Tenth Circuit Confirms Need To Ensure Safety Recommendations Are Adequately Considered And Implemented

The Tenth Circuit affirmed a district court’s grant of summary judgment to the owner of an oil refinery on a worker’s intentional tort claim arising from a workplace injury.  The worker was a coker process operator and was injured while removing the head of a coke drum, a process that OSHA previously highlighted as carrying particular dangers when drums are removed and “hot spots” remain inside the drum and emit a geyser of hot fluid when the head of the drum is removed.  The worker was significantly injured during such a procedure and sued claiming the company willfully injured him, which would be required in order to recover beyond Oklahoma’s workers’ compensation regime.  For the claim to be actionable in Oklahoma, the employer “must have (1) desired to bring about the worker’s injury or (2) acted with the knowledge that such injury was substantially certain to result from the employer’s conduct.”  In affirming the district court’s grant of summary judgment to the employer, the court emphasized that there was no record evidence showing that the employer acted with the knowledge that the employee’s injuries were substantially certain to result from his work:  the employer nor the previous owner of the refinery ever had a de-heading injury before, which the court explained was “as suggestive of management’s belief that workers were unlikely to be injured there as it is of the defendant’s recklessness in allowing them to do so.”

The court also noted that in two prior safety audits conducted on behalf of the employer, neither report mentioned anything about the safety risks related to such a de-heading procedure.  This note by the court emphasizes that it is important to ensure adequate procedures are in place to follow up and consider/implement any safety recommendations contained in internal audits or investigations (the court implies that if the audits had raised concerns about this particular process, the company would have been on notice of the concerns and would likely have needed to take some action in response).