In reviewing on appeal a citation issued against All Erection & Crane Rental Corp., the Sixth Circuit Court of Appeals issued a decision on December 5, 2012 upholding the citation even though there was no evidence that employees had actually been exposed to any harm. This is a change from past precedents where the Courts have traditionally determined whether employees where actually exposed to harm. The matter involved a citation for failure to properly baracade the swing radius of a crane. The Court departed from the traditional analysis which requires employees to be actually exposed to harm as a result of the violation of the regulation, and in this case, determined that OSHA: "need not prove that employees were actually exposed to the condition, but only that is was resonably predictable that employees would be within the zone of danger." This decision has the potential to impact employers within the Sixth Circuit ( i.e. Michigan, Ohio, Kentucky and Tenessee) who my now be held responsible for the potential exposure to harm, as opposed to actual exposure to harm.
For the full opinion, click on the link below.