Kentucky Occupational Safety and Health Act Update

May 2005

A recent case from the Kentucky Supreme Court expands the availability of remedies for injuries caused by violations of the Kentucky Occupational Safety and Health Act to independent contractors. 

In Hargis v. Baize, Darrell Ruben Hargis, worked as a independent contractor hauling logs for Allen Baize’s company, Greenville Log and Lumber.  Hargis owned his own truck, but hauled the logs on a semi-trailer owned by Baize.  On November 24, 1998, Baize dispatched Hargis to Campbellsville, Kentucky to pick up a load of logs that Baize had purchased from another lumber company.  When Hargis returned to Greenville, he began releasing the binders on the logs so that they could be unloaded by a forklift.  When Hargis released the binders, a large log rolled off the trailer and struck and killed him.

Hargis’ widow sued Baize alleging that the accident was caused by Baize’s failure to comply with Kentucky Administrative Regulation 803 KAR 2:317, promulgated pursuant to the Kentucky Occupational Safety and Health Act (KOSHA), which provides that binders on logs “shall not be released prior to securing” the logs.  Baize admitted it was not his company’s policy to comply with the regulation.

Baize moved to dismiss the claim based on previous decisions in Kentucky that held that there was no right to a private cause of action based on a violation of KOSHA regulations.  The trial court and appeals court agreed with Baize and dismissed the claim.  The Kentucky Supreme Court disagreed with the lower courts and held that “KOSHA’s protections extend to any employee, including an employee of an independent contractor, who is performing work at another employer’s workplace.”  However, the Court was careful to note that had Hargis been Baize’s direct employee rather than an independent contractor, any claims against Baize would have been limited to bringing a claim under the Workers’ Compensation Act because of the Act’s “exclusive remedy” provision.  The “exclusive remedy” provision of the Workers’ Compensation Act specifically states that employer liability for employee injuries that are covered by the Act “shall be exclusive and in place of all other liability of such employer to the employee.”

The general rule, prior to this decision, was that an independent contractor who was injured as the result of a customer’s KOSHA violation could win a lawsuit against the customer only if the he proved his injuries were the result of the customer’s failure to warn him of a hidden danger on the property.  The new decision changes that rule and essentially holds that if an independent contractor is injured as the result of a customer’s KOSHA violation, then the customer will be considered to have been negligent as a matter of law and liable to the injured independent contractor.  If the independent contractor was also negligent and contributed to his own injury, a jury will decide how the fault should be allocated between the two parties.  The Court also held that a customer cannot obtain a waiver of its statutory safety duties from an independent contractor.

While it could be expanded in the future, the Hargis decision is currently limited to employees like Hargis who are independent contractors or employees of independent contractors.  However, the case underscores the need for Kentucky employers to be vigilant in adhering to the KOSHA standards.  If you have any questions about this decision or other matters related to KOSHA, please contact Bob Dimling at (513) 651-6821 or bdimling@fbtlaw.com or David Hoskins at (502) 568-0271 or dhoskins@fbtlaw.com.

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