If you’re an avid reader of The Weekly Toll, you may have noticed a few weeks ago the tragic death of 40-year-old Aaron Henderson, of Winter Haven, Florida, who was crushed to death when a bulldozer ran over the porta-potty he was using. The bulldozer operator’s vision was obstructed by the bulldozer’s elevated blade. Henderson’s death is being investigated by the Polk County sheriff’s office as well as OSHA. The sheriff’s office said it appeared to be a “tragic industrial accident,” but noted that the incident was still under investigation. OSHA has up to 6 months to determine if the employer has violated any OSHA standards.
This tragedy has now become enmeshed in the family’s understandable grief, the racial controversies that plague this nation and the unfortunate tendency to blame the worker for workplace injuries and deaths.
What Happened?
Henderson’s family understandably wants to know exactly what happened, what caused Henderson’s death and whether this tragedy could have been prevented.
“At the end of the day, we don’t know what happened, but we just want to know the truth,” said Lenard, Aaron’s brother. “We hope that they do a thorough investigation, you know what I’m saying, and we’ll come back with the truth. That’s all we want is the truth.”
Black Lives Matter Restoration Polk is calling for a criminal prosecution of 56-year-old John Johnson who was attempting to park the bulldozer for the evening. BLM stated that
“…the circumstances that led to Mr. Henderson’s death are highly suspicious and we are confident that the willful actions of the bulldozer operator were criminal and negligent.
We do not agree with the Polk County Sheriff’s Office that Mr. Henderson’s death was an excusable incident. OSHA has very strict heavy equipment safety guidelines and regulations that were not followed or enforced on the evening Mr. Henderson lost his life and we are confident that the evidence that was presented shows inexcusable gross negligence of the bulldozer operation.”
No workplace injury or fatality should be dismissed as “just a horrible industrial accident.”
I have no idea what OSHA will find in this investigation. But I have learned a few things over the past 40 years. First, no workplace injury or fatality should be dismissed as “just a horrible industrial accident,” as the Polk County Sheriff Sheriff Grady Judd said.
Second, accidents have causes and can usually be prevented. Generally those causes are related to management’s failure to provide a safe workplace. Finally, the worker who may have had a role in initiating an incident is rarely at fault.
What is the Cause?
According to the Occupational Safety and Health Act, managers have the responsibility to ensure a safe workplace. In this case, OSHA’s bulldozer safety standards have severable applicable elements. For example, bulldozer operators must be trained and there must be “a horn, distinguishable from the surrounding noise level, which shall be operated as needed when the machine is moving in either direction.”
OSHA also has more general “site control” requirements which require “A site map; site work zones; the use of a ‘buddy system’; site communications including alerting means for emergencies; the standard operating procedures or safe work practices; and, identification of the nearest medical assistance.”
OSHA has six months to determine whether any standards were violated. While the agency sometimes determines that an event was due to “unavoidable employee misconduct,” OSHA will generally find fault in management’s responsibility to maintain a safe workplace. For example, OSHA will determine whether the operator was adequately trained. Why did the blade block his vision? Was he not trained to lower it? Was the bulldozer designed to that his vision was blocked, or was it due to a mechanical problem? If his blocked vision was unavoidable, why didn’t the employer provide spotters to ensure that the operator didn’t hit anything?
In addition, both Henderson and the operator worked for a temp agency contracted by the county. There are often problems with the quality of training that temp agency employees receive before being sent off to work for the host employer.
The role of the Sheriff’s office in these situations is usually to determine whether or not there was criminal intent — in other words, did the operator intend to kill Henderson. Sheriff’s offices are generally poorly equipped to determine the actual causes of a workplace fatality. On the other hand, I take issue with Sheriff Judd’s statement that “It was a horrific tragedy. It was an industrial accident, and that’s what it is. We don’t put people in jail for accidents.”
Well actually, we do sometimes jail people for industrial “accidents.”
Well actually, we do sometimes jail people for industrial “accidents.” But in the rare cases where that happens, it’s usually the employer, not the worker, who is jailed. There have been cases, which I have written about and praised (most recently here), where county or state prosecutors file homicide or criminal negligence charges against an employer for an egregious violation of OSHA standards or common safety practices that resulted in the death of a worker. OSHA also has the ability to criminally prosecute, but it’s rarely used because it requires a fatality accompanied by a willful violation, and even if successful, only results in a misdemeanor.
Problem with Blaming the Worker
I have no idea if OSHA will find violations, or if those violations will be “serious” or “willful.” But I do know that it’s generally not a good thing to blame workers for “accidents.”
It is unfortunately common practice for management to point the finger at the worker who pressed the wrong button, hooked up the hose to the wrong connection, left a rail on the track before a train derailment, or — in this case — drove the bulldozer. But workers everywhere would be hurt if managers — or temp agencies — are able escape their responsibilities by simply blaming workers — or even jailing them — especially before the facts of the case are determined.
“Workers everywhere would be hurt if managers — or temp agencies — are able escape their responsibilities by simply blaming workers — or even jailing them.”
Human beings make mistakes. An effective accident analysis will identify the conditions which make the errors possible. We have OSHA standards and other measures that seek to ensure that those inevitable mistakes don’t end up in tragedy. And it’s generally management’s responsibility to ensure that those measures are put into place and the responsibility of OSHA — and sometimes prosecutors — to ensure that all workplaces are safe.
Henderson’s family and BLM are right that we need to know exactly what happened, why, and how this tragedy could have been avoided. Those responsible need to face consequences. We will continue to monitor the situation.