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FORENSIC CLUES

A newsletter dedicated to keeping attorneys informed of the technical side of product liability cases.

Issue 59: Vol. 1 February/March 2014

© 2014 M.A.S.E. LLC

(855) 627-6273

FORENSIC CLUES # 59 - "Machine Guarding—Employer or Manufacturer Responsibility?" by John L. Ryan, P.E.

OSHA was created through the Occupational Safety and Health Act of 1970. OSHA’s mission is to ensure worker safety by creating and enforcing safety and health standards. OSHA does many good things to help maintain a safe workplace, but manufacturers often try to hide behind the shield of OSHA, putting blame on an employer for unsafe machinery or working conditions, when often the machinery was never safe to begin with. Some standards promote safety and some standards protect the manufacturer from product liability law suits. Most industrial standards are voluntary, unless they are specifically referenced in a Code of Federal Regulations / OSHA standard. OSHA standards are Federally mandated and are enforced by the Federal government. The general machine guarding standard, 29 CFR 1910.212 states “One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks.” This and other OSHA standards apply to any machine that is operated by an employee. So if a manufacturer fails to provide adequate safeguards on a machine, and a worker gets injured or killed, the employer will be subject to penalties, while the manufacturer will typically not be held accountable, unless a product liability suit is pursued against the manufacturer.

The first fundamental principle to remember is that people who buy machines and products may or may not have the expertise to properly guard the machine or product. OSHA regulates the employer mainly because of the ease of making someone responsible. This control of the employer has nothing to do with who is initially responsible for guarding. Machine and product manufacturers are the primary parties in selling safe machines and products. It is unrealistic to require employers to design and install effective safeguarding, particularly smaller operations. Many hazards are not obvious, so employers may have no idea of a particular hazard. Safeguarding often requires specific knowledge, and the employer may have no one with appropriate education, training, or experience to design and implement effective safeguarding strategies.

Most industry standards are currently voluntary. Many manufacturers understand the need for safe products and machinery, and take the necessary steps to ensure their products are safe. There are manufacturers however who are producing unsafe products. This is a fact, evidenced by the multitude of accidents caused by defectively designed machinery and products. This failure to produce safe products is typically due to ignorance, to save on production costs, engineering design errors, or simply due to the fact that OSHA will put the responsibility on the employer. At times custom machinery may be put into production before all of the safeguarding is installed on the machine. Ignorance of necessary safeguarding is not an excuse or a defense for producing unsafe products or machinery. Many manufacturers start out as small operations, where a product or machine is designed by someone with trade knowledge, or knowledge of a specific process. This is one of the factors that makes our country amazing—the fact that anyone can take an idea, implement that idea, and make a living off of shear creativity and the willingness to take a risk and work hard. This process can lead to unsafe products, though, if competent engineers are not brought into the design process early so that the product or machine can be made safe. An engineer can perform a hazard analysis to determine what potential hazards exist. Once identified these hazards can be dealt with to ensure that product or machine users are kept safe.

Industry standards can be useful in that many will specify needed safeguards and machine criteria. The quality of standards varies widely, though, and simply designing a product or machine to comply with a standard does not always result in a safe product. Most standards are developed by committees. These committees often have many corporate representatives from manufacturers of machines or products that the standard will cover. This conflict of interest can lead to standards that do not protect the consumer, but rather allow the manufacturer to make a cheaper product or machine. This deplorable practice does happen. Some standards covering highly hazardous types of machinery have inadequate safety requirements. At times, safety will be completely ignored in a standard. It can be difficult for a design engineer to determine if a standard represents safe practices that are intended to protect consumers, or if a standard is a “cover-your-ass” type of document. The end result of this can be a well-intentioned engineer who designs a product or machine to an inadequate standard, resulting in a hazardous product or machine that will cause injury.

The modern era has brought about a very competitive market in many industries, with foreign competitors making things even more difficult . Third world manufacturers use their low-cost labor force to make products and machinery at low prices, that manufacturers in the U.S. have a hard time matching. This leads to cost-savings at any possible place in the design and manufacturing process. While this can result in highly efficient designs that take all waste out of a product or machine, if taken too far it leads to unsafe products and machinery that have not had hazard analyses, or had hazards eliminated or safeguarded. Quality control is another area where cost-savings can doom even properly designed products or machinery. In large scale productions, inspections, nondestructive testing, and destructive testing of randomly chosen samples can ensure accurate implementation of a design.

What’s the Solution?

Using OSHA or inadequate biased standards as an excuse for unsafe products and machines is unacceptable. Manufacturers have a responsibility to protect the users of their products or machines, and are in the best position to do so. Applying a thorough hazard analysis and engineering design principles will ensure a safe end product. If this was always done, employers would simply have to maintain machinery to ensure that safeguards are kept in proper working condition.

How We Can Help

At MASE, we can determine the cause of an accident, whether it is due to a design defect, manufacturing error, material defect, or human error. If a standard fails to address relevant safety factors, we apply engineering calculations, testing and design principles to show the inadequacy of the standard. Call us at (855) 627-6273 or email us at info@mase.pro to discuss your accident case.

 

Please call us to discuss any questions you have about unsafe products. (855) 627-6273

© 2014 Mechanical and Safety Engineering

www.mase.pro

 

Mechanical and Safety Engineering LLC (MASE)

www.mase.pro

(855) 627-6273

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