Pit & Quarry, November 2015

BY MICHAEL T HEENAN Trespassers at mines T wo teenagers swim in an abandoned quarry A property owner who leases his land to a mine operator enters without authorization to observe operations Three youngsters wander onto cement plant property and get into a hot clinker pile Along an ocean shore strollers climb a pile of dredged sand The teenagers drown The lessor curious about mining is killed by a blast The youngsters are severely burned by the hot clinker The beach walkers die when the sand pile collapses on them The swimmers were trespassing The curious lessor was trespassing The youngsters were trespassing The beach walkers were trespassing Personal consequences A death close to home is an agonizing event Even if a mine operator has no legal duty to protect a trespasser this may be little consolation when thinking later of something that would have prevented a death or injury of someone wandering onto mine property Considering in the abstract the word trespasser we think of a wrongdoer rather than a person It may be easy not to feel particular concern regarding what could happen to a trespasser on mine property If someone gets killed or injured however perspective changes drastically Something awful has happened to a person who a short time earlier was alive and well Just as in driving a motor vehicle on a public road we know a child could dart out from between parked cars and get run over We trust no such thing will happen If something happens we will immediately question ourselves What might we have done differently even if we think we did everything right Legal considerations All deaths and injuries with potential to cause death must be reported to the Mine Safety and Health Administration MSHA within 15 minutes MSHA will investigate a trespassers death just as any other Sometimes the mine operator will be subjected to enforcement MSHA will cite an inadequately sealed mine entry or virtually any other condition that could have exposed a miner or anyone else to injury A violation is a violation regardless of who gets injured THE MINE SAFETY AND HEALTH ADMINISTRATION WILL INVESTIGATE A TRESPASSERS DEATH AS IT WOULD ANY OTHER PERSONS ON MINE PROPERTY A bigger question is civil liability Can the mine owner be liable for a trespassers death with or without an MSHA citation Business operators can be sued for almost anything A plaintiff s attorney can allege a claim even with little likelihood of success in court to force a settlement There is much to be said for precautionary measures such as fences and ample signage to ward off trespasser entry If there are hazards unlikely to be perceived by trespassers eliminating the hazards or posting specific warning signs could prevent a needless accident Apart from protecting life and limb precautions prevent accidents and avoid lawsuits spurious or otherwise If a mine operator knows people are trespassing regularly and if the operator knows of hazardous conditions to which trespassers may be exposed trespassers may be deemed licensees whom a property owner must warn of dangers on the property The law of trespass The law of trespass varies from state to state but the states laws have much in common It is a civil wrong to trespass everywhere and may also be a criminal violation Regarding property owner responsibilities the general rule is that an owner is not liable for injuries trespassers suffer While mines fall within the general rule a plaintiff s attorney could forge an argument for a civil suit based on allegations in MSHA citations particularly if connected to exceptions to the general rule There are several exceptions by which injured trespassers or their estates may recover money damages in a lawsuit For example a minors trespass can be an exception where there is a life threatening hazard that a child might not recognize Just as a homeowners swimming pool might be deemed an attractive nuisance an old quarry full of clear cool water could be very inviting to kids especially if nothing prevents them from swimming there For the record friends and I swam in such a quarry when I was young We had no idea who owned the property but we heard people swam there Continued on page 61 50 PIT QUARRY November 2015 www pitandquarry com