Friday, April 9, 2010

West Virginia Mine Disaster--No Liability If This Happened In Ohio

Every so often, a horrible tragedy serves as a reminder of how "tort reform" allows companies to escape accountability. The recent West Virginia mining explosion tragically took the lives of twenty mine miners. Predictably, politicians are calling for investigations of mining safety, and Massey Energy's safety record is under scrutiny--for good reason, according to The Charleston Gazette:

Last year, federal regulators studied the safety record of Massey Energy's Upper Big Branch Mine to see if the operation should be put on a "pattern of violations" status, a move that would shut down mining sections each time inspectors found serious violations.

U.S. Mine Safety and Health Administration officials decided the company hadn't met the agency's complicated criteria for deserving such a stepped-up enforcement action.

Upper Big Branch met nine of MSHA's 10 criteria for a pattern of violations, said agency spokesman Carl Fillichio. It had at least 20 serious citations, it had two orders citing "imminent harm" to miner safety, and had violation rates worse than the national average.

But when MSHA did its review, in September 2009, Upper Big Branch did not meet a final standard: That it have at least one "withdrawal order" issued by MSHA inspectors for serious and substantial mine safety violations.

Upper Big Branch didn't have a single such order. It had 16 of them.

But Massey mine managers and lawyers challenged all 16, and those appeals were still pending. So Upper Big Branch didn't meet MSHA's requirement -- spelled out in an agency policy, not federal law or regulations that were subject to public comment -- for using one of the toughest tools given to the agency charged with protecting the lives of U.S. coal miners.

What if a similar mine explosion happened in Ohio? Assuming that the mine owner had repeated safety violations and even made no effort to correct them, the owners would not be liable for the miners' wrongful deaths, courtesy of a recent Ohio Supreme Court Case I wrote about last week. Under current Ohio law, an employer is not liable for injuries or deaths to injured workers unless the employer specifically intended to injure or kill them--the same standard of proof required to prove a murder. This law was passed by The Ohio Legislature in 2005 as part of "tort reform" legislation. The "theory" behind the law was that, reduced liability for businesses would yield a "predictable legal climate" in Ohio that would be would be "attractable" to businesses.

What kind of policy is promoted by a legal "race to the bottom" in the form of laws that allow employers to escape legal accountability for blatently ignoring safety rules and regulations? The sad reality is that nobody will realize how regressive or idiotic this law is until a similar tragedy happens here in Ohio. And if it does happen, policitians will call for a "full investigation" and feign surprise when the public learns that lack of legal accountability is the foul byproduct of another tort reform law that's supposed to be "good for all of us."

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