Although Foreman Haynes had determined that they needed a bucket truck—one that could extend 60 feet to 70 feet and carry a tree trimmer (a “60/70 bucket truck”)—another employee for Asplundh testified and confirmed that they did not have authority to use this type of truck on this site. As an alternative, Asplundh provided a second crew with a smaller squirt boom that can lift the tree trimmer in the air up to a 42-foot working height.

Prior to the second crew’s arrival, the crew member from the first crew, who was an experienced climber (with 17 months of experience) and who was unaware of the second crew’s arrival, began to climb the dead tree and made it up to 35 feet, at which point he stopped—being unable to climb farther due to the tree’s structural weakness. The remaining 35 feet of the tree remained to be cut, and prior to beginning his work he tied into a fall protection system by securing his lanyard around the main stem of the tree while securing his climbing line around the branch he was standing on.

The crewmember began to make cuts to the tree that went unobserved by the crew on the ground. (They were working on the opposite side of the tree.) It was determined in the post-incident review that he performed this cut improperly by a mere few inches, which nevertheless caused the top of the tree to fall in an unintended direction. The top portion of the tree (weighing about 875 lbs.) struck the branch on which he was standing, and which his tie-off was secured. The impact further led to the lanyard around the main stem to lift over the area, in which he was tied off, and therefore caused him to fall 35 feet to the ground and sustain serious injuries.

Following the incident, OSHA investigated and issued a violation of the Occupational Safety and Health Act’s general duty clause in alleging that Asplundh “did not provide safe means and methods to remove a dead cottonwood tree in cold weather” which exposed their employees to struck-by and fall hazards while performing tree operations. That citation further indicated the feasible and effective means existed to eliminate or reduce the hazards by, among other methods, “ensuring that all dead limbs are trimmed from a safe distance by using a bucket truck or similar equipment.”

The general duty clause requires employers to furnish their employees a “place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm…” To prove a violation of the general duty clause, the Secretary of Labor (“Secretary”) must prove: a condition or activity in the workplace presented a hazard; that the employee or its industry standard recognized the hazard; that the hazard was likely to cause death or serious harm; and that a feasible means existed to eliminate or materially reduce the hazard. The Secretary must also prove the employer knew or with the exercise of reasonable diligence could have known of the hazardous condition.

The Administrative Law Judge found that Secretary succeeded in showing the existence of some but not all of the above-mentioned elements. The conditions of falling trees pose hazards to Asplundh’s employees, and the Secretary was able to show through their expert witness that trimming dead trees, such as cottonwood, could lead to falling and crushing employees given that the dead trees are suspect and often not structurally sound and unpredictable.

Supervisory personnel also recognized the hazards and had signed the Job Safety Briefing. They provided written safety policies defining the hazards associated with dead trees and discussed it within their Line Clearance Qualification Standard Employer Training Manual, which specifically addressed the “felling path” of a tree, struck-by and falling hazards, and the danger zone around the tree to be felled. The manual further discussed the type of cuts to be used when trimming trees. The materials also referenced industry standards regarding safety tree trimming measures for which Asplundh’s employees were trained, including fall protection systems and tie-in procedures. The existence of these standards established the industry’s recognition of the hazards. Furthermore, the actual incident itself demonstrated and proved that the hazard was likely to cause severe injury or death.

However, the ALJ found that the proposed abatement in the Citation was not feasible. The industry standards did not require use of 60/70 bucket truck and there was nothing in this instance that required one. The Secretary’s own expert conceded that a qualified climber could perform the work with the equipment provided, and the use of the bucket truck in this instance would also actually create an additional electrical hazard as the trees were in proximity to power lines. Asplundh provided training and associated materials that met or exceeded industry standards. Here, the ALJ found that the Secretary failed to present evidence that training enforcement or employee supervision would materially reduce the hazard. Furthermore, since the incident happened so quickly at the elevation, other employees would not be able to impact the direction of the falling portion of the tree or to correct the crewmember’s mistake of cutting too deeply into the trees by mere inches. In light of the above, 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.