Dukane Precast Inc. v. Perez – $70k Work Safety Violation Fine Upheld


A concrete products company that failed to take a number of appropriate safety measures when one of its workers became trapped in a sand bin will pay $70,000 in fines to the Occupational Safety & Health Administration, following a decision by the U.S. Court of Appeals for the Seventh Circuit.

Court records in Dukane Precast Inc. v. Perez detail a troubling scenario in which not only was the well-being of the trapped worker jeopardized, but so too was the safety of several workers who climbed into the bin to try to dig him out.

Although the worker survived, he sustained severe injuries below the waist due to the pressure of the sand on his body for more than five hours.

As far as the worker is concerned in a case like this, there may be several avenues worth exploring for compensation. The first and most obvious is workers’ compensation. This is considered the exclusive remedy against an employer, regardless of negligence. Workers’ compensation will cover medical expenses, lost wages and other benefits for a set period of time. When workers’ compensation is made available to injured employees, there can be no personal injury lawsuit against the employer or co-workers.

However, there could be potentially third-party litigation against the designer or manufacturer of the machine (if it somehow malfunctioned), against the maintenance company responsible for repairing the machine, other contractors working on the site, or property owners who may have contributed to the incident.

This is not to say any of those were an option for the worker in this case. But those are some of the areas our Palm Beach work injury lawyers explore in such situations.

What fines focused on was penalizing the employer for violating safety rules, and also ensuring safety practices are followed in the future.

According to court records, worker was scraping sand from the inside a sand bin that was 18 feet deep when the sand suddenly began to give out underneath him and nearly buried him alive. He screamed and his co-workers rushed to his side, finding him buried up to his neck.

They quickly dug him out up to his waist. Someone alerted a nearby supervisor of the situation. The supervisor apparently did not see the situation as an emergency, and was assured by the other workers they could dig him out. Supervisor left the scene and did not call 911 or contact emergency personnel.

But the workers had extreme difficulty trying to get their co-worker out. He repeatedly asked for someone to call 911, but for reasons unclear, no one did. After more than an hour, the supervisor was called back and finding the worker still trapped, finally called 911. Emergency crews arrived within six minutes, and it took them more than four hours to free him – even with all of their equipment and training.

By the time he was out, he had suffered severe injuries to his lower extremities.

OSHA launched an investigation, and basically determined the reaction of those on site was everything they should not have done. The workers heroically stepped in to free their co-worker when he was buried from the neck down. This likely saved his life. But for them to do this, was at great peril to themselves because that sand could have given way on them at any point, and they too could have found themselves trapped.

There is certain protocol for how this specific situation should have been handled, and it’s set forth in 29 C.F.R. §1910.146(d)(9), which covers permit-required confined spaces. It requires in the event of an emergency, untrained co-workers be barred from attempting a rescue and that emergency workers have to be summoned immediately. It also mandates posting danger signs at the area and having physical barriers to entry.

This company did not do any of this, and these were deemed serious and willful violations, for which the firm should pay $70,000 in penalties.

Defendant firm fought this amount, as approved by the administrative law judge overseeing the case. However, it was affirmed recently by the 7th DCA.

If you have been injured in an accident, contact the Hollander Law Firm at (561) 347-7770 for a free and confidential consultation. There is no fee unless we win.

Additional Resources:

Dukane Precast Inc. v. Perez , May 4, 2015, U.S. Court of Appeals for the Seventh Circuit

More Blog Entries:

Brown v. Gay Eng’g Inc. v. Olivares – Gov’t Contractor Denied Sovereign Immunity Protection, May 9, 2015, West Palm Beach Injury Lawyer Blog