Morrison Mahoney Partner Bill Staar won a trial before the Vermont Occupational Safety & Health (VOSHA) Review Board in a matter linked to a fatality at a construction site.
Our insured was a welding subcontractor working on a new dormitory being erected at the University of Vermont. Per the instruction of the project general contractor, two employees of our insured loosened a section of perimeter cables on the still-incomplete 7th floor. The cables, which ran along the outside of the building, were designed to act as a fall-prevention barrier until exterior walls were set in place. Due to a loss of electricity, the employees could not reposition and weld the cables in place by the end of the day. Thus, they wrapped the area in danger tape and left. Early the following morning, for reasons uncertain, a worker employed by the project general contractor crossed through the danger tape, approached the edge of the 7th floor, and fell to his death.
VOSHA investigated the scene and found that our insured was in no way responsible for having caused the accident. During its investigation, however, it received a photograph appearing to show our insured’s employee cutting the support for the noted section of perimeter-cable while not wearing personal fall protection (PFP), i.e., a shoulder harness tied off to the building via a steel cable. As a result, VOSHA fined our insured a substantial sum and issued to our insured a citation for a “Serious” safety-rule violation.
The VOSHA Review Board vacated both the fine and the citation. It found, among other things, (1) that at the moment the subject photo was taken, both perimeter cables remained taught, obviating the need for our insured’s employee to wear PFP at that time, (2) no evidence that, thereafter, our insured’s employee did not wear PFP when required to, (3) that, even if such evidence existed, no indication that our insured’s supervisors knew of or allowed the non-wearing of PFP, and (4) that our insured had fulfilled its duty of properly training, supervising, and disciplining its employees with regard to PFP and other forms of fall protection.
