Attorneys for the “Midnight Rider” filmmakers appeared at a Savannah, Ga., hearing on Tuesday to challenge almost $75,000 in fines for willful safety violations cited by the Occupational Safety and Health Administration (OSHA).
At issue is the extent to which Film Allman, set up by director Randall Miller and producer Jody Savin to make a biopic of singer Gregg Allman, knew of the dangerous risks in placing a film crew on a train trestle near Jesup, Ga.
Camera assistant Sarah Jones was killed and eight others were injured when a train came unexpectedly down the tracks, just as the production was shooting a dream sequence in which Allman (William Hurt) wakes up on a hospital bed sprawled across the tracks.
On March 9, Miller plead guilty to charges of criminal trespass and involuntary manslaughter, and is serving a two-year jail sentence in Wayne County Jail in Jesup. As part of the plea agreement, charges against Savin, his wife, were dropped.
OSHA cited Film Allman in August, but the filmmakers appealed to the Occupational Safety and Health Review Commission, an independent federal agency. OHSA concluded that they were denied permission to be on the tracks by CSX Transportation, but that they went ahead and filmed there anyway.
According to Savannah TV station WSAV-TV, Don Samuel, the attorney for Miller and Savin, argued that they believed they had permission, and did not believe there was a problem. Miller was present at the hearing, the station said.
In court filings, the Film Allman argued that they “took reasonable steps to ensure the safety of all crew present on site for filming at the incident location.” The filmmakers added that they relied on information provided “by others as to the condition of the railroad tracks.”
But according to WSAV, location manager Charley Baxter testified at the review commission hearing that CSX emailed him the morning of the accident and he took it as a denial of permission to be on the tracks. According to prosecutors in the criminal case, Baxter said that he forwarded the email to a joint account held by Miller and Savin, and had conversations with crew members that day about its contents.
At the hearing, Baxter said that he refused to go to the set that day.
“I knew what they were going to do, i.e. try to get on the tracks without permission and I didn’t want to be a part of it,” he said, according to WSAV.
Earlier this month, another attorney for Miller, Ed Garland, said that the accident resulted from a “whole series of miscommunications and assumptions.” He said that his client never saw Baxter’s email, as he had been hunkered down with Hurt and other actors trying to get them ready for the scene.
OSHA issued two citations. One, listed as “serious,” was for exposing workers to “fall hazards” while working on a train trestle not quipped with guardrails or other fall protection measures. The proposed penalty is $4,900. The maximum allowed for such a violation is $7,000.
The other, listed as “willful,” was issued for failing to provide safety measures to protect employees from moving trains. A violation is listed as “willful” if it is “one committed with intentional knowing or voluntary disregard for the law’s requirements, or with plain indifference to worker safety and health,” according to OSHA. The proposed penalty is $70,000, the maximum allowed for a “willful” violation.
Miller and Savin each issued statements on March 20. The director said that the accident was “ultimately my responsibility and was my decision to shoot the scripted scene that caused this tragedy.”
But he also said that “the location manager, the production designer, the unit production manager, the cinematographer, assistant director and others all made mistakes that lead to this, but I have taken responsibility because I could have asked more questions and I was the one in charge.”