Untrained forklift driver dies from improper equipment operation

Abstract

On May 22, 2002, a subcontractor that was hired to install the exterior, or "curtain," wall on a building became the focus of an OSHA inspection when one of its foreman gave a forklift key to an untrained employee, which resulted in a fatality. The employee was fatally injured when the forklift he was driving at a high rate of speed began to tip during a turn, causing him to get off of the vehicle to try to keep it from falling over. In this case, the forklift fell on the employee resulting in his death.

Two citations were issued alleging violations of the Powered Industrial Trucks regulation 1910.178(l)(1)(ii) — Safe Operation, and 1926.501(b)(1) — Duty to have fall protection. The latter citation was prompted by the lack of fall protection on the subcontractor's employees while they worked at unprotected edges on the 16th, 25th, and 26th floors of the building. A total penalty of $9,800 was assessed to the subcontractor.

Question 1: Did the foreman have a supervisory status?

Upon review, the subcontractor argued that the foreman, who gave the forklift key to the employee, was not a manager. Therefore, any knowledge he may of had of the cited condition could not be attributed to the company. The subcontractor also suggested that if the foreman's knowledge could be attributed to the company, he lacked knowledge of the cited condition and the violation was the result of unpreventable employee misconduct.

Conclusion

The Occupational Safety and Health Review Commission (OSHRC) disagreed with the subcontractor. Based on previous rulings, OSHRC said that an employee, who has been delegated authority over other employees, even if only temporarily, is considered to be a supervisor for the purposes of attributing knowledge to an employer.

In essence, OSHRC views the delegation of authority as the determining factor of supervisory status, not the formal title of the employee having the authority. In this case, the foreman's knowledge is attributed to the company.

Question 2: Did the foreman have constructive knowledge of the violation?

Three months prior to the incident, the foreman was given comprehensive forklift training by the subcontractor. According to OSHRC, the foreman not only knew that his forklift training lasted for over an hour, but also included a written test and practical "on the floor" instruction. The foreman's claim to have trained the employee for five to fifteen minutes prior to forklift use did not meet legal expectations.

Conclusion

OSHRC determined that the Secretary of Labor met her burden of showing that the foreman had constructive knowledge of the violation and that his knowledge was properly attributed to the subcontractor.

Question 3: Why was the fall protection violation changed from willful to serious?

During an OSHA investigation of the worksite, a compliance officer observed three of the subcontractor's employees working at unprotected edges without fall protection. All three employees were wear harnesses and all three tied off after being told to do so. Although the subcontractor did not dispute the violation, the company argued that the judge erred in characterizing it as willful.

Conclusion

Based on the fact that the subcontractor had a fall protection program including a specific work rule, provided both fall protection equipment and training to its employees, and responded to violations of its work rules, OSHRC could not find that the company consciously disregarded the Act or was disinterested in employee safety. Therefore, OSHRC rejected the willful characterization and affirmed the violation as serious because of the potential for death or serious injury resulting from a fall.

Full text decision

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