The blame game

I feel there was a glaring omission in Mr. Berke's May 25, 2006 column titled "For lack of a guard, a severed hand" — personal responsibility. I would first like to express my sorrow for the injured man. But the fact is he stuck his hand where it never should have been in the first place.

Yet, because the manufacturer did not make the product in question foolproof for all situations both conceivable and inconceivable, it is at fault for his injury. Did Mr. Berke mention to the jury that it may have been a good idea to actually look into the machine prior to sticking a hand in there? I wonder just how much time the manufacturer was supposed to have spent thinking up ways people can misuse its equipment and trying to design around it. People will find ways to circumvent the best safety equipment engineers can devise.

In Mr. Berke's world, the blame lies squarely with the manufacturer, and personal responsibility has no place. In my world, that makes for a sad state of affairs.

Frank Piambino
Engineering Technician

I am in total agreement with you regarding "personal responsibility" when a person actually knows about the hazards associated with a product. In the case of this dust collector, however, the hazard is hidden from users.

Regarding your point about it being a good idea "to actually look into the machine prior to sticking a hand in there:" When investigating the accident, I did just that. The spinning rotor is invisible, similar to a rotating airplane propeller. If the injured man thought the rotor had stopped, why would he take action to protect himself from a rotating rotor? Had the dust-collector maker done a preliminary hazard analysis, the hazard would have been quickly identified.

Hazard analysis finds hazards associated with a product's normal and expected use and with "reasonably foreseeable misuses." It has been my experience as an expert witness that when people intentionally bypass safety equipment and are injured — provided the product and safety equipment have been properly designed — two things happen:

The injured person will have a tough time finding a lawyer to take the case. A plaintiff attorney must spend a minimum of $20,000 to press a productliability case, and typically in excess of $50,000. To put out this kind of money, lawyers carefully evaluate the probability of winning.
In most but not all instances, a company being sued in a product-liability case will go to the judge and request a summary judgment. A judge who believes the case has no merit will usually throw it out.

In conclusion, "in my world" the manufacturer is not always right, and personal responsibility does have a place in the workplace. The first thing a lawyer client wants from me as an expert witness is my honest opinion regarding the cause of the accident and injury, and the merits of the case. I am released from over 30% of the lawsuits that I am called into after giving my client a verbal report.

Lanny Berke is a registered professional engineer and Certified Safety Professional involved in forensic engineering since 1972. Got a question about safety? You can reach Lanny at lannyb@comcast.net.

PREVIOUS COMMENTS :

I must say that I astonished at the responses that it is the worker''s fault. A worker is hired to perform productive tasks in a safe and efficient manner and not to dodge various hazards that may come up in performing the task. In general the regulations state something like "where there is an exposed moving part that may endanger a worker the worker must be prevented from having access to the exposed moving part". Note that the emphasis is on preventing the worker from being able to access and not on the worker gaining the access. "DO NOT TOUCH" does not prevent touching. A sign on my house door stating "DO NO COME IN I AM NOT HOME" will not prevent access. We ensure prevention of access with dead bolt locks backed up by a security system. It is accepted in the field of health and safety that there are two conditions for an "accident" to occur. Unsafe conditions and unsafe acts. The unsafe conditions ought to be eliminated or controlled at the desing stage but whether they are or they are not depends in which market the machinery is sold. For example, in the EU market (actually (EFTA market) under directive 98/37/EC a product must be ''safe'' before it is even placed on the EU market. The producst must bear the CE mark as an indication of this. In North America the emphasis is on the employer to ensure tha machine is safe before the employees can use it - this is a political choice. But this depends on the product. For example in North America consumer products must be certified to applicable safety standards before a product can be placed on the market. This again is is a political choice. Pharmacutical [roducts must be proven to be safe before they can be placed on the market. There are two conditions for an accident to occur; - unsafe conditions - unsafe acts Unsafe conditions exists as a result of management decisions or indecisions - they manage the workplace. Usafe acts are committed by a worker because of inadequate training or inadequate supervision both of are duties of the employer. There is a third option where the requirements of the employer are not being met by the employee irrespective of adequate training. Effective supervision by the employer must not take over. The readers may be interested in knowing that in some regulatory jurisdictions the term "accident'' can no longer be used. If we take the case in point and the worker had access to the hazardous envelop it would be realized that sooner or later somebody would get their hands in there at the wrong time - as tragically happened in this case. The foundation for these arguments is relatively simple from a north Americal perspective in that the employer manages the entire workplace - inventory, receivables, paybles, financial etc. including the health and safety of the employees. In the EU theview is different in that the product must be made ''safe'' before it is placed on the market and bear the CE mark indicating so - this is followed by the employer ensuring the machine is maintained to original specs and used for the machine''s intended purpose. The 98/37/EC directice is backed by a product liability directive. the safety policy that '' do not get hurt or you are fired'' wento out decades ago thank God.

BY: ftomei - 4/17/2008 10:10:14 AM