Pit & Quarry - April 2009

A duty to supervise contractors

A mine operator engaged an independent contractor to construct an elevator shaft. The contractor was highly experienced, and the contract gave the contractor almost complete discretion to do the work as it saw fit. Also, the contract stated that the contractor was an “independent contractor” and not an agent of the mine company. The contractor agreed to be responsible for complying with all federal and state regulations.

During the construction, the crane hoist failed and a 6-ton bucket fell. Fortunately, no one was seriously hurt, but the event could have had fatal consequences. The Mine Safety and Health Administration (MSHA) investigated. Here are the MSHA findings: There was a failure to inspect the crane. There was a failure to correct crane defects before operating. The crane had two safety switches that were not functional. There was a failure to adequately train the crane operator.

The contractor was issued citations for each of these violations. The mine operator was also issued citations for the same violations.

MSHA issued citations to the mine operator on the theory that the mine operator failed to oversee the contractor and failed to prevent the contractor violations. The fact that the contract gave complete control to the contractor was not considered favorable by MSHA.

MSHA was aware that in inspections preceding the incident, the contractor was issued citations for safety violations. These citations were issued only to the contractor, but MSHA considered the mine operator to be on notice that there were problems with the contractor’s compliance. There was no

indication that the mine operator took any remedial action after the contractor was previously cited.

Traditionally, companies engaging contractors sought to avoid all involvement in the contractor’s work on the theory that any involvement could make the engaging company responsible for negligent acts by the contractor. The thinking was that this could lead to civil liability in lawsuits brought by outsiders or the contractor’s employees. The concern was that plaintiffs could claim negligent involvement by the engaging company that caused or contributed to an injury.

Another concern was that if something went wrong in the execution of the contract, the contractor could defend by claiming that the engaging company interfered with the performance. These concerns prompted a hands-off approach in contractor dealings in the mining industry just as in other industries.

Present day

After years of litigation and MSHA policy development, it is now well established that a mining company does not protect itself by avoiding oversight of a contractor. In fact, MSHA views the hands-off approach as a serious failing on the mine operator’s part. The law imposes overarching responsibility on mine operators for the safety of all people on mine property.

Although MSHA may cite only the contractor, this discretion is usually exercised by MSHA when investigation indicates that the mine operator was demonstrably diligent in trying to ensure that its contractors were not violating safety standards, and also taking contract enforcement action with re-

Legal tip

The law imposes overarching responsibility on mine operators for the safety of all people on mine property.

spect to any contractor failures.

As for civil liability following an accident, a citation issued to a mine operator for failing to control the contractor is likely to be quite consequential. Although the injured person may collect workers’ compensation from his own employer, that person is often free to sue the mine owner without there being any workers’ compensation bar. Moreover, citations issued by MSHA serve as a virtual roadmap to a plaintiff’s lawyers. Often, because the mine owner was cited for a violation of law, it gives rise to a claim that the owner was negligent per se.

The case described above is one that was decided by the United States Court of Appeals for the Fourth Circuit in Speed Mining v. Federal Mine Safety and Health Review Commission and Secretary of Labor (MSHA). In that case, the court followed the ruling of the D.C. Circuit’s July 7, 2006, decision in Secretary of Labor v. Twentymile Coal Co.

In Speed Mining, the court reaffirmed that the secretary of labor (MSHA) can cite the owner-operator, the independent contractor or both for any given safety violation, and the secretary’s decision in such matters is “unreviewable.”

Legal editor Michael T. Heenan is an attorney at Ogletree, Deakins, Nash, Smoak & Stewart, one of the nation’s largest labor and safety law firms. He can be reached at michael.heenan@odnss.com.