Institutional

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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
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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.
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Common Law Doctrines

• Res Ipsa Loquitur
• Respondeat Superior
• Ordinarily Prudent Master
• Reasonable Person

CAUTION IGNORANCE OF THE LAW IS NO EXCUSE .
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Its 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 defendants 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 defendants 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

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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 dont 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.

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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

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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.

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Some Thoughts OnWorkers Compensation

• What is Workers Compensation?
• Duties of Employer
• Duties of Employee
• Defenses left to Employer
• Legal Standards that must be met

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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

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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

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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

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Defenses Left to Employer

• Drinking Drugs
• Horse Play
• Fighting
• Illegal activity
• A willful injury

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Legal Standard

• Employee/Employer Relationship,
• Accidental Personal Injury, and
• Injury Arises Out of In the Course of
  Employment

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The Real World or What Regulators Are Actually
Doing

• Current Proposals in Washington
• Current EPA Actions
• Recent OSHA Activity

CAUTION IF YOU DONT KNOW WHERE YOU ARE GOING,
YOU WILL PROPABLY END UP SOMEWHERE ELSE
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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

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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.

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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

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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 CFCs can net a
  fine.

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OSHA Related Activities

• Damned if you do Damned if you dont
  Department University of South Carolina,
  attempts to comply with housekeeping standards
  cleans out too much professor wins judgment for
  150,000.
• New on OSHAs top 10 list -- Worker safety
  training. To bullet proof your training,
  document it, call it training not a tool box
  talk, and dont forget to provide the training
  to workers absent from the initial training.

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Its 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

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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.

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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

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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.

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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.

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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

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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.

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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.
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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
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Get Commitment

• Management commitments
• Team commitments
• Individual commitments

TIP Lasting success is based oncommitment
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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