Missed Signal: A Failure to Control Traffic Flow Leads to Fatality in ‘Zone of Danger’ at Worksite

Construction operations that have a dynamic worksite consisting of the constant movement of heavy equipment with blinds spots where workers on-foot can very easily be subject to struck-by hazards if and when these workers are placed in the “zone of danger.”  To minimize such risks and injuries, employers must maintain proper safety protocols such as an internal traffic control plan (ITCP).

The decision in Secretary of Labor v. Hall Trucking, Inc., arising from the tragic death of worker shows that even when a company has “a lot of policies written down,”  its safety program can be found “incomplete at best, and merely an unrealized, unimplemented paper program at worst.” 

Hall Trucking is a North Dakota-based heavy haul company specializing in oil and gas rig moves. A typical rig move involves coordinating dozens of trucks and pieces of equipment, such as flatbeds, gin pole trucks, skid steers and bobcats, alongside laborers called “swampers” working on foot.  On November 2, 2022, a preventable tragedy occurred at a drilling site in Epping, ND.  A young swamper, barely two months into his job, was fatally struck by a reversing flatbed truck during a routine rig move.  Following an extensive investigation, OSHA issued a citation to Hall Trucking for violation of the general duty clause, setting forth that the employer did not furnish a place of employment that was free from recognized hazards, which were caused or likely to cause death or serious harm in that employees were exposed to struck by hazards.

OSHA’s citation indicated that an abatement method it could have developed was an ITCP to address the struck-by hazards; and, the plan should have included an employee training program for supervisors, drivers and ground crew members.

The incident was captured on dashcam video and although the truck had a functional back-up camera, sun glare prevented the driver from properly using it.  Moreover, the trucks were equipped with reverse alarms,  but  because the workers became accustomed to the sound, they would ignore it.  While Hall Trucking did conduct a daily safety meeting and provided some on-the-job mentoring, the company's policies were vague, inconsistently communicated and not enforced.  For example, the reversing truck had a spotter assigned, but he walked with his back to the truck and failed to maintain visual contact. The driver was also unable to use the backup camera due to sun glare. Tragically, the deceased employee had been in the blind spot and directly in the truck’s path when he was struck. 

It was determined that the closest Hall Trucking had to safety rules addressing struck-by hazards  consisting of a Swamper Training series of slides and the Daily Safety Meeting form.  The training slides (128 slides in total) were just one of the 13 training modules that the deceased worker completed upon hiring. (However, these were completed in only 18 minutes, an obvious red flag).  The company admitted no one verified whether he actually read or understood the content.

The daily safety meetings could also discuss “buffer zones” to define the distance a hazard from a moving vehicle, but no specific distance was defined as Hall Trucking’s supervisor explained that they could not in light of the different types of equipment on-site.

The Administrative Law Judge (ALJ) affirmed the Citation against Hall Trucking.  He  found, Hall Trucking’s safety program to be insufficient.  Even if it did have some rules pertaining to the movement of trucks, mobile equipment and ground workers, these rules  were found to be incomplete, disparate and incohesive so that the safety rules were improperly communicated to employees to ensure their comprehension.  Furthermore, there was no evidence of audit, inspections or enforcement for safety compliance on-site to ensure compliance and accountability.

OSHA’s expert testified about the need for an ITCP that would include defined walkways, buffer zones, spotter training, and worker-free backing areas that would have significantly reduced the risk of this fatality. The court rejected Hall Trucking’s argument that a formal ITCP was infeasible, noting that even small changes in layout and communication could have made a life-saving difference.

 An ITCP could be as complex or informal as needed depending on the nature of the work and on-site hazards.  Also, an ITCP is not merely a set of “static diagrams and one-size fits-all measures”,  it is “an entire process that includes training, site-specific evaluation, auditing/observation, and enforcement of policy and best practices.”

This Decision shows how companies must recognize and plan for struck-by hazards.  If a company has workers on foot near moving trucks or equipment, they must actively manage that risk with the assistance of an ITCP .  A well designed ITCP should have a clearly defined traffic flow, dedicated pedestrian walkways or “no-go” zones, trained spotters with defined roles and procedures for when visibility is compromised, such as with glare. Companies must also effectively train their workers and require confirmations, tests and refresher training.  Moreover, even the best policies are useless if no one knows or follows them.  Supervisors must be trained to audit, document and correct unsafe behavior, including taking proper disciplinary action.

About the author: Costas Cyprus, Esq. practices construction law and commercial litigation with Welby, Brady & Greenblatt, LLP, in White Plains, NY. He can be reached at 914-428-2100 and at ccyprus@wbgllp.com. The articles in this series do not constitute legal advice and are intended for general guidance only.

If you would like more information regarding this topic please contact Costas Cyprus at ccyprus@wbgllp.com or call (914) 607-6445