A painting contractor has succeeded in contesting an OSHA citation that found the company responsible for the death of a worker. A painter was crushed under a metal gate at a casino. The contractor was hired to paint a rolling gate, weighing approximately 3,000 pounds, at a newly opened casino in San Diego. The gate, installed by a different subcontractor, wasn’t fully functioning at the time of the painting. As the painting crew moved the gate, it collapsed, crushing a 41-year-old painter to death.

As reported online by Occupational Health & Safety, the accident happened in December of 2020, and an OSHA investigation completed in May of 2021 found that responsibility for the fatal accident should be shared by the building company, the steel company hired by the building company to install the gate, and the painting contractor. The three were levied over $64,000 in combined penalties.

“Required oversight and communication related to workplace safety and health could have prevented this tragic loss of life,” said OSHA Area Director Derek Engard in San Diego at the time of the decision. “This case is a painful reminder of why employers must make complying with workplace safety standards a priority.”

The contractor was cited for failure to inspect the job site for safety, as well as for failure to “instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury.” 

The contractor appeals

In the appeal, while OSHA argued that the company was required to conduct frequent and regular inspections, the Occupational Safety and Health Review Commission responded that there was nothing to say exactly what they meant by those terms, and that the safety inspections conducted by the employees were sufficient in terms of what would be expected on a project such as this — and that the painting of the gate was a small part of a many months long substantial painting project.

The main reason, however, that the contractor was not held liable was that their job in this instance was simply to paint the gate, and that neither the contractor nor the employees could be expected to know how the gate was supposed to work or that, at the time of painting, it had not been properly installed. As reported in an article by Kristina H. Vaquera on the Jackson Lewis law firm’s website, “Their reasonable belief that it was safe to work after moving and observing the gate led them to continue their work because nothing indicated that there was an unsafe condition.”

The OSHRC also rejected the OSHA argument that the contractor should have known of the hazard, therefore invalidating the claim that the company was negligent in making the employees aware of the potential danger. Vaquera reports that “the specific hazard was not known or reasonably known to the company and the employees were reasonably diligent in their evaluation of the hazards at the worksite.”

Court decision

The court’s final decision vacates the OSHA citation only for the painting contractor, and not for the other two companies involved. The accident happened just about a month after the Casino opened. According to the court findings, in the hurry to open the casino by its announced date, the gate was put into operation without being fully functional. While the gate as installed could be moved to a certain degree, it would be unsafe to move it fully as there was nothing in place to hold it up. The court found that the painting company was never made aware of this situation, and that the contractor could reasonably expect that the gate would be safe to operate. The court finding continues that “no warning signs or physical barriers prevent[ing] movement had been placed on the [G]ate.”