By Brian Johnson
Minnesota OSHA’s investigation into last summer’s fatal accident at the Vikings stadium project has resulted in three fines for what the agency claims contends were “willful” and “serious” violations by Berwald Roofing & Sheet Metal and one fine for a serious violation by Mortenson Construction.
But the case is far from over.
Both companies are negotiating final settlements with the state Occupational Safety and Health Administration office over the citations and events that led to the death of Jeramie Gruber, 35, who fell about 50 feet while working on the stadium’s roof last August in Minneapolis.
According to OSHA records, Berwald was fined $70,000 for a “willful” violation related to allowing work to proceed in places with “unprotected sides and edges,” and $69,100 for two serious violations related to OSHA standards for inspections and safety programs. Mortenson was fined $34,300 for a “serious” violation of OSHA standards for inspections. Altogether, the two companies’ fines total $173,400.
Berwald and Mortenson representatives said in separate statements Wednesday that they continue to work with OSHA.
Specific details, such as whether Gruber was wearing a safety harness at the time, still haven’t been released. Gruber died of blunt-force head injuries after falling, according to a medical examiner’s ruling.
The same accident resulted in harm to an unidentified second worker. That worker suffered a cut to his leg that required 48 stitches and staples. He was later treated and released from the hospital.
Both men were employees of North St. Paul-based Berwald Roofing & Sheet Metal, a subcontractor of Golden Valley-based Mortenson, the Viking stadium’s construction manager.
Because both Berwald and Mortenson have contested the citations, the case is still officially open. James Honerman, Minnesota Department of Labor and Industry spokesman, said he can’t comment about an open case.
There may be much more at stake than the OSHA citations and fines. In cases like this, the family often sues for negligence after the official investigation concludes – and it could well happen here, according to Bob Huber, a construction-industry lawyer.
Employers don’t want to acknowledge an OSHA violation in part because it could be used against them in a lawsuit, said Huber, a partner at the Stinson Leonard Street law firm in Minneapolis.
Under workers’ compensation rules, an injured worker or the estate of a deceased worker can’t sue an employer, but they can sue companies that didn’t directly employ the worker, Huber said.
If the deceased worker’s estate were to sue Mortenson in this case, the contractor could in turn sue Berwald to recover part of the damages, Huber said, adding that it’s “a very complicated situation.”
Berwald president Eugene Berwald said in a statement to Finance & Commerce that the company “is continuing to cooperate and work” with OSHA “to reach a final determination of its findings into the August 26, 2015, incident.”
In a similar statement, John Wood, Mortenson senior vice president, said the contractor is working with OSHA “regarding a final determination relative to its citation.”
“We were and remain deeply saddened by this terrible accident and understand how devastating it has been for all those affected by it, especially the families involved,” Wood said in the statement to Finance & Commerce. “At Mortenson, safety is a core value and we are committed to eliminating the risk of injury on all of our projects. We will never lose that focus and we will continue to ensure it is the foremost priority.”
Besides the Vikings stadium, Mortenson is overseeing the construction of a $524 million arena in the Milwaukee’s downtown, which will serve as home to the Bucks basketball team. That project is scheduled to get underway with a groundbreaking ceremony on Saturday.
The companies have been negotiating with OSHA since it issued the citations in February. Finance & Commerce found the citations in a search of the OSHA website this week.
A Minnesota OSHA report released last fall said that Gruber and another worker “fell and slid down the roof” while installing a solid roof and that one of the workers “struck a post and was stopped, but was injured.” The other “broke through a guardrail and fell onto an elevated platform below,” according to the report.
Mortenson’s citation was related to OSHA standard 1926.20(b)(2), which requires “frequent and regular inspections of the job sites, materials, and equipment to be made by competent persons designated by the employers.”
Berwald was cited for a willful violation of OSHA standard 1926.501(b)(1), which requires fall-protection systems for each employee walking or working on a surface 6 feet or more above a lower level with an unprotected side or edge. The stadium roof, at its highest point, is more than 300 feet above the stadium’s playing field.
OSHA defines a “willful” violation as one that “exposes employees to harm that the employer intentionally and knowingly commits.”
“To cite a willful violation, the investigator must collect evidence that the employer is aware a hazardous condition exists, knows the condition violates a standard or other obligation of the OSHA Act and does not make a reasonable effort to eliminate it,” according to OSHA.
Wood said last August that Gruber had fallen about 50 feet from the edge of the roof into a snow gutter. The gutter was below the main roof on the north side of the 1.75 million-square-foot stadium.
Berwald’s “serious” citations were related to workplace safety requirements and to requirements calling for “regular and frequent inspections of the jobs sites, materials and equipment.”
OSHA records show that Berwald was cited for nine other “serious” violations between 2011 and 2016, not including the citations of the stadium project.
OSHA can impose penalties of up to $70,000 for each willful violation. Employers are allowed to appeal by filing a “notice of contest” within 20 days after receiving a citation, according to OSHA.
The appeals process allows for an “informal conference” to be arranged with an employer to determine if an out-of-court settlement can be reached, OSHA said. When no agreement can be reached, a case will go before an administrative-law judge.
According to OSHA, “the minimum total nonnegotiable fine that must be assessed for all citations connected to the death of an employee is $50,000 if there is a willful or repeated violation or $25,000 if there is no willful or repeated violation.”
The $1.11 billion U.S. Bank Stadium is nearing completion. Construction on the project began in December 2013.
Alex Zank of The Daily Reporter contributed to this story.