Institutional & Personal Liabilities DON M. POWERS DIRECTOR OF SAFETY & ENVIRONMENTAL MANAGEMENT UNIVERSITY OF

1. Institutional & Personal LiabilitiesDON M. POWERSDIRECTOR OF SAFETY & ENVIRONMENTAL MANAGEMENTUNIVERSITY OF CENTRAL OKLAHOMA CAUTION NO LEGAL ADVICE IS INTENDED BY THIS PRESENTATION. IT IS PRESENTED FOR INFORMATION ONLY AND REPRESNTS THE OPINION OF THE PRESENTER

2. A One-Hour Inspirational Potpourri of Information • Some common law doctrines • Relation to Workers’ Compensation • What regulators are doing • What does this mean for you? CAUTION THE HARDEST THING TO LEARN IN LIFE IS WHICH BRIDGE TO CROSS AND WHICH TO BURN.

3. Common Law Doctrines • Res Ipsa Loquitur • Respondeat Superior • Ordinarily Prudent Master • Reasonable Person CAUTION IGNORANCE OF THE LAW IS NO EXCUSE .

4. It’s a Res Ipsa World • The thing speaks for itself. A challengable assumption of negligence which arises from proof that the instrumentality (thing or place) causing injury was in defendant’s exclusive control, and the accident is one that ordinarily does not happen without negligence. A rule of evidence that says, absent an explanation, injury arose from defendant’s want of care. • Being a Public University and having a responsibility to the public creates a higher level of duty than that expected between individuals • A higher level of duty translates to greater care and concern that must be given to individuals on the campus and creates the risk of greater imputed negligence for the University

5. Respondeat Superior • The Boss is responsible for the actions and inactions of his employees if they are operating within the scope of their employment. • What you do or don’t do as an employee can hang your boss, but it can also hang you if you do not protect yourself. Your protection comes from not doing something illegal and from keeping your boss informed.

6. The Prudent Master • Keeps a reasonably safe place of employment • Supplies safe tools and equipment for employees to use • Warns employees of known risks and hidden hazards • Provides a sufficient number of co-employees to safely accomplish work

7. Reasonable Person • Exercises the judgment of an average person, who makes a judgment or decision based on all reasonable and known available information in such a manner as a prudent person would make for himself which would protect the interest of himself and others.

8. Some Thoughts OnWorkers’ Compensation • What is Workers’ Compensation? • Duties of Employer • Duties of Employee • Defenses left to Employer • Legal Standards that must be met

9. Workers’ Compensation • A mechanism for providing wage benefits, medical care, and disability benefits to victims of workplace accidents and placing the costs on the consumer through the medium of insurance with premium costs of the insurance passed on in the price of the product or service of the employer

10. Duties of Employer • Be an ordinarily prudent master • Pay insurance premiums or have self- insurance • Give up common law defenses: contributory negligence, fellow servant, and assumption of the risk

11. Duties of Employee • Work within scope of employment • Use safe, prudent and reasonable means to accomplish a job within the training and tools that have been provided by the employer • Give up right to sue employer in return for automatic benefits

12. Defenses Left to Employer • Drinking & Drugs • Horse Play • Fighting • Illegal activity • A willful injury

13. Legal Standard • Employee/Employer Relationship, • Accidental Personal Injury, and • Injury Arises Out of & In the Course of Employment

14. The Real World or What Regulators Are Actually Doing • Current Proposals in Washington • Current EPA Actions • Recent OSHA Activity CAUTION IF YOU DON’T KNOW WHERE YOU ARE GOING, YOU WILL PROPABLY END UP SOMEWHERE ELSE

15. Potomac Pukes v. Any U. • Proposed legislation -- If a worker dies on the job, OSHA will file an automatic felony charge against the employer instead of a misdemeanor charge. • Current drive is for more regulation not less • Bottom line, Pukes win and the U. loses

16. More News from DC • OSHA will ‘grandfather’ your ergo program -- if you act now and put a program in place showing management commitment, employee involvement, and regular program involvement. • OSHA will soon have a regulation requiring a Safety & Health Program, which must include: Management/Employee participation, hazard identification, hazard prevention and control, information and training, and program evaluation.

17. Recent EPA Actions • Three EPA Regions push colleges to comply with environmental regulations • University of Hawaii faces $1.3 million fine over storage of hazardous waste • University of Virginia faces an asbestos clean-up that could cost $15 million • Georgetown University paid $7,500 fine for not wetting down wall for ACM removal

18. More EPA Stuff • Appeals court rules that simple negligence -- such as sloppy work practices -- can be treated as a criminal violation of environmental (or safety) regulations. • Failure to use certified technicians to repair air conditioners that contain CFC’s can net a fine.

19. OSHA & Related Activities • Damned if you do & Damned if you don’t Department: University of South Carolina, attempts to comply with housekeeping standards; cleans out too much; professor wins judgment for $150,000. • New on OSHA’s ‘top 10’ list -- Worker safety training. To bullet proof your training, document it, call it training not a “tool box talk,” and don’t forget to provide the training to workers absent from the initial training.

20. It’s Not All Bad -- There Are Defenses Against OSHA • EMPLOYEE MISCONDUCT DEFENSE • Employer Must: • Have established work rules • Communicate rules to employees • Actively take steps to discover violations • Effectively enforce rules when violations are discovered

21. Claim of Negligent OSHA Inspection • $1 Million awarded to shoe factory employee • Employee was injured by unguarded machine that had been unguarded through two consecutive OSHA inspections by two different inspectors • The theory -- Had the machine been cited during one of the two inspections, the guarding would have been corrected prior to the accident. Additionally, the U.S. is liable for conduct of its agents.

22. Application of Law to a RealUniversity Case in Oklahoma • Trip and Fall on Brick Sidewalk of University by a Student • Processed through Risk Management & Denied • Suit ensued • University wins on Summary Judgment

23. Evans v. City of Eufaula,527 P.2d 329, OK (1974); Trip and Fall Defense • A slight or trivial defect is insufficient to warrant liability. • Slight or trivial defects have been identified as: • 2” rise between two sections of sidewalk • 3” to 8” wide 1/2” deep • hole 1” to 1 and 1/2” deep • holes to 1 and 1/2” deep and up to 9” wide • Considering all facts, a reasonable man would agree the city (or University) would not anticipate danger to the public.

24. Safety Coordinator v. Legal Hazards • Safety Personnel act as “agents” of employers in carrying out their duties. • As “agents” they can be sued, and there are increasing numbers of these cases. • The best defense is to perform safety duties competently (stay within your course of employment) and deal professionally and honestly with regulators. • Some managers have been found guilty of dereliction of duty and have been fined and sentenced to jail terms.

25. Personal & Organizational Liability • Created by negligence -- ignoring a duty properly held, such as ignoring a lengthy series of complaints about workplace conditions • An action outside the scope of employment condoned by the organization • Criminal activity and willful violations • Failure to know or act on what you should know

26. Steer Clear of Liability • Do your job professionally and well. This includes having safety rules, disseminating them, training personnel, and following up on training. • Exercise daily vigilance -- live, think, and practice safety. • Be professionally competent. Stay current with additional training, keeping updated with the laws. • Act professionally and honestly. Do not commit illegal acts or lie to regulators.

27. What this Means for You • Keep Records -- Document, Document, Document. • Inform your bosses -- reports, recommendations, inspections. • If a known, dangerous situation persists, get outside help. • Kick it up the ladder, do not sit on it. • Insure meaningful training occurs. • Get training for yourself. • Let them arrest someone else. CAUTION IT IS BETTER TO BE SAFE 100 TIMES THAN TO BE KILLED ONCE.

28. The Art of Being Reasonable • Make reasonable and ordinary observations. • React within a reasonable time. • Ask for help. • Communicate in a timely manner. • Keep yourself and others trained. • Ask questions. CAUTION DO WHAT YOU CAN WITH WHAT YOU HAVE WHERE YOU ARE

29. Get Commitment • Management commitments • Team commitments • Individual commitments TIP Lasting success is based oncommitment

30. There are Dual Responsibilities TIP COVER BOTH BASES, AND “NEVER GIVE IN, NEVER GIVE IN, NEVER, NEVER, NEVER, NEVER -- IN NOTHING, GREAT OR SMALL, LARGE OR PETTY-- NEVER GIVE IN EXCEPT TO CONVICTIONS OF HONOR AND GOOD SENSE” Winston Churchill • Institutional • Personal