Is a failure to call emergency personnel a “willful” safety violation?

Failure to recognize a hazard can be deemed to be a "willful" violation.
Failure to recognize a hazard can be deemed to be a “willful” violation.

If you were caught up to your neck in sand would you consider that an emergency situation? What about if you were just caught up to your waist? That was the situation at a company in Illinois. An employee was in a bin that had a funnel opening in the bottom for dispensing sand (into trucks I am assuming.) He had climbed into the bin to scrap sand from the side when his efforts caused the sand to shift burying him up to his neck. He screamed for help and fellow workers responded. Did they call 911?

No emergency call  

Unfortunately the fellow workers did not call for emergency help. Several jumped in the bin to try to dig out their coworker. They were able to get him unburied to his waist, however, the sand kept shifting and no further progress was made. The plant manager arrived on the scene 10 minutes later after being summoned by a supervisor who noticed no one was working. The plant manager reviewed the situation and determined that the employee was in “no danger” and told them to continue to dig him out.
I don’t know if you have ever been to the beach and tried to build a sand castle but digging at sand usually results in more sand falling. That was the case here. No progress was made on freeing the employee. He pled with his coworkers to call 911, yet no one did. Finally after an hour and a half of futile attempts to free the worker 911 was finally called. A special unit of the fire department, trained and equipped to handle such situations, was dispatched. It then took them another 3.5 hours to free the worker. By this time the weight of the sand on his lower body had caused severe injury.

The OSHA inspection

OSHA inspected the plant and the bin the day following the accident. The inspector determined that the company had committed a number of safety violations, including three “severe” violations and one “willful” one. They received a fine of $70,000. Naturally they protested, especially on the “willful” violation. Their attorney argued that “willful” is not really defined in the OSH Act and not doing something cannot be defined as “willful.” The US Court of Appeals, Seventh District, spent time reviewing this issue. (You can read their decision here.) They concluded  the definition that applied to this situation “requires proof only that the defendant was aware of the risk, knew that it was serious, and knew that he could take effective measures to avoid it, but did not—in short, that he was reckless in the most commonly understood sense of the word.” Thus the company’s appeal of their fines was denied.

The lesson

I have been in many safety situations in the past. My experience has always been that you are better off deciding on the side of caution. If an employee is trapped in anything you call emergency personnel. Few of your employees’ onsite deal with emergencies or have the equipment to deal with emergencies at the same level as firefighters or other professional rescue personnel.
It is also very good to make sure you are complying with the OSHA standards to begin with, which in this case was not being done. Know the rules, follow the rules, provide the training and respond appropriately when needed. This will keep you from getting heavy fines and who knows, it may actually save someone’s life.
Thanks to Jonathan Crotty and Michael Vanesse of Parker Poe Adams & Bernstein LLP for the inspiration for this post.

1 thought on “Is a failure to call emergency personnel a “willful” safety violation?”

  1. It would be interesting to find out what sort of culture that worksite has and the real reasons they didn’t call 911 – sound like some serious fear and control issues going on there? Perhaps they were due for a major safety milestone award?

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