dissenting:
I respectfully dissent from the majority’s findings, first, that a danger of falling existed such that a mandatory safety standard had been violated, and second, that the violation was significant and substantial.
I
Substantial evidence existed at trial that Smith’s unfortunate accident would not have occurred but for the unforeseeable breaking of an eyelet on the opposite end of the boom. Our concern should therefore be with the question, would a reasonably prudent person familiar with the factual circumstances surrounding Smith’s position on the platform have recognized a danger of falling under normal circumstances that would have warranted his tying off?
Three things, I believe, require us to find no danger of falling here. First, it is undisputed that when the eyelet broke, Smith was propelled upward off the platform. He did not slide out between the guardrails or fall over the top guardrail. Thus, any inference that he was in danger of falling prior to the eyelet failure is pure speculation without a validating basis.
Second, the guardrails on the boom on which Smith had been kneeling were about twenty-one inches apart. The walkway had a toe board made of angle iron, which cut down the space between the floor of the walkway and the middle guardrail. Smith weighed 235 pounds and was kneeling on the walkway with his head and hands between the middle and bottom rails. There was no substantial evidence at trial from which the AU could conclude that barring unforeseeable mishap, Smith, positioned as he must have been, with his size, weight, and low center of gravity, was in danger of falling between the first and second rails of the guardrail running the walkway’s perimeter, even if he had needed to make some swift movements to secure the choker.
Third, the guardrail at issue here is a standard piece of safety equipment. Construction workers cannot be expected to impede their mobility for purely speculative dangers they might encounter above the ground. Smith had no notice or reason to suspect that the eyelet would fail. Its failure was a freak accident. Requiring him to tie off, when no worker familiar with the circumstances surrounding the construction job and Smith’s position on the walkway believed that he was in danger of falling, is the same as requiring the general public somehow to be equipped with air bags in case mall elevators suddenly fail.
The issue should not be whether a theoretical danger of falling existed, but rather, whether a reasonably prudent person, positioned as Smith was, and engaged in the same task, would recognize a danger of falling that warranted the wearing of a safety belt and line. Secretary of Labor v. Great Western Electric Co., 5 F.M.S.H. R.C. 840, 842 (1983).
The majority notes that the crane operator Crowell had felt the boom make an unexplained bump during loading of the counterweights, and that a reasonably prudent person could conclude that another violent movement could make a fall possible. Our concern though must be with the safety precautions a reasonably prudent person would have thought warranted under the circumstances. There simply was not sufficient evidence on which the AU could base a finding that the unexplained *105bump was in fact related to the eyelet failure, or that Smith should have given the bump any significance.
The AU, as trier of fact, drew his conclusion that a danger of falling existed from the facts that the walkway was thirty-six feet above the ground, Smith’s head and hands were outside the lower guardrail, and his hands were occupied with swinging the choker. But no one testified that any part of Smith’s body other than his head and hands was outside the railing before the fall, and no one familiar with Smith’s situation prior to the accident believed he was in any danger of falling. Only the inspector from the Mine Safety and Health Administration, who himself did not tie off when he went up on the same walkway, stated his belief that a danger of falling existed that warranted tying off. Smith, kneeling on the platform, was certainly in no greater danger of falling than the inspector would have been if another similar failure had jerked the boom. Smith died because he was catapulted up off the walkway, not because he slid out underneath the guardrail.
Further, there is no evidence whatsoever that Smith in fact removed any gratings in order to pass the choker under the walkway, as suggested by the majority. There was testimony only that the metal gratings creating the platform fit securely together, and could not be displaced except by an upward force, which is consistent with their having been lifted up by the jerk of the boom when the eyelet failed.
Because I believe there is no substantial evidence in the record as a whole to support the AU’s finding that a danger of falling existed, I would reverse the Commission’s decision affirming the ALJ’s ruling that mandatory safety standard 30 C.F. R. 77.1710(g) was violated by Smith’s decision not to tie off.
II
I also take issue with the majority’s affirmation of the Commission’s ruling that the violation was a “significant and substantial one” for the purpose of assessing an appropriate civil penalty.
A violation is designated “significant and substantial” if, “based on the particular facts surrounding the violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature.” Secretary of Labor v. National Gypsum, 3 F.M.S.H.R.C. 822, 825 (1981). The Secretary must prove:
(1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard — that is, a measure of danger to safety contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury in question will be of a reasonably serious nature.
Secretary of Labor v. Mathies Coal Co., 6 F.M.S.H.R.C. 1, 3~4 (1984).
For the reasons explained in part I above, on review of the record, I believe that the Secretary has failed to prove at the outset that a mandatory safety standard was violated. Further, even if the Commission had properly found that a danger of falling existed, no substantial evidence exists in the record to support a finding that under the circumstances a fall was reasonably likely — the third prong of the “significant and substantial” test. The majority fails to address this third prong, stating only that a violation occurred (first prong), the danger of falling constituted a discrete safety hazard (second prong), and a fall from thirty-six feet would almost certainly result in serious injury (fourth prong).
Given Smith’s size, positioning, the testimony of the witnesses and the unforeseeable manner in which the accident actually occurred, it cannot be said that a fall was “reasonably likely” if work had proceeded normally, even if, as the majority concludes, some slight danger of falling had existed.
Reasonable likelihood is more than theoretical possibility. There was no evidence adduced at trial of more than a speculative possibility that Smith could have fallen from his place on the walkway as a result *106of his decision not to tie off in the absence of the unforeseeable eyelet failure. Without a showing that Smith’s failure to tie off was reasonably likely to result in injury, no “significant and substantial” ruling should have issued. I would therefore reverse the Commission’s “significant and substantial” ruling, and reduce the civil penalty assessed against Austin Power accordingly.
Ill
In accordance with the foregoing, I respectfully record my dissent.