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Painter Not Liable in Worker Death

Wednesday, March 4, 2015

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An Ohio painting firm is not responsible for an employee's fatal fall, despite violating federal fall protection regulations, an appellate court has ruled.

Reilly Painting & Contracting Inc., owner Michael Reilly and foreman Peter Lukas were found not liable in an intentional tort case brought by the executor of the worker’s estate, according to court documents made public Thursday (Feb. 26).

Intentional tort describes a civil wrong resulting from a deliberate act that causes harm to someone else.

fall protection
OSHA

The victim in this case (not pictured) was working atop a flat, 11-foot-high roof when he fell. While safety harnesses were available, the job's foreman deemed them unnecessary for the work.

Reilly Painting employee William Head was paralyzed in November 2011 after falling 11 feet from a flat roof. He later died from complications of his injuries.

The Cuyahoga County Court of Common Pleas ruled in favor of the painting company in 2014. The Eighth District Court of Appeals of Ohio affirmed the judgment.

Reilly Painting, of Cleveland Heights, is a full-service contracting business and property manager that has served Northeast Ohio for more than 30 years, according to its website.

The Fall, OSHA Case

The undisputed facts of the case indicate that Head was an experienced labor, who was removing shingles from a flat roof atop a residential garage at the time of the incident. He was not wearing fall protection.

Lukas, the job’s foreman, was on the ground and asked Head to hand him a broom from the roof.

As Head leaned over to get the broom, he lost his balance and fell off the roof.

flat roof
©iStock.com / peuceta

OSHA violations, standing alone, were not found to create an issue of fact as to whether those violations were made with the specific intent to injure the worker, according to the opinion. The image does not show the scene in this case.

The federal Occupational Safety and Health Administration investigated the incident and issued violations in the case.

No Safety Harness

During the OSHA investigation, Reilly Painting admitted that Head was not wearing a safety harnes, according to the case documents. OSHA regulations require fall protection for work performed more than six feet above the ground.

It was determined that the company had safety harnesses readily available.

However, Lukas testified that he did not believe harnesses were necessary because the roof was flat and not pitched, the court documents said.

OSHA cited the company for six “serious” safety infractions and proposed fines totaling $9,100. The fine was later reduced to $4,900 through an informal conference, according to an OSHA spokesman.

The violations included the alleged failure to ensure that employees working from a flat roof were protected from falls, by using adequate fall protective system/devices. The other citations related to respirators and a hazard communication program.

No Intent

The appellate court, however, agreed with the trial court that there was “no evidence that Reilly Painting acted with deliberate intent to injure Head.”

“Making a deliberate decision not to use a piece of safety equipment does not by itself show a specific intent to cause an injury,” Judge Melody J. Stewart wrote in the opinion.

Reilly Painting
Reilly Painting & Contracting

Reilly Painting is a full-service contracting business and property manager that has served Northeast Ohio for more than 30 years, according to its website.

The appellate court also agreed with the trial court that Reilly Painting’s OSHA violations did not, by themselves, create an issue of fact as to whether those violations were made with the specific intent to injure Head.

“Although Reilly and Lukas appreciated the risk of injury resulting from a fall from the roof, there was no evidence that they knew it to be a substantial certainty that Head would fall because he was not wearing a safety harness,” the court said.

The “undisputed evidence showed that the job foreman considered it safe to work on a flat roof and that safety harnesses were unnecessary.”

Further, the court said, there was no evidence that Head believed he should be wearing a safety harness on the roof or that he expressed any unease in not doing so.

Falls are the leading cause of death in the construction industry, according to OSHA.

   

Tagged categories: Building envelope; Fall protection; Health and safety; Lawsuits; Painters; Roofing contractors

Comment from Chuck Pease, (3/4/2015, 7:52 AM)

Wow.... above 6' and leading edge work, with an admission that the acting foreman didn't think fall protection was necessary and no culpability...... I didn't know the standards were open to interpretation....... Lemme see.... Please your honor I didnt think that bullet would kill. Ya right!!!


Comment from peter gibson, (3/4/2015, 2:50 PM)

So much for this wonderful judicial system we have !


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