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Alexander v. Demmer Corporation8/20/2002
A as evidence of its commitment to protect employee safety. As a result of the July 1995 inspection of Demmer, Demmer and the state's Bureau of Safety and Regulation, General Industry Safety Division, entered into an "Informal Settlement Agreement" pursuant to which Demmer agreed "to provide assurance of abatement as requested for all violations," "to correct the violations as cited," "to pay the proposed penalties," and to submit "Abatement Assurance, a written Safety and Health Program . . . and the payment of penalty . . . by October 30, 1995." Demmer submitted a written safety and Health Program to MIOSHA, which included a list of "General Safety Rules," among which was "13. Always lock- out and tag-out equipment before performing service or maintenance. Get training and authorization first." Demmer issued a "Lock-Out Tag-Out Procedure," effective October 5, 1995, which was signed by Andrew Collins and others. The procedure stated that it applied "to all equipment, machinery and all power sources located at the Delta Plant," and that its purpose was to "insure that all machinery and equipment have been properly protected against any accidental and/or initial generation of a power source along with the proper identification and logging of each source of power." Collins also testified that he was aware of Wallace Bush's injury on the R-1062 in 1997.
IV.
We also conclude that plaintiff presented sufficient evidence that injury was "certain to occur" from defendant's failure to implement and enforce Lockout on the R-1062 and failure to implement training of crew leaders like Garcia, and employees like plaintiff, to safely clean the pinch rollers. McKenna and Collins, and others, knew that there had been two previous serious injuries on the same R-1062 machine. Plaintiff presented evidence that McKenna and Collins knew that defendant had been cited by MIOSHA in 1995 for violation of Lockout regulations; knew that defendant assured MIOSHA in 1995 that it would correct and abate its Lockout violations and enforce Lockout in the future; knew that defendant did not do so and that serious injuries resulted to employees again in 1997; and that defendant required plaintiff to clean the R- 1062 pinch rollers without proper training and while it was being operated in violation of Lockout regulations, with knowledge that others had suffered serious injuries on the R-1062 while cleaning the pinch rollers and with knowledge that Garcia, the crew leader, was operating the machine in dangerous fashion. Notably, defendant does not dispute that had the Lockout regulation been followed at the Delta plant, plaintiff's injuries would not have occurred.
Plaintiff presented evidence from which a reasonable jury could conclude that despite their knowledge, Demmer's supervisors, to save time, failed to order the statutorily mandated Lockout. Reasonable jurors could conclude that Demmer specifically intended an injury by its deliberate failure to implement, enforce and train its employees in Lockout. Plaintiff presented evidence that she and Garcia were cleaning the R-1062's pinch rolls as intended by defendant, i.e., without the protection of Lockout and without adequate training.
We also conclude that sufficient evidence to raise a genuine issue of fact was presented regarding whether defendant subjected plaintiff to a continuously operative dangerous condition. Golec, supra, makes clear that if a danger is continuous with a potential to cause injury at any time, then the employer's failure to act allows a circumstantial inference of intent sufficient to create an issue for the jury on the question whether injury was "certain to occur." The Travis Court, stated:
When an employ
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