Dukane Precast, Inc. v. Thomas E. Perez
785 F.3d 252
| 7th Cir. | 2015Background
- Dukane operates a Naperville plant with about 50 employees; Ortiz, a bin worker, became trapped in a sand bin (PRCS) after the sand gave way.
- Rescue attempts by coworkers were undertaken but were not trained or equipped for PRCS rescue, potentially making the situation worse.
- Plant manager MacKenzie left the scene believing there was no emergency, while rescue efforts continued and Ortiz remained buried.
- Naperville Fire Department’s Technical Rescue Team arrived hours later; Ortiz was rescued after more than five hours, suffering severe injuries.
- OSHA cited Dukane for four violations: three serious (guardrail height, preventing unauthorized entry, posting warnings) and one willful (failure to summon emergency services and to bar untrained rescuers).
- Administrative law judge upheld the willful violation and Dukane’s liability; Dukane petitioned for review challenging the willful finding and one serious violation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the willful OSHA violation proven? | Dukane argues willfulness requires intent or plain indifference; it did not. | OSHA rule requires awareness of risk and failure to avert; conduct here was reckless. | Yes; MacKenzie’s recklessness imputes willfulness to Dukane. |
| Did Dukane violate the 42-inch guardrail requirement? | Dukane contends the bin area wasn’t open-sided and did not require a 42-inch guard. | The regulation applies to platforms near dangerous equipment; a 42-inch barrier is required regardless of height. | Yes; Dukane violated the guardrail requirement. |
| Should training and knowledge gaps affect willfulness despite the cited regulations? | Dukane’s training was incomplete; boilerplate procedures were not followed. | Not necessary to show perfect training; recklessness shown by obvious risk and failure to act. | The plant-wide failures in training and procedure contribute to willfulness. |
Key Cases Cited
- Lakeland Enterprises of Rhinelander, Inc. v. Chao, 402 F.3d 739 (7th Cir. 2005) (defines willful OSHA violation as intentional disregard or plain indifference)
- Redman v. RadioShack Corp., 768 F.3d 622 (7th Cir. 2014) (clarifies civil willfulness standard for OSHA violations)
- Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47 (U.S. 2007) (defines civil reckless conduct standard)
- Farmer v. Brennan, 511 U.S. 825 (U.S. 1994) (reckless standard in civil context for risk awareness)
- Globe Contractors, Inc. v. Herman, 132 F.3d 367 (7th Cir. 1997) (OSHA willfulness analysis considerations)
- Caterpillar Inc. v. OSHRC, 122 F.3d 437 (7th Cir. 1997) (OSHA regulatory interpretations in willfulness context)
- United States v. Ladish Malting Co., 135 F.3d 484 (7th Cir. 1998) (distinguishes serious vs willful violations in OSHA)