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Friday, March 24, 2017

OSHA Catches Midnight Rider

By Thomas Eden

On February 20, 2014, during the first day of shooting for the film “Midnight Rider,” about the Allman Brothers Band, as the Film Allman crew set up to shoot a scene on the Doctortown train trestle—an active trestle owned by CSX Transportation (“CSX”) that spans the Altamaha river in Jesup, Georgia—a freight train barreled through, killing a 27-year-old female camera assistant and seriously injured several other Film Allman crew members. Film Allman supervisors “knew the railroad tracks were live tracks, in active use by CSX, and that CSX had refused permission to film on the tracks,” the 11th Circuit Court of Appeals ruled on March 20. 

“None of Film Allman’s supervisors informed the crew and cast members that CSX would not be on site and would not be controlling train traffic on the trestle while they were filming on the tracks. In short, Film Allman put its employees in harm’s way, and the results were catastrophic,” found the 11th Circuit panel in its decision affirming a $70,000 OSHA fine for willfully violated Section 5(a)(1) of the Occupational Safety and Health Act (“OSHA”), which is often referred to as the “general duty clause.” 

The 11th Circuit went on to hold “the Commission correctly upheld the Secretary’s invocation of the informer’s privilege (informer’s privilege allows OSHA to withhold certain portions of witness statements that OSHA obtained during its investigation), substantial evidence underlies the Commission’s classification of Film Allman’s violation of Section 5(a)(1) as willful, and the Commission did not abuse its discretion in imposing the statutory maximum ($70,000) penalty against Film Allman.”

Common Sense Counsel: In 1970 the Allman Brothers Band released Greg Allman’s song Midnight Rider. Part of the lyrics went “I got to run to keep from hidin'; and I'm bound to keep on ridin'; I got one more silver dollar; I got only the clothes I'm wearin'; and the road goes on forever; not gonna let 'em catch me now; keep on riding - midnight rider.” That was the scene the Film Allman crew was seeking to create on the Doctortown train trestle. 

The lesson in the tragic story is that no employer, not even Hollywood producers, are immune from their OSHA Section 5(a)(1) duty to provide employees a safe place to work free from recognized hazards. Sometimes it takes a trained professional who knows the regulations to help you recognize those hazard before your employee takes that “midnight ride.” 

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL a member of the ABA Section of Labor and Employment Law He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com with link to decision.