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District Attorneys Should Enforce Reckless Endangerment Laws for Dollar General

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OSHA repeatedly has fined Dollar General stores for blocking fire exits, a violation that has an infamous, tragic history.

The story begins with a link between and Frances Perkins, the first female U.S. secretary of labor.

Frances Perkins was a graduate student in New York City on March 25, 1911, the day of the Triangle Shirtwaist Factory Fire. Ms. Perkins heard the firetrucks and went to see the flames on the 10th and 11th floor. To her horror, she saw people jump out the windows to avoid death by fire when there was no other escape. Everyone who jumped died.

Ms. Perkins had a role in the commission investigating the fire. Upon examination, the commission found the factory’s owners had blocked the fire exits, and some workers who died would have been saved if the fire exits had not been obstructed. 

People knew of the need to have unobstructed fire exits long before the establishment of OSHA in 1974. The National Fire Protection Association and local fire codes advocated for a requirement.

OSHA reinforces this in its Fire Safety Standards, and subsequently has fined Dollar General multiple times for blocking fire exits. Yet, many managers of Dollar General stores don’t seem to care.

Because of this alleged negligence, district and prosecuting attorneys should come into the picture. Ordinary mistakes on fire safety should be left to the county fire marshals and to state and the federal OSHA agency. However, when that doesn’t work, district attorneys need to enforce the laws of reckless endangerment against companies who criminally are indifferent to the safety of its customers and its workers.

Attorneys could wait for a fire to occur and then prosecute the local store manager for negligent homicide (manslaughter in some states), but waiting for the fires will leave some workers and shoppers stuck at blocked fire exits and burned to death. This is not the best outcome for the dead and their families. 

OSHA has attempted to push Dollar General to act responsibly for its workers’ and customers’ safety. The agency’s most recent citations include:

Jonestown, Pa.

On Oct. 31, 2016, the agency cited the company with a willful violation after inspectors found the discount retailer barricaded an emergency exit door in the back room with a metal bar, according to the report. The term “willful” is important to Pennsylvania case.

“Despite receiving more than 100 safety and health violations at stores nationwide since 2010, which carried more than $1 million in proposed fines, the company has still failed to take corrective actions,” said Dave Olah, Harrisburg, Pa. area director. "Dollar General continues its pattern of failing to maintain safe exit routes at its stores.”

See: http://www.legis.state.pa.us/WU01/LI/LI/CT/HTM/18/00.027..HTM  §2705. Recklessly endangering another person.

Bolivar, Ohio

On Sept. 20, 2016, OSHA reported that Dollar General Corp., one of the nation's largest discount retailers, “continues to ignore federal workplace safety inspectors” who found repeated instances in which “the company endangers workers and customers alike by blocking exit routes with stacked merchandise.” 

OSHA found this in an inspection of the company's store in Bolivar in central Ohio. In this case, OSHA issued three “repeated” citations to Dollar General. These “repeated” citations should have weight in the Ohio case. 

Some other details of the Bolivar inspection might strengthen criminal charges against the company. In addition to the recurring issue with blocked exits, inspectors found fire extinguisher locations not marked and rapid access to them blocked.  

See: http://codes.ohio.gov/orc/2909.06 “Criminal damaging or endangering.”

Wichita, Kan.

On Aug. 2, 2016 OSHA reported that Federal safety inspectors have again found blocked exits and other hazards at stores operated by national discount retailer, Dollar General – this time in Wichita and Clay Center.”

"In an emergency, blocked exits can be the difference between life and death. Piling up merchandise and blocking exit routes puts workers - and customers - at risk,” said Judy Freeman, OSHA's area director in Wichita, Ka.

Freeman noted that "Dollar General has been cited repeatedly for these hazards at its stores nationwide. The company must immediately address these hazards before tragedy strikes." 

Director Freeman’s words bring to mind the Kansas Criminal Code, Chapter 21, Article 54 Crimes against Persons, 21-5429. Endangerment. It says: “Endangerment. (a) Endangerment is recklessly exposing another person to a danger of great bodily harm or death.” 

The OSHA investigative file already has made this case.

O'Fallon, Mo.

On Feb. 1, 2016, OSHA reported that “safety inspectors found a 5-foot high, 15-foot long pile of trash between employees at a Missouri Dollar General store and an emergency exit.” I couldn’t imagine making that up for a story. No one would believe it, and it was just one of nine safety violations at the O'Fallon store.

 "Blocked exits can be the difference between life and death in an emergency… Dollar General needs to immediately address hazards found in O'Fallon and at its stores nationwide,” said Bill McDonald, OSHA's area director in St. Louis.

Notice that OSHA spoke of this as a hazard to employees, which is consistent with OSHA’s responsibility. But blocking the fire exit created a hazard to customers as well as employees.

I did not see “reckless endangerment” specified in the Missouri statutes. However, “reckless endangerment” is part of English common law which is explicitly incorporated (with few exceptions) into Missouri law.

Conclusion and Thoughts

I see fire code violations and OSHA fire safety standards from time to time. I usually alert managers of the companies to those violations; so they can fix the problems. Then I check back. The managers of the cited Dollar General stores already have received official citations for their stores and should know of citations at their sister stores. They don’t care.

When I served for three months on my county grand jury, my fellow grand-jurors were conscientious and fair-minded. The evidence already public could lead a jury to indict store officials in certain jurisdictions. Still, district attorneys should request OSHA’s inspection reports. Citizens and workers have been very lucky so far, but luck should not be relied on when it comes to protecting them.

Edward Stern served in the U.S. Department of Labor for 40+ years as a senior economist and policy/program analyst. He developed regulations, analyzed enforcement strategies and innovated methods of compliance assistance. For the last 27 years, in OSHA, he examined health and safety risks and regulatory feasibility. He also led teams of scientists, IH’s, engineers, doctors, nurses, systems analysts and attorneys from the Department of Labor and the public sector to develop interactive, diagnostic “Expert Advisors” to answer which, whether and how OSHA rules applied to situations.

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