During the filming of Midnight Rider: The Gregg Allman Story, one film crew member was killed and several others severely injured when an oncoming train raced through their shooting location. Film Allman, the production company, planned to film in and around Savannah, Georgia, in early 2014. On February 20, 2014, a number of its employees arrived at a shooting location – a train trestle spanning the Altamaha River – to film a scene on the trestle itself. Permission to use the trestle was never secured. The scene was a dream sequence which called for the character of Gregg Allman to wake up in a hospital bed placed across the trestle's tracks. Tragically, while approximately 20 employees were located on the trestle, they realized a northbound train was fast approaching. A 27-year-old camera assistant was killed and several more severely injured in the resulting impact (Film Allman, LLC, Dkt. No. 14-1385). Following a seven month investigation, the Secretary of Labor issued citations for violating 29 C.F.R. §§ 1910.23(c)(1) and (e)(1) for failing to adequately guard the sides of a trestle and also a willful violation of § 5(a)(1) (the General Duty Clause) for failing to implement safety procedures for filming on the trestle, exposing employees to the hazard of being struck by a train. The Secretary proposed penalties of $4,900 and $70,000, respectively. Regarding the § 5(a)(1) violation, Film Allman argued the Secretary failed to meet his burden of proving intentional disregard to the requirements of the Act or plain indifference to employee safety because the film company reasonably relied on a third party’s assurance that only two trains were expected the day of the accident. However, the ALJ affirmed all citations, noting specifically that there were significant gaps in the record regarding the origins of the “‘two trains’ canard.” “The absurdity of Film Allman’s argument is highlighted by its failure to inquire, upon arrival at the…trestle site, whether any trains had passed by yet. This would appear to be crucial information for a filming schedule premised on the ‘two trains’ theory.” The ALJ concluded that all the evidence plainly demonstrated that the production company’s cumulative choices to ignore the track owner’s denial of permission to film on its tracks, forsake standard safety protocols, and withhold crucial information from employees reflect plain indifference to employee safety.
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