The High-Flier Aircraft Company manufactures small aircraft in a plant which features a fifty-foot high, arced roof; this accommodates an overhead crane to move the aircraft fuselages from one end of the assembly line to the other. During the recent economic downturn, orders for executive jets for corporate CEOs have been way down. Grateful for an order for a top-of-the-line plane from a Fortune 500 company, High-Flier’s employees are determined to produce a top-flight aircraft within the short timeline provided in the sales contract.

Consequently, when the crane breaks down and the line is forced to stop, Fred Smith, the plant’s head maintenance mechanic, is determined to repair the crane without wasting the time involved in following the normal maintenance procedure, which requires lowering the boom to floor level. Instead, Fred climbs to the top of the crane. Finding no convenient place to fix a safety line, he goes to work

“without a net,” so to speak. He slips and falls to his death. When OSHA propose to cite the company for Fred’s death and impose a significant fine, the company appeals on the ground that Fred failed to follow plant procedure, but instead took it upon himself to risk his life at the top of the crane.

What should the federal court rule in this case?