I was requested to make an evaluation of comparative negligence regarding an accident which occurred at White Sands Missile Range, New Mexico. Three men standing on the top of an excavation observed a backhoe crawl up a 14 foot ramp along the side of an excavation 40 feet deep. The backhoe was positioned backwards with the front end pointing down the ramp. Turning his seat around as he traveled up the ramp, the operator inadvertently released a lever which allowed the front end of the backhoe to swing around and crush the safety supervisor to death against the side of the excavation. The safety supervisor was walking too close to the backhoe to avoid being hit at the time of the accident.
Although they had no contractual association with the contractor performing the work on site, the employers of the three men who witnessed the accident from top of the excavation were cited by OSHA for failing to provide a competent person.
OSHA’s citations were vigorously argued in court by attorneys representing the three employers. They did not prevail. My opinion regarding comparative negligence was upheld. The Secretary of Labor submitted a brief supporting my opinion. The OSHA’s inspector who issued the citations for failing to provide a competent person made the correct decision. Each witness at the scene of the accident had the training, experience and knowledge to recognize a hazard, but failed to make that determination. As such, each witness had a non delegable duty of care, which, if properly exercised, could have prevented the accident.