C&S began working on Oct. 22, 2020. Before commencing operations, C&S’s health and safety manager held a pre-job meeting with the Operator and Spotter with a plan for loading the flatbed trailers by placing four pole segments, side-by-side and end-to-end on the flatbed, with no stacking. No other loading methods were discussed. However, prior to their work, the Operator asked the driver of the semitruck that would transport the poles how they wanted the pole segments loaded on the flatbed. The driver asked that six pole segments be loaded onto the flatbed, rather than four, in two triangular stacks of three pole segments, with the one stack occupying the front half of the flatbed and the second stack occupying the back half. The Operator and Spotter thus proceeded in this manner. They did not physically secure the pole segments on the flatbed as the Operator believed that the straight side of baseplates at the end of each segment would prevent their movement on the flatbed.

They had been working for 10 days when the accident occurred on Nov. 5, 2020. The first stack had been loaded onto the front half of the flatbed and the accident occurred while they were loading the rear stack. The Operator’s view of the landing area was blocked, so the Spotter climbed onto the flatbed and stood next to the front stack so that he could hand signal to the Operator in unloading the top third-pole segment on the back half. As the Operator positioned the telehandler’s fork holding the third pole segment, the Spotter was standing on the left side of the flatbed at the mid-point of the front stack and was about 10 feet from the nearest point of the pole segment that was being unloaded, and about 18 feet from the nearest part of the telehandler. As the third-pole rolled off the fork and dropped two inches onto the two pole segments below, the force caused both stacks to roll off. The front left bottom pole fell off the left side of the flatbed and knocked the Spotter off the flatbed to the ground. The top pole from the front stack then fell from the flatbed, striking and tragically killing the Spotter.

The OSHA investigation of the accident resulted in a Citation with two items. Item 1 alleged violation of the general duty clause, which requires employers to furnish a workplace “free from recognized hazards that are causing or likely to cause death or serious physical harm.” The Item alleged that the Spotter was standing in the danger zone of the forklift’s stacking operations when struck by multiple sections when the stack collapsed, and, cited to the telehandler’s manual which defined a zone of danger as “any zone within and/or around the machinery in which a person is subject to their health or safety” including the area “into which debris…could be projected… or fall from the machine….” The Administrative Law Judge indicated that this Item “hinges” on whether it was more likely than not that the evidence showed that the Spotter’s position next to the front stack while there were on-gong loading operations toward the rear stack constituted an industry recognized hazard so that the Spotter was in fact “in the danger zone of the stacking operations.”

Testimony was elicited, including from C&S’s construction safety expert who testified that in the “common industry practice” the forklift’s danger zone is typically 10 feet from the machine, and therefore the Spotter in this instance was outside the zone of danger of the telehandler’s operations. The zone of danger was assessed by looking at the risk of the Spotter being struck by the “telehandler, its load, or material falling from any attachment or working tool such as the fork,” and there was no evidence of that here. Thus, the ALJ found that evidence was insufficient, and vacated this Item.

However, the second Item of the Citation was affirmed. Specific safety regulations require that “an evaluation of each powered industrial truck operator’s performance shall be conducted at least once every three years.” Here, the evidence clearly showed that C&S had failed to certify that this required evaluation was performed by the Operator. Compliance with this certification requirement bears a direct relationship to safety and heightened the risk of serious injury or death in the operation of a PIT by an operator who was no longer qualified.

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