The filmmakers behind “Midnight Rider” are challenging an administrative law judge’s decision last month to uphold nearly $75,000 in fines for safety violations stemming from the Feb. 20, 2014, train accident that killed camera assistant Sarah Jones and injured eight others.
Film Allman, the company that director Randall Miller and producer Jody Savin set up to make the movie, disputes administrative law judge Sharon Calhoun’s opinion that the company was responsible for “willful” safety violations. The company is asking the Occupational Safety and Health Review Commission to review her ruling.
The movie had been shooting on a train trestle near Jesup, Ga., when a train came unexpectedly, forcing cast and crew to flee. In August, 2014, the Occupational Safety and Health Administration cited the failure of the production to obtain permission to be on the tracks. Two citations were issued: A “willful” violation for the employer’s failure to provide safety measures to protect employees from moving trains, and a “serious” citation for exposing workers to fall hazards while working on a train trestle that was not equipped with safety guardrails or other fall protection measures.
Film Allman appealed the fines.
In its latest challenge, Film Allman’s attorneys argue that the filmmakers believed that only two trains would go by on the tracks on the afternoon of the filming, and once that happened, it would be safe to shoot on the tracks “because no additional trains would come by.”
“While Film Allman showed a lack of diligence in filming on the tracks on February 20, Film Allman was not intentionally exposing its employees to danger,” the company’s attorneys wrote. “Had Film Allman known the ‘two trains’ information was unconfirmed and unreliable, it would not have filmed on the tracks that afternoon.”
The filmmakers did not have permission from CSX Corp. to be on the tracks, but the production did have the okay from Rayonier Performance Fibers to be on its property surrounding the tracks.
“Film Allman’s comfort in filming on the tracks that afternoon was supported by the presence of Rayonier security guards and Rayonier’s communications manager, Tina Kicklighter,” Film Allman’s attorneys wrote. “Additionally, Tina Kicklighter had escorted representatives onto those same tracks in the days prior to filming. During that escorted visit to the site, the representatives went further onto the tracks than they did on the day of the filming, spent at least 30 minutes out on the tracks, and no trains traversed the tracks that afternoon.”
In her decision, Calhoun wrote that the accident was “entirely preventable,” and called the two trains explanation “a smokescreen concocted to afford Film Allman plausible deniability with respect to hazards to which it exposed employees.” She also wrote that the production “purposefully misrepresented the number of employees it planned to have on the tracks.”
Film Allman also contends that they should not have been given the maximum penalty because their actions “were not malicious, they had a safe working history and were a small company.”
“A $74,600 penalty and the willful designation is disastrous for this small company and its principals who have safely provided more than 20,000 jobs in their careers,” the attorneys wrote. “It should be reduced to be proportional to the size of the company and reflect Film Allman’s good faith in striving to provide a safe work place and prior safe work history.”
The filmmakers also say that OSHA withheld witness statements on the grounds of informer’s privilege, even though Film Allman was aware of who was interviewed by safety investigators.
“The withholding of the information denied Film Allman the tools with which to defend itself and misconstrued the intent of the informers’ privilege,” the attorneys wrote.
Miller is serving a two-year jail sentence in Wayne County, Ga., after pleading guilty to involuntary manslaughter and criminal trespass, just before a criminal trial in the case was scheduled to being in March.
News of the latest Film Allman challenge was first reported on Deadline.