By: Thomas H. Welby Geoffrey S. Pope Published: January 2019

ALJ Affirms Citation Against Developer Following Fatal Incident Involving a Crane Operated Too Close to an Energized Power Line

Many of the construction injury cases we read in doing research for this series involve safety violations committed on the spur of the moment with bad outcomes.  We’re aware, however, that, regrettably, many such violations are committed daily, usually without any harm resulting. 

Some transgressions are so hugely dangerous, however, that they should never, ever occur — like operating a crane close to an energized power line.  In the case that we will review, which resulted in the gruesome death of one employee and serious injuries to another, there were at least four employers and six supervisory personnel working on site.  The ALJ found there had never been any meetings to discuss safety procedures with respect to a high-voltage power line crossing a portion of the jobsite.  The employees, including the experienced crane operator, did not know the voltage of the line, or what distance was required to be maintained between the crane boom and the line.  Some employees were wholly unaware that the power line was there at all, even though it was in plain view.  The multiple failures in planning, training, communication, and paying attention were astounding (and lethal).

While the developer was not the sole party responsible (we assume other employers were cited, but chose not to contest their citations) the respondent in the decision we found was Century Communities, which was developing a residential subdivision near Atlanta.  Century had supervisory control over the site.  Its three construction managers (Gaddis, McGinnis, and Schlosberg) and its finishing manager (Harden) all had authority to correct. or to order subcontractors to correct, safety or health hazards.

Century had engaged JLNC, the crane services subcontractor, on the project.  Century also hired E&N Construction as the framing contractor, and E&N hired about 10 subs to performing framing services.  One subcontractor, JP General Construction (“JPGC”) was working on Lot 51, where the incident occurred.

As of the date of the occurrence, about 47 of the 61 residential lots comprising the development had been completed.   Gaddis, one of Century’s construction managers, had primary responsibility for Lot 51.

The construction plan for all lots required the use of a crane to lift the large trusses and other items into place.  A 119 kV power line ran over Lot 51 and adjoining Lot 50. 

At about 7:00 a.m. on the day of the occurrence, Shadwick, a JLNC employee and experienced crane operator, arrived at Lot 51 with a hydraulic boom truck crane.  He set the crane up for operation, and deployed the outriggers and stabilizers.

Century supervisors McGinnis, Hardin, Gaddis and Schlosberg all arrived at the site shortly after Shadwick, as did E&N owner/foreman, Pulido.  Palma, the owner of JGCP (E&N’s sub for the framing work on Lot 51) arrived about 8:20 a.m., with five employees, including the “Decedent” and the surviving injured employee, “Employee #1”.  The latter two first worked with Shadwick, the crane operator, to  successfully lift small trusses on the left side of the crane.

For some reason, the large trusses for the house on Lot 51 had been moved from the extreme left side of the lot, to a place at the far right side, beneath the overhead power line.  The Decedent and Employee #1 connected the chain and wire slings to the large trusses on the ground.

At about 8:52 a.m., Shadwick began operating the crane, to lift one of the large trusses.  As the boom swung to the right side of the crane, the hoist cable, or the boom, came within 20 feet of the overhead power line.  There were two explosions, in quick succession, and the Decedent and Employee #1 were struck by fireballs and set aflame.  Both men were airlifted to hospital in Atlanta, where the Decedent suffered for more than two weeks before expiring.  Employee #1 survived.

OSHA cited Century, as the controlling employer, for failure to protect its subcontractors’ employees from electrical hazards, either by seeing to it that the line was de-energized, or by ensuring that no part of the crane, rigging and lifting equipment approached nearer than 20 feet from the 119 kV line.

Century contested the citation, asserting (1) that none of its own employees were exposed to the hazard; and (2) lack of knowledge of the violative conduct.  A trial before an administrative law judge was had, the citation was affirmed, and OSHA’s recommended penalty of $12,675.00 was approved.

Century’s first “defense” was curtly dismissed, as under the OSH Act “an employer owes a duty . . . not only to its own employees, but to other employees at the worksite when the employer creates and/or controls the cited condition.” The ALJ rejected, also, the defense of lack of knowledge, finding that overall the evidence showed that Gaddis (or at least one Century supervisor) had stopped by Lot 51, and had seen the crane positioned where parts of the equipment, load line or load could get nearer than 20 feet to the power line, which was in plain view.

Conspicuous in the ALJ’s decision was the extent to which hardly anybody was communicating, or even paying attention.  The crane operator did not speak Spanish.  On the day in question, he worked without his bilingual “negotiator” and rigger, on whom he relied to communicate with the Spanish-speaking crews.

Shadwick, the crane operator, did see the power line, but went ahead, despite the large trusses having been moved to a place much closer to the power line.  He testified that no one from Century held a safety meeting with him, or cautioned him about the placement of the crane so close to the power line.  He did not know the voltage of the line, or the correct safe distance.

Because of the weight of the evidence to the contrary, the ALJ gave “no weight” to testimony by Gaddis, Century’s manager in charge of Lot 51, that he had discussed the power line with the subcontractors, had not passed by Lot 51 that morning, and did not know that the crane was coming on that day.

Century construction manager McGinnis was responsible for the lot adjoining Lot 51, which also had the power line overhead.  He did not know the voltage of the line, or the minimum safe distance to be maintained.  He denied seeing the crane set up on Lot 51.

Schlosberg, another of Century’s construction managers, admitted he knew of the power line running over Lots 50 and 51, but denied knowing the voltage.  Schlosberg, who was not in charge of Lot 51 (although he did have authority to correct safety hazards) testified that he “wasn’t paying attention to a crane.”  Hardin, Century’s finishing manager, although onsite that morning, was at a place from which Lot 51 could not be seen.

Pulido, who owned E&M and had hired the crane services company, denied he ever met with Century’s managers for pre-construction safety meetings, or discussed the power line above Lots 50 and 51.  While admitting having driven past Lot 51, and observing the crane on the day of the accident, Pulido denied he knew of the power line at any time prior to the accident.

“Employee #1,” the injured survivor of the accident, denied that anyone from the developer, or the crane company, ever spoke with the framing crew about the power line.  He did not know the minimum safe distance, and denied noticing the power line prior to the accident.  Another member of the framing crew denied discussions about the power line; and, while he did see it, and inferred from its height that it was a high-voltage line, did not know the voltage, or the minimum safe distance.  Since the crew had arrived late on the morning of the accident, he testified, “we didn’t even think about that.”

Whenever cranes are to be used on a project, the site must be inspected for overhead power lines.  Advance planning, training, and communication (perhaps including the use of electronic listing software, and cellphone photography to make it impossible for overhead power lines to go unobserved) are keys to avoiding potentially fatal accidents.

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