The Commission expressed concern that, if it were to restrict an operator’s liability to hazards identified in pre-shift examinations, this could lead to “perverse outcomes.” For instance, it suggested that an operator could overlook a hazard during a pre-shift examination in order to insulate itself from being cited for a violation during the shift. The Review Commission believes that its holding in the Nally case will encourage “more vigilance with instituting and enforcing effective maintenance procedures.”

While the Review Commission made it clear that an operator’s knowledge (or lack thereof) of a malfunctioning back-up alarm was not relevant to the question of whether a violation occurred, it did concede that a lack of knowledge could impact the penalty assessment. Therefore, an operator caught in a situation similar to Nally’s can probably make a reasonable argument that its negligence was low or non-existent.

Of course, back-up alarms provide constant feedback regarding their function while in use. As such, miners who operate mobile equipment outfitted with back-up alarms should be reminded to do an “ear check” while operating the equipment. Likewise, all miners should be encouraged to notify the equipment operators if they become aware that a back-up alarm is not engaging as it should. This kind of awareness may serve to limit an operator’s potential penalty exposure. AM

Michelle Witter is an associate in Jackson Kelly PLLC’s Denver office, practicing in the Occupational Safety and Health Practice Group. She can be reached at 303-390-0036 or mwitter@jacksonkelly.com.