Sasser Electric and Manufacturing Company

Plain-English summary

Sasser hired an experienced independent crane company to load a generator at its West Virginia facility. During the operation, the crane contacted a 7.2-kilovolt line while two Sasser employees held cables attached to the crane; one employee died and another was hospitalized. The Commission found that Sasser had warned the operator about the lines, the lift could have been completed while maintaining the required clearance, and the same operator had previously worked at the site without incident. It held that Sasser reasonably relied on the crane specialist and had no reason to foresee that the operator would swing the boom within 10 feet of the line. The Commission therefore affirmed the judge's vacation of the citation. Commissioner Cleary dissented because Sasser controlled the trailer location, participated extensively in the lift, and should have anticipated the obvious electrical hazard.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.180(j)(1)(i)
• Outcome: Crane power-line clearance citation vacated.
• Key point: An employer may reasonably rely on an experienced independent specialist for hazards within that specialist's control when the employer has no reason to foresee unsafe performance.

Full text (OSHRC public release)

Docket No. 82-0178

SECRETARY OF LABOR,

Complainant,

v.

SASSER ELECTRIC AND MANUFACTURING

COMPANY,

Respondent.

OSHRC Docket No. 82-0178

DECISION

Before:  ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission
under 29 U.S.C. � 661(i), section 12(j) of the Occupational Safety and Health Act of
1970, 29 U.S.C. �� 651-678 ("the Act").  The Commission is an
adjudicatory agency, independent of the Department of Labor and the Occupational Safety
and Health Administration.  It was established to resolve disputes arising out of
enforcement actions brought by the Secretary of Labor under the Act and has no regulatory
functions.  See section 10(c) of the Act, 29 U.S.C. � 659(c).

The Secretary of Labor has petitioned for review of a Commission judge's
decision vacating the Secretary's citation to Sasser Electric and Manufacturing Co.
("Sasser") for serious violation of the OSHA standard at 29 C.F.R. �
1910.180(j)(1)(i).[[1]] The judge ruled that Sasser was not responsible for the violation,
which occurred when a crane operator employed by a separate company operated his company's
crane too close to power lines on Sasser's property.  The judge found that Sasser had
no knowledge of the existence of the violation.  We affirm the judge's action in
vacating the citation.

I

Sasser fabricates, installs and services diesel generators at a worksite in Winfield, West
Virginia.[[2]]  Its employees are mechanics and electricians.  During a
three-year period prior to the end of 1981, it had utilized Mountain Trucking Company
about six times to load and unload generators.  In December, 1981, a crane owned by
Mountain Trucking Company was rented by Sasser's manager, Jim Sisson, to load a generator
onto a flatbed trailer at Sasser's facility in Winfield.  The crane was operated by
Mountain Trucking's employee, Shelby Wisman, who had 14 to 15 years experience operating
different sizes of equipment for Mountain Trucking.  He had performed crane
operations at the worksite on three or four previous occasions.  That work had been
performed without incident.

Wisman first came to Sasser's worksite with a boom truck, which was unable to
lift the generator high enough to place it on the trailer. Wisman, however, used the boom
truck to move the generator to a point 12 to 15 feet west of the trailer.  At that
point, the center of the generator was 12 to 17 feet north of a point on the ground
directly beneath power lines that ran across Sasser's property and carried 7200 volts (7.2
kv).  During this operation, Wisman was cautioned by Sasser employees to watch out
for the power lines.  Although the crane operator felt some concern about the
location of the trailer with respect to the power lines, he did not request that the
trailer be moved.

Wisman returned to Sasser's worksite with a larger crane at about 5:30 to
6:00 p.m. the same day.  Although it was difficult to see the power lines at that
time due to darkness, light snow, and rain, the headlights of two vehicles were directed
at the trailer to improve visibility.  The power lines were in front of Wisman during
the operation of the crane.  Wisman parked the crane well away from the power lines,
with the generator between the lines and the crane.  Sasser employees attached the
generator to the crane's cable with choker cables.  At that point, the cable was no
closer than 12 to 17 feet from the lines.  It was not necessary for the cable to move
any closer to the lines in order to center the generator on the trailer.

The crane lifted the generator onto the trailer and the crane's boom then was
lowered in order to center the generator on the trailer. Once the generator was centered,
the cable at its closest point was approximately 15 feet from the power lines.  After
the generator was placed on the trailer, Sasser employees removed the choker cables from
the generator and prepared to disconnect the choker cables from the crane's cable.
  Before this was done, the crane swung back in the direction it had come, with two
Sasser employees, Emmett Jeffers and manager Sisson, holding the choker cables.  At
this time the crane's boom or cable contacted a power line and there was a flash of
electricity.  As a result, Jeffers was electrocuted and Sisson was hospitalized.

Sasser's employees had given directions by voice and hand signals to assist
the crane operator in centering the generator on the trailer once the operator placed the
generator onto the trailer.  Thereafter, Sasser's employees asked the crane operator
to lower the crane's cable so they could disconnect the cable.  Except for these
actions, Sasser's employees were not involved in the crane's operation or the movement of
the crane's boom.

II

The judge found that the crane was not operated in compliance with the cited standard.
  However, he found that Sasser had no knowledge of the existence of the violation.
  He noted that Sasser had taken the precaution of warning the crane operator of the
location of the power lines.  He also noted that the same operator had performed the
same type of work three or four times previously at Sasser's worksite without incident.
The judge found that Sasser had no reason to suspect that the operator was unaware of the
relevant safety standards.  He found that the operator had not violated the 10-foot
clearance in loading the

generator and thus Sasser reasonably could assume that there would be no violation when
the crane swung in the opposite direction. The judge reasoned that the violation occurred
because the crane's boom had been lowered in centering the generator on the trailer, thus
extending the boom closer to the lines before the crane swung back toward them.[[3]]
  He added that Sasser's employees probably did not realize the significance of the
boom being lowered as the generator was being centered on the trailer, because they were
not experienced in crane operations.

The Secretary argues that Sasser could have reasonably foreseen the violation
of the 10-foot clearance rule due to the close proximity of the power lines to the
operation, the poor visibility, the crane operator's lack of familiarity with the specific
crane involved, and because Sasser's employees assisted crane operators at the worksite.
  The Secretary also argues that an employer's duty to provide a safe workplace is
not negated where a hazard to which the employees are exposed is under the control of a
different contractor; the employer is responsible when it has reason to foresee that the
independent contractor might perform the work in an unsafe manner.

III

As the judge correctly stated in his decision, an alleged violation cannot be affirmed
unless it is established that the employer knew or with the exercise of reasonable
diligence could have known of the violation.  Scheel Construction, Inc., 76 OSAHRC
38/B6, 4 BNA OSHC 1824, 1976-77 CCH OSHD � 21,263 (No. 8687, 1976).  In this case,
the cited standard requires that a clearance distance of ten feet be maintained between
the power lines and any part of the crane and load.  The crane involved here was
under the control of a crane operator employed by a company separate from Sasser, and it
is undisputed that Sasser did not have actual knowledge of the alleged violation.
  The dispositive issue, therefore, is whether Sasser exercised reasonable diligence
in relying upon the crane operator to maintain sufficient distance from the power lines
and whether Sasser could have known that the requirements of the cited standard would not
be followed.

In deciding whether Sasser exercised reasonable diligence, it is necessary
first to consider the extent of an employer's duty under the Act when it hires an
independent contractor.  We agree with the Secretary that, even when the cited hazard
is under the control of a separate company, the employer has a duty to protect its
employees who are exposed to the hazards.[[4]]  However, the fact that the cited
employer has employees who assist in the work and have access to potential hazards does
not mean that the employer cannot reasonably place some reliance upon the independent
contractor.  In many situations in the workplace, it is natural for an employer to
rely upon the specialist to perform work related to that specialty safely in accordance
with OSHA standards.  Cf. Cities Service Oil Co., 76 OSAHRC 105/A2, 4 BNA OSHC 1515,
1518, 1976-77 CCH OSHD � 20,999 at pp. 25,237-38 (No. 4648, 1976), aff'd, 577 F.2d 126
(10th Cir. 1978) ("Normally, when an employer hires an independent contractor to
perform certain work, it relies on the contractor's expertise to perform the work
correctly.") Further, in many instances it may not be feasible, because of an
employer's lack of expertise, or wasteful, without necessarily resulting in the best
achievement of safety for all employees, to require the contracting employer to duplicate
the safety efforts of the specialist.

Accordingly, while an employer has a duty to his own employees even when it
relies upon a specialist to perform part of the work, the duty is of a different nature
than when the employer performs the work itself.  In a single employer situation, the
employer by necessity assumes the responsibility to prevent violations.  However,
when some of the work is performed by a specialist, an employer is justified in relying
upon the specialist to protect against hazards related to the specialist's expertise so
long as the reliance is reasonable and the employer has no reason to foresee that the work
will be performed unsafely.

In this case, Sasser placed its reliance upon an independent contractor to
perform part of the work.  Sasser employees never operated cranes -- they only
fabricated, installed and serviced machinery at the worksite involved.  Whenever a
crane was needed, Sasser hired a crane company.  Mountain Trucking was a separate
company, an independent contractor, with whom Sasser contracted to perform the specific
task of moving a generator onto the trailer of a truck.

Further, the cited hazard fell within the expertise of the crane operator.
  None of Sasser's employees were in the crane cab at the time of the incident, and
only the crane operator had direct control over the cited hazard and could assure that the
crane maintained sufficient clearance from the power lines as required by section
1910.180(j)(1)(i).  Maintaining sufficient clearance in accordance with the standard
is a requirement that a crane operator reasonably could be expected to know and comply
with.[[5]]

The evidence further establishes that Sasser's reliance upon the crane company was
reasonable under the circumstances and that Sasser had no reason to foresee that the
violation would occur.  The crane operator, Wisman, had performed work for Sasser
three or four times previously without incident.[[6]]  Sasser's employees pointed out
the location of the power lines to the crane operator. As the judge found in his decision,
the crane was positioned well away from the power lines and the task of placing the
generator on the trailer could have been accomplished without any part of the crane being
within ten feet of the lines.  There is no evidence that anyone realized that the
operator might swing the boom too close to the power lines.  The operator had raised
the load and placed it on the flat bed without any difficulty.  He was in the process
of returning the boom to its original position.  It was reasonable for Sasser to
assume that the return path of the boom would be the same.  Moreover, although
Sasser's employees gave hand signals and directions to the crane operator, these signals
and directions were given for the sole purpose of centering the generator on the trailer.
  The evidence does not establish that this participation by Sasser's employees had
any impact upon the crane operator's ability to maintain sufficient clearance from the
power lines or that Sasser could have foreseen the violation as a result of its employees'
actions.

Accordingly, for the above reasons we conclude that Sasser did not violate
the Act. The judge's decision vacating the citation is affirmed.

FOR THE COMMISSION

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED:  JUL 20 1984

CLEARY, Commissioner, dissenting:

I dissent.  I see no basis whatsoever for concluding that this
Respondent didn't violate the standard as alleged.  The majority would absolve Sasser
from responsibility basically because Sasser did not have actual knowledge of the alleged
violation, nor could it have known with the exercise of reasonable diligence.  They
also urge that Sasser was justified in relying on the judgment of the crane operator.
  In my opinion, the obvious and serious nature of the power line hazards and the
extensive involvement of Sasser's employees in the hazardous work mandate the conclusion
that Sasser should have anticipated the possibility of an accident almost exactly as it
occurred, and should have taken certain obvious measures to protect its employees.

The essential facts are that power lines carrying 7200 volts ran in plain
sight across Sasser's worksite.  The company ordered cranes from time to time to move
generators on which it worked, and its employees assisted and controlled the operations.
  On this occasion, Sasser realized that there was a potential for contact between
the crane and the power lines; its chief electrician testified that company officials
discussed the need to watch out for the problem before the generator was lifted.  Its
employees were also aware of the problem and warned the crane operator about it earlier on
the day of the accident.  However, at no time did the employees receive any
information about required clearances from the power lines.

The company's chief electrician played the leading role in creating the
hazard on the day of the accident by parking the trailer, on which an 18,000-pound
generator was to be placed, in a position where the rear portion of the trailer was under
the power lines.  If one were going to choreograph an accident, he could hardly
improve on this scenario.  The lines, which were between 12 and 24 feet high, ran
approximately east-west and passed over the last five or six feet of the trailer's rear
end, which faced approximately

south.  Because of the trailer's position, it was unavoidable that the crane would
operate near the lines in order to place the generator on the trailer.  The generator
was hauled from the shop to a place about 12 to 15 feet west of the trailer for loading.
  At that point, the generator was only 6 to 10 feet north of a point on the ground
directly under the power lines.  The first crane was unable to lift the generator, so
a larger crane was ordered.

When the larger crane arrived about 5:30 or 6:00 p.m., it was set north of
the generator and west of the trailer.[[1]]  The already dangerous scene was
compounded because visibility was severely curtailed at that time due to darkness, light
snow and rain, and the power lines were hardly visible to the crane operator.  Sasser
employees attached the generator to the crane's cable with 12-foot choker cables.  At
that point the cable came within 12 to 17 feet of the power lines.  The crane lifted
the generator, swung it onto the trailer with a Sasser employee steadying it, and then the
operator lowered (and thus extended) the crane's boom in order to center the generator on
the trailer.  Sasser employees told the operator where to set the generator by
signals and by voice.  When the generator was centered, the cable came within
approximately 15 feet of the power lines.

Sasser employees then told the operator to let down the cable and they
removed the choker cables from the generator.  Two Sasser employees held the choker
cables, which were still attached to the crane's cable, while the crane swung back toward
the power lines. The fatal contact ensued.  From these facts, the majority concludes
that Sasser exercised reasonable diligence, and should not be held accountable for the
crane boom coming within 10 feet of the power lines.

II

Possibly in some circumstances an employer that hires an outside specialist might be
justified in placing a reasonable degree of reliance in that specialist to do the work
safely.  However, the hiring of an outside specialist does not relieve an employer of
the duty to exercise reasonable diligence to discover and correct hazards to which its own
employees may be exposed, particularly when the specialist performs a mechanical function,
and does not direct or control the operation.

It is well settled that an employer cannot contract away its responsibility
for compliance with OSHA obligations.  E.g., Anning-Johnson Co., 76 OSAHRC 54/A2, 4
BNA OSHC 1193, 1198 n.13, 1975-76 CCH OSHD � 20,690, p. 24,783 n.13 (No. 3694, 1976);
PBR, Inc. v. Secretary of Labor, 643 F.2d 890 (1st Cir. 1981); Central of Georgia R. Co.
v. OSAHRC, 576 F.2d 620 (5th Cir. 1978); Dun-Par Engineered Form Co. v. Marshall, 676 F.2d
1333 (10th Cir. 1982).  In this case, the majority would say that Sasser surrendered
its safety responsibilities to a crane operator, even though Sasser assigned its own
employees to give directions and work as an integral part of the operation.

To permit this abdication of concern for one's own employees is inconsistent
with the consensus of Commission and court cases, which is that employers are responsible
for making reasonable efforts to discover and correct hazards to which their employees are
exposed (even when working with outside specialists).  E.g., Anning-Johnson Co.,
supra; DeTrae Enterprises, Inc. v. Secretary of Labor, 645 F.2d 103 (2d Cir. 1981);
Central of Georgia R. Co. v. OSAHRC, supra; Zemon Concrete Corp. v. OSAHRC, 683 F.2d 176
(7th Cir. 1982); Bratton Corp. v. OSAHRC, 590 F.2d 273 (8th Cir. 1979); Beatty Equipment
Leasing, Inc. v. Secretary of Labor, 577 F.2d 534 (9th Cir. 1978); Dun-Par Engineered Form
Co. v. Marshall, supra.  Although most of those cases involved construction sites,
the same principles have been applied to non-construction sites.  E.g., Harvey
Workover, Inc., 79 OSAHRC 72/D5, 7 BNA OSHC 1687, 1979 CCH OSHD � 23,830 (No. 76-1408,
1979); Central of Georgia R. Co. v. OSAHRC, supra.

The Commission has long held that the duty to exercise reasonable diligence
requires an employer to inspect the work area to determine what hazards exist or may arise
during the work before permitting employees to work in an area, and to give specific and
appropriate instructions to prevent exposure to unsafe conditions.  E.g., Automatic
Sprinkler Corp. of America, 80 OSAHRC 47/E4, 8 BNA OSHC 1384, 1980 CCH OSHD � 24,495 (No.
76-5089, 1980); see Little Beaver Creek Ranches, Inc., 82 OSAHRC 36/A2, 10 BNA OSHC 1806,
1982 CCH OSHD � 26,125 (No. 77-2096, 1982); Ames Crane & Rental Service, Inc. v.
Dunlop, 532 F.2d 123 (8th Cir. 1976); Brennan v. Butler Lime and Cement Co., 520 F.2d 1011
(7th Cir. 1975); REA Express, Inc. v. Brennan, 495 F.2d 822 (2d Cir. 1974); National
Realty & Construction Co. v. OSAHRC, 489 F.2d 1257, 1266-67 n.37 (D.C. Cir. 1973).
  Sasser's responsibility here is even more pronounced. Sasser had to be aware of
power lines running over its own facility, and it had to be aware that operation of cranes
close to power lines was a serious hazard.  Yet, it controlled the placement of the
trailer under the power lines.  One could hardly overstate the obvious character and
dangerous potential of this situation, and one can hardly overlook Sasser's responsibility
for this accident.

Sasser was in the business of manufacturing generators, and must therefore
have familiarity with moving heavy machinery out of its yard.  It must have been
thoroughly familiar with loading procedures.  It controlled the loading of this
generator.  While the generator could have been loaded without coming within 10 feet
of the lines, it is obvious that part of the crane or load also could have come within 10
feet of the lines, as it did.  Sasser owned the trailer, and presumably owned a
tractor to move it.  All Sasser had to do to defuse this situation was to move the
trailer.  Yet, the majority would find that responsibility for this hazardous
situation was that of a crane operator, and/or that Sasser couldn't have known of this
violation with the exercise of reasonable diligence.  I dissent.

The Administrative Law Judge decision in this matter is unavailable in this
format.  To obtain a copy of this document, please request one from our Public
Information Office by e-mail ( [email protected]
), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1]] � 1910.180 Crawler locomotive and truck cranes.

(j) Operating near electric power lines -- (1) Clearances.  Except where
the electrical distribution and transmission lines have been deenergized and visibly
grounded at point of work or where insulating barriers not a part of or an attachment to
the crane have been erected to prevent physical contact with the lines, cranes shall be
operated proximate to, under, over, by, or near power lines only in accordance with the
following:

(i) For lines rated 50 kv. or below, minimum clearance between the lines and
any part of the crane or load shall be 10 feet.

[[2]] The worksite operates under the name of Sasser Service, but is part of
Sasser Electric & Manufacturing Co. ("Sasser").

[[3]] The judge did not credit the crane operator's testimony that the boom
was not moving when the contact took place.  He found that the boom was moving from
the crane operator's left to right, based on the testimony of two Sasser employees.

[[4]] We do not consider an employer's duty when its own employees are not
exposed to the hazard or when it is engaged in work at a multi-employer worksite, but
limit our concern to the situation here under review.

[[5]] State Moving-Trucking, Inc., 82 OSAHRC 67/C9, 10 BNA OSHC 2216, 1982
CCH OSHD � 26,325 (No. 77-1971, 1982), involved a different situation.  The
employer, State, although lacking experience, contracted to perform a project involving
dismantling a derrick, thus holding itself out as qualified for the work.  No one
that State hired to carry out the work had expertise in dismantling derricks or even
asserted that they did.  Thus, in that case there was no reasonable reliance on an
independent expert to protect against hazards associated with dismantling derricks.
  In this case, Sasser placed a reasonable and natural reliance on an experienced
independent contractor to protect against hazards which were properly under the control of
that contractor and which concerned the contractor's, rather than Sasser's, experience.

[[6]] Although one employee testified that the operator did not appear
experienced with the larger crane and that the operator told him he wasn't very familiar
with it, the same employee testified he did not observe the operator make any mistakes
before the accident occurred.  The judge found the operator "generally
familiar" with rigger cranes.  Moreover, although the operator testified that he
had not previously operated the "particular crane" at issue here, he also stated
that there was very little difference in the controls between this crane and one he had
operated.  See Amoco Texas Refining Co., 83 OSAHRC 15/A2, 11 BNA OSHC 1269, 1983 CCH
OSHD � 26,476 (No. 79-5292, 1983).  There, the Commission found insufficient
evidence that the employer's crane operator was unqualified to operate a long boom crane
where the operation of that crane was similar to that of another smaller long boom crane
which the operator was qualified to run, and no evidence was introduced showing in what
way the operator's training or experience was inadequate.

[[1]] When the large crane was delivered to the worksite, Sasser's chief
electrician noted that the crane operator did not appear experienced with it, and the
operator admitted he wasn't familiar with it.  Sasser employees showed him what they
knew about the crane.