McKinney’s Assistant Fire Chief Frank Roma indicated that the worker who died worked for Davis Excavation.  The trench collapse occurred earlier today near Airport Road south of U.S. Highway 380.  Chief Roma said one man was killed and another injured and that both men were transported to the Medical Center of McKinney.  Fortunately, one of the men's injuries were not believed to be life-threatening.

McKinney fire and police personnel responded to the scene, as did the city's code and engineering departments. The federal Occupational Safety and Health Administration was also on hand to investigate.

Trench collapses are often deadly.  Construction companies need to take extra precaution when sending their workers into trenches to do pipeline work.

Crib recall: 2.1 million deemed unsafe
Consumer safety officials say drop-side cribs made by Stork Craft can cause suffocation or other injuries.
By Aaron Smith and Ben Rooney, CNNMoney.com staff writers
Last Updated: November 23, 2009: 7:43 PM ET

Drop-side cribs have been recalled by the thousands this year due to hardware malfunctions that could cause infants to be wedged between the mattress and crib wall.

©2009 Angel Reyes
www.ReyesLaw.com

Products used other than specified and approved by the FDA are known as "off-label."  What's interesting here is that although doctors can use FDA approved products how they see fit, manufacturers are not allowed to promote off-label use of these products. In the case of Shirley Nisbet, the Medtronic sales rep was apparently present before and during the surgery, and encouraged Ms. Nisbet's surgeon to use the product.  What's also interesting is that although identified in the lawsuit, the surgeon is not a defendant.  The lawsuit holds Medtronic solely responsible for Ms. Nisbet's death.

Medtronic Is Sued Over Bone Product Article By THOMAS M. BURTON and DAVID ARMSTRONG
DECEMBER 3, 2008

The family of a California woman who went into respiratory arrest and died after neck surgery filed a lawsuit blaming her death on the use of a fast-selling bone-growth protein made by Medtronic Inc.

The case of Shirley Nisbet comes amid a Justice Department investigation and a separate U.S. Senate inquiry into use of the bone-growth product -- called Infuse Bone Graft -- for purposes not approved by the Food and Drug Administration.

Associated Press Medtronic Inc.'s Fridley, Minn., corporate headquarters. Government investigators are probing the off-label use of Infuse, Medtronic's bone-growth product. Use of Infuse in the neck is one of these so-called off-label uses. The only type of spine surgery for which Infuse has been approved is a frontal approach to the lower backbone, known as the lumbar spine.

Though doctors are allowed to use FDA-approved products any way they see fit, companies aren't allowed to promote off-label uses.

The suit filed Tuesday in federal court in Los Angeles is the first to allege that Infuse was responsible for a death.

It echoes certain allegations made in lawsuits filed in 2002 and 2003 by former employees of Medtronic's spinal division.

In its suit, the Nisbet family alleges that a Medtronic salesman urged that Ms. Nisbet's surgeon use Infuse in her neck surgery even though such use wasn't FDA-approved.

The product is placed in the patient during surgery.

Marybeth Thorsgaard, a spokeswoman for Medtronic, said the Minneapolis company couldn't comment on the lawsuit because it hadn't had time to review the suit or contact the relevant employees.

The FDA declined to comment. The Justice Department didn't return a phone call seeking comment.

The lawsuit alleges Ms. Nisbet, of Vista, Calif., underwent the surgery Aug. 21, about seven weeks after the FDA had warned that Infuse in neck surgery had caused "life-threatening complications."

That July 1 advisory also linked Infuse to "compression of the airway," difficulty swallowing or breathing and the need for breathing tubes.

The suit alleges that Ms. Nisbet went in for surgery to treat neck pain, but that afterward she had swelling in the neck, then difficulty swallowing and breathing.

Early in the morning of Aug. 23, the lawsuit alleges, she went into respiratory arrest, degenerating into a vegetative state, and then was "kept alive by artificial means" until she died Aug. 30.

The lawsuit alleges that a Medtronic sales representative was in the operating room and that "prior to and during the surgery, the Medtronic sales representative encouraged and recommended" the use of Infuse to the doctor, who is identified in the lawsuit but isn't a defendant.

Government investigators haven't commented on their investigation of off-label use of Infuse, and Medtronic has declined to disclose the contents of a subpoena it received from the Justice Department last month.

Medtronic may have made an "adverse event" report on the Nisbet case to the FDA.

A report, filed by the company more than three weeks after Ms. Nisbet's death, doesn't identify the patient or location of the incident but, according to a review by The Wall Street Journal, contains details that appear to match the allegations in her case, such as the patient developing swelling and complaining of increasing difficulty swallowing.

The company's report quotes the surgeon as saying he "does not believe that Infuse played a direct role" in the patient's outcome. The report also said the patient was in a coma.

Medtronic, noting that the lawsuit was filed late in the day, said it couldn't provide an immediate comment on the report.

The lawsuit, filed by the firm Lieff, Cabraser, Heimann & Bernstein, identifies Ms. Nisbet's surgeon as Johannes Bernbeck, at Baldwin Park Medical Center in Baldwin Park, Calif.

A spokesman for the hospital said the facility and the doctor didn't have time to prepare a comment Tuesday night.

Apart from the Justice Department and Senate inquiries, Medtronic has been accused by former employees of paying kickbacks to doctors -- in the form of phony consulting arrangements, free travel to resorts and sham royalty deals -- to get them to use the company's spine products.

Medtronic, which has denied the allegations, has agreed to pay $40 million to settle claims made in two lawsuits filed by former employees in 2002 and 2003.

Reaffirming strict liability for product design cases
Trial Magazine
November, 2008
Larry S. Stewart

The battle over §2(b) of the latest restatement—which gives manufacturers a free pass from liability unless plaintiffs prove a reasonable alternative design—is far from over. It’s time to return to the bedrock principles of strict liability in design defect cases.

Forty-three years ago, the American Law Institute (ALI) launched a revolution in products liability law when it introduced the Restatement (Second) of Torts §402A. Before this, courts had struggled to find a rationale for liability for products-related injuries. Many cases, brought under either negligence or warranty theories, failed due to lack of privity or evidence of what happened in the design and/or manufacture of the product, or because of notice and disclaimer defenses.

Section 402A provides that product sellers are strictly liable for injuries from unreasonably dangerous products even if a seller exercised all possible care in the preparation and sale of its product.1 The rule was so self-evident that it quickly became the law of the land.

Under §402A, product sellers are liable for harms caused by any product that is “in a defective condition unreasonably dangerous” to the consumer and that is “dangerous to an extent beyond that which would be contemplated by the ordinary consumer.”2 A knife, for example, is not unreasonably dangerous because it is capable of cutting—it would be quite useless if it wasn’t—but if the knife’s handle is made of a brittle material that breaks and injures the consumer, the seller would be liable. In the lexicon of products liability law, this became known as the consumer-expectation test.

But not long after its adoption, §402A’s principle of strict liability for product defects became muddled by proposals for a risk-benefit “test” that would evaluate product defects under a negligence-type analysis, balancing the risk of injury against the benefit of the product. In many respects, the risk-benefit test stood products liability law on its head. It took what was an affirmative defense under §402A for “unavoidably unsafe” products and made it the basis for a determination of liability. Products would be presumptively safe unless plaintiffs proved that their inherent risks outweighed their benefits.

The ensuing debate over the proper rule for evaluating liability for product defects has generated much confusion. Part of the confusion comes from the conceptual difference between strict liability and the negligence-based risk-benefit theory. Further confusion results from the fact that risk-benefit is used to describe both a test of defectiveness and an affirmative defense. Many courts do not seem to appreciate these differences or choose to ignore them, and the resulting decisions are conflicting, inconsistent, and irreconcilable.3

Today, products liability law is a hodgepodge of rules, especially in design defect cases, where courts apply standards ranging from the consumer-expectation test to the risk-benefit test, with various hybrid combinations in between. Adding to the confusion, 11 years ago, the ALI did an about-face when it published the Restatement (Third) of Torts: Products Liability. Under the new restatement, §402A and the consumer-expectation test would be abolished and replaced with a risk-benefit test in which one element—the existence of a reasonable alternative design—is elevated to an absolute requirement.

In unintended ways, the harsh proposals of the new restatement have brought light to bear on the abysmal state of the law. But courts have so far largely rejected the core provisions of the new restatement, and it is not too late to bring reason and fairness back to products liability law. Consumer lawyers have an opportunity to direct a new look at products liability law, one that can reaffirm the social policies that underlie §402A.

The assault on strict liability
Modern products liability law began with the adoption of the Restatement (Second) of Torts §402A in 1965.4 Section 402A was based on an elegantly simple rationale: In marketing products, sellers bear a special responsibility to consumers. Sellers implicitly represent that their products are safe and that the public has a right to expect that reputable sellers will stand behind their products.

The term “strict liability” is somewhat of a misnomer. Section 402A liability does not automatically follow from a product injury, as it does in the case of harm resulting from the keeping of dangerous animals or other abnormally dangerous activities. To hold a product seller strictly liable, the plaintiff has to prove both that the product was defective and that the defect caused the plaintiff’s harm.

Not all defects result in liability. The restatement recognizes that some products that cannot be made completely safe still have utility. For these unavoidably unsafe products, the restatement provides a defense to a seller who markets “an apparently useful and desirable product, [even though it is] attended with a known but apparently reasonable risk”—as long as the seller provides “proper directions and warning.”5

Sellers cannot, however, feign ignorance of risks. They have an obligation to test product designs for residual risks, are charged with knowledge of what such testing would reveal, and, where feasible, must adopt safer designs over warning of risk.

The theory that the defectiveness of a product could be determined on the basis of what an ordinary consumer would expect from the product did not meet with universal acceptance. Some scholars believed that, notwithstanding the implications for consumer recovery, defectiveness should be anchored in more traditional concepts, principally negligence.

This suggestion was first expressed as a risk-benefit test by Vanderbilt University Law School Dean John Wade in his 1973 article On the Nature of Strict Tort Liability for Products.6 Wade argued for nullification of strict liability for all types of product defects—both manufacturing and design—and a return to negligence principles. He proposed that liability for defective products be based only on the reasonableness of the marketing decision under a “reasonably prudent manufacturer” standard, taking into account several different factors.

By the 1980s, the academic strict liability debate became quite partisan, as corporate interests embraced the negligence-based risk-benefit theory. In courtrooms nationwide, corporate defendants modified Wade’s approach by dividing products liability cases into two categories: those involving manufacturing defects and those based on design defects.

For the former, defendants conceded §402A liability. For the latter, which constitute the bulk of products liability claims, they argued that §402A should be replaced by the negligence-based risk-benefit theory. This strategy was coordinated by the Washington, D.C.-based Product Liability Advisory Council (PLAC), a legal advocacy group for product manufacturers.7

Consumer advocates, including plaintiff lawyers, were largely missing in the debate, whether because of ignorance of the issues or an assumption that strict liability was so firmly established in the law that it did not need defending. The debate, which was initially a state-by-state affair, was refocused when ALI decided to write a new restatement of products liability law in 1991.

The risk-benefit test
In proposals that closely paralleled PLAC’s agenda, the Reporters for the new restatement divided products claims into manufacturing defects, design defects, and failure-to-warn cases. The Reporters stated that manufacturing defects should continue to be decided under a strict liability regime, but they proposed a radical new concept for design defect cases based on what they claimed was the majority rule in the United States.

According to the Reporters, most states had adopted the risk-benefit test for design defect cases and made one factor of that test—the availability of a reasonable alternative design—an absolute requisite for liability.8 Based on that claim, the Reporters proposed that §402A and its consumer-expectation test be abolished in favor of their version of the risk-benefit test, articulated in the new §2(b). A highly controversial six-year debate followed.

The controversy was further fueled by the Reporters’ prior association with PLAC and what some observers saw as a blatant tort “reform” agenda.9 While the Reporters argued that the consumer-expectation test was inadequate to measure design defects and that an independent standard was needed, their principal focus was on protecting defendants, not public policy. An unstated premise of their position was the idea that jurors could not be trusted to make such decisions. This generated even more criticism from the opponents of the proposed new restatement.

At the same time, the Reporters undermined their own criticism of the consumer-expectation test by conceding that it was a valid criterion for the risk-benefit test and by expressly retaining it for food products. They overlooked the fact that the fundamental purpose of strict liability is to relieve injured consumers of having to prove negligence and to place the cost of injuries on the manufacturers rather than consumers, who are ordinarily powerless to protect themselves.

Commentators and other academics quickly contradicted the Reporters’ scholarship, reasoning, and motivation. The resulting deliberations were some of the most contentious in ALI history, and the proposals passed by extremely close votes.10

Before the ink was dry, the new restatement was in trouble. To date, it has been largely rejected by the courts that have reviewed it. In fact, while the restatement was still only in draft form, the Georgia Supreme Court refused to require proof of an alternative design.11 And the supreme courts of California and Connecticut emphatically rejected §2(b).12

In a stunning decision, the Connecticut Supreme Court weighed in just days after final passage. In Potter v. Chicago Pneumatic Tool Co., the court boldly questioned the scholarship underlying §2(b) and concluded that the Reporters were wrong. The court, independently reviewing the law, found that “the majority of jurisdictions do not impose upon plaintiffs an absolute requirement to prove a feasible alternative design” and that such a requirement “imposes an undue burden on plaintiffs that might preclude otherwise valid claims from jury consideration.”13 The Potter court also rejected the new restatement’s position that the consumer-expectation test should not apply in design defect cases.

After Potter, the Maryland Court of Appeals and the supreme courts of Kansas, Missouri, New Hampshire, Oregon, and Wisconsin all refused to adopt §2(b).14 These decisions are remarkable because they bluntly state that the new restatement “goes beyond the law,” sets the bar too high, and would be a regression in the law that would roll back decades of individual justice and return the courts to an era of defendant protectionism.15

Indeed, if the new restatement were followed, a manufacturer would have no incentive to produce as safe a product as possible. It would only have to design a product to meet a standard whereby benefits outweighed risks. When sued for a defective design or a failure to warn, a manufacturer could take refuge in the opinions of compliant experts and the inherent difficulties plaintiffs would have in proving an alternative design.

Looking back, striving forward
The battle over the new restatement is far from over. Defense interests have not been deterred by their losses to date, and battlegrounds remain in the more than 40 states where no opinions on the new restatement have been issued by courts. Even though there is no need to further restrict products liability claims,16 every lawsuit is another potential vehicle for raising these repressive rules, and uninformed plaintiff lawyers can easily be blindsided.17

Consumer lawyers must learn how to defend against the new restatement and the reasonable-alternative-design trap. They must begin by understanding the history of strict liability and the companion history of the risk-benefit theory. This includes knowing the powerful reasoning of the decisions that have already rejected the new restatement.

The problem is not just that the tables are tipped in favor of defendants when plaintiffs must prove that a product’s risks are greater than its benefits and that an alternative safer design existed. Nor is it only that having to prove an alternative safer design in every case is contrary to the majority rule. As the Wisconsin Supreme Court forcefully stated, the new restatement also would create a form of previously unknown negligence whereby plaintiffs have to prove both that the sellers’ conduct was negligent and that there was an alternative design the seller could have adopted.18

The social policies underlying §402A are just as valid and relevant now as they were 43 years ago. In a time of rapidly changing technology, it is just as true today, if not more so, that sellers bear a special responsibility to consumers to provide safe products and that the public should have the right to expect that sellers will stand behind their products.

It is just as true today that sellers are in the best position to demonstrate that the benefits of a product outweigh its risks. And, it is just as true today that the burden of product injuries should be placed on those who market products, rather than on those who use them.

The time has come to redefine the issues in this battleground. Consumer attorneys need to question whether risk-benefit in any form should be a valid basis for determining if a product is defective.

All consumer lawyers should join in the debate in a systematic and organized way, at both the state and national levels, to argue for a return to the bedrock principles of strict liability. Risk-benefit as a test of product defect gained traction, in part, because plaintiff lawyers sat on the sidelines. We should not let that sad bit of history repeat itself.

When products are dangerous beyond the expectations of ordinary consumers, the seller should be liable for all resulting harm, regardless of whether it exercised all possible care. Consumer lawyers should not shy away from the consumer-expectation test. It is no more indefinite than negligence concepts, which are routinely applied in myriad complex cases like those arising from professional malpractice.

Nor are products too complex for consumers to understand. It is not necessary for a consumer to appreciate all the details or intricacies of a product to have an expectation of safety.19 With modern marketing and advertising, there are virtually no products for which consumers do not have an expectation of safety, especially with the use of family scenes in ads. Also, the absence of warnings and cautions in that advertising—or the impossibility of reading or hearing warnings—likewise makes it seem that products are safe for almost unlimited uses.

Moreover, plaintiff lawyers need to recognize that much of the opposition to the consumer-expectation test stems from the notion that the evaluation of product design or warning is too important to be left to juries of ordinary citizens. Society entrusts the most important decisions of life and death, as well as complex business disputes and professional judgments, to such juries. Clearly, they are capable of making decisions concerning product safety and the adequacy of product warnings.

Consumer lawyers need to stress that the only role for a risk-benefit analysis in strict liability should be as an affirmative defense—one that comes into play only when a seller has adequately tested its product and taken all reasonable steps to adopt a safe design.20 If a residual risk remains and users have been warned so that they can avoid harm, then—and only then—should a seller be allowed to defend on the grounds that the benefits of the product outweigh its risk. This allocation of proof is reasonable because, after all, it is the seller who is in the best position to defend its design choices and marketing decisions.

This battle is too important to let others frame the debate. Ultimately, it is over whether caveat emptor is going to again rule products liability law. That outcome will be prevented only if we make the case for reaffirming strict liability for products liability claims.
Larry S. Stewart, a former president of AAJ (then ATLA), practices law with Stewart Tilghman Fox & Bianchi in Miami.
 

For example, the Yamaha Rhino, an off-road vehicle called a UTV (Utility Terrain Vehicle) has already been linked to 30 deaths.  Yet to date, there is no regulation for this extremely hazardous vehicle.

U.S. Probes Off-Road Vehicles After a String of Accidents
November 4, 2008
By MELANIE TROTTMAN and CHRISTOPHER CONKEY
 
The Yamaha Rhino, a hit in the off-road-vehicle market, promises to go "almost anywhere" with an "amazingly high level of comfort and ease." Now, federal safety regulators are investigating the vehicle following reports of some 30 deaths involving it, including those of two young girls last month.

The Rhino also has drawn keen interest from the plaintiffs' bar: Yamaha faces more than 200 lawsuits in state and federal courts, many alleging the Rhino's design is unsafe. Yamaha has settled some but recently beefed up its defense and says it may start to fight rather than settle.

Yamaha stands behind the design of the Rhino, a two-seat vehicle that looks a little like a cross between a golf cart and all-terrain vehicle. The Consumer Product Safety Commission said its investigation of this type of vehicle, which it calls a utility terrain vehicle, or UTV, was prompted by various factors, including the number of accident reports and the lawsuits. The Rhino is at the center of its investigation, people familiar with it said.

Yamaha said plaintiffs' lawyers "have seized on safety and product enhancements that Yamaha has made to the Rhino to allege baseless claims about the stability of the vehicles."

Many injury claims, the company said, stem from improper operation, modifications such as removing the protective "roll cage," or failure to use a helmet and seat belt. "If you operate it carefully and use some common sense and good judgment, it's a really great product," said Roy Watson, general manager of legal for Yamaha Motor Corp. USA, a unit of Japan's Yamaha Motor Co. Ltd.

The Rhino matter shows how federal safety regulators sometimes struggle to respond to what they call "emerging hazard" areas. There are no regulatory standards for the new breed of off-road vehicles, the CPSC said.

They aren't subject to ATV safety standards because of design differences such as having a steering wheel, in contrast to the ATVs' handlebars. But the novel off-road vehicles also aren't subject to the much-tougher standards for cars. Owners of UTVs don't have to register them.

"When there is no standard in place, we have to basically determine if there's a substantial risk of injury and death, and there's a hurdle there that has to be met," says Jay Howell, acting assistant executive director of the CPSC's office of hazard identification and reduction.

This is how consumer regulation often works: Products hit the market governed by no particular safety standards. If injury reports later arise concerning a product, these gradually get the attention of both manufacturers and regulators -- often with a spur from lawyers for those injured.

Yamaha, which has made safety modifications and stepped up warnings to consumers in recent years, said it looks forward to working with the CPSC and consumer groups to develop safety standards for this type of vehicle.

There's no way to know what action, if any, will result from the CPSC inquiry. But it's illustrative to look at the years-long course of the agency's handling of an earlier emerging hazard -- one concerning ATVs.

The agency looked into those off-road vehicles in 1985 after over 100 deaths and 100,000 injuries were linked to them. The CPSC prepared a lawsuit against five distributors, seeking a judicial determination that the vehicles met its threshold for an "imminently hazardous" consumer product. But on the day in 1987 the suit was filed, the agency reached a preliminary settlement with distributors that ultimately banned future production and sale of three-wheel ATV models in the U.S. and called for distributors of four-wheel models to offer safety training, more-explicit warning labels, and warnings that children not drive vehicles of inappropriate size.

In 1990, a trade group published a voluntary safety standard for four-wheel ATVs, for things such as "pitch stability," or resistance to rolling over. But cheaper ATVs came in from China, some lacking certain safety features, and last year, the CPSC issued a warning about some of them.

Then this August, federal legislation toughening regulation of various products made it possible, for the first time, for voluntary ATV safety standards to become mandatory. They will next April. Once there are mandatory standards for a product, the CPSC can act quickly if it spots an apparent safety problem, because a failure to meet the standard can lead to a recall or civil penalty.

Though the Rhino isn't subject to any regulatory standards, Yamaha says it voluntarily complies with some federal standards for vehicle parts, such as seat belts.

The Rhino, made in Newnan, Ga., went through thousands of hours of premarket testing that included stability tests, says Yamaha's Mr. Watson. The first Rhino came out in 2003. Yamaha designed the vehicles, now costing about $11,000, to offer aging ATV owners something with the comfort of a golf cart or minicar but the excitement of an ATV. The vehicles have bucket seats. Until this year, doors weren't standard equipment on them.

Owners use Rhinos in various ways: trail riding, farm chores and hunting. They can hold 400 pounds of cargo, enough for a hunter to haul back a deer.

At 54.4 inches wide, the Rhino is narrower than all but one major competitor, able to fit on many trails and in a large pickup. In interviews, plaintiffs' lawyers claim the Rhino's combination of design factors, including its narrowness and height, raises its risk of tipping over. One competitor markets a model by saying it has a lower center of gravity than the Rhino.

Yamaha says the Rhino was designed to go many places an ATV can go and had to have certain dimensions to handle obstacles such as rocks, ravines and hanging tree limbs. Mr. Watson says a strong roll cage adds protection that ATVs lack.

Chris Hewett, a 44-year-old mechanic in Tyler, Texas, took a 2007 Rhino 660 for a test spin in July after doing some repair work on it. He says he lost control during a "fairly sharp" right-hand turn and the Rhino began to topple to its left. He says he stuck his leg out of the vehicle, which was doorless, to keep the Rhino from tipping over, but it did go over, pinning his leg.

Rhinos weigh about 1,100 pounds. "It just snapped my leg," says Mr. Hewett, who now has a metal device in the leg.

Brad Watson, owner of the UTV dealer where Mr. Hewett works, says the Rhino doesn't pose any unique risk: "It's no different than any ATV or motorcycle -- they're all dangerous if driven recklessly."

Mr. Hewett says he was on a "very flat, level" area and not driving aggressively but only about 10 miles an hour. He was wearing a seat belt, adds his lawyer, Tim McCloskey.

Yamaha said it can't respond to "unsubstantiated allegations...where no claim has been filed." It said that "Yamaha cares about every customer and we are deeply saddened whenever anyone is injured in a Yamaha product-related accident."

In interviews, some plaintiffs' lawyers allege that Yamaha failed to report Rhino problems to the CPSC as early as it should have. Yamaha says it's been actively engaged with the agency since at least August 2006, when it informed the regulators of lawsuits and explained that some riders, against advice, were sticking out their arms or legs. It says it has conducted two demonstrations for the CPSC, which the agency confirms.

"We've kept the commission informed. We've kept our customers informed. There's nothing hidden under a bush here," said David Murray, Yamaha's outside counsel.

From the start, Yamaha cautioned people to wear seat belts and helmets and to drive straight up and down hills to minimize rollover risk. In 2006 and 2007, as injuries and lawsuits started to mount, Yamaha twice sent out safety stickers that were more strongly worded. "Abrupt maneuvers or aggressive driving have caused rollovers -- even on flat, open areas," the 2007 sticker warned.

That one came with a letter offering free installation of short, windowless doors and an extra handhold, features that became standard in 2008. Yamaha has always recommended that operators be at least 16 years old and have a driver's license.

Justin Miller of Los Angeles tried a Rhino this past Memorial Day weekend. Coming down a slope onto flat, rocky terrain, Mr. Miller, then 16, lost control while turning. He says the Rhino rocked back and forth and then turned over on its left side. His lawyer says Mr. Miller was wearing a seat belt but was partially ejected.

His mother, Edna, watching from their camp, ran toward the scene. "He said, 'Mom, my hand,'" she says. It was almost completely severed. Doctors tried to reattach it but ultimately had to amputate. Today, his school notebook bears a sticker of a rhinoceros with a line crossing it out. Yamaha said it couldn't comment on the incident because it had no information about it.

Injury data for utility terrain vehicles are skimpier than for ATVs. In 2006, the CPSC says, U.S. deaths related to four-wheel ATVs numbered one per 10,000 vehicles. Following the CPSC's approach, The Wall Street Journal estimated the number of deaths involving Rhinos per 10,000 vehicles in the same year, and came up with the same number: one. The Journal divided the number of Rhinos sold in the U.S. through 2006 by the number of 2006 deaths. Yamaha supplied the number of 2006 deaths, eight. The sales figures came from a research firm, Power Products Marketing.

Yamaha called this calculation "the most basic, simple approach to getting a number," but one that "is skewed because of the small number of products on the market." Yamaha said that a better analysis would include the number of hours the product was used but that no such research exists.

Yamaha declined to comment on the sales figures provided by Power Products Marketing. That firm says that U.S. Rhino sales reached 42,000 in 2007. It also said that they're down this year, which Yamaha confirms. In 2007 Yamaha Motor Co. Ltd. took a $136 million charge for an increase in its accrual for product liabilities. Net income was $624 million last year at the company, which is a unit of Yamaha Corp.

Last December, Yamaha led its competitors in forming a new trade association that will set voluntary safety standards for vehicles such as the Rhino. The group is called the Recreational Off Highway Vehicle Association, and is pushing ROV as a new name for them, in place of utility terrain vehicle.

The shifting terms cause confusion for CPSC staff members, who rely on an electronic injury-surveillance system for data and scour newspaper reports of accidents involving off-road vehicles. "We're always running behind trying to figure out what's the word to search for," says Mr. Howell.

Write to Melanie Trottman at melanie.trottman@wsj.com and Christopher Conkey at christopher.conkey@wsj.com

See the full article below:

Feds to release new crane operator rules
Associated Press
Published Friday, September 19, 2008

WASHINGTON - The federal government is to announce it will require crane operators nationwide to pass a certification test in its first update of crane regulations in nearly four decades, officials said Thursday.

Third bus company shut down after ties to operator in deadly Sherman crash emerge
12:00 AM CDT on Friday, August 15, 2008
By MICHAEL A. LINDENBERGER / The Dallas Morning News


Federal officials moved Thursday to shut down a third bus company as part of the widening investigation of the Aug. 8 fatal bus crash in Sherman.

The bus from that crash, which left 17 people dead and was one of the worst in Texas history, was registered to a company that was being operated illegally by owner Angel De La Torre of Houston. Immediately after the crash, federal officials shut down that company and a second firm owned by Mr. De La Torre.

On Thursday, the Federal Motor Carrier Safety Administration expanded the ban to include a small San Antonio bus company. Investigators say Liberty Charters and Tours is unsafe because it uses buses owned by Mr. De La Torre.


"Liberty Charters leases and operates buses owned and maintained by Angel Tours, Angel De La Torre and/or Iguala BusMex," the order states.

"Liberty Charters' use of passenger vehicles which are subject to the egregiously deficient maintenance procedures of ... Angel De La Torre places its drivers and the motoring public at continued and substantially increased risk of serious injury or death."

The action also prohibits Liberty Charters from operating buses that have no connection to Mr. De La Torre.

On Thursday, a glum-sounding Jose T. Hidalgo, the firm's owner, declined to discuss how the government's action would affect Liberty Charters. Federal records indicate that the company operates just two buses and employs three drivers.

FMCSA Administrator John H. Hill said Thursday that the order was not based on Liberty's safety record, which is far better than that of Angel Tours, the De La Torre-owned firm that the government shut down June 23 after a long string of safety violations.

But Liberty, too, has been cited for safety violations multiple times this year. Federal records show that inspectors checked Liberty buses four times this year and reported problems ranging from out-of-adjustment brakes to absent drivers' service logs. On May 30, officials cited one bus for having bad brakes, a bad oil leak, an exhaust leak under the driver's carriage and no safety-glass exit window.

Mr. Hill said the relationship between Mr. De La Torre and Liberty Tours came to light as investigators from the U.S. Department of Transportation pored over records seized from Mr. De La Torre's office.

"Mr. De La Torre has been reluctant to speak to us," Mr. Hill said. "Every time we've approached, he has told us that his lawyers have told him not to speak.

"But through an administrative subpoena, we have been able to review many of his records, and we've been looking to determine whether he has any relationships with other carriers."

Calls by reporters to Mr. De La Torre's lawyer have not been returned.

Mr. Hill said investigators have found that companies in South Texas appear to often operate under different names but frequently share or lease buses with each other.

So far, his agency has moved to shut down only one company - Liberty - that has used Mr. De La Torre's buses, plus his own two companies. But Mr. Hill said others could follow, depending on what the investigation uncovers.

Three buses with Vietnamese Catholics left Houston the night of Aug. 7, including the one that crashed in Sherman shortly after midnight. The passengers were headed to a religious festival in Carthage, Mo. One of those buses was operated by Liberty and operated by a driver who has worked for Mr. De La Torre in the past.

Mr. Hill said any company that is found to use buses that Mr. De La Torre has owned or operated - or uses drivers recently on his payroll - will be shut down.

Meanwhile, the National Transportation Safety Board continues to investigate the cause of the Aug. 8 crash. A preliminary report is expected soon, but a full evaluation of the incident will probably take more than a year, officials have said.

Plaintiffs' attorneys have said lawsuits associated with the crash could seek more than $50 million, though recovering such sums may prove to be difficult, depending on whether an insurance policy will cover the crash.

On Thursday, a relative of three victims filed suit against the manufacturer of the bus, its driver and Mr. De La Torre, seeking at least $100,000 in damages.

The driver, Barrett W. Brossard, remains in critical condition and has not yet been able to speak to investigators.

Please read the Houston Chronicle article regarding proposed bus safety regulations below:

Recent accidents make bus safety top issue in D.C., Austin
More accidents over the weekend put issue on every politician's agenda
By TERRI LANGFORD, JAMES PINKERTON and CLAY ROBISON
Copyright 2008 Houston Chronicle
Aug. 11, 2008, 11:50PM

Federal safety officials Monday ordered Iguala BusMex and Angel Tours Inc. to cease commercial operations while last week's fatal accident in North Texas is investigated.

Safety experts and Texas lawmakers called for tougher enforcement of motor carrier regulations Monday as federal investigators combed for clues to what caused an illegal bus to crash in North Texas, killing 17 Vietnamese Catholics from Houston.

"As the feds sort through this crash, we'll learn what went wrong and look for opportunities to make sure that a tragedy like this never happens again," said state Sen. Rodney Ellis, D-Houston, referring to the Sherman accident.

In Washington and Austin, lawmakers echoed that sentiment as two more bus crashes in Mississippi and Nevada over the weekend put bus safety back on every politician's agenda. On Sunday, three women were killed when the tour bus they were riding in rolled over, while 29 people were injured in an unrelated crash after their bus left the road in Nevada.

In Washington, Sens. Kay Bailey Hutchison, R-Texas, and Sherrod Brown, D-Ohio, issued statements Monday calling for the passage of their legislation, known as the Motorcoach Enhanced Safety Act.

The bill, which would require bus owners to provide seat belts, fire extinguishers and other safety enhancements, was introduced after a bus crash in Georgia killed several athletes from an Ohio college. It is now scheduled for a hearing before the Senate's Commerce, Science and Transportation Committee next month.

"Such tragedies are becoming all too common, and many of these deadly accidents are preventable," said Hutchison, the ranking member on the committee, in a written statement. "I urge Congress to make this a priority after the August recess so the roads will be safer for everyone."

Calling for reform, however, is a tune Texans have heard before. In the past six years, 52 people have died in passenger bus accidents and very little has been done to weed out troubled bus carriers, records show.

In the Sherman case, the bus owned and operated by Angel de la Torre was illegal because the operator had been barred not once, but twice, from traveling outside Texas under two different company names.

"It's inexcusable on the federal and state level that someone could do what was reported," Jim Hall, who chaired the National Transportation Safety Board from 1994 to 2001, declared of Friday's crash. "They lost their permit, reapplied, and continued to operate. That's just an embarrassment to the whole system."

Three years ago, a bus bearing an expired and illegal tag belonging to another bus was sent to Bellaire to pick up elderly evacuees trying to escape a looming Hurricane Rita. Hours later, the poorly maintained passenger coach erupted into fire, killing 23 aboard.

And yet, not one of the recommendations made by the NTSBafter the 2005 Hurricane Rita bus fire have been acted on by the federal government, safety officials say.

Keith Holloway, spokesman for the NTSB, said the agency's lengthy accident investigation into the Rita bus fire resulted in 17 recommendations in June 2007, including four key bus safety regulations.

'Still waiting' for NHTSA
However, Holloway confirmed there has been no response from the National Highway Traffic Safety Administration on drafting new federal regulations to implement the recommended changes.

"We're still waiting," Holloway said. "They could be figuring out how to respond, whether they're are going to adopt our recommendations or propose an alternative."

Rae Tyson, an NHTSA spokesman, said no change in federal regulations will be proposed until the agency is convinced it would be effective in improving safety.

"You can't simply sit down with a piece of paper and start writing" a new regulation, Tyson said. "It's got to be based on research and exploring a number of alternatives to decide what the new standard will be."

Meanwhile, the industry and a spokesman for Texas Gov. Rick Perry question whether anything can be done about a bus operator bent on breaking the law. Jerry Prestridge, executive director of the Texas Bus Association, an industry group, said new regulations wouldn't necessarily have an effect if owners don't follow them.

He noted, for example, that investigators say de la Torre's company made plans to leave the state with passengers, even though it didn't have the authority from federal regulators.

"He is an illegal operator," Prestridge said. "My point is the Texas Legislature could pass all kinds of laws ... and it wouldn't make any difference to a guy like that."

Owner hands over records
Perry, in Los Angeles Monday raising money for his political committee, was unavailable to comment on the bus tragedy.

Spokesman Robert Black said the governor's staff was reviewing the issue of bus safety. But, Black added, he wasn't sure there was much more the state could have done to have prevented last week's accident.

"Not to sound flip, but bad people are going to do bad things," he said. "If someone is intent on doing something bad, they usually don't tell us ahead of time. There isn't much the governor could have done to prevent this."

Meanwhile, records secured by the Federal Motor Carrier Safety Administration from de la Torre's Telephone Road office in Houston's East End were handed over to the NTSB over the weekend.

Sources close to the investigation, who asked not to be identified, told the Chronicle that a planned sit-down with the bus operator was canceled Monday because of his lawyers' tight schedules.

The sources also said that other bus companies located along Telephone Road are now being scrutinized by federal regulators.

911 callers told of carnage at Texas bus wreck
By ANDRE COE, Associated Press Writer
Saturday, August 9, 2008

SHERMAN, Texas - Witnesses who called 911 after a chartered bus crash that killed at least 16 people described a chaotic scene, telling emergency personnel of bloody passengers crushed beneath the smoking wreckage, according to calls released Saturday by police.

The unlicensed bus carrying 55 members of a Vietnamese Catholic group from Houston to Carthage, Mo., for an annual religious festival smashed into a guardrail and skidded off a highway early Friday near the Texas-Oklahoma state line. Twelve people died at the scene and four more died at hospitals.

One emergency call began with a female crash victim speaking in accented English over the screams and moans of other passengers. After struggling to answer the 911 operator's questions, she handed the phone to a man, who apparently arrived at the scene immediately after the crash.

"We've got people crushed underneath the bus," the man said. "The bus is smoking. It might catch fire."

A female caller told a 911 operator that there were passengers "just everywhere out here laid out on the ground. They are bloody." Another caller said: "There's people screaming for help."

Federal investigators were to try to pinpoint what caused the bus to smash into a guardrail and skid off a highway north of Dallas, crushing one side of the vehicle and injuring dozens.

The vehicle's right front tire, which blew out, had been retreaded in violation of safety standards, said Debbie Hersman, a member of the National Transportation Safety Board. The tread had separated from the tire itself in a process called delamination.

"If there is a loss of pressure or the tire becomes delaminated, it's much more difficult to control the vehicle," she said.

It is legal to retread such tires but they may not be used on the wheels that steer a bus, Hersman said.

The vehicle was carrying 55 people from Houston to Carthage, Mo., for an annual festival honoring the Virgin Mary. Most of the passengers were from the Vietnamese Martyrs Church and two other mostly Vietnamese congregations in Houston.

The Marian Days pilgrimage, which started in the late 1970s, attracts thousands of Catholics of Vietnamese descent and includes a large outdoor Mass each day, entertainment and camping at night.

By midday Saturday, the damaged guardrail had been replaced. Several bouquets of carnations, tulips and roses had been left on the embankment amid the burned grass and shards of broken glass.

The 52-year-old driver, Barrett Wayne Broussard, had a commercial license but his medical certification had expired, Hersman said. The driver was reported in stable condition at a hospital.

According to online records from the Texas Department of Public Safety, Broussard was convicted in 2001 of driving while intoxicated in Houston and sentenced to 10 days in prison and was fined $225. He has also been arrested at least three other times and was sentenced to two years in prison in 1998 for violating probation.

The bus operator, Iguala BusMex Inc. of Houston, had applied in June for a federal license to operate as a charter but was still awaiting approval, according to online records.

The company recently filed incorporation papers, listing the same owner and address as Angel Tours Inc., which was forced by federal regulators to take its vehicles out of interstate service June 23 after an unsatisfactory review, records show.

The review cited the company for problems in three areas: using a driver before receiving a pre-employment result, failing to require a driver to prepare a vehicle inspection report and using a driver who wasn't medically re-examined every two years.

Neither company is authorized to operate as a carrier in interstate commerce, said John H. Hill, administrator for the Federal Motor Carrier Safety Administration.

A man at Angel Tours in Houston declined to comment Friday. The company's voicemail system was full Saturday and not accepting new messages. No one answered Saturday at a listing for the company's attorney.

"We're in the middle of a very intense investigation," attorney Keena Greyling told the Houston Chronicle, the newspaper reported Saturday on its Web site. "Because of that, we really can't discuss anything further."

It was the nation's deadliest bus crash since 2004, when 15 people were killed in a wreck in Arkansas on their way to Mississippi's casinos. In 2005, 23 people were killed near Dallas when a bus carrying nursing home residents away from Hurricane Rita caught fire in bumper-to-bumper traffic.

About 900 people gathered Friday night at Vietnamese Martyrs Church for a Mass attended by Cardinal Daniel N. DiNardo.

"We are here with them to pray for those who are lost and for God's consolation in this time of grief and loss," DiNardo said. "The Vietnamese Catholic culture is very strong. A lot of those who have come here have been through a great deal just to get to this country. They've always preserved their Catholic faith. This is a trial. This is a challenge."

DiNardo said the losses, which include church leaders, are "incomprehensible."

One of the victims was identified as Hoangy Thi Dung, 71, of Houston, who was pronounced dead by a Grayson County justice of the peace. Sherman Police Lt. Bob Fair declined to release the names of the dead because some family members have not been notified.

Organizers of the festival in Missouri said the victims would be remembered at Mass and at various conferences during the gathering.




Fatal Sherman bus crash devastates tight-knit community
10:03 AM CDT on Saturday, August 9, 2008
By TANYA EISERER / The Dallas Morning News

Phone calls at 2 a.m. rarely bring good news, and this one was no different.

The voice on the line told the Rev. Joseph Vu that a charter bus carrying dozens of his parishioners from Houston to Carthage, Mo., for a three-day religious festival had rolled off a bridge and fallen 12 feet down an embankment.

"It's very sad, but I know they are devout Catholics," Father Vu said. "They are going to worship God. I know that they are in God's hands.' "

The crash early Friday in Sherman took 15 lives and injured dozens.

Father Vu's parishioners and that of Our Lady of Lavang Parish were part of a three-bus caravan that left Thursday night headed to the Marian Days festival.

From Houston to Dallas and far beyond, the tragedy dealt a body blow to the Vietnamese community, particularly the tight-knit Catholic Vietnamese.

Vigils were held across the state. More than 50 people attended Mass at Sacred Heart of Jesus Christ Vietnamese Church in Carrollton on Friday night to pray for victims, their friends and family.

Father Joseph Son-Van Nguyen acknowledged the desire by the faithful to question why bad things like this happen.

"Faith is not easy, but we have to sacrifice ourselves – sometimes our lives," he told parishioners.

He assured them that nothing is out of God's hands.

"We feel sorrow. We feel empty. We feel somehow God wasn't present there. But God, I think, will open the door to welcome them – all of them.

"Pray for them."

All day, the story dominated the airwaves of radio and TV stations serving the Vietnamese community.

"It's very sad news," said Kien Nguyen, president of Little Saigon radio in Houston. "This is a big deal for us. In the Christian community, they are very quiet and they support one another."

Vien Van, account manager with Weekly Classified Ads, which serves the Vietnamese community in the Houston area, said he sometimes attends the Martyrs church.

"It's going to hit the community as a whole, not just the church, because we are all united," Mr. Van said.

Dallas-area ministers rushed to the accident scene and to area hospitals.

Through an interpreter, the Rev. Paul Nguyen of Our Mother of Perpetual Help Parish in Garland described a somber scene at Parkland Memorial Hospital in Dallas.

"People are very confused," he said. "Now, they're waiting for their families to arrive."

At Father Vu's church, established in 1986, parishioners grieved and mourned during a morning Mass.

Mary Nguyen, a member of the parish for more than a decade, went to the church after learning that a close friend had died. She'd planned to meet her friend Thursday night, but the visit was canceled so her friend could go on the trip. She began sobbing as she described a dream Thursday night that kept waking her up, in which she was on a trip with the friend then opened a suitcase and saw dead bodies.

"I feel so sorry because she's dead. ... She was just a very good person," she said. "The church is like one big family here. We're very close. We stick together."

Theresa Le, with her red-rimmed eyes, sought solace with the congregation that was like family to her. She prayed for friends who were on the bus, as well as her best friend, Vo Ta, who died in the crash.

"She was a very nice person," said Ms. Le, a postal employee. "Before she left on the trip, she came to my house and brought me cupcakes."

Family members waited anxiously at hospitals from here to Oklahoma.

Tien Nguyen of Houston drove to Sherman after learning from family that five relatives were on the bus. "Everybody knows everybody," he said.

He went to Wilson N. Jones Medical Center after learning that the hospital had received the largest number of accident patients. He found three family members at Wilson but was unable to find the names of two other relatives on any hospital patient lists.

By late Friday afternoon, Father Vu had made his way to a hospital in Durant, Okla., where he had found the chairman of his parish council. The man had lost his wife. His sister was severely injured.

"He was the one to see 11 of them dead there at the site," said Father Vu, adding that he knew for sure that at least four of his church members had died.

He said he had prayed with his parishioners, but many of them are too injured to talk. "They have broken arms, necks broken," Father Vu said.

"They trust in God. What we can do is just pray."

The Houston Chronicle and staff writers Blanca Cantu, Rachel Slade and Ian Hamilton contributed to this report.

HOW TO HELP
There are a few ways those in the North Texas area can help the victims of Friday's bus crash:

•The Salvation Army is asking anyone who would like to donate money or any other items to call the Dallas office at 214-637-8100 or the Sherman office at 903-868-9602.

•The Red Cross is expecting a run on area blood supplies. Anyone who would like to donate blood should call 1-800-RED-CROSS to schedule an appointment. Red Cross officials said relatives and friends should call the same number to get information about passengers on the bus.

Hello:
 
This has been a very difficult summer.  So many precious little lives have been lost.  Unfortunately there have been 23 hyperthermia deaths already this year, 48 backover deaths and a total of 110 children killed due to nontraffic incidents.  Despite our efforts and accomplishments, children are still being harmed in and around motor vehicles. 

Democrats Seek Tougher Crane Safety Standard as Deaths Mount
By KRIS MAHER
July 25, 2008; Page A3

Crane-related fatalities continued to mount, with six deaths in the past week, prompting Democrats in Congress to push for an enhanced federal safety standard and put more pressure on the agency charged with overseeing workplace safety.


A crane holding a church steeple collapsed Thursday in Oklahoma City, crushing a car and killing the man inside it.


An elderly man who was in his car watching a church steeple being assembled in Oklahoma City Thursday was killed when the boom of the crane fell on the car, according to a local fire-department official.

Long Overdue Crane Safety
New York Times Editorial
Published: August 2, 2008

The Bush administration generally prefers to fiddle, not regulate, as problems approach a crisis, but its failure to address accidents involving construction cranes is particularly hard to grasp. The administration isn’t pandering to business interests. Both the building industry and labor groups have pressed for new standards and helped draft rules for the Occupational Safety and Health Administration. That was four years ago. The rules are now parked at the Office of Management and Budget, where the White House seems content to let the clock run out without approving them.

Labor Secretary Elaine Chao should get regulations in place without further delay. The stalling has had enormous costs. OSHA’s figures show that crane accidents kill some 80 people every year. Agency investigators are spread thin looking into accident after accident across the nation. In New York, nine workers and bystanders died just weeks apart in the spring. In Houston, one of the nation’s biggest cranes collapsed in July and killed four workers. Laborers in Las Vegas, shaken by crane risks and other hazards, walked off the job in protest.

This problem needs less after-the-disaster analysis and more effort to prevent casualties. Federal safety rules have not been significantly updated since 1971, leaving states and localities to fill the gap, and most have not. Nearly three dozen states do not even require that crane operators be licensed.

The proposed regulations are not perfect. They do not, for instance, define the meaning of competent in referring to crane inspectors and supervisors. But at least they mandate critical inspections, as well as certification and training for operators.

That’s a start. Doing nothing, for four long years, to prevent unnecessary deaths is shameful and immoral.

Smithville crane collapse kills 1
Machinery hits manlift basket, injures 2nd worker
Associated Press
July 30, 2008, 11:48PM

SMITHVILLE — A crane removing steel beams while dismantling an old bridge over the Colorado River became overloaded and toppled Wednesday, killing one worker and injuring another, officials said.

The crane smashed into a manlift basket where the two men were working, knocking one off and killing him, said Smithville police Lt. Lonny Richardson. The man fell about 60 feet from the top of the old bridge and landed on construction equipment, likely dying instantly, Richardson said.

"It was a horrible thing," he said.

The workers were trying to loosen the joints of a beam, or girder, when another beam also became loose and caused the crane to topple, said Texas Department of Transportation spokesman Marcus Cooper.

"The momentum of the girder overloaded the crane and the crane fell over," said Cooper. Richardson added, "This happened as a chain reaction."

The base of the crane, which was on the riverbed on what appeared to be a manmade base of gravel, tumbled over and ended up partially in the water.

The condition of the injured worker at University Medical Center Brackenridge in Austin wasn't available. The identities of the two men weren't immediately released. Both were in their 40s and were from the Dallas-Fort Worth area, Richardson said.

The operator of the crane managed to get out of the way "when things started going bad" and wasn't injured, Richardson said. The two men in the lift basket had on their safety belts, and the injured worker remained tethered to the basket with his belt after the accident, he said.

The Smithville Police Department dispatcher got a call about the accident at 10:16 a.m.

The crane was performing routine work to remove the old Loop 230 bridge in Bastrop County, Cooper said. The original bridge has been removed piece by piece, and what's remaining of it sits near the new bridge that replaced it.

Capital Excavation of Austin, the primary contractor for the project, didn't immediately return calls seeking comment. The employees both worked for Stomper Demolition in Euless, but the company didn't own the crane, general manager Ray Tupper said.

There have been several deadly crane accidents around the country this year, including one in Houston this month that killed four workers at the LyondellBasell refinery.


Crane Collapses: Coincidental or Criminal?
FoxNews.com
Wednesday, July 9, 2008
 
Donald Leo was supposed to be waiting at the end of the aisle for his fiancée on their wedding day, June 21. He was supposed to have the jittery butterflies that most grooms get on their wedding day. But Donald won't be making it to the church after all - he was killed on May 30, along with another man. Why… because of a crane collapse in New York City.

On Donald's last day he was operating a crane that collapsed. The crane's arm (used to hoist materials) snapped off its turntable, the platter-like platform that holds the cab for the operator. The cab and the arm flopped to one side and then went into freefall causing it to slam into a 23-story building.

If you're feeling a little déjà vu, you're correct because the same thing happened in New York City on March 15, when an entire crane collapsed and killed seven people. So far this year, 15 people have died in construction-related accidents in NYC, compared to 12 in all in 2007. These are very serious incidences that have prompted the question of whether crane regulations are just not strict enough.

The Mayor of NYC, Michael Bloomberg said an “unacceptably high number” of fatalities demanded an “unprecedented” level of reform. Mayor Bloomberg and the City Council have unveiled a 13-point legislative package to broaden oversight of building sites, increase fines for violations, and register all key contractors.

Investigators believe that the turntable that snapped off in the May disaster had been cracked and repaired last year. Now city investigators and prosecutors are asking whether the Buildings Department officials properly monitored the journey of that turntable after it was damaged. The acting chief inspector for the unit was arrested and charged with taking bribes to approve cranes under his review, and with taking money from a crane company that sought to ensure that its employees would pass the licensing exam. The inspector could face up to seven years in prison if convicted. After the March collapse, a crane inspector was arrested and charged with faking a report that he had visited a construction crane at that site on March 4. The inspector, the authorities said, never visited the crane.

“Buildings Department statistics have shown that the number of crane inspectors has barely changed since the 1980s, even as the city has experienced a historic building boom.” Today, the cranes division has just four inspectors, although the agency recently hired a private firm to assist in inspections. And Mayor Bloomberg suggested that New York may have to bolster its inspection process to better police the city's tower cranes: “It may be that we don't have all of the checks and balances that we should have, and that's why we're trying to gather information.”

The Federal Government has certain requirements when it comes to crane operators and inspectors that all states must abide by, such as a thorough inspection by a competent person annually of the crane. Some states have stepped up to ensure more rigorous operator and inspector requirements. The Occupational Safety and Health Administration (OSHA) encourage states to develop and operate their own job safety and health programs. There are 24 states that have OSHA-approved State Plans and have adopted their own standards and enforcement policies. For the most part, the adopted standards are identical to Federal OSHA. However, some states have adopted additional standards. The National Commission for the Certification of Crane Operators (NCCCO), a non-profit organization that develops standards for safe crane operation, created an accreditation program through written and practical tests for crane operators. The adoption of this accreditation program is optional for states, and only 15 states along with six cities have adopted it, New York being one of them.

New York is not the only state with cranes collapsing. On June 9, in Miami, the arm portion of a crane, being used to build a condominium complex, swung down and seriously injured a worker. A father and son team were lengthening the crane when it gave way. The father was injured - miraculously, the son was not physically hurt. This happened only months after a fatal crane accident where a collapse killed two workers in Miami. Some cities are trying to take steps to control this unnerving trend. Miami and Dade County have created ordinances to strengthen oversight of crane operators, but last month a Federal Court ordered a temporary halt to the enforcement of the ordinances.

In other states, the regulations seem to be working. California has gone 19 years without a single fatality from a crane accident. After a terrible crane collapse in San Francisco in 1989, California adopted the toughest regulations of the entire country. Some contribute California's amazing record to two aspects - the use of third party inspectors, and the need for an inspector or manufacture's representative to be present whenever a crane is being raised or lowered. The need for independent inspectors has been heightened, especially with the recent arrest of the Acting Chief Inspector for Cranes and Derricks in New York for accepting bribes. And California has shown us that stricter regulations would not hurt the industry.

Bottom-line: It's not a good idea to let crane companies regulate themselves. They are far from being able to be objective. State, county, or even the federal government should be creating stricter regulations. It's time to stop arguing over who should regulate, and it's time to create a solution - before more people are hurt, or worse.
 

Spotty Rules Govern Crane Industry
35 States Don't Require Operators To Be Licensed, Rules Vary Wildly From City To City And State To State
CBSNews.com
Wednesday, July 9, 2008

(AP) Dan Mooney has no idea what it will take for his construction cranes to pass inspection.

The crane company owner recently asked New York City officials for a list of safety hazards that inspectors look for. He was told that information wasn't public.

"How am I supposed to know what I need if you won't tell me?" Mooney asked. "It's like not posting the speed limit."

In 35 other states, crane companies face a different problem: Operators don't need licenses of any kind.

An Associated Press analysis found that cities and states have wildly varying rules governing construction cranes, and some have no regulations at all, choosing instead to rely on federal guidelines dating back nearly 40 years that some experts say haven't kept up with technological advances.

Crane safety is getting extra scrutiny following an alarming number of crane-related deaths in recent months in places such as New York, Miami and Las Vegas. In New York City, two crane accidents since March have killed nine people - a greater number than the total deaths from cranes over the past decade.

Many states have no count of their cranes, nor do they mandate training for workers who run the equipment, or for officials who certify crane operators. Even the federal government acknowledged last month that updated standards would prevent some crane accidents.

New York City has only four inspectors on the payroll to inspect more than 200 cranes, 26 of them large tower cranes. About four inspections are conducted each day, a routine that one 40-year industry veteran said won't detect real problems such as the rebuilt crane part blamed for a crane collapse last month.

"That's impossible," said Ron Brodek, an inspector from Chandler, Ariz. "You're just looking through the paperwork then. It's a drive-by inspection."

The crane standards of the Occupational Safety and Health Administration were last updated in 1971. They require cranes to be inspected once a year. But most of the inspections never happen. OSHA, which is part of the Labor Department, inspected only about 23,000 of the country's some 4 million construction sites last year.

Labor Department spokeswoman Sharon Worthy said she didn't know how many of those sites had cranes, but the federal government last year issued $500,000 in annual penalties for crane violations.

Updating the regulations, Worthy said, "is a top regulatory priority" for the agency. But approving the rules could still take more than a year after the Labor Department finishes an internal review of the proposed new regulations.

Running a crane is among the most highly specialized skills in construction. Operators of tower cranes, like the two that collapsed into Manhattan residential neighborhoods, cannot see the loads they're picking up and must use a radio to communicate with workers on the ground.

One wrong move can bring tragic consequences. In March, two construction workers in Florida were killed when a crane plummeted 30 stories onto a condo project, damaging the home used in the movie "There's Something about Mary." More than 50 people have died in crane accidents in Florida over the past decade.

"There's certification for your plumbers, your pipe fitters," said John Lindsey, a crane operator and treasurer of his union local in Jefferson City, Mo. "Why in the heck won't they hear about certification for your operators?"

Bruce Whitten, chairman of the Florida Crane Owners Council, bemoaned the state's lack of licensing requirements for crane operators.

"Anyone can operate a crane," he said. "I can take you over there and you can go operate a crane."

But Whitten was among industry leaders who sued to block Miami-Dade County crane ordinances enacted last spring that would have required that operators be licensed and that cranes withstand wind speeds of 140 mph. The lawsuit said none of the 200 cranes operating in the county could meet the standard.

Florida lawmakers introduced a bill that reduced the wind speed limit to 120 mph and required a national operator's test, but Miami-Dade legislators blocked it, saying it would weaken local standards.

After the March 15 crane collapse in Manhattan that killed seven people, Dallas checked its 23 cranes and found that eight had uncertified operators at the controls.

In states that only go by OSHA standards, annual crane inspections are largely a matter of self-policing by crane owners. Federal law requires that inspection records be kept, but not submitted. Some owners cut corners and avoid the inspections.

"There are people who don't do it because they know their machinery will not pass code," said John Alexander, an inspector for Cranetex Services in Austin, Texas. "There are people who will give the excuse that they can't afford it."

Even if regular inspections were conducted, the federal standards have not evolved to address equipment that is twice the size of cranes used in the 1970s and uses computers, Alexander said.

California, with some of the toughest crane regulations in the nation, has required independent inspections of equipment for decades.

After an 1989 tower crane accident killed five people in San Francisco, the state began requiring twice-a-year inspections and mandating that operators submit drawings of the crane's placement before receiving a permit. Since then, no one has died in a tower crane accident, said Roy Berg, a regional manager with the state Division of Occupational Safety and Health.

Third-party inspections are also required in Nevada, and crane contractors are responsible for maintenance and daily inspections. Before May 31, when a worker was crushed by a moving crane at a Las Vegas Strip megaresort under construction, the state hadn't had a crane accident in 14 years.

Independent inspections are being considered in New York City, but they were not among more than a dozen construction safety rules proposed last week. The city did propose training for crews who assemble cranes. Some of them were killed March 15 while trying to extend a crane in Manhattan. Investigators have focused on a broken nylon strap that held the steel and the way the workers were installing it.

The city's Department of Buildings couldn't say what is covered in a normal inspection, saying release of that information would interfere with criminal investigations under way into the latest crane collapse.

The confusing regulations sometimes contribute to other problems: On Friday, an assistant chief crane inspector was charged with falsifying inspection reports and tampering with exams, although the charges weren't related to the latest collapse.

That reduced the city's number of crane inspectors on the payroll from five to four, although the city says it's getting other help from other buildings inspectors until more crane inspectors are hired.

In April, New York's inspector general also found that a state employee approved crane operator licenses for more than 200 people who had failed a state licensing exam.

Without updated standards that are enforced equally around the country, industry experts fear that deadly accidents will continue.

"Now that cranes have really come into play in the mind's eye with all of these accidents, maybe we'll get somewhere," said Lindsey, the Missouri crane operator. "We've got a lot of lives in our hands when swinging one of those things around."