60692-5
Wash. Ct. App.Jul 28, 2026Background
- A Department compliance officer inspected Northwest Cascade's 17-foot-deep trench and cited the company after finding flagger Adam Horvath standing 7 feet, 8 inches from the trench edge without fall protection or a written fall protection plan. 1
- Northwest Cascade challenged the citations before the Board, arguing Horvath was not exposed to a fall hazard, was exempt as directly involved in excavation, and could not feasibly have been protected. 2
- The Board upheld the violations, finding Horvath was in the trench's affected area, not directly involved in excavation while flagging, and could have stood farther away or used some fall restraint. 3
- The superior court reversed, concluding flaggers are directly involved with excavation and therefore exempt from fall protection rules. 4
- The Court of Appeals reviewed the Board's order, not the superior court's, and applied substantial-evidence review to facts and de novo review to legal conclusions. 5
- The court reversed the superior court and affirmed the Board, holding the flagger was exposed to a fall hazard, not exempt, and that a written plan was required. 6
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Horvath was exposed to a fall hazard 7 | Northwest Cascade: 7 feet, 8 inches from the trench was too far to be hazardous. | Department: Horvath was within the trench's affected area and exposed to a 10-foot-plus fall. | Horvath was exposed to a fall hazard. 8 |
| Whether flaggers are directly involved in excavation 9 | Northwest Cascade: flagging is necessary to excavation, so Horvath was exempt. | Department: flaggers direct traffic, not excavation work, so the exception is narrow. | Flaggers are not directly involved and are not exempt. 10 |
| Whether fall protection was infeasible 11 | Northwest Cascade: safe fall protection or safe positioning was impossible. | Department: Horvath could have stood farther away or used restraint systems. | Northwest Cascade failed to prove infeasibility. 12 |
| Whether a written fall protection plan was required 13 | Northwest Cascade: no plan was needed because fall protection was not required. | Department: a written plan was required for areas with 10-foot fall hazards. | A written fall protection plan was required and the violation stands. 14 |
Key Cases Cited
- Pro-Active Home Builders, Inc. v. Department of Labor & Industries, 465 P.3d 375 (Wash. Ct. App. 2018) (Board order is reviewed, not the superior court's decision; factual findings must be supported by substantial evidence 15)
- Department of Labor & Industries v. Tradesmen International, LLC, 497 P.3d 353 (Wash. 2021) (substantial-evidence standard and liberal construction of WISHA for worker safety 16)
- Erection Co. v. Department of Labor & Industries, 248 P.3d 1085 (Wash. Ct. App. 2011) (evidence viewed in light most favorable to prevailing party before fact-finding tribunal 17)
- Willener v. Sweeting, 730 P.2d 45 (Wash. 1986) (mischaracterized conclusions of law are reviewed as conclusions of law 18)
- Franklin County Sheriff's Office v. Sellers, 646 P.2d 113 (Wash. 1982) (court treats an agency's application of a legal exception to facts as a legal determination 19)
- Shimmick Construction Co. v. Department of Labor & Industries, 460 P.3d 192 (Wash. Ct. App. 2020) (administrative regulations are interpreted like statutes 20)
- Cannon v. Department of Licensing, 50 P.3d 627 (Wash. 2002) (clear regulations are interpreted from their plain language and as a whole 21)
- Frank Coluccio Construction Co. v. Department of Labor & Industries, 329 P.3d 91 (Wash. Ct. App. 2014) (agency interpretations get deference if plausible and consistent with legislative intent 22)
- SuperValu, Inc. v. Department of Labor & Industries, 144 P.3d 1160 (Wash. 2006) (specific safety standards are presumed feasible and employer bears the burden to prove infeasibility 23)