fourth heat treatment workshop pest control: liabilities and risk management august 5, 2003 by...

Fourth Heat Treatment Workshop

Pest Control:Liabilities and Risk Management

August 5, 2003by

Michael T. Olexa

Food and Resource Economics Department

This is a Teaching Lecture Based on Hypotheticals and Actual Case Law and is Not an Offering of Legal Advice or Opinion.

The Playing Field

Increase in Lawsuits

Increase in Regulations

Pest Control: Liabilities & Risk Mgmt. --

Pest Control: Liabilities & Risk Mgmt. -- Increase in Lawsuits

On bread pudding:

“Product will be hot after heating”.


On clothes iron:

“Do not iron clothes on body”.


On a sleep aid:

“Warning...may cause drowsiness”.


On a chainsaw:

“Do not attempt to stop chain with your hands or genitals”.


Pest Control: Liabilities & Risk Mgmt.--

Branches of government


Fourth Branch of Government

Pest Control: Liabilities & Risk Mgmt.-- Administrative Agencies

Pythagorean theorem: 24 words

The Ten Commandments: 179 words

The Gettysburg Address: 286 words

The Declaration of Independence: 1,300 words

Pest Control: Liabilities & Risk Mgmt.-- Administrative Agencies

U.S. Government regulations on the sale of cabbage:26,911 words


Risk Management

Liability Awareness


EDUCATION

Training

TrainingTraining

TrainingTraining

Outline:

I. Risk Management

Assessment

Communication

Take Action


Outline:II. Risk Management

Case Study One:Negligence/Workplace Fatality

Case Study Two:Pest Control/Independent Contractors

Case Study Three:Employer/Employee-Vicarious Liability



AAssessmentssessment

CCommunicationommunication

TTake Actionake Action

Pest Control: Liabilities & Risk Mgmt.-- Risk Management/Assessment

I. Risk Management

A. AssessmentHazard Identification Established by law and experience

Example:

Law-Pesticide label

Experience-Safe application

Pest Control: Liabilities & Risk Mgmt.-- Risk Management/Assessment

Hazard Characterization Consider potential hazards in

different situations

Example:

Fumigation versus Heat Treatment

Pest Control: Liabilities & Risk Mgmt.-- Risk Management/Communication

B. CommunicationImportant during risk assessment and taking action phase

Example:Providing Information

Education Training,

Training, Training

C. Take ActionObjective: Reduce risk to the lowest practical or achievable level

Example:

Once risk is identified, follow through with recommended procedures to handle the risk.

If recommended alternatives exist, select the best alternative.

Implement, and

Keep informed, evaluate, and review.

Pest Control: Liabilities & Risk Mgmt.-- Risk Management/ Take Action


StructuredStructured

CommonCommon

SenseSense

Liability Exposure

Cost of doing business.


Fumigation or Heat Treatment

Both carry inherent liability risks.



NegligenceNegligence

Negligence

Omitting to do something that a reasonable person would do under “ like circumstances” or the doing of something which a reasonable person would not do.

Point: Foreseeability

Pest Control: Liabilities & Risk Mgmt. -- Legal Basics/Negligence

Negligence

Elements of:Duty

Breach of duty

Causation

Damages or injury


Case Study One - Negligence/Workplace Fatality

Summary of Facts:Victim, a 55 year old male, died of suffocation after

becoming engulfed in soybean hulls in a storage bin. Deceased and his co-workers attempted to unload a bin’s compartment containing 18.6 tons of soybean hulls by opening the side gate under the compartment hopper and pounding on the hopper sides to dislodge the hulls. The effort failed to dislodge the hulls. Victim entered the bin to dislodge bridged material with a metal rod. Grain began to flow. When victim failed to join co-workers at lunch, the co-workers decided to look for the victim.



Results: Defendant employer liable.

Legal Cause: Negligence



Negligence

Duty

Breach of Duty

Caused

Victim’s death



Rationale

Duty

To protect employees from injury.



RationaleBreach of duty

FAILED to develop, implement and enforce a written safety program.

FAILED to ensure that workers entering storage areas wear safety belts or harnesses equipped and properly fastened life lines.

FAILED to ensure that safety signs were posted to warn of workplace hazards

Caused

Victim’s death


Case Study Two - Pest Control/Independent Contractors

Summary of Facts:

Defendant, owner of milling complex, hired a fumigator to treat the complex. Shortly after the fumigation, several students visiting the complex became ill. The students sued the owner. Defendant owner argues protection from liability because injury caused by hired independent contractor.


Results: Defendant owner liable


Case Study Two - Pest Control/Independent Contractor

Rationale: Nondelegation Rule

In general, a party is not liable for the negligent act of an independent contractor

Exception generally recognized:

When party employs a contractor to carry on an inherently dangerous activity, that party cannot insulate themselves from liability.



FumigationDefendant-Milling Complex Owner

Fumigator/Independent Contractor

Plaintiff-Injured Parties

Heat TreatmentDefendant-Milling Complex Owner

Heat Applicator/Independent Contractor

Plaintiff-Injured Parties



Pest Control: Liabilities & Risk Mgmt. -- Legal Basics

Case Study Three - Employer/Employee

Summary of Facts:At 8:30am in August of 1996, plaintiff placed her pet

snakes on the outdoor deck of her house. All snakes were healthy when placed on the deck. At noon, the defendant’s employee arrived and sprayed the home and a portion of the deck. When the plaintiff arrived home, all the reptiles were dead. The pesticide used was toxic to reptiles. Plaintiff sued. Defendant employer found vicariously liable for the actions of its employee.

Pest Control: Liabilities & Risk Mgmt. -- Employer/Employee--Vicarious Liability

Case Study Three - Employer/Employee Vicarious Liability: Defined

Employer is held liable to a third party for the civil wrong of the employee for no other reason than the fact that their exists a job relationship between the employer and employee and that the employee was acting within the scope of that relationship when she committed the civil wrong.



A Form of Strict Liability

Employer may be sued for injuries caused by the employee to a third party even though the employer was totally innocent of personal fault in the third party’s injuries.


Case Study Three - Employer/Employee Justification

Employer has some control over the employee’s conductEmployer started the activity from which the civil wrong happenedEmployer selected the employeeVicarious liability comes with the privilege of employing someone

$ Employer likely to have more money than employee


Conclusion

fourth heat treatment workshop pest control: liabilities and risk management august 5, 2003 by...

Documents

liabilities risk

risk assessment

action slide

regulations pest control

risk managementcommunication

risk management case

heat treatment slide

branches of government