On Oct. 9, 2019, a Sentinel employee was driving a Bobcat Utility vehicle when he fatally crashed into the front end of an empty flatbed semitrailer in a parking structure. The accident occurred at around 2:15 p.m. in a parking structure that was used as a staging area for construction materials. A semitruck dropped off the flatbed for the offloading of material. The front end of the flatbed was exposed and was supported by front landing gear. This portion of semitrailer did not have any reflective materials and its location was not demarcated by traffic cones. Although the artificial light was sporadic, there was enough ambient natural light that the front end of the semitrailer would have been properly observable a reasonably attentive driver. The decedent employee was last seen by the GC’s superintendent driving the UTV about 10 mph, and in the parking structure when he struck the flatbed. It was inferable form the circumstances that the decedent did not discern the presence of the parked semitrailer before striking it.

After an investigation, OSHA issued a citation with a single violation of construction industry standards titled “Safety training and education,” which provides that “The employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury” and that Sentinel violated the standard by not providing “the Bobcat operators instruction on operating a Bobcat utility vehicle on pavement with tires that are designed for off-road use only.”

The citation proceeded to quote two provisions from the manufacturer’s Operation and Maintenance Manual for this equipment: 1) “AVOID INJURY OR DEATH. Read this…Manual. Understand all…precautions and operating procedures before operating this vehicle;” and 2) “This vehicle’s tires are designed for off-road use only, not for use on pavement. Operating this vehicle on paved surfaces…can alter the vehicle handling and may cause loss of control. Avoid operating the vehicle on pavement. If it is unavoidable, travel slowly and avoid sudden turns or stops.”

The Recommended Abatement Action, included with the citation, requoted the same two manual provisions indicating OSHA’s Compliance Officer’s position that had Sentinel provided its operators with instructions that conformed to the two referenced provisions, the accident could have been avoided.

The citation focused on two issues. What instructions and training did Sentinel provide if any to driving the Bobcat UTV on paved surfaces when the tires were designed for off-road use only; and whether the Secretary met its burden to show that a “reasonably prudent employer” under the same circumstances would have done more to instruct its authorized operators on driving the Bobcat UTV on paved surfaces with tires that were designed for off-road use. Here, the record showed that Sentinel met its burden while the Secretary did not.

Sentinel was able to show that it had authorized only nine managerial employees to operate the Bobcat UTV and that each authorized operator had prior experience operating similar vehicles. Sentinel had established that it had instructed each employee to review the Manual and had instructed each to drive no faster than 15 mph at the site, and it had assessed the knowledge of competence of each employee in individual test drives at the site.

The Bobcat UTVs had been delivered to Sentinel at the project and its president and director of field operations (DFO) were present to accept them. The president had advised the DFO that he would be responsible for employee training. The equipment dealer representative trained both the president and the DFO and tailored the training to the conditions at the project site. The surfaces for vehicle traffic at the project were in constant flux and included gravel, earthen and paved surfaces. The dealer advised the president and DFO that the UTVs must not be driven at speeds of more than 10 mph to 15 mph, specifically on paved surfaces and advised them that operators not familiar with the vehicle should read the Manual.

Only nine management level employees were authorized to operate the UTV, including the president and DFO. These seven employees including decedent had informed the DFO that they had experience operating similar vehicles. Moreover, the DFO provided one-to-one training on the operation of the UTV especially since Sentinel recognized that operators may encounter the hazard of losing control of the UTV when operating on paved surfaces. The training included instruction not driving faster than 10 mph to 15 mph at the project and to drive in two-wheel mode when driving on paved surfaces for better handling. The DFO also rode with each of the seven employees on test drives at the site. After the training and test drive, each employee expressed confidence to the DFO that they could safely operate the UTV. The DFO also instructed each operator to review the manual, which was in the UTV’s glovebox. Prior to this accident, there had not been any instances of any authorized employees driving the UTV in an unsafe manner.

The cited safety standard by OSHA is a general safety standard and therefore the ALJ utilized a reasonable person standard—would a “reasonably prudent employer” under the same circumstances have done more to instruct its authorized operators on driving the UTV on paved surfaces with tires that were designed for off-road use. Here, although Sentinel appeared to have initially offered conflicting accounts to OSHA’s Compliance Officer during the investigation following the accident, the evidence that was submitted showed that, in fact, Sentinel had taken adequate steps and instructions that were specific enough to advise employees of the hazards associated with use of this particular equipment and the citation was vacated.

About the author: Costas Cyprus is an associate attorney practicing construction law and commercial litigation with Welby, Brady & Greenblatt, LLP, in White Plains, NY. He can be reached at 914-428-2100 and at [email protected]. The articles in this series do not constitute legal advice and are intended for general guidance only.