Daniel Construction Co. v. Brooks

PHILLIPS, Judge. Though stated differently in the appellant Daniel’s brief, the only question presented by this appeal is whether the Superior Court erred in affirming the decision of the Occupational Safety and Health Review Board of North Carolina to the effect that appellant’s failure to require its employees to wear safety shoes while carrying heavy objects violated 29 CFR 1926.28(a). As directed by G.S. 95-141, the Board’s decision was reviewed by the court in accordance with the provisions of Chapter 150A of the General Statutes. The standard contained therein, which the court correctly followed, in our opinion, was the “entire record” test set forth in G.S. 150A-5H5), which our Supreme Court and this Court have explained many times. See the much cited and quoted case of Thompson v. Wake County Board of Education, 292 N.C. 406, 233 S.E. 2d 538 (1977). Considering the record as a whole in accord with the principles stated in Thompson, we are of the opinion that the Review Board’s decision is supported by substantial evidence, as the Superior Court ruled, and therefore affirm the judgment appealed from. In order to establish that Daniel violated 29 CFR 1926.28(a) as charged in the citation, OSH had to prove that under the circumstances which existed a reasonably prudent employer would have recognized that carrying heavy objects above their unprotected feet was hazardous to the employees doing the carrying and would require them to wear safety toe shoes. Ray Evers Welding Co. v. OSHRC, 625 F. 2d 726 (6th Cir. 1980). Though this is but an adaptation of the “reasonable man” standard of the common law, neither this Court nor our Supreme Court, according to our research, has yet stated the factors that may be considered in applying the standard in cases like this. For example, the Fifth Circuit has apparently interpreted 29 CFR 1926.28(a) “to require *431 only those protective measures which the knowledge and experience of the employer’s industry, which the employer is presumed to share, would clearly deem appropriate under the circumstances.” B&B Insulation v. OSHRC, 583 F. 2d 1364, 1367 (5th Cir. 1978). Under this interpretation, as we read it, each industry is permitted to evaluate the hazards associated with its own operations and determine what, if anything, to do about them. But as applied by the First and Third Circuits, the practice in the industry is but one circumstance to consider, along with the other circumstances, in determining whether a practice meets the reasonable man standard. These courts have noted, quite properly we think, that equating the practice of an industry with what is reasonably safe and proper can result in outmoded, unsafe standards being followed to the detriment of workers in that industry. Voegele v. OSHRC, 625 F. 2d 1075 (3d Cir. 1980); General Dynamics v. OSHRC, 599 F. 2d 453 (1st Cir. 1979). This latter application is much the sounder, we think, and we adopt and employ it in this case. Daniel contends, however, that regardless of the standard used the evidence fails to show that any employee injuries will be prevented by safety toe shoes; and it stresses as conclusive the opinion testimony of several witnesses, all of whom had some experience in construction work or job safety, to the effect that carrying the heavy objects referred to was not hazardous to the employees involved and safety toe shoes are not needed by them. But the circumstances involved in this case are not such that only experts can make deductions from them. Some things are a matter of common sense and knowledge and in this instance we believe that the Board was at liberty to make its own deductions from the circumstances recorded and that the deductions made were justifiable, notwithstanding the expert testimony to the contrary. From the nature of things the case is largely governed by its own circumstances and the many cases cited by the parties on this issue are of little or no assistance. Things that are obviously so just as a matter of common sense do not require the support of either legal citations or expert testimony. It is a matter of common knowledge, we believe, that people carrying objects can, and sometimes do, drop them and that an object weighing 350 pounds if dropped on an unprotected foot can seriously injure it. Daniel argues, though, that since no employee *432 at the locations involved has been injured by dropping such an object on his foot, future injuries of that kind are not reasonably foreseeable and preventive measures are therefore unnecessary. This simply amounts to the claim that there is no good reason to anticipate an accident until at least one has already occurred, which is nonsense. Human error is not a rare phenomenon. A mark of ordinary prudence, we believe, is to anticipate human errors that are likely to injure people, such as dropping heavy objects on themselves, and take reasonable precautions against them before, rather than after, injuries occur. The preventive measure that prudence requires in this instance, as is so often the case, is both simple and inexpensive. According to the evidence safety toe shoes, which are available on the job site at a cost of $32 to $48 a pair, can be obtained by or furnished to each of the thirty-two employees that need them at a total cost of as little as $1,024 — a trifling sum when compared to the cost of just one mutilated or amputated foot. For the reasons stated the judgment appealed from is affirmed. Affirmed. Chief Judge HEDRICK and Judge BECTON concur.