As Beasley Allen lawyers know all too well, work environments present many hazards to employees. Some work environments include hazards that can result in serious bodily injury, or even death. Employees who work in confined spaces face increased risk of exposure to fall hazards, entrapment and hazardous atmospheric conditions. OSHA defines a confined space as follows:

  • Is large enough for an employee to enter fully and perform assigned work;
  • Is not designed for continuous occupancy by the employee; and
  • Has a limited or restricted means of entry or exit.

Confined spaces include, but are not limited to, the following: vessels, tanks, storage bins, silos, underground vaults and other similar areas. Because of the increased hazards associated with confined spaces, OSHA mandates specific protocols be observed before entering a confined space. Let’s take a look:

  • First, employers must develop and implement a written program to govern entry into confined spaces.
  • Second, employers must identify and evaluate confined spaces before allowing employees to enter and work.
  • Third, employers must also provide, at no cost to the employee, personal protective equipment (PPE) and any other equipment necessary for safe entry.

Moreover, employers must require employees to use PPE while working in confined spaces. The written program should also include procedures for summoning rescue and emergency services in the event of an exposure. Finally, the employer must test the internal atmosphere of the confined space for oxygen content, flammable gases and vapors, and the potential for toxic air contaminants before any authorized employee enters the space.

The requirement to test the internal atmosphere for toxic air contaminants is extremely important. Toxic gases can kill and injure people as easily and as quickly as an armed intruder. Toxic gases can cause harm instantly or over a period of time depending on the amount of the exposure. Beasley Allen lawyers have handled cases in the past where an employee took one breath after entering a confined space and collapsed immediately. When other employees are present, they will commonly rush to save their co-worker, exposing themselves to the same deadly toxin. It is not uncommon for multiple persons to die or sustain severe circulatory injuries from exposure to toxic gases in a confined space.

Beasley Allen Lawyer Kendall Dunson is currently investigating a new claim involving a death and injury in a confined space. While the results of the autopsy are not yet available, Kendall believes the worker died from toxic gases. That’s because a second employee almost collapsed when he attempted to enter the tank to save his co-worker. A third employee recognized the issue, took a deep breath and was able to pull the worker out of the structure. Unfortunately, the worker had passed away either from inhaling the toxic fumes or from a lack of oxygen.

Kendall doesn’t know yet if the worker had received written confined space procedures. He does know the worker did not have PPE or equipment to test the atmosphere inside the confined space. Failure to enforce OSHA confined space entry protocols resulted in the tragic death of this worker and needless injury to others only seeking to save his life.

While the employer might be responsible, it is also important to consider the actions or inactions of the entity that supplied the tank for cleaning. That entity should have informed the worker’s employer of the contents of the tanks and whether there was the potential for toxic fumes. Kendall and his staff will know more once they obtain OSHA’s investigatory report.

According to National Institute for Occupational Safety and Health (NIOSH), about 2.1 million workers enter permit confined spaces annually and approximately 60% of confined space fatalities are rescuers. According to NIOSH, the following statistics apply to confined space incidents:

  • 85% of the time a supervisor was present;
  • 29% of the dead were supervisors;
  • 31% of the employers had written confined space entry procedures;
  • 0% used the written procedures;
  • 15% had confined space training;
  • 0% had a rescue plan;
  • 60% of would-be rescuers died;
  • 95% of the entries were authorized by supervision;
  • 0% of the spaces were tested prior to entry; and
  • 0% were ventilated.

NIOSH findings on confined space incidents prove that employers should do more to protect their employees. Additionally, the workers need to be better informed of the hazards and better equipped to protect themselves. If you need more information, contact Kendall Dunson. He is Beasley Allen’s senior attorney handling workplace litigation for the firm.

This story appears in the October 2019 issue of The Jere Beasley Report. For more like this, visit the Report online and subscribe.

Jere Beasley

Jere Beasley, the founding member of Beasley Allen Law Firm, has practiced law as an advocate for victims of wrongdoing since 1962. He was the lead Beasley Allen attorney in the record $11.9 billion award against ExxonMobil Corp. on behalf of the state of Alabama.

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