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The presence of a hazard gives rise to a violation of the General Duty Clause of the Occupational Safety and Health Act only if that hazard was recognized either by the employer or by the industry, or was so obvious as to put the employer on constructive notice. Whether a condition at the worksite constitutes a recognized hazard is a question of fact as to which the findings of the Occupational Safety and Health Review Commission are supported by substantial evidence on the record are conclusive.
F & H Coatings, L.L.C. (“F & H”), a commercial and industrial painting contractor, contracted with Boardman L.L.C. ("Boardman"), a manufacturer of steel pressure vessels and tanks, to sandblast and paint a number of vessels at Boardman's manufacturing facility in Wichita, Kansas. The vessel was about fifteen feet long and featured a number of irregular protrusions. Boardman did not use pipe racks while manufacturing the vessel. In order to fulfill the contract, Toney Losey, an employee of F & H, and his supervisor, Robert Patrick, were preparing a 12,000-pound vessel for sandblasting when the vessel slipped from its support racks and crushed Losey. The Occupational Safety and Health Administration ("OSHA") learned of the accident the same day, and sent a Compliance Safety and Health Officer to inspect the scene. Upon the officer's recommendation, OSHA issued a citation to F & H on March 17, 2015, for a violation of the General Duty Clause, 29 U.S.C. § 654(a)(1), because F & H's employee was exposed to struck-by hazards in that the pressure vessel was not placed on a work rack which prevented unintentional movement. The Department of Labor ("DOL") filed a complaint, seeking enforcement of the citation by the Commission. Approximately eight months after the hearing, the administrative law judge ("ALJ") issued a written order, finding that the accident that killed Losey resulted from an obviously hazardous condition of which F & H was aware. The ALJ entered a decision and order on November 28, 2016, affirming the citation and the penalty of $7,000 assessed by OSHA. On appeal, F & H argued that the evidence did not support the ALJ's conclusion that F & H breached the General Duty Clause. F & H argued, in particular, that the placement of the pressure vessel on pipe racks did not constitute a hazardous condition.
Under the circumstances, could F & H be held liable for the breach of the General Duty Clause?
The Court affirmed the judgment, holding that the department properly determined that F & H breached the General Duty Clause of the Occupational Safety and Health Act, 29 U.S.C.S. § 654(a)(1), because substantial evidence supported the finding that F & H recognized the obvious hazard created by placing the vessel on the pipe racks. Moreover, the fact of Losey’s death combined with the physical characteristics of the vessel provided substantial evidence supporting the finding that placement of the vessel on the pipe racks was likely to result in death or serious injury.