On a cold December night, Darrell was working as a night watchman at a food manufacturing plant. His job called for him to perform an inspection called “walk the yard” whereby Darrell walks the entire exterior perimeter of the plant once an hour. Flashlight in hand, Darrell started his shift and noticed that the company was having some new construction to one of their outside storage tanks. As Darrell walked along the construction site, he suddenly fell into a hole beneath a dark colored tarp. This wasn’t just any hole but was a six-foot-deep underground chemical waste tank which was opened as part of the new construction. Rather than covering the tank with a steel plate, the construction company simply draped a plastic tarp across it. Having broken his legs, Darrell remained in the tank for the remainder of the night. It wasn’t until the crew arrived the following morning when they discovered Darrell nearly frozen to death.

The waste tank was not barricaded nor were warning signs posted alerting pedestrians of the impending fall hazard. Because the location of the incident was a construction zone, the food company and their contractor should have provided proper warnings as to both the potential and the known hazards (ie: walkway hazards) the construction zone presented. This failure to warn is a direct violation of the Occupational Safety and Health Administrations (OSHA) Code of Federal Regulations.

The property owner and their contractor(s) were aware that the tank hole was present in the walkway but did not properly provide protective guard rails or install an appropriate cover. These failures are in violation of the General Requirement section of OSHA CFR 29 section 1910.22 and the Guarding floor and Wall Openings and Holes section 1910.23. These failures to provide a safe walking surface were in direct violation of the National Fire Protection Association (NFPA) Life Safety Code. Section 7.1.8 of the Life Safety Code requires that guards “shall be provided at the open sides of means of egress that exceed 760 mm (30 inches) above the floor or grade below”.

The failure to provide a safe walking surface was in direct violation of the American Society of Testing and Materials (ASTM) standard which states that “Walkway surfaces for pedestrians shall be capable of sustaining intended loads.” All of the codes listed above were in place at the time of Darrell’s fall.

The plastic tarp draped over the waste tank hole served only to camouflage the impending danger of a person accidentally falling into the hole. By doing such, the property owner and their contractor created an unreasonably dangerous and unsafe condition. Had the property owner and/or its contractor properly barricaded, guarded and warned of the known walkway hazard prior to Darrell’s visit it is most likely that he would not have fallen into the hole which was the source of his injuries. Both the Defendant, and their contractor, were negligent in their duty to protect the public from unnecessary injury and were directly responsible for Darrell’s injuries.

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