I think I’ve published outlines for cross examination in cases involving workplace injuries, but here’s one I may not have shared before. This particular case involved a man who was part of a refinery maintenance crew that the refinery hired to shut down and maintain a refinery in Anacortes, Washington. There was a explosion and fire during the work which killed some and injured others. The normal bar against suing the owner, Texaco, did not apply because they were not employed by Texaco but, rather were independent contractors.
The jury trial began in a small county after we declined offers of settlement. Detailed models of the refinery and the piping area involved had been created. We also reconstructed the area for video taping demonstrations. The demonstrative exhibits were impressive. After opening statements and into our case in direct a settlement for many millions of dollars was agreed to and the case ended so I was not able to try the following cross I had outlined. Here it is for what is worth as untested.
WARNING-SAFETY CROSS EXAMINATION GENERAL OUTLINE
A. COLLATERAL ATTACK
- NOTE: SEE DEPO NOTES
ELIMINATING OR MINIMIZING RISK OF SERIOUS INJURY OR DEATH
- TRUE THAT TEXACO SHOULD HOLD PARAMOUNT THE SAFETY AND HEALTH OF IT’S WORKERS?
- Agree with the proposition that:
“Any risk of serious bodily injury or death is always unacceptable if reasonable means could have been usedto minimize or eliminate the danger?”
- Agree that “it’s better to be safe then sorry?”
- Agree one should first inspect for dangerous conditions?
- If a danger is discovered one should eliminate the hazard if reasonably possible
- ?If you can’t eliminate the danger then install protective devices around it if possible?
- 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 danger unless warned about it?
(2) an inadequate warning is no warning at all?
- True that the greater the risk of injury the greater the duty to act?
SAFETY HAZARDS TO WORKERS
- IT WOULD HAVE COST FAR LESS TO ELIMINATE HAZARDS OR INSTALL SAFETY DEVICES THEN TO PAY THE COST FOR SERIOUS INJURY
- LIFE IS TOO PRECIOUS TO EVER RISK IT WHEN THE HAZARD CAN BE AVOIDED?
- 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
- ANALYZING WHAT IS REASONABLE IN ACCIDENT PREVENTION
- 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?
- 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?
- THE COMPARISON OF BOTH OF THESE RISK & SERIOUSNESS OF HARM SHOULD BE MADE IN DECIDING WHAT IS REASONABLE BY WAY OF ACCIDENT PREVENTION?
- 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”
AVAILABLE MEANS TO PREVENT ACCIDENT AND DEATH
- PUT TAG ON SCAFFOLD
- TAPE AREA
- LEAVE OFFICE AND FIND NELSON
- GOOD INTENTIONS ARE NOT ENOUGH.
“THE ROAD TO HELL IS PAVED WITH GOOD INTENTIONS”
EVALUATING THE COST AND EFFORT INVOLVED TO ELIMINATE OR MINIMIZE THE HAZARD
- 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) WAS IT POSSIBLE TO DO?
(2) IS IT A KNOWN AND ACCEPTED ACCIDENT PREVENTION METHOD? – USED BY OTHERS?
(a) THIS IS A KNOWN AND ACCEPTED PRACTICE?
(3) WHAT WOULD IT COST?
a) NORMALLY A LOT LESS EXPENSIVE TO PREVENT ACCIDENTS THEN THE SUFFER INJURY OR DEATH?
(4) HOW MUCH TIME DOES IT TAKE?
(5) HOW DIFFICULT IS IT TO DO? – WHAT EFFORT IS REQUIRED?
(6) IS A SUBSTANTIAL PERSONAL DANGER OR SACRIFICE IN CARRYING OUT THE SAFETY MEASURE?
COMPANY TOOK SAFETY FOR GRANTED
- 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?
- Took for granted:
(1) THE FACT IS BOTH TOOK THE RESPONSIBILITY FOR ACCIDENT PREVENTION FOR GRANTED HERE DIDN’T THEY?
(b) NEITHER POSTED WARNING SIGNS OR DID ANYTHING TO ADVISE THE WORKERS OF THE DANGER?
WORKERS HAVE RIGHT TO ASSUME OWNER WILL KEEP WORK SITE IN SAFE CONDITION FOR WORKING
- HAVE RIGHT TO ASSUME WILL ADOPT POLICIES AND PROCEDURES TO ELIMINATE POTENTIAL HAZARDS OF SERIOUS INJURY?
- 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, THE GAUGES OR ASK ABOUT THE TRAINING OF THE PILOT.
TEXACO WAS IN THE BEST POSITION TO KNOW
- RESPONSIBILITY: IF YOU HAVE CONTROL OVER THE WORK SITE THEN YOU ARE RESPONSIBLE FOR THE SAFETY OF WORKERS ON THAT SITE?
- ACCOUNTABILITY: IF YOU FAIL TO FULFILL YOUR DUTY OF SAFETY THEN YOU ARE ACCOUNTABLE?
- NOT ACCEPTABLE FOR TEXACO TO FAIL IN IT=S DUTY TO PROVIDE A SAFE WORK SITE AND BLAME SOMEONE ELSE?
- IF A DRIVER=S AIR BAG FAILS TO WORK, THE MANUFACTURER SHOULDN=T BE ALLOWED TO SAY: “BUT IF HAD DRIVEN SAFELY YOU WOULD WOULDN=T NEED AN AIR BAG”
(See deposition for strong conclusion point)