"Attorneys for Ronald Bayer, who was 36 when the accident occurred in 2007, allege studs placed in iron beams Bayer was walking on caused him to trip, and proper harnessing equipment to prevent the fall had not been installed."
Bayer was building a warehouse at the time and the company plans to appeal based on an argument that Bayer was responsible for his own injury when he disobeyed instructions to remain in the bucket of a cherry-picker and walked in an area that was dangerous.
This is a very common situation faced by both employees and the companies that employ them to perform dangerous tasks. There is no specific information on their appeal at this time, but a jury will consider comparative fault and overturning their verdict. Damages could be reduced by this appeal, but given the nature and severity of the injury and its long-term consequences and the age and expected lifespan, it appears to be reasonable. This article merely serves as a springboard for a general discussion of negligence in falls while employees are in the scope of their courtroom.
Please keep in mind that OSHA mandates that employers continually train employees and have safety plans addressed to fall protection, sharps protection and handling, confined spaces, respirator usage, tripping hazards, and tagout/lockout procedures. Employers should consult with an attorney to ensure they are compliant whether they are in the construction, healthcare, or any other industry where OSHA and employee safety are concerned.
Negligence in IL
Negligence is the failure to do something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not do, under similar circumstances. Williams v. Conner, 228 Ill. App. 3d 350, 364 (5th Dist., 1992); Illinois Pattern Jury Instructions Civil 10.01.
Legally, negligence comprises 4 elements that must be plead and proven by a preponderance of the evidence before recovery: (1) a duty of care owed to the plaintiff (2) a breach of that duty; (3) actual and proximate causation between the breach and an injury; and (4) damages. Dinkins v. Ebbersten, 234 Ill. App. 3d 978, 983 (4th Dist. 1992); Thompson v. County of Cook, 154 Ill. 2d 374, 382 (Ill. 1993); Illinois Pattern Jury Instructions Civil 21.02.
The failure to prove any one of the elements is fatal to a plaintiff's cause of action.
Here, the Defendant asserts a defense of contributory negligence. Illinois, since Alvis v. Ribar, 85 Ill.2d 1, 421 N.E.2d 886, 52 Ill.Dec. 23 (1981), has a pure comparative negligence standard so juries must assess what percent of liability each side bears.
A plaintiff is contributorily negligent if (1) he fails to use ordinary care for his own safety or for the safety of his property and (2) his failure to use such ordinary care is a proximate cause of the alleged injury, death, or property damage.
Each person has a duty to use ordinary care so that he does not cause injury or damage to others. Similarly, every person has a duty to use ordinary care for his own safety and for the safety of his property. Illinois Pattern Jury Instructions Civil Second No. 10.03.
Armed with at least these jury instructions, it is impossible for a jury to have not weighed how much this plaintiff contributed to his unfortunate injury. This case is a perfect example of how a smart attorney can research the law and mitigate liability. OSHA standards play a central role to understanding what duties exist for the employer and how to avoid breaching these and being held liable for any employee injuries by preventing most of them and using the comparative to its advantage.
This discussion is equally important to employees in understanding not only what duties are owed to them, but also how those duties are commonly breached, resulting in injury.
Federal Fall Protection Standards
OSHA 29 CFR 1910.23 (c)(1) requires open-sided floors or platforms 4 feet or more above adjacent floor or ground level to be guarded by a standard railing (guardrail) or equivalent.
OSHA 29 CFR 1926.501 (b)(1) requires each employee on a walking/working surface with an unprotected side or edge 6 feet or more above a lower level to be protected from falling by the use of guardrail systems, safety net systems, or personal fall arrest systems. Fall protection should be rigged such that an employee can neither free fall more than 6 feet (1.8 m), nor contact any lower level. 1926.502(d)(16)(iii). Body belts no longer suffice for fall protection. 29 CFR 1926.502 (d).
Steel erection is considered construction work and is therefore regulated by OSHA 29 CFR Part 1926 Subpart R – Steel Erection. 29 C.F.R. 1926.760(a)(1), which states as follows:
“Except as provided by paragraph (a)(3) of this section, each employee engaged in a steel erection activity who is on a walking/working surface with an unprotected side or edge more than 15 feet (4.6 m) above a lower level shall be protected from fall hazards by guardrail systems, safety net systems, personal fall arrest systems, positioning device systems or fall restraint systems.”
Under §1926.760(a)(1), two exceptions to the 15-foot fall protection requirement are: (1) the employee is a connector, or (2) the employee is working in a controlled decking zone (CDZ). 29 C.F.R. §1926.760(a)(3).
Since the article mentions a 20 foot fall, no matter what the Defendant should have installed adequate fall protection standards in compliance with OSHA standards or they face litigation and compliance enforcement from OSHA itself.
Nair Law LLC can help workers seek compensation from their employers in either tort or through the Illinois Workman's Compensation Commission. Please contact me for more details about how I can help injured workers receive the compensation they are entitled under law.
Nair Law LLC can help businesses comply with OSHA standards, defend against OSHA citations, and defend against employment litigation. Contact me today!