U.S. Secretary of Labor’s Reasonable Interpretation of Safety Regulation Trumps Conflicting Interpretation of OSHA Review Commission
Posted on May 13, 2014
Where the U.S. Secretary of Labor’s interpretation of a safety regulation conflicts with the OSHA Review Commission’s interpretation, the Secretary of Labor’s interpretation governs as long as it is reasonable. The Eighth Circuit confronted this question in reviewing conflicting interpretations of a safety regulation governing requirements for machinery guarding, 29 C.F.R. § 1910.212(a)(1). Specifically, the Secretary of Labor charged an air circulating equipment manufacturer with multiple violations of this regulation and issued a proposed fine of $490,000 following an incident in which a...
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Courts Using Foreseeability To Determine Whether To Modify or Limit the Ordinary Duty of Care Risk Reversal
Posted on May 12, 2014
The Restatement (Third) of Torts provides that an actor ordinarily has a duty to exercise ordinary care when the actor’s conduct creates a risk of physical harm, but that in exceptional cases, when policy principles warrant denying or limiting liability in a particular class of cases, a court may decide that the actor has no duty or that the ordinary duty of care requires modification. When courts inject foreseeability into the analysis of whether the ordinary duty of care should be modified or limited, they risk reversal. Last week, for example, the Supreme Court of New Mexico reversed a...
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Amusement Park Not Liable to Contractor’s Injured Worker Because No Retained Control Over Contractor’s Work
Posted on May 12, 2014
In March 2008, an employee of a construction contractor for an amusement park fell to his death while dismantling a large log flume-style ride. The worker’s estate sued the amusement park alleging multiple counts of negligence. As is generally true in all states, one who employees an independent contractor in Illinois is not liable for the acts or omissions of the independent contractor subject to certain exceptions. Illinois recognizes the “retained control” exception providing that one who entrusts work to an independent contractor but retains control of the work can be subject to...
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Louisiana Employer Held Responsible for Workers’ Compensation Benefits and Attorney’s Fees Despite Injured Worker Testing Positive for Cocaine After Injury
Posted on May 9, 2014
The Court of Appeals of Louisiana, Third Circuit, upheld a workers’ compensation judge’s ruling that an employer owed a claimant workers’ compensation benefits, penalties, and attorney’s fees. The claimant, who sustained a severe injury to his hand when a hand crank that he was using to lower a light tower spun out of control, had also tested positive for cocaine and amphetamines after the on-the-job accident. The court evaluated the employer’s appeal under Louisiana Revised Statute § 23:1081, which creates a rebuttable presumption in an employer’s favor when an employee tests positive for...
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DOT Issues Emergency Order Requiring Bakken Crude Train Operators To Notify State Emergency Response Commissions; FRA and PHMSA Urge Shippers To Avoid Older DOT-111s
Posted on May 8, 2014
Yesterday, the U.S. Department of Transportation issued an emergency order mandating that all railroads operating trains containing more than 1,000,000 gallons of Bakken crude oil notify State Emergency Response Commissions (SERCs) about the operation of such trains through their states within 30 days. The written notification must provide a reasonable estimate of the number of trains implicated by the Order that are expected to travel, per week, through each county of the state, identify the routes through which Bakken crude oil will be transported, and identify at least one point of...
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Tenth Circuit Overturns Jury Verdict For Injured Floorhand Finding Defendant Was Statutory Employer Under Colorado Law and Immune From Negligence Liability
Posted on May 8, 2014
Early in the morning of December 13, 2005, a floorhand was seriously injured while working on a drilling rig. At 12:01 am on the same day, an acquisition agreement became effective by which the floorhand’s employer sold the casing drilling services portion of its business and transferred employees of that division to the acquiring entity. The floorhand sued his now former employer asserting a Colorado state-law negligence claim. Prior to trial, the defendant sought summary judgment on the ground it was immune from common-law negligence liability because it was the plaintiff’s statutory...
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Activities Reasonably Incidental to Travel for Injured Traveling Employees May Include More Than You Think, Including Dancing at a Hotel Nightclub
Posted on May 7, 2014
Maryland’s highest court held that a “traveling employee” (an employee who is required to travel away from his employer’s premises in order to perform his job) was engaged in reasonable and foreseeable recreational activities when injured while dancing at a hotel nightclub and is entitled to recover workers’ compensation benefits for his injuries because such recreational activities were reasonably incidental to travel. The traveling employee, a resident of Idaho, had been assigned to work and stay for more than a week at a hotel in Maryland on behalf of his employer. During that period,...
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