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Imbraguglio v. Great Atlantic & Pacific Tea Company3/10/2000
ersons who are in the process of being raised or lowered and so does not apply to the instant case.
This reading is consistent with the decision and order of the Occupational Safety and Health Review Commission (the Agency) in Secretary of Labor v. Seward Motor Freight, Inc., 1987 OSHD (CCH) 28085, full text available in 1987 WL 245514. There, employees who were repairing over-the-highway semi-trailers were required to work on the roofs which were approximately thirteen feet above the ground. To work at that level some employees stood on a wooden platform affixed to the forks of a forklift but, unlike the procedure in the instant matter, elevating the platform was a one person operation. The worker first would elevate the platform to the desired height, then climb to the top of the roll cage of the forklift, and then climb the extended mast of the forklift to the work platform. One of the workers was seriously injured when he fell while descending from the platform in the reverse of the described procedure. Significant to the case before us is the Agency's conclusion that the violations of § 1910.178(m)(12) were failing to have an operator at the control position in the forklift and failing to have controls on the platform. Here, Imbraguglio had already reached the desired elevation of six to seven feet, and was working from the stationary platform when he fell.
On the other hand, if 29 C.F.R. § 1910.178(m)(12) means that only a powered industrial truck equipped with controls elevatable with the lifting carriage may be used for lifting personnel, then Imbraguglio could not have voluntarily rejected using it because that type of industrial powered truck was not available to him. Thus, the issue before us remains the same, that is, whether Imbraguglio assumed the risk as a matter of law by choosing the unguarded pallet versus the pallet with a guardrail.
Once Imbraguglio had been lifted six to seven feet off the ground he was using the pallet, for all practical purposes, as a scaffold. Scaffolds are one of the subjects addressed in Part 1910 of the OSHA standards, 29 C.F.R., subpart D, "Walking-working surfaces," § 1910.28, titled "Safety requirements for scaffolding."
For purposes of § 1910.28, a scaffold is defined as " ny temporary elevated platform and its supporting structure used for supporting workmen or materials or both." § 1910.21(f)(27). Throughout the safety regulations dealing with scaffolds, guardrails are required when the scaffold is more than ten feet above the ground or floor. For example, § 1910.28(b), dealing with requirements for wood pole scaffolds, provides in subsection (15):
"Guardrails not less than 2 x 4 inches or the equivalent and not less than 36 inches or more than 42 inches high, with a mid-rail, when required, of 1 x 4-inch lumber or equivalent, and toeboards, shall be installed at all open sides on all scaffolds more than 10 feet above the ground or floor. Toeboards shall be a minimum of 4 inches in height. Wire mesh shall be installed in accordance with paragraph (a)(17) of this section."
The same ten foot minimum elevation before guardrails are required is found in the regulations as to tube and coupler scaffolds, § 1910.28(c)(14), as to tubular welded frame scaffolds, § 1910.28(d)(7), as to masons' adjustable multiple-point suspension scaffolds, § 1910.28(f)(15), as to two-point suspension scaffolds (swinging scaffolds), §1910.28(g)(5), as to stone setters' adjustable multiple-point suspension scaffolds, § 1910.28(h)(8), as to carpenters' bracket scaffolds, § 1910.28(k)(5), as to horse scaffolds, § 1910.28(m)(7), and as to plasterers', decorators', and large area scaffolds, § 1910.28(o)(2).
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