Occupational Hazards/December 2000

Safety rules are meant to prevent trouble, but a legal expert warns that safety rules in many companies hold the potential for expensive trouble.

Could your safety rules, meant to protect your employees, contractors, customers and community, actually present a hazard to your company?

They could if they are not clear or consistently enforced, warns Mitchell Marinello, managing partner for Novack and Macey, a law firm based in Chicago. He said that companies frequently fail to determine whether their safety rules are adequate and, if an accident occurs, whether those rules could help or hurt the company if litigation arises.

“Safety rules are statements by the company that adopted them,” Marinello explained. “In a litigation context, everything you say can be used against you. Companies need to ask themselves, if an accident happened tomorrow, how could a plaintiff use our safety rules against us? How could they use them to criticize our commitment to safety? How could they use them to try to establish liability or even liability for punitive damages?”

One potential pitfall, Marinello said, occurs when companies set up a double standard in their safety warnings and procedures. For example, a company may be overly protective in terms of safety warnings it issues to customers using its products. “But then when it comes to their own plant and workers, they may apply a much lower standard of care,” he said. “That is always hard to justify when there is a problem.” As he pointed out, the risk may be greatest in the plant because, while the customer may have contact with the product for a few minutes a day, employees may be exposed to it all day, every day.

Developing good safety rules involves making sure that the people writing the rules and the people implementing them understand what is being required. In the petrochemical industry, Marinello noted, the people writing the safety rules are often engineers or chemists. Based on their expert knowledge and experience, they may develop rules that are clear to them, but that are unclear and full of ambiguities for the operations supervisors and personnel who use them on a daily basis.

“Ultimately, you need to synthesize general principles about safety into rules that people can easily understand and are not ambiguous,” he explained. “You have to know who your audience is — who is going to be interpreting and following these rules — and make sure they understand them.”

Marinello recommends that companies establish an educational process that includes a review of new or revised rules by plant supervisors and employees. He said this education process is a two-way street. “The people who are writing the rules can learn from the employees also and understand where the rules are not as clear as they thought they were, or where employees are, for one reason or another, resisting the rules.”

Safety rules that are made to be broken also put a company at risk. “Companies sometimes pass an unrealistic safety rule, nobody follows it, and everybody knows that,” Marinello said. “They just close their eyes to it. That can create a tremendous problem in litigation. Not only is the situation where you haven’t followed the safety standard that you recognize as being appropriate, but the plaintiff may argue that there has been an indifference to safety or a reckless attitude toward safety, and use that as a basis for trying to get punitive damages.”

Companies should weigh their resources when declaring what activities they will conduct. “If you say you are going to audit a plant or manufacturing facility on a certain time schedule, you better do it on that schedule,” Marinello said. “It almost doesn’t matter what causes an accident if you didn’t inspect during the time period you were supposed to. It will be pretty easy for a plaintiff to say, ‘If you had inspected like you said you were going it, you would have discovered this and you might have prevented this accident.’”

Marinello also warns against exaggerating the dangers of operations or substances. It’s a good safety rule that truck drivers make sure there is no one behind them before they back up. “For you to say that backing up a truck is tremendously dangerous may make someone more attentive, but it has the unintended consequence of setting you up for criticism. It makes what you do seem more dangerous than it is, and a plaintiff will use that against you at a trial.”

To avoid these problems, Marinello said, companies periodically should review their safety rules for clarity and consistency. Also, he notes, “It helps if the person doing that review is sensitive to the ways in which every statement can be used against a party in a lawsuit.”