November 12, 2010 Celeste Monforton, DrPH, MPH 16Comment

Steven Lillicrap, 21, started his shift at about 7:30 am on a cold Feb 3, 2009 at a construction site near St. Louis, Missouri. He was an apprentice Operating Engineer and this was his first big assignment. He would be working with more experienced men to dismantle a 100-ton crawler crane. The crew was in a hurry because the company, Ben Hur Construction, Inc., needed the crane that day at another job site. (The firm runs 15-20 projects at a time.) Within a couple of hours, Steven Lillicrap was dead. He suffered chest crushing injuries when the safety lanyard he was wearing got caught up in the working parts of the crane’s hoist drum.

OSHA’s St. Louis office conducted an investigation of the fatal work-related incident and alleged that Ben Hur Construction had violated several mandatory safety regulations. Specifically, in late July 2009, OSHA issued:

*a willful violation of 1926.503(a)(2), with a proposed penalty of $70,000, for failing to assure that workers were trained properly in fall protection;

*a serious violation of 1926.550(a)(8) with a proposed penalty of $7,000, for failing to protect a worker from moving equipment parts; and

*a serious violation of 1926.550(a)(1) with a proposed penalty of $7,000, for failing to comply with the manufacturer’s specifications for the crane.

I learned this week that all of these alleged OSHA violations and the proposed penalties have been dismissed.

After receiving the OSHA citations and penalties, Ben Hur Construction contested them before the federal Occupational Safety and Health Review Commission (OSHRC), a right afforded to employers under the OSH Act. By the time the case went to the formal hearing before an administrative law judge (ALJ), the willful and two serious violations with total proposed penalties of $84,000 had been downgraded to just two serious violations with a penalty totaling $14,000. Attorneys with the Labor Department had filed a motion to amend the cited standard on training to a different one (1926.21(b)(2)) and convert the $70,000 willful violation to a $7,000 serious violation.

ALJ Ken S. Welsch heard the case Secretary of Labor v. Ben Hur Construction in May 2010. OSHA alleged that the company failed to comply with the crane manufacturer’s operating instructions which states:

“!WARNING Stay Clear of All Moving Machinery During Raising or Lowering of Gantry. Position a Signalman to Observe All Areas and Warn Operator of Danger.”

The company’s lawyer argued that Ben Hur was complying with all of OSHA’s standards, including 1926.550(a)(1) on following

“the manufacturer’s specifications and limitations applicable to the operation of any and all cranes.”

The employer insisted that the procedure outlined in the operations manual for disassembling the crane is a “recommendation,” not a specification,” meaning the OSHA citation was erroneous. The judge agreed.

In his November 3 ruling, Judge Welsch explained that a specification

“connotes steps of instructions that are required, mandatory, obligatory, and compulsory,”

while a recommendation is

“a suggestion, a proposal an option to be considered.”

The cited OSHA standard (1926.550(a)) uses the term specifications, not recommendations.

At the time of the incident, the 21 year old worker was standing on a small elevated platform next to the moving cables on the crane. Because the company has a fall protection policy that requires employees to tie-off 100% of the time for any work done at heights over six feet, Steven Lillicrap was wearing a lanyard. The problem is, there were no tie-off points or anchors on the crane which would be the proper place to affix a lanyard. He apparently tied off to the cable. When the crane operator moved the crane forward and boomed up, Steven Lillicrap’s lanyard was caught up in the boom hoist drum cable. OSHA asserted that apprentice Steven Lillicrap had not been properly trained on the use of fall protection, in particular, an appropriate anchor point. The judge also disagreed with OSHA’s assessment on this point.

As I read the judge’s ruling, he seemed to rely heavily the testimony of the crane operator and other witnesses with close ties to the employer. The crane operator, for example, said that he provided safety training to young Lillicrap. This is the man who was running the crane when Lillicrap was killed—reason enough to discount his testimony—and also someone who is kept on Ben Hur Construction’s payroll year round, even when there is no work for him, because the company does not want him to be hired by another company.

The crane operator said that he told apprentice Lillicrap

“do not tie off to your cable or anything, watch where your feet are too.” “Don’t have your hands or anything in the way of moving parts.”

A litany of “don’ts” is not effective training in my book. Meaningful training involves communicating, practicing and reinforcing how to perform a task safely. The crane that Steven Lillicrap was dismantling had no tie-off anchor points. Having a 100% tie-off rule without showing an apprentice worker where to tie-off is irresponsible. I’ve not read anything indicating that young Steven Lillicrap was shown by anyone in authority exactly where to safely tie off.

I find the judge’s ruling troubling for other reasons. He seems to rely heavily on testimony from witnesses with economic connections to Ben Hur and who not so subtly suggest that Steven Lillicrap should have known better. They describe the young man as an “exceptionally able apprentice,” “very mechanically inclined,” “work-wise,” and a “good hand,” without acknowledging another fact: this 21 year old worker was unskilled labor. He only had 1 year under his belt of a three year apprenticeship program and had spent most of that time learning to operate a rubber tire backhoe. All the compliments in the world about his work ethic and natural abilities should not have blinded managers to his lack of experience on this particular dangerous task.

Earlier this month, a new OSHA crane safety standard took effect. It replaced a rule that had been on the books since 1971. The new rule includes stronger requirements to protect workers from harm when cranes are being assembled and disassembled, including a director who

“must ensure that each member of the crew understands his or her tasks, the hazards of the tasks, and any hazardous positions or locations to avoid.”

The family and friends of Steven Lillicrap must painfully wonder how their lives might be different had this rule been on the books.
As his mom, Diane Lillicrap said“…when he went to work that morning, I expected him to come home. I worried about my son going out at nighttime, being 21 years old. Not going to work.”

16 thoughts on “No justice for Steven Lillicrap, 21, killed at work while dismantling a crane

  1. I’m sorry about the death of Steven Lillicrap. What must he have been thinking when he tied off to a cable that was obviously going to move when the hoist drum rotated? A child should have realized how dangerous doing so would be. Perhaps it was “irresponsible” for a more experienced worker not to have informed him how dumb tying off to a moving cable would be but I’m sure that his coworkers just considered that anyone with even a modicum of common sense would know better. If a company can be fined for failing to state the obvious then this is an example of government regulation out of control. And what good would a fine do, anyway? It certainly wouldn’t being Steven Lillicrap back from the dead. Perhaps if the fine went to his family it might be just but it wouldn’t go to his family, it would go to the government. Some work is inherently dangerous, operating and dismantling heavy equipment among them. From what I have read in this blog entry I feel that the judge was right to have dismissed proposed penalties against Ben Hur Construction, for these alleged OSHA violations. People need to take responsibility for their own actions.

  2. to darwinsdog – what must he have been thinking? oh, probably a hundred different things since he was new to the job and untrained, and trying to figure things out for himself.
    “People need to take responsibility for their own actions” is an idiotic answer when one mistake leads to death and there is no second chance. That’s like not training a person how to disarm a bomb, and then blaming them for “their own actions” of cutting the wrong wire.

  3. – what must he have been thinking? oh, probably a hundred different things since he was new to the job and untrained, and trying to figure things out for himself.

    I doubt that he was thinking about anything job related at all. Probably thinking about his girlfriend or what he was going to do on the weekend, and was oblivious to what was going on around him. This inattention is his employer’s fault? A kid does something stupid & it costs him his life, so let’s use that as an excuse for the government to extort money from his employer. That makes about as much sense as tying off your safety lanyard to a cable that is going to move as soon as the crane begins to operate.

    “People need to take responsibility for their own actions” is an idiotic answer when one mistake leads to death and there is no second chance. That’s like not training a person how to disarm a bomb, and then blaming them for “their own actions” of cutting the wrong wire.

    I underwent EOD training in the Combat Engineers and learned to disarm unexploded ordinance, landmines & improvised booby traps of all sorts. Had my lack of attention caused me to do something stupid I would have indeed deserved blame for the loss of my own life. The same is true in any potentially dangerous situation. Steven should have known better than to tie off to that cable, regardless of any training he may or may not have received. Some things are obvious to anyone, or should be, and are simply a matter of common sense. If he had questions about where he should tie off, he should have asked. Industrial accidents are unfortunate but lets place responsibility for them where it’s due. Steven will have no second opportunity to make the same, or any other, mistake ever again, but the fault is due to his own inattention, not to any negligence on the part of his employer – at least as far as can be ascertained from the information provided. The judge in this case made the right decision. What I find idiotic is this cultural pathology of absolving individuals of any & all responsibility for their own behavior.

  4. The company, in this case a crew under stress to hurry up and ‘get-er-done’, sets the tone. All the claims a person not in charge can step up and demand safety are BS. Step up and demand safety procedures, procedures that are not taught and have to actively work to even hear about, and you are an annoyance. At the very least. You are holding up production. And you are setting yourself up to be first let go and last hired, if you don’t get fired outright.

    On a non-union job and in right-to-work states workers can be let go for no specific reason. If someone asks it will be for ‘right-sizing’, workforce reduction, nothing personal don’t you know, or it will be for ‘lack of production’. Workers are welcome to fight it, on their own dime.

    Safety comes from the top or it doesn’t happen at all.

    Construction is a bit different. The guy in the office has a list four-score deep of people wanting your job. Anything but ‘yes-sir and stepping off smartly’, anything that delays the job, moves you toward getting replaced. I’ve been on jobs where they wanted twenty people and they hired fifty at 6:30 Monday. Any infraction, lack of energy, enthusiasm,complaining, or having the wrong look, got you canned. By 3PM Friday we were down to twenty who ‘wanted to work’.

  5. darwinsdog – So you feel free to blame Steven for his lack of knowledge but place no blame on the employer for not having a spotter, not training him and allowing moving equipment in his path.
    Knowledge is gained from experience or training which he had neither however the employer did.
    You can boast all you want about combat training but the fact is you had it and if you had not have your butt may not be here either and you chalk it up to listening…well if they are not talking there is no listening.
    The ignorance comes from your spewing “A kid does something stupid & it costs him his life, so let’s use that as an excuse for the government to extort money from his employer.” It is not about the money, like those three little penalties would have fazed the company, it is about accountability and lessons learned. So even if you are right and Steven should have instinctively known, what about the companies bad practices? This blog does not cover it all; blogs normally tend to hit the basics. I do not feel that is something you are really worried about or you would have not continually accepted the companies lack of attention and without any proof accused Steven for the very same. You are lacking the same reasoning that you accuse Steven of.
    Maybe have a little compassion next time. You can agree with the findings and not trash a child who can no longer defend himself.

  6. darwinsdog – So you feel free to blame Steven for his lack of knowledge but place no blame on the employer..

    Tammy S. Miser – So you feel free to blame the employer for Steven’s lack of common sense but place no blame on Steven himself..

    This pathological tendency to absolve the individual of responsibility for his or her own actions needs to be challenged, which is what I’m doing in regards to Steven’s inattention leading to his death. Along with responsibility comes freedom. We don’t have one without the other.

  7. darwinsdog – What I have read in your posts is very one sided….blame Steven. Blame the employee and forgive the employer (supervisor or crane driver etc) for not sharing their years of experience. Let them “assume” an inexperienced person should have known better. Great boss. And since Steven isn’t here to defend himself how can we really know he was given the ‘training’ we are told he was? Are you sure he knew what you think he should have? You’re entitled to your opinion but unless you know all the details maybe you shouldn’t pass or sit in judgment.
    Just know one thing, your callous remarks, especially when you don’t know all the details of the case, have hurt a grieving family all over again. I hope you never have to walk in the shoes of a family who finds out their loved one has died from a preventable accident at work. You may not be so quick to blame the dead person once you realize and understand all real the facts. And unless you have some inside information as an employee of the company would, I’d say you don’t know all the details and inner findings of the case.

  8. Apparently, he was given instructions he could not follow – he had to be tied-off 100% of the time and there was no anchor point. He was probably told that he could be fired if he did not obey this rule and that this was no-tolerance policy. He did not want to lose his job and there was nothing else than the cable he could tie himself to. So he did it – he was not thinking about his girlfriend or the weekend, he was thinking that he could lose his job and being a newbie he did not dare to talk back. This is speculation, of course, but it is plausible.
    Yes, it was a stupid thing to do, but it is clear that he had contradictory instructions and I do not see why the employer could not take some blame, too.

  9. You’re entitled to your opinion but unless you know all the details maybe you shouldn’t pass or sit in judgment.

    You’re right, I don’t know all the details. All I know is what I read in the highly biased against the employer blog entry above. From that I gleaned that the judge had made the appropriate decision in dismissing the penalties. If you have additional information about this incident, please share it. If not, then the same allegations you make about my not knowing all the details pertains to yourself likewise.

  10. Darwinsdog,
    My blog post may be “highly biased against the employer” but that stems from my experience studying many OSHA enforcement cases. At the end of the day, when OSHA citations are adjudicated, the outcomes give the benefit of the doubt to employers, not to the injured or dead workers—-in fact, the victims do not even have any place at the table. The parents of Steven Lillicrap had employees working at the construction site that day who could have provided information about what transpired immediately before the fatal incident. They were not interviewed as part of the investigation. Others had potentially valuable information as well. Under funded agencies like OSHA are not capable of obtaining justice for workers killed on the job. It’s time to allow workers and their families a private right of action against employers—the workers’ compensation system provides very little incentive to ensure safe workplaces.

  11. Under funded agencies like OSHA are not capable of obtaining justice for workers killed on the job.

    This may very well, in general, be true. I don’t dispute but what Art says, in post #4, is likewise generally true. My comments don’t pertain to the general workplace situation, however, they pertain to the particular case of Steven Lillicrap. Trained or untrained, he should have known better than to tie off to a cable connected to a rotating hoist drum. I am not trying to argue against employers being held liable for negligence when negligent they are indeed. But if employers can be held liable for every foolish or inattentive thing an employee does, then nothing would ever get accomplished.

  12. Thank you for the post Celeste. It is very unfortunate that there are so many ignorant people in our society. That the laws that are enforced to protect every worker and insure them to a safe work place can be turned around and twisted to work against them. Steven’s employer did not have a 100% tie off rule for his job. The General Contractor on site did. Steven had assembled and disassembled the crane several times before his accident. He was never required to wear fall protections on these other jobs. How can you blame the worker when he was not given the training by his employer? What kind of message does it send the employee when your told only to put on the harness because the safety man in walking around? Safety starts at the top. If management does not buy into safety how can you expect the employees to.
    I am the Proud Mother of Steven Lillicrap.

  13. To set the record straight. Steven was tied off to the cable because there were no anchor/tie off points on the crane. As I stated in the previous post the operator told Steven to hurry up and put your harness on because the safety man was walking around. He has just finished rigging the counterweights and the next step would have been to prepare for the gantry to be removed. The crane was in a tight position and had to be moved first. The operator (Steven’s mentor) told him to stand on the small platform next to the drums. The operator then moved the crane forward and activated the cables at the same time. The way I see it is that the company was going to rely on the operator to teach an apprentice how to do the job safely the operator never would have put my son in harms way. I mean really move the crane and operate the cables and no training. It should be the company’s first priority to train its employees. Unfortunately this is not the case. Many of the constructions workers come out of their union hiring halls. If these employees want to come back they work hard and do as they are told.. If not there are many more workers at the hall waiting for their turn to be called out.
    Let me try and explain this another way. My car is making a noise. I ask you to lift the hood and see if you see anything as I rev up the engine. Oh I didn’t tell you I was going to put it in gear. I sorry you must not have heard me when I told you to never stand in front of a car with the motor running. Your fault.

  14. TPH Readers,
    We appreciate the opinions and diverse perspectives from commenters, but I’ve deleted the comment from POed (posted Nov 16, 2010 7:44 pm) because of the foul language directed at another commenter.

  15. This is a terrible tragedy. An unacceptable loss of life.
    The ALJ for the case ruled on the OSHA fines.
    For what it is worth, the family of Steve may have another recourse and should file a wrongful death suit or third party overaction suit against the general contractor, owner of the project and others involved. Depending on the facts of the case and if the judgement is favorable to the family it may be possible to require the employer and others involved in this tragedy to implement corrective actions to prevent this terrible tragedy from reocurring. However this would require significant resources from the family and would take a long time. Most likely the parties involved would want to settle for a lump sum and impose gag orders on all involved preventing the truth and details to become public. This course of action may be more effectie than expecting OSHA fines to work.

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