248 P.3d 1085
Wash. Ct. App.2011Background
- TEC, a steel erection subcontractor, worked on a Microsoft data center project in Quincy, WA, where roof decking bundles weighed 2,000–3,000 pounds and were landed on the roof by cranes.
- TEC installed catenary lines (fall protection) for workers and also attached catenary lines to decking bundles.
- Two weeks before the accident, a DLI safety officer inspected the site and found no violations; he could not recall seeing lines on bundles during that inspection.
- On the accident day, Watts and Pitts endeavored to relocate a bundle by endoing it with a come-along; after they deemed the position safe, Watts released the come-along and the bundle shifted, fell, and Watts, who had attached his lanyard to the bundle, died.
- DLI issued citations to TEC for fall restraint/arrest system, fall protection plan, and related safety regulations, with two alleged as repeat violations based on a prior 2004 citation; total penalties were $10,500.
- The IAJ vacated most items, the Board of Industrial Insurance Appeals reversed and affirmed the citations in full, the superior court affirmed, and TEC appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the board applied the proper standard for constructive knowledge | TEC argues the board used an improper 'should have known' threshold not authorized by RCW 49.17.180(6). | Department contends the board correctly applied the constructive knowledge standard, interpreting 'should have known' as reflective of reasonable diligence. | The board may use the statutory standard; any 'should have known' phrasing is harmless if substantial evidence supports constructive knowledge under the statute. |
| Sufficiency of evidence TEC knew or could have known employees tied off to bundles being moved | There was no evidence TEC could have known employees tied off to moving bundles; Watts' conduct was unforeseen. | Substantial evidence showed TEC could have anticipated the hazardous practice given bundling and endoing practices and TEC's control over safety plans. | Substantial evidence supports constructive knowledge that workers tied off to bundles while moved, making the violation proper. |
| Sufficiency of evidence of deficiencies in TEC's fall protection and accident prevention plans | No proof TEC's plans were deficient or that TEC could have known they were deficient. | TEC's plans failed to address catenary lines on bundles during endoing, and thus were deficient and TEC could have known. | Substantial evidence supports that TEC knew or could have known its plans were deficient and that the violations were serious. |
| Whether there is substantial evidence to support the board's repeat violation conclusion | The prior 2004 violation details were insufficient to establish a substantially similar hazard for repeat-violation purposes. | Cobra Roofing controls show hazard-type-based repeat violations; the current hazards are substantially similar to the prior. | The board properly treated TEC's current violations as repeat violations under the applicable standard. |
Key Cases Cited
- Cobra Roofing Servs., Inc. v. Dep't of Labor & Indus., 157 Wash.2d 90 (2006) (repeat-hazard standard under WISHA remains: same type of hazard suffices)
- Austin Bldg. Co. v. Occupational Safety & Health Review Comm'n, 647 F.2d 1063 (10th Cir. 1981) (foreman-checking safety should have discovered hazardous conduct)
- Wash. Cedar & Supply Co. v. Dep't of Labor & Indus., 119 Wash. App. 906 (2004) (constructive knowledge and reasonable diligence; observable hazards)
- Kokosing Constr. Co. v. Occupational Safety & Health Review Comm'n, 232 Fed.Appx. 510 (6th Cir. 2007) (obligation to inspect and anticipate hazards; constructive knowledge via reasonable diligence)
- Centimark Corp. v. Dep't of Labor & Indus., 129 Wash. App. 368 (2005) (should have known of the hazard; substantial evidence standard)
- J.E. Dunn Nw., Inc. v. Dep't of Labor & Indus., 139 Wash. App. 35 (2007) (substantial evidence supports should have known analysis)
- Wash. Cedar & Supply Co. v. Dep't of Labor & Indus., 119 Wash. App. 906 (2004) (reiterates constructive knowledge analysis)