An ABC cameraman fell to this death at Camp Randall Stadium in Wisconsin. Barry Fox, Director of Facilities for the stadium, was found not to be subject to immunity normally granted to public employees for safety liability because guardrails should have been installed. [The Occupational Safety and Health Act (OSHA) requires guardrails in this situation.] Initial decisions in the case of Umansky v. ABC Ins. Co., 209 WI 82 were appealed but a key argument was that public and private workers should not be treated differently.

The Justices said that Fox's lawyer's legal arguments on the status of individual workers (public or private) rather than the safety of a workplace is "unworkable." The court said it is a "peculiar conclusion" that "the [Wisconsin] statute's stated purpose of protecting public employees somehow justifies allowing the breach of a ministerial duty with impunity, so long as the person injured or killed happens not to be a public employee."

In a concurring opinion, Justice N. Patrick Crooks remarked that the Legislature, when it passed [Wisconsin] statutes on public workplace safety, gave no indication that it intended to create disparate treatment for similarly situated persons. The Legislature “adopted the measure extending OSHA safety regulations to 'all public buildings,' Crooks noted. "A public building that is safe for public employees must be safe for everyone, including employees of a private firm," he wrote.

The findings in the case have major implications to those managing public facilities.

There are OSHA requirements for:

- Hazardous Materials Management and Workplace Safety

- Asbestos Containing Materials Management

- Air Quality Impacts from Hazardous Materials and Hazardous Substance Use

RT recommends that public facilities conduct audits in the near future to determine if their Environmental and Health and Safety Programs are the type that can meet OSHA requirements. There is now a new duty to protect private sector employees working in public buildings and spaces, so there is a newly established level playing field for Facilities and Building Managers in public facilities.

RT has conducted audits of public and private buildings in the United States and Caribbean. For more information call Larry Bily at 610-265-1510 Ext. 236.