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Dukane Precast, Inc. v. Perez

United States Court of Appeals, Seventh Circuit

May 4, 2015

DUKANE PRECAST, INC., Petitioner,
v.
THOMAS E. PEREZ, Secretary of Labor, and the OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, Respondents

Argued April 2, 2015.

Petition for Review of an Order of the Occupational Safety & Health Review Commission. No. 1:12-1646.

For DUKANE PRECAST, INC., Petitioner: Paul J. Waters, Attorney, WATERS LAW GROUP, LLC, Clearwater, FL.

For THOMAS E. PEREZ, Secretary of Labor, Respondent: Amy S. Tryon, Attorney, DEPARTMENT OF LABOR, Office of the Solicitor, Washington, DC.

For OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Respondent: John X. Cerveny, OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION, Washington, DC; M. Patricia Smith, Attorney, DEPARTMENT OF LABOR, Office of the Solicitor, Washington, DC.

Before BAUER, POSNER, and MANION, Circuit Judges.

OPINION

Page 253

POSNER, Circuit Judge.

The petitioner, Dukane, manufactures concrete building products in a plant in Naperville, Illinois, a suburb of Chicago. At the time of the accident that gave rise to this case (February 2012), the plant had 50 employees. The accident occurred in a bin, some ten feet in width at the top and tapering to a cone shape at the bottom (eighteen feet down), for storing sand. The accident victim was a worker named William Ortiz. While he was standing in the bin trying to scrape sand from its inside wall, the sand beneath his feet gave way, causing him to sink and to be engulfed by sand flowing into the space created by his fall. Buried up to his neck in the sand he screamed, and several workers, hearing his screams, ran to the bin and began trying to dig him out. They were able to remove the sand pressing on him above his waist but not the sand pressing on the lower part of his body, so he remained trapped.

The plant's manager, Don MacKenzie, was told about the accident within about 10 minutes after it happened; a supervisor had found out about it by asking where all the workers were and he informed MacKenzie, who arrived at the bin a few minutes later. He decided there was no emergency--that Ortiz was in no danger--and, told by the attempting rescuers that they thought they could dig Ortiz out, left the accident scene. The would-be rescuers, though well intentioned and indeed courageous--for they could have been engulfed by the sand as well--were not trained or equipped to rescue a person trapped in a bin of sand, and their efforts at digging away the sand pressing on Ortiz created a space for other loose sand to press in on him, impeding their rescue efforts. He asked them to call 911 to summon professional assistance, but for unexplained reasons no one did. Eventually, however, MacKenzie was told by an employee of Ortiz's wish, and upon asking the employee whether he was confident that the workers who were trying to rescue Ortiz would succeed, and receiving an answer that must have been less than reassuring, MacKenzie called 911. The Naperville Fire

Page 254

Department's Technical Rescue Team, which has specialized training and equipment for dealing with accidents of the kind that befell Ortiz, arrived within a few minutes. By this time Ortiz had been trapped in the bin for an hour and a half.

We would have liked the parties to tell us exactly how long it took for the rescue team to arrive, because the longer it was expected to take, the stronger the excuse for letting Ortiz's coworkers try to save him despite the danger to themselves. We have discovered on our own, however, that it was the Technical Rescue Team at Fire Station #1 that was summoned. See Naperville Fire Department, 2012 Annual Report 15, www.naperville.il.us/emplibrary/NFDAnnualReport2012.pdf (visited on May 1, 2015). Google Maps tells us that it's about a 3.3 mile drive from Station #1 to the Dukane plant and takes only about 6 minutes if there is no traffic--fewer surely for an emergency vehicle that can ignore speed limits and run through red lights.

Using a vacuum truck (a tank truck equipped with a powerful suction pump) to remove the sand in which Ortiz was trapped, the rescue team (with help from firefighters from other fire stations in or near Naperville) was able to remove him from the bin--though it took between three and a half and four hours. Ortiz had thus been trapped in the sand for more than five hours before he was rescued. He sustained serious injuries to his lower body from being squeezed by a large mass of sand for such a long time. For a detailed description of the accident and rescue, see " Man Trapped in Cement Auger at ...


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