Davey Tree Surgery Co. v. Department of Labor & Industries
37692-3
| Wash. Ct. App. | Dec 30, 2021Background
- On Oct. 7, 2016 DLI compliance officer Timothy McMinn drove past a Davey Tree worksite in Wenatchee and observed employee Robert Reimer operating a chainsaw without ballistic leg chaps; McMinn photographed the scene and then conducted an inspection.
- McMinn encountered Michael (Mike) Larsen, who identified himself as the foreman, said he had been in a bucket about 30 feet up, called his supervisor, and authorized the inspection; McMinn testified Reimer was within visual sight of the other employees.
- DLI issued a serious WAC citation to Davey Tree for failing to ensure Reimer wore leg protection and assessed a $2,100 penalty.
- An ALJ upheld the citation; the Board of Industrial Insurance Appeals denied review of the ALJ decision.
- Superior court reversed, concluding insufficient evidence supported constructive knowledge; the Court of Appeals reversed the superior court and affirmed the Board and the $2,100 penalty.
Issues
| Issue | Plaintiff's Argument (Davey Tree) | Defendant's Argument (DLI) | Held |
|---|---|---|---|
| Whether employer had actual or constructive knowledge that employee lacked required leg protection | McMinn could not identify where other employees stood; his observation was a fleeting sighting insufficient to impute knowledge | Violation was in plain view to a bystander and foreman; constructive knowledge may be inferred from a readily observable condition | Court held substantial evidence supported constructive knowledge because the violation was plainly observable to bystanders and the foreman |
| Whether work performed was arborist work on Oct. 7, 2016 | Davey Tree: DLI failed to prove the nature of the work; McMinn said he did not know workers’ duties that day | DLI: testimony and context supported that arborist duties were being performed | Court found substantial evidence supported the finding that arborist services were being performed |
| Whether three employees were present and McMinn’s view included others (i.e., whether others could have seen the violation) | Davey Tree: McMinn admitted uncertainty about locations of Larsen and the third worker; photos show only Reimer | DLI: McMinn testified he saw three employees, spoke to Larsen, and observed Reimer within sight of others | Court held substantial evidence supported finding that three employees were on site and Reimer was within visual sight of others |
| Whether Michael Larsen was a foreman/supervisor whose knowledge can be imputed to the employer | Davey Tree: Larsen called the home office before permitting inspection, showing lack of supervisory authority | DLI: Larsen self-identified as foreman and authorized inspection, showing supervisory role | Court held substantial evidence supported finding Larsen was a foreman/supervisor, allowing imputation of knowledge |
Key Cases Cited
- Frank Coluccio Constr. Co. v. Dep’t of Labor & Indus., 181 Wn. App. 25 (2014) (sets review standard and elements for serious WISHA violations)
- Pro-Active Home Builders, Inc. v. Dep’t of Labor & Indus., 7 Wn. App. 2d 10 (2018) (plain-view violations in area of crew can establish constructive knowledge)
- Potelco, Inc. v. Dep’t of Labor & Indus., 7 Wn. App. 2d 236 (2018) (foreperson’s or any bystander’s plain view observation can impute knowledge)
- BD Roofing, Inc. v. Dep’t of Labor & Indus., 139 Wn. App. 98 (2007) (inspector’s drive-by observation and easily observable violations support knowledge finding)
- Erection Co. v. Dep’t of Labor & Indus., 160 Wn. App. 194 (2011) (employer’s constructive knowledge can be inferred where unsafe practices occur in plain view and are foreseeable)