Workers' safety shouldn't be left to government
Published 11/02/99

While workplace safety is subject to governmental regulation, neither employers nor employees should rely exclusively on governmental oversight to ensure the safety of employees.

In a New Hampshire case, an employee who was seriously hurt in a work related injury sued the United States government under the Federal Torts Claims Act claiming that the Occupational Safety and Health Administration (OSHA) was negligent in performing safety inspections at the plant where the plaintiff had worked, by failing to identify an unguarded drive shaft of a machine which caught the employee’s hair when she bent down to pick up a glove causing permanent and serious neurological injury.

In an appeal from the United States District Court for the District of New Hampshire, the First Circuit Court of Appeals noted that the government inspectors appeared to have been negligent and the plaintiff had suffered grievous harm. However, the Court noted that Congress has required that ordinarily liability will not adhere to the United States government absent an authoritative decision that a specific act should become a governmental responsibility. Generally, the United States government is immune to some liabilities under the sovereign immunity doctrine, unless Congress has made a specific exception. The Federal Torts Claims Act is such an exception and allows the United States government to be sued under certain circumstances, but not when the complained of act of a governmental official is a discretionary function. The Court in this case found that the performance by the OSHA officials of the plant’s inspection was such a discretionary function that the claim against the United States government had to be dismissed. The decision by the First Circuit Court of Appeals was rendered on December 18, 1998 and on October 4, 1999 the U.S. Supreme Court declined to review that ruling, thereby leaving it as clear and legal precedent within this federal circuit.

What this case means for employees is that it is quite unlikely that an employee who receives a work related injury will be able to sue the United States for negligence arguing that OSHA was liable for a negligent inspection of the workplace resulting in the work related injury. For both employers and employees, this is a clear reminder that neither should rely exclusively on OSHA or any other governmental agency to determine whether or not the workplace is safe. While the employer must comply with OSHA mandates, both employers and employees should work together and be diligent in taking steps to make the workplace environment as safe as reasonably possible, and to review procedures utilized in the workplace to ensure that proper safety measures are implemented and followed.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, PA whose legal practice includes counseling businesses and business persons on a variety of legal issues and advocating on their behalf. Attorney Marr is also an adjunct professor at Daniel Webster College where he teaches business law. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

This information is general information and may not reflect the most current legal developments, verdicts or settlements. The information provided should not be relied upon as an indication of the actual state of the law or of future developments. The information contained on the Hamblett & Kerrigan website is for informational purposes only and does not constitute legal advice. If the information referenced may be of legal importance to you, you should consult with an attorney to provide you with legal guidance and opinion as the the effect of the current law upon your situation.