Cross examination about safety in a work place injury case

Wigmore on Evidence was once the "Bible" on evidence and required reading in all major law schools. Wigmore once wrote that cross examination was : "…the greatest legal engine ever invented for the discovery of the truth." The right to face one’s accuser and to cross examine him or her has been a fundamental right in civilized societies for centuries.

Here is an outline from an actual case I tried several years ago against the Texaco Refinery when a temporary maintenance worker was injured from a scaffold failure. This is the basic outline I created and then modified for particular witnesses, filling in information and ideas or revising. I like to start with a general outline on a particular subject and then work from that to create individual chapters by topics. Each of these topics ended up as separate chapters and then were modified depending upon the witness. The theme at that time was Harry Philo’s concept that "any risk of serious bodily injury or death is unacceptable if reasonable means could have been used to minimize or eliminate the danger." This theme is not unlike that of David Ball and Don Keenan in Reptile, regarding the rule against needlessly endangering another. Harrydeveloped this theme for his product liability cases, but it works for all kinds oflitigation including medical malpractice. One is obligated to eliminate any risk of serious harm. If it can’t be eliminated to minimize it. One is obligated to warn and or guard against any risk that cannot be reasonably eliminated. With this basic theme you can find a lot of ways to cross examine about safety obligations. Here’s the outline:

WARNING-SAFETY CROSS EXAMINATION GENERAL OUTLINE

A. COLLATERAL ATTACK

1. FEES:

2. See depo notes: Re Bias, defense testimony etc

B. ELIMINATING OR MINIMIZING RISK OF SERIOUS INJURY OR DEATH
1. TRUE THAT TEXACO SHOULD HOLD PARAMOUNT THE SAFETY AND HEALTH OF IT’S WORKERS?

2. AGREE WITH THE PROPOSITION THAT:

ANY RISK OF SERIOUS BODILY INJURY OR DEATH IS ALWAYS UNACCEPTABLE IF REASONABLE MEANS COULD HAVE BEEN USED TO MINIMIZE OR ELIMINATE THE DANGER?

3. AGREE THAT "IT’S BETTER TO BE SAFE THEN SORRY?"

4. AGREE TEXACOSHOULD INSPECT FOR DANGEROUS CONDITIONS?

5. AGREE IF A DANGER IS DISCOVERED ONE SHOULD ELIMINATE THE HAZARD IF REASONABLY POSSIBLE?

6. AGREE IF YOU CAN’T ELIMINATE THE DANGER THEN INSTALL PROTECTIVE DEVICES AROUND IT IF POSSIBLE?

7. AGREE IF ONE CAN’T ELIMINATE THE DANGER OR PROTECT AGAINST IT, THEN ONE MUST GIVE WARNINGS OF THE DANGER SO PEOPLE WILL KNOW?

(1) AGREE THAT "APPEARANCES ARE OFTEN DECEIVING" AND WORKERS MIGHT NOT RECOGNIZE A DANGERUNLESS WARNED ABOUT IT?

(2)AN INADEQUATE WARNING IS NO WARNING AT ALL?

8. TRUE THAT THE GREATER THE RISK OF INJURY THE GREATER THE DUTY TO ACT?

B. SAFETY HAZARDS TO WORKER

1. IT WOULD HAVE COST FAR LESS TO ELIMINATE HAZARDS OR INSTALL SAFETY DEVICES THEN TO PAY THE COST FOR SERIOUS INJURY

2. LIFE IS TOO PRECIOUS TO EVER RISK IT WHEN THE HAZARD CAN BE AVOIDED?

3. COST EFFECTIVE SAFETY MEASURES- COST OF INJURY vs COST OF PROTECTION

(1) IN America, WE CARE ABOUT OTHERS

(2) IN America, WE DON’T WANT PEOPLE TO GET HURT

C. ANALYZING WHAT IS REASONABLE IN ACCIDENT PREVENTION 

1. IN DECIDING WHAT’S REASONABLE IN ACCIDENT PREVENTION, WOULD EVALUATING THE RISK OF INJURY BE IMPORTANT?

(1) THE RISK OR CHANCE OF IT HAPPENING SHOULD BE CONSIDERED?

2. THE SERIOUSNESS OF THE HAZARD OR DANGER IS ALSO SOMETHING TO BE CONSIDERED?

(1) A HAZARD THAT COULD RESULT IN DEATH IS MORE SERIOUS THEN ONE THAT MIGHT MAKE A SMALL BRUISE?

3. THE COMPARISON OF BOTH OF THESE RISK & SERIOUSNESS OF HARM SHOULD BE MADE IN DECIDING WHAT IS REASONABLE BY WAY OF ACCIDENT PREVENTION?

4. DO YOU AGREE THAT WHEN IT COMES TO PREVENTING SERIOUS INJURY OR DEATH FROM PREVENTABLE ACCIDENTS, TEXACO SHOULD PRACTICE THE POLICY:

"AN OUNCE OF PREVENTION IS WORTH A POUND OF CURE"

D.

AVAILABLE MEANS TO PREVENT ACCIDENT AND DEATH

1. PUT TAG ON SCAFFOLD – RED TAG DANGER – DON’T TOUCH

2. TAPE AREA – YELLOW TAPETO STAY AWAY

3.Good intentions are just not enough: THE ROAD TO HELL IS PAVED WITH GOOD INTENTIONS"

E.

EVALUATING THE COST AND EFFORT INVOLVED TO ELIMINATE OR MINIMIZE THE HAZARD

1. AGREE THAT IN EVALUATING WHAT WAS REASONABLE TO HAVE ELIMINATED, PREVENTED OR MINIMIZED THE CHANCE OF THIS DEATH WE SHOULD CONSIDER:

(1) IS THE PROPOSED ACCIDENT PREVENTION ACTION POSSIBLE TO DO?

(a) IN THIS CASE IT WAS IT POSSIBLE TO DO RED TAG OR YELLOW TAPE THE AREA OR EVEN POST WARNING SIGNS?

(2) IS IT A KNOWN AND ACCEPTED ACCIDENT PREVENTION METHOD? – USED BY OTHERS?

(a) RED TAGS AND YELLOW TAPE ARE COMMONLY USEDAT REFINERIES Including this ONE?

(3) WHAT WOULD IT COST?

(a) HOW MUCH WOULD IT COST TO EITHER RED TAP OR YELLOW TAPE?

(b) NORMALLY A LOT LESS EXPENSIVE TO PREVENT ACCIDENTS THEN THE SUFFER INJURY OR DEATH?

(4) HOW MUCH TIME DOES IT TAKE?

(a) SO, HOW LONG WOULD IT HAVE TAKEN TO RED TAG OR YELLOW TAPE AREA?

(5) HOW DIFFICULT IS IT TO DO? – WHAT EFFORT IS REQUIRED?

(a)HOW HARD WOULD IT HAVE BEEN TO RED TAG OR YELLOW TAPE AREA?

(6) IS THEREAPERSONAL DANGERIN CARRYING OUT THE SAFETY MEASURE?

(a)WOULD THERE BE ANY DANGER TO SOMEONE RED TAGGING OR YELLOW TAPING THE Area?

F.

TOOK SAFETY FOR GRANTED

1. ISN’T IT TRUE THAT WORKERS HAVE THE RIGHT TO ASSUME THEY KNOW THEIR JOB AND WILL IT RIGHT?

(1) THAT MEANS THEY HAVE RESPONSIBILITY AND ACCOUNTABILITY FOR HOW THEY DO THEIR JOB?

(a) RESPONSIBILITY: YOU WOULD AGREE, IF SOMEONE HAS CONTROL OVER A WORK SITE THEN THEY ARE RESPONSIBLE FOR THE SAFETY OF THOSE USING IT?

(b) ACCOUNTABILITY: YOU WOULD ALSO AGREE, IF THEY DON’T ACT IN A REASONABLY RESPONSIBLE MANNER WITH REGARD TO PUBLIC SAFETY THEN THEY SHOULD BE ACCOUNTABLE FOR THE CONSEQUENCES LIKE EVERYONE ELSE IN THIS COUNTRY?

4. Took for granted

(1) THE FACT IS TEXACOTOOK THE RESPONSIBILITY FOR ACCIDENT PREVENTION FOR GRANTED HERE DIDN’T THEY?

(b) NEITHER RED TAGGED, YELLOW TAPED OR POSTED WARNING SIGNS OR DID ANYTHING TO ADVISE THE WORKERS OF THE DANGER?

F. WORKERS HAVE RIGHT TO ASSUME OWNER WILL KEEP WORK SITE SAFE 

1. HAVE RIGHT TO ASSUME WILL ADOPT POLICIES AND PROCEDURES TO ELIMINATE POTENTIAL HAZARDS OF SERIOUS INJURY?

3. WORKERS HAVE RIGHT TO EXPECT THAT IF A POTENTIAL HAZARD OF SERIOUS HARM EXISTS ON TEXACO’S PROPERTY TEXACO WILL TAKE SAFETY ACTION

(1) WHEN YOU FLY ON A COMMERCIAL AIRPLANE YOU DO NOT HAVE TO CHECK THE TIRES, OR ASK ABOUT THE TRAINING OF THE PILOT. Have right to assume airline company takes safety seriously 

G. TEXACO WAS IN THE BEST POSITION TO KNOW  

1. WHEN COMPARING THE DUTY OF EXERCISING REASONABLE CARE BETWEEN THE WORKER AND TEXACO, IT’S IMPORTANT TO LOOK AT WHO WAS IN THE BEST POSITION TO PREVENT UNNECESSARY INJURY TO WORKERS?

2.CONTROL OF THE WORK SITE IS IMPORTANT IN THAT EVALUATION?

(1) RESPONSIBILITY: IF YOU HAVE CONTROL OVER THE WORK SITE THEN YOU ARE RESPONSIBLE FOR THE SAFETY OF WORKERS ON THAT SITE?

3.TEXACO HAD ENGINEERS, SAFETY INSPECTORS AND PEOPLE TRAINED TO PUT SAFETY FIRST?

4.WORKMAN WERE TEMPORARY WORKERS WHO WERE THERE ONLY FOR THIS MAINTENANCE PROJECT?

5. AGREE: IF YOU FAIL TO FULFILL YOUR DUTY OF SAFETY THEN YOU ARE ACCOUNTABLE?

H.CONCLUSION

1.AGREE IT IS NOT ACCEPTABLE FOR TEXACO TO FAIL IN IT’S DUTY TO PROVIDE A SAFE WORK SITE AND BLAME SOMEONE ELSE?

2.ACCOUNTABILITY AGREE THAT IF ANY COMPANY NEGLIGENTLY CAUSES AN INJURY TO A WORKER, THEY SHOULD BE HELD ACCOUNTABLE TO PAY FOR THE HARM DONE?

This entry was posted in Cross Examination. Bookmark the permalink.

Leave a Reply

Your email address will not be published. Required fields are marked *