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Lock-Out / Tag-Out: What does it Mean to Risk Managers and Potential Litigants?

Few issues have as great an impact on the outcome of product liability cases as the principle of lockout/tagout.  First developed by engineers as a concept of good machinery maintenance and repair practice, in litigation, the concept of lockout/tagout has been used as both a sword and a shield to establish contributory negligence, employer liability, and bolster defendant fault. 

Many product accidents occur during maintenance and repair operations since that is when production is often temporarily disrupted.  With mounting pressure on both management and workers to avoid down time, standard lockout/tagout policies are sometimes foolishly disregarded, resulting in avoidable injuries.  To prevent these types on injuries, to the extent reasonable, all foreseeable hazards should be recognized and eliminated in the design, installation, and integration processes.  If that cannot be done, guarding and warning are appropriate safety measures.  Good lockout/tagout practices include the three key features of product safety: design, guarding, and warning.

In recognition of known hazards, sound lockout/tagout policies require responsible persons in charge to ensure that a literal lock (electrical and/or mechanical) is placed on the applicable equipment.  The machinery is also tagged to alert foreseeable but misguided operators to the otherwise unexpected presence of persons in an exposed area. Equipment that is locked out and conspicuously tagged mitigates the risk of unexpected, inadvertent, or unwanted movement of mechanical parts and potential injuries to the unwary.

Failure to predict normal human interaction with the machine and compliance with lockout/tagout policies during machine downtime for maintenance and repair by employers, workers, or even designers necessarily lead to lack of physical safety features and unnecessary risk.  Failure to read or follow labels, manuals, and warnings could also constitute contributory negligence on a worker involved in an accident. Employers that do not appropriately supervise and train their personnel in lockout/tagout concepts are likely to be attributed a significant share of negligence.

How do Wisconsin courts typically treat issues involving lockout/tagout?  Factual testimony from lay witnesses is often elicited regarding training on lockout/tagout equipment. Experts are also regularly asked to opine on the appropriateness of lockout/tagout concepts.  In 1989 the Occupational Safety & Health Administration issued an Act codified at 29 C.F.R. § 1910.147 that requires an employer to affix a lock to an energy isolating device connected to equipment being serviced or maintained and to place a tag warning affected employees to the presence of stored energy.  Wisconsin courts may take judicial notice of federal and state regulations, including OSHA and Wisconsin Administrative Code provisions—especially those concerning lockout/tagout practices, so stakeholders should anticipate that the actual vs. ideal workplace practices will be received in evidence, and exploited by counsel if proper lockout/tagout policies were not followed.

Whether those involved in an accident adhered to proper lockout/tagout policies is often a major consideration in products liability cases.  Evidence of shortcuts to bypass these virtually universal principles of machinery safety can make or break a products case.  Frequent analysis of lockout/tagout policies, training, and consistent enforcement before an accident ever occurs will almost certainly prevent significant aggravation and liability exposure down the road. 


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