307 P.3d 510
Or. Ct. App.2013Background
- OR-OSHA cited Moore Excavation, Inc. for failing to tag and withdraw from service a damaged 24-foot extension ladder under 29 CFR 1926.1053(b)(16), adopted in Oregon by reference under the OSEA.
- An ALJ vacated the citation, concluding OR-OSHA did not prove reasonably predictable exposure of workers to the hazard.
- OR-OSHA sought judicial review, arguing the proper burden was to show violation and that employees had access to the violative condition, not necessarily reasonably predictable exposure.
- The case centers on whether the employee-exposure element requires a reasonable-predictability showing or merely possible access to the violative condition.
- The Oregon Court of Appeals adopts the reasonable-predictability standard for exposure and affirms vacatur where OR-OSHA failed to show it under that standard.
- Key factual context: the damaged ladder was in an inactive, fenced area not part of the active work zone, with about 18 employees on site; evidence of access or use by employees was not established.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| What is the proper standard of proof for employee exposure? | Moore argues OR-OSHA need prove only access, not reasonable predictability of exposure. | Moore contends exposure need only be possible; the ALJ imposed a reasonable-predictability standard. | Reasonable-predictability is the proper standard. |
| Does Mowat control the exposure standard under the OSEA? | Mowat requires no proof of hazardous condition; limited guidance on exposure. | Mowat supports a broader rule of access without requiring actual exposure. | Mowat is distinguishable; federal law supports reasonable-predictability as the standard for exposure. |
| Did OR-OSHA prove reasonably predictable exposure in this case? | Exposure was reasonably predictable because the ladder could be used in violation, creating risk. | The evidence showed the ladder was in an inactive area and exposed area was not active; exposure was not reasonably predictable. | No; OR-OSHA failed to prove reasonably predictable exposure. |
Key Cases Cited
- Oregon Occupational Safety v. Mad Creek Logging, 123 Or App 453 (1993) (implicit distinction between exposure and hazard; supports discussion of exposure element)
- Oregon Occupational Safety v. Stadeli Pump, 18 Or App 357 (1974) (recognizes employee exposure as an element, distinct from hazard existence)
- Oregon v. Mowat, 237 Or App 576 (2010) (discusses presumption of hazardousness vs exposure; distinguishes exposure standard)
- Williams v. Occupational Safety & Health, 464 F.3d 1060 (9th Cir. 2006) (supports reasonably predictable exposure as standard under federal OSHA)
- N & N Contractors v. Occupational Safety & Health, 255 F.3d 122 (4th Cir. 2001) (explicitly states reasonable predictability of exposure when proving exposure)