Walker Crane & Rigging Corporation

Plain-English summary

Walker Crane & Rigging is a small Connecticut crane company. In October 1999 its operator was using a crane to set the sections of a modular house in Higganum, Connecticut, working on a narrow street with overhead power lines along the far side. While moving the fourth house section, the crane's rear spreader bar contacted a 13.2 kV power line, and a worker holding a tag line received a serious electrical shock. OSHA issued a one-item serious citation for operating within 10 feet of an energized power line, which the crane standard prohibits unless the line is de-energized or insulated. Walker argued the operator did not control the situation and could not have prevented the contact, blaming the workers on the tag lines. Judge Ann Z. Cook rejected that defense, finding the crane rigging was within 10 feet of the lines on both of the last two lifts, that control of the crane rested solely with the operator, and that he knew or should have known he could not keep a 10-foot clearance with the trailer parked as it was. She affirmed the serious violation and assessed the proposed $3,500 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.550(a)(15)(i) (10-foot clearance from power lines rated 50 kV or below)
• Outcome: Affirmed. The one serious citation item was affirmed and a $3,500 penalty assessed.
• Key point: A crane operator bears responsibility for keeping the crane and load clear of energized power lines, and cannot shift that duty to the ground crew who signal or steady the load.

Full text (OSHRC public release)

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United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-3419

SECRETARY OF LABOR,
Complainant,
v. OSHRC DOCKET No. 00-0022
WALKER CRANE & RIGGING
CORPORATION,
Respondent.

APPEARANCES:

      For the Complainant:
             David L. Baskin, U.S. Department of Labor, Office of the Solicitor, Boston,
             Massachusetts
      For the Respondent:
             Barrett A. Metzler, CSP, Northeast Safety Management, Columbia, Connecticut

Before: Administrative Law Judge Ann Z. Cook

                                DECISION AND ORDER

      This proceeding is before the Occupational Safety and Health Review Commission (“the

Commission”) pursuant to section 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C.
§ 651 et seq. (“the Act”). The Occupational Safety and Health Administration (“OSHA”) conducted
an inspection of a work site of Respondent, Walker Crane & Rigging Corporation (“Walker”), in
Higganum, Connecticut, after an accident at the site on October 21, 1999. As a result of the
inspection, OSHA issued Walker a one-item serious citation alleging a violation of 29 C.F.R.
1926.550(a)(15)(i), one of OSHA’s regulations for cranes and derricks. Walker timely contested the
citations, and the case was heard on June 2, 2000, in Hartford, Connecticut. Both parties have filed
post-hearing briefs. Walker does not contest that it is an employer engaged in a business affecting
interstate commerce and that it is subject to the requirements of the Act. (Answer ¶ III; Tr. 5-6).
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                                    The Burden of Proof
   To establish a violation of a standard, the Secretary has the burden of proving, by a

preponderance of the evidence:
(a) the applicability of the cited standard, (b) the employer’s noncompliance with the
standard’s terms, (c) employee access to the violative conditions, and (d) the
employer’s actual or constructive knowledge of the violation (i.e., the employer either
knew, or with the exercise of reasonable diligence could have known, of the violative
conditions).
Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).
Background
On October 21, 1999, Richard Dennis, a Walker crane operator, was utilizing a crane to move
the four sections of a modular house into place at the site. Nick LaTerra of LaTerra Construction,
the builder, had hired Walker, and Dennis was the only Walker employee at the site. LaTerra had also
hired JRW Company (“JRW”) to prepare each section before it was lifted and to assemble the
sections once they were in place. One of the JRW employees, Jeff Watson, assisted Dennis by giving
him signals and directions. Two other JRW employees assisted by holding tag lines that were used
to steady each section as it was lifted and moved. Nick LaTerra left the site sometime after the second
section was in place, leaving Watson in charge. (Tr. 17-20, 32-37, 46-56, 61-65, 119-22).
The street in front of the modular house lot was 16 feet wide, and along the edge of the street
across from the lot were utility poles with phone and cable lines, and, above them, electrical power
lines. When the trailers carrying the third and fourth sections arrived at the site they were parked on
the same side of the street as the lot, and the crane was approximately equidistant between where the
two trailers were parked and where the first two house sections had been placed on the lot. The
procedure Dennis used was to lift a section 2 or 3 feet off the trailer and move it down the street to
the rear of the crane and then around the back of the crane and onto the lot. When Dennis began
moving the third section, which was to be put on top of the first two sections, Watson and others
pulled the phone and cable lines back with a rope so that the section would not hit the lines. The
section brushed against a dead tree limb on the other side of the street, and Watson cut off the limb,
after which the employees thought it would no longer be necessary to hold back the phone and cable
lines. (Tr. 15-17, 42-46, 83, 118-19; C1-C2, C5-C7).
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    After Dennis lifted the fourth house section from its trailer and was moving it along the street

to the back of the crane, the crane’s rear spreader bar contacted one of the power lines. Eric
Jacobson, one of the JRW employees holding a tag line, received a substantial electrical shock and
was seriously injured. At the hearing, Dennis testified the spreader bar hit the power line because one
of the JRW workers pulled too hard on a tag line. Watson and Jacobson, on the other hand, faulted
the proximity of the crane to the line and a slight wind. (Tr. 15-20, 46-56, 61-70, 119-22; C-8).
Alleged Violation of 29 C.F.R. 1926.550(a)(15)(i)
Section 1926.501(a)(15)(i) governs the operation of cranes near power lines rated 50 kv or
below and provides that if power lines have not been de-energized or insulated, “minimum clearance
between the lines and any part of the crane or load shall be 10 feet.” The citation alleges that:
The modular house section, which was being lifted and moved by the mobile hydraulic
crane, was within 10' of the 28' 2" high 13.2KV overhead power line where a worker
was seriously injured from electrical shock when the rigging cable physically
contacted the overhead power line.
The cited facts are uncontested, except that Walker disputes that the crane and its load were
under Walker’s control when it struck the power line. (Tr. 5-6). There is no doubt that the line was
not de-energized or insulated. The Secretary asserts that the standard was violated from the onset of
both the third and fourth lifts. Walker, however, asserts that the Secretary has failed to establish that
Dennis knew the crane was within 10 feet of the power line and that even if he did he learned of it
so late that it was impossible for him to have taken any actions to prevent the contact.
Gerald Chumley, the OSHA compliance officer, testified he had measured the trailer carrying
the fourth house section to be 2 feet 8 inches above the ground and that he had determined the third
and fourth sections to be 11.5 feet high by measuring the second section, which had identical
dimensions. The sections would have been 16 to 18 feet off the ground when raised 2 to 3 feet off
the trailer, and the spreader bars, which Chumley estimated to be 4 to 5 feet above the section, would
have been 20 to 22 feet above the ground, putting them within 10 vertical feet of the 28-foot-high
power lines. The spreader bars were just above the edge of the section, which was 13.5 feet wide.
In addition, the street was 16 feet wide, the utility poles were along the edge of the other side of the
street, and the power lines were on the street side of the poles. (Tr. 83-96; C1, C2, C5-C7). Thus,
unless the trailers carrying the third and fourth sections had been parked so that less than 3 feet were
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in the street, the spreader bars would have been within 10 horizontal feet of the power lines. From
his measurements and information supplied by Dennis, Chumley concluded the trailers were parked
entirely in the street. Dennis disputed this conclusion, but his own diagram showed at least half of the
trailer with the fourth section to be in the street. Walker’s contention that forces beyond the control
of Dennis caused the violation is rejected, and the Secretary has established that the crane rigging was
within 10 feet of the power lines on both the third and fourth lifts.
The Secretary has also established Walker’s knowledge of the hazard. Given the close
proximity of the lines, Dennis knew or reasonably should have known that he could not maintain a
10-foot clearance with the trailer positioned as it was. Control of the crane rested solely with Dennis,
and he was responsible for its safe operation. Frohlick Crane Serv., Inc. v. OSHA, 521 F.2d 628, 631
(10th Cir. 1975). That Watson assisted Dennis in the performance of his job by signaling and directing
did not lessen the responsibility Dennis had for the crane’s safe operation. Moreover, the fact that
Dennis could not see the power lines as he lifted and moved the sections should have heightened his
concern for maintaining the 10-foot safety zone and led him to consider alternate arrangements, such
as repositioning the trailers or having the lines de-energized.
I find that the Secretary has established the alleged violation. I further find that the violation
was serious because it resulted in a very serious physical injury and could have resulted in death.
Penalty
The Secretary has proposed a penalty of $3,500.00. In accordance with section 17(j) of the
Act, the Commission when determining penalties is to give due consideration to the gravity of the
violation and the employer’s size, history and good faith. The gravity of the violation, generally the
most significant factor, depends upon such matters as the number of employees exposed, the duration
of the exposure, the precautions taken against injury, and the likelihood that an injury would result.
J.A. Jones Constr. Co., 15 BNA OSHC 2201, 2214 (No. 87-2059, 1993).
I assess the gravity of the violation as high. Although fewer than five workers were exposed
to the hazard, the likelihood of electrocution or serious injury was very high and no precautions were
taken to protect against injury. Although Dennis claimed that he had measured the distance from the
power line to the opposite edge of the road, his testimony was directly contradicted by Watson. I find
that Dennis made no provisions to prevent the crane’s intrusion into the 10-foot safety zone and that
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his concern was to avoid hitting the line rather than keeping a safe distance from it. (Tr. 119, 129).
I have considered the fact that Walker is a small company having ten or fewer employees. (Tr. 116).
I have also considered the lack of evidence of any prior OSHA violations and the fact that Walker
appears to have cooperated with CO Chumley in his inspection. Finally, I have considered Walker’s
argument that the others involved in moving the house sections were also culpable. I agree that the
others could have done more to prevent the violation, but I nonetheless conclude that the proposed
penalty of $3,500.00 is appropriate in the circumstances of this case.
Findings of Fact
The foregoing constitutes my findings of fact in accordance with Federal Rule of Civil
Procedure 52(a). Any proposed findings of fact inconsistent with this decision are hereby denied.
Conclusions of Law
1. The Commission has jurisdiction of this matter pursuant to section 10(c) of the Act.
2. Respondent, Walker Crane & Rigging Corporation, was in serious violation of 29 C.F.R.
1926.550(a)(15)(i), and a penalty of $3,500.00 is appropriate.
ORDER
On the basis of the foregoing Findings of Fact and Conclusions of Law, it is ordered that:
1. Item 1 of Serious Citation 1 is affirmed, and a penalty of $3,500.00 is assessed.

                                                   Ann Z. Cook
                                                   Judge, OSHRC

Dated: September 15, 2000
Washington, D.C.
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