465 P.3d 375
Wash. Ct. App.2018Background
- Pro-Active Home Builders contracted to install siding on two two-story homes in Tumwater; work required scaffolding and exposed workers to fall hazards over 10 feet.
- On January 13, 2014, superintendent John Hodges observed a lead worker (Valadez) on a roof without fall protection, told him to attach his safety line, then left Valadez in charge of site safety.
- Valadez (untrained in scaffold construction) later erected an unstable scaffold using a ladder as a walkway and worked on it without fall protection; inspector De Leon observed these violations from his car.
- At the adjacent house, employee Gonzalez erected a pump-jack scaffold that lacked visible ground spikes; photographs and testimony suggested spikes were absent.
- The Department issued seven serious WISHA citations (fall protection, scaffold construction/supervision, access, ladder use, pump-jack anchoring). The Board and superior court upheld the citations; the Board found Pro-Active had constructive knowledge and failed to prove unpreventable employee misconduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Employer knowledge (actual or constructive) | Department: Pro-Active had (constructive) knowledge because conditions were readily observable and superintendent was onsite | Pro-Active: No evidence of actual knowledge; conditions may have been transient | Court: Substantial evidence of constructive knowledge; violations were readily observable and superintendent saw issues |
| Unpreventable employee misconduct defense | Pro-Active: Had written program, training, and gave a verbal warning to Valadez so misconduct was unpreventable | Department: Pro-Active failed to effectively enforce program, monitor, and document discipline | Court: Defense fails—Pro-Active did not show effective enforcement, monitoring, or documented discipline |
| Duration / double citation (Items 1-1 vs 1-5) | Pro-Active: No proof violations existed long enough; citations duplicate same violation | Department: Different locations/conditions justify separate citations; duration not required for constructive knowledge | Court: Duration not required; citations address different exposures and are proper |
| Evidence of enforcement (documentation) | Pro-Active: Asserted verbal discipline and general safety practices | Department: Lack of written/recorded discipline and witness testimony that violations occurred before | Court: Lack of documentary evidence supports finding program ineffective in practice |
Key Cases Cited
- Steven Klein, Inc. v. Dep’t of Revenue, 183 Wn.2d 889 (appellate review framework under APA)
- Raven v. Dep’t of Soc. & Health Servs., 177 Wn.2d 804 (definition of substantial evidence review)
- Frank Coluccio Constr. Co. v. Dep’t of Labor & Indus., 181 Wn. App. 25 (viewing evidence in light most favorable to prevailing agency)
- J.E. Dunn Nw., Inc. v. Dep’t of Labor & Indus., 139 Wn. App. 35 (elements for serious WISHA violation and employer duties)
- Washington Cedar & Supply Co. v. Dep’t of Labor & Indus., 119 Wn. App. 906 (unpreventable employee misconduct—program must be effective in practice)
- W. Oilfields Supply v. Washington State Dep’t of Labor & Indus., 1 Wn. App. 2d 892 (constructive knowledge and common knowledge of hazards)
- Asplundh Tree Expert Co. v. Dep’t of Labor & Indus., 145 Wn. App. 52 (scope of unpreventable employee misconduct defense)