The California Court of Appeal recently upheld a decision that an employer (construction company) of an employee who was seriously injured violated safety regulations when it failed to properly control its earth moving operation. The injured employee was on foot and the employee operating the machine couldn''t see him. The construction company argued that having general knowledge of people walking around the site where earth moving operations were going on was sufficient to "control the environment." The Court of Appeal agreed with the lower court that the construction company failed to "control its earth moving operations in such a manner as to ensure that its equipment operators knew of the presence of workers on foot in their area of operation."

What specifically happened was that an employee was hit by a scraper, a 98,000-pound piece of earth moving equipment. He was very lucky to have only suffered serious bodily injuries. The Division of Occupational Safety and Health came out to investigate and cited the construction company for a violation of General Industry Safety Order 1592(e), which requires hauling or earth moving operations to "be controlled" so operators know of the presence of workers on foot in the areas of operation.

The employee that was injured was on foot. At any given time there were two to four workers on foot at the job site. At the time of the accident, Labor Code Section 6432(a) stated that a serious violation "shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a serious exposure exceeding an established permissible exposure limit or a condition which exists, or from one or more practices...which have been adopted or are in use, in the place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation."

At the time of the accident, the employer needed to reassign some workers and assigned an apprentice instead of a journeyman to operate the scraper. The employer asked the apprentice if she could operate a scraper and she told them either that she was not very good at it or that she had not done it in a while. The supervisor watched her for a couple of loads and then came to the conclusion that she could operate the scraper.

At the time of the accident there was some confusion as to which path she was supposed to be taking and she took the wrong path. The employee who was injured was in the blind spot of a vehicle and was struck. Just before he was struck the operator had a bad gut feeling and stopped the scraper, but the employee was already hit and injured.

The construction company''s position was that its duty under the rule was fulfilled as long as operators had general knowledge there would be employees on foot in the area. The administrative law judge decided that it''s not sufficient for operators to know there would be workers on foot, but that they need to be sensitive that the rule requires operators to be aware when there are workers on foot in the immediate vicinity of the operators. The Court of Appeal agreed.

Labor Code section 6401 states: "Every employer shall furnish and use safety devices and safeguards, and shall adopt and use practices, means, methods, operations, and processes which are reasonably adequate to render such employment and place of employment safe and healthful. Every employer shall do every other thing reasonably necessary to protect the life, safety, and health of employees."

The regulation was adopted to require employers to make sure that operators are aware of the presence of workers on foot, for the exact reason of preventing unexpected accidents.

In conclusion, it was found that the construction company assigned an apprentice to drive the scraper even though she lacked experience in doing so, and no one reviewed any operating and safety procedures with her. There was also lack of supervision and confusion as to the proper route to drive. Therefore, the construction company could have known "with the exercise of reasonable diligence" of the conditions which violated the regulation, and they were found in violation. Therefore, the citation was upheld. n