citation for a violation of section 5(a)(1) of the Act is affirmed and a penalty of $750 is assessed.
DISSENTBY: BARNAKO
DISSENT:
BARNAKO, Commissioner, dissenting:
I conclude that the Secretary failed to prove Respondent (Sanders) violated § 5(a)(1) of the Act n1 as alleged, and would affirm Judge Cutler's decision vacating the citation.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 The Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678. Section 5(a)(1) is quoted in n. 1 of the lead opinion.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
In order to establish [*18] that an employer violated § 5(a)(1), the Secretary must prove that (1) the employer failed to render its workplace free of a recognized hazard, (2) this hazard is causing or is likely to cause death or serious physical harm, and (3) demonstrably feasible measures could have been taken by the employer to eliminate or materially reduce the hazard. Whirlpool Corp., 79 OSAHRC , 7 BNA OSHC 1356, 1979 CCH OSHD P23,552 (No. 9224, 1979); National Realty and Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973).
The Secretary proved that the danger of falling from the perimeter of a flat roof is recognized both in the construction industry and the roofing industry. Recognition in the construction industry is shown most directly by the existence of other construction safety standards requiring railings at the perimeter of open-sided floors and work platforms. n2 Recognition in the roofing industry is demonstrated through a report, prepared by a consultant for the National Roofing Contractors Association, entitled Protection of Roofers from Falling Risks. n3 The report discusses various means by which roofers can be protected against falls, and evidences [*19] the roofing industry's recognition of the need for protective measures. Thus, however the relevant industry is defined, recognition of the hazard was shown. n4 National Realty and Construction Co. v. OSHRC, 489 F.2d at 1265, n. 32.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 See 29 C.F.R. § § 1926.451(a)(4) and 1926.500(d)(1), quoted at nn. 8 and 9 of the lead opinion.
n3 Sanders introduced this report into evidence.
n4 I agree with the majority that, in general, recognition of the hazard by the construction industry would be sufficient to establish recognition by a subcontractor in that industry. There may be situations, however, in which a condition that is recognized as hazardous by the construction industry in general is not so recognized by subcontractors possessing special expertise. For example, working in proximity to certain electrical equipment may be hazardous to most construction workers, but not to experienced electricians. Thus, although it is normally sufficient for the Secretary to show that a hazard is recognized in the construction industry to prove recognition by all those engaged in the industry, I would permit an employer to rebut such evidence by proving that contractors in its particular specialty do not recognize the condition as hazardous.
[*20]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Sanders has conceded that a guardrail around the perimeter of the roof would have been a feasible means of protecting against the fall hazard. Indeed, such a guardrail was erected after the accident that gave rise to the citation. Thus, the Secretary has satisfied his burden of proving a feasible means of abatement.
The case therefore turns on whether the Secretary proved that the hazard was causing or was likely to cause death or serious physical harm to Sanders' employees. As a threshold matter, I agree with the majority that whether a hazard is likely to cause death or serious physical harm involves only the likely consequence of an accident, and not the likelihood that an accident will occur. The authorities cited in the lead opinion compel this conclusion. n5
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n5 This does not mean, however, that the likelihood of an accident is totally irrelevant in determining whether a § 5(a)(1) violation occurred. An employer is not responsible for hazards that it lacks the ability to prevent. National Realty & Construction Co. v. OSHRC, supra at 1266. If an accident can only result from a chain of events that is of such a low likelihood as to not be reasonably foreseeable, then the hazard is unpreventable and the employer cannot be held responsible for it. Cities Service Oil Co., 76 OSAHRC 105/A2, 4 BNA OSHC 1515, 1976-77 CCH OSHD P20,999 (No. 4648, 1976), aff'd, 577 F.2d 126 (10th Cir. 1978); Brennan v. OSHRC (Republic Creosoting Co.), 501 F.2d 1196 (7th Cir. 1974). "A violation (of § 5(a)(1)) occurs whenever an employer fails to take reasonable precautionary steps to protect his employees from reasonably foreseeable 'recognized hazards. . . .'". Brennan v. OSHRC (Vy Lactos Laboratories, Inc.), 494 F.2d 460, 463 (8th Cir. 1974). (emphasis added).
[*21]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The Secretary contends that the likelihood of death or serious physical harm in this case is illustrated by the fact that a fall did in fact result in serious harm. He refers to evidence that the fall knocked Young unconscious as well as making a "hole" or "dent" n6 in his head. He also notes that, having lost consciousness, Young was unable to avoid the hot tar that caused him to suffer burns. The Secretary further contends that common sense dictates that similar falls are likely to cause death or serious harm.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n6 At one point in the hearing, Young testified that one result of the accident was that, "I got a hole knocked in my head." He later said, "I've still got a hole -- a dent in my head, it ain't no hole." Beyond the fact that Young became unconscious as a result of the fall, this is the only evidence concerning the injury Young suffered as a result solely of the fall.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
These arguments are unpersuasive. While Young indeed suffered [*22] serious harm as a result of the accident, most of his injuries were caused by burns from the hot tar, not the fall alone. The burns Young suffered are not probative of the likely injury that could result from a fall because a burn injury is not a foreseeable consequence of a fall. Indeed, while the Secretary argues that a fall from the perimeter of the roof was reasonably foreseeable, it is noteworthy that he does not contend burn injuries are a reasonably foreseeable result o such a fall.
I also conclude that the evidence concerning the injuries from Young's fall alone does not establish that such a fall is likely to cause death or serious physical harm. n7 Young's references to a "hole" or "dent" in his head (n. 6, supra) are too vague to constitute probative evidence that the fall alone caused serious injury. n8 Nor does common sense establish the likelihood of serious injury. The fall distance was 13 feet, substantially less than is allowed by certain of the Secretary's fall protection standards. n9 While other standards apply to lesser fall distances (see n. 2, supra), the very existence of such a wide discrepancy in permitted fall distances among the Secretary's various [*23] standards demonstrates that common sense is an unreliable guide in determining at what fall distance an injury is likely to be a serious one. Thus, common sense cannot substitute for record evidence.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n7 The Secretary also argues that if an accident has actually caused death or serious physical harm, he has established a violation within the literal language of § 5(a)(1), which speaks of hazards "causing or likely to cause death or serious harm" (emphasis supplied), without further evidence that the hazard was "likely" to cause death or serious harm. The argument is inapposite here because the Secretary has not shown that the fall hazard caused death or serious physical harm. Accordingly, the merits of the argument need not be addressed.
n8 The fact that the fall caused Young to lose consciousness does not establish that Young suffered serious physical harm, for loss of consciousness alone, without further evidence of the specific injury or of the duration of the period of unconsciousness, cannot be considered serious physical harm.
n9 See 29 C.F.R. § 1926.451(u)(3): (16 feet); 29 C.F.R. § 1926.105(a): (25 feet); 29 C.F.R. § 1926.750(b)(2)(i): (30 feet).
[*24]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
No evidence of record indicates that the fall hazard in this case would be likely to cause death or serious physical harm. The ground was composed of relatively soft material, being described by one witness as "red mud." There was no evidence of any special characteristics of the ground surface that would tend to aggravate the injury resulting from a fall. Indeed, even the Secretary's compliance officer did not state that a fall alone would be likely to cause serious harm; he based his opinion that the injury would likely be serious on the combined fall and burn hazard. On this record, I find the Secretary has not proven that a fall from the roof on which Sanders' employees were working was likely to cause death or serious harm. n10
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n10 I do not suggest that a fall of 13 feet onto soft soil presents no danger of injury. However, Congress determined, in passing the Act, that the Secretary should proceed against hazards that are not likely to cause death or serious physical harm through the promulgation and enforcement of specific standards; Congress explicitly limited the scope of the general duty clause to serious hazards. The Commission, of course, has no authority to question the wisdom of this Congressional determination. Hence, even though the Act is remedial legislation that must be interpreted to effectuate its purpose of protecting employee safety and health, see Brennan v. OSHRC (Underhill Construction Co.), 513 F.2d 1032, 1038 (2nd Cir. 1975), the Commission cannot ignore the plain language of the statute and extend the scope of § 5(a)(1) beyond its intended application.
[*25]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -