Safety Watch

Winter Months Can Challenge Safety Mechanisms On Work Vehicles, Warranting Greater Attention

By COSTAS CYPRUS, ESQ.

Many motor vehicles, including those in the construction industry, are equipped with rear-view cameras, but older vehicles in use may not have them. The perils posed by vehicles reversing during construction operations with obstructed views are quite evident, and OSHA has in place specific rules to protect workers. For example, a vehicle operating within an off-highway jobsite (closed to public traffic) is required to have either a reverse signal alarm above the surrounding noise level or require the presence of an observer to signal to the driver that it is safe to reverse.

However, companies operating in the winter must recognize that drivers likely have their cabin windows closed and, therefore, may not hear if a reverse signal alarm is, in fact, audible over the surrounding noise level to warn a worker of the reversing vehicle’s path. Moreover, ice can form over a reverse alarm’s speakers to muffle or render the reverse alarm inoperable, presenting a danger.

These concerns and issues were the subject of the decision in Secretary of Labor v. Moorhead Bros., Inc. arising from a January 2014 workplace incident in which a truck, while backing-up on a two-lane rural road in London, OH, struck and tragically killed an employee who was working.

Respondent, Moorhead Brothers, Inc., was a site-clearing contractor specializing in right-of-way clearing for utility easements. An electric utility had contracted with MBI to clear a 40-mile right of way for the erection of new transmission lines. An MBI crew went to the location on Simpson Road that was going to serve as a staging area for MBI’s heavy equipment.

Simpson Road is a two-mile-long, two-lane paved road. A four-man crew was tasked among other items to place used tires on the side of the road so that they are laid down over the road for tracked vehicles to drive over, without damaging the pavement. The four-man crew consisted of a foreman and three laborers. A 2002 flatbed straight truck with a knuckle-boom crane arrived at the site loaded with 10 timber mats on its flatbed. Each timber mat is about 16 feet long, four feet wide and eight inches high, placed over ditches so that heavy equipment can drive over those ditches.

As required by MBI, the driver of the truck conducted a pre-trip inspection of the vehicle and no issues were noted. The driver reached the site, and the foreman instructed him to drive the truck to the location on the side of the road where the tires had been placed. The foreman and a laborer were on foot near the truck. Flaggers about 300 feet from the truck subsequently closed the road for the off-loading. The flaggers, foreman and driver could communicate with each other by two-way radio. As the driver began off-loading the mats, the project manager appeared and advised him that the adjacent property owner wanted MBI to access his property about 50 yards behind where the truck was currently stopped so that he would have to back-up “a little.”

The foreman instructed the driver of the new location and when the driver last saw the foreman, he was in front and to the right of the truck, picking-up tires. The driver had an obstructed view to the rear. The temperature was 40 degrees without precipitation, but the windows of the cab were closed. No further activity was on-going to produce any noise. No one acted as a spotter for the driver to reverse nor did the driver believe one was needed. He looked through his side mirror and did not observe anyone, and then proceeded to reverse. After traveling about 25 feet, he unknowingly struck the foreman who had walked over to the roadway to move loose tires. The foreman died.  

The State Trooper who arrived on the scene interviewed the driver, asking him if the truck had an audible warning when it reversed. The driver explained that it did but noted that sometimes it did not work. However, the driver never said the warning was not working on that day. Another State Trooper with Highway Patrol also inspected the truck that day and found that the reverse alarm signal was operable. MBI’s own Safety Manager tested the truck that day and the following, finding it operable on both occasions.

OSHA subsequently investigated. The driver was interviewed and explained that, although he did not remember if he heard the alarm on the day of the incident, he never said that it had not been working on that day. The OSHA officer also inspected the truck and was only able to hear a faint sound, which was determined to be due to low temperatures (17 degrees). Ice had formed over the alarm’s speaker so that it could not vibrate and emit noise. The Safety Manager replaced it immediately.

After concluding its investigation, OSHA issued a citation against MBI for failing to either have an operable reverse alarm or spotter. However, based on the evidence, including the trooper’s investigation and the two subsequent tests by the MBI’s Safety Manager, the judge found that it was more likely that the reverse alarm signal was working, and vacated the citation.

About the author: Costas Cyprus is an 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.

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