No adequate protective system was in place, causing a high probability that an accident causing death could occur. The duration of exposure, and in particular the proximity of the employee to the point of danger, that is the wheel of the backhoe and other vehicular traffic, indicate that it is likely that an accident could occur, which reasonably could be predicted to result in death. Defendant's lost workday cases incidence rate for the previous calendar year was below the current published statewide average rate for defendant's Standard Industrial Classification. An employee of defendant was not adequately protected in an excavation greater than five feet deep and not in stable rock. An employee of defendant was exposed to a substantial probability that death or serious physical harm could result in that it was likely that an accident could occur that reasonably could be predicted to result in death.
Defendant concedes that the rule was violated.
However, he contends that the penalty is too high. The backhoe was traveling slowly on a busy public thoroughfare, thereby increasing the possibility of a collision. There is no evidence that the backhoe contained any protective device for the employee riding on the fender, or even anything the employee could grab if he slid from the fender. These factors indicate that it is likely that an accident could occur, and therefore the probability rating is medium. The violation is serious, because there is a substantial probability that death or serious physical harm could result.