460 P.3d 192
Wash. Ct. App.2020Background
- Shimmick used two tow trucks with extendible booms and hoist lines to lower six heavy concrete panel sections into an excavation directly beneath three energized high‑voltage lines (total 26 kV, ~45 ft above street).
- The trucks were positioned near the excavation, remotely operated, equipped with outriggers, and had not been inspected/certified as cranes; operators lacked crane certification.
- Shimmick planned to keep equipment more than 10 feet from the lines and used dedicated spotters and air horns; it believed crane rules did not apply to these tow trucks.
- An anonymous photo triggered a Department of Labor and Industries inspection; the Department concluded the tow trucks functioned as cranes and cited Shimmick for crane/equipment/operator certification violations and two serious violations for operating under energized power lines.
- The Board and the superior court upheld the Department’s citations; this appeal challenges (1) whether the tow trucks were cranes and (2) whether operation beneath the power lines constituted a serious violation exposing employees to substantial probability of serious injury.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether tow trucks, as used, are "cranes" under RCW/WAC | Tow trucks are not cranes; cannot rely on "multipurpose machine" label | Definition covers power‑operated equipment that hoist, lower, and horizontally move suspended loads (includes service/mechanic trucks when so used) | Trucks were cranes when used to hoist/lower/horizontally move the panels; substantial evidence supports finding |
| Whether operating the cranes below energized power lines violated WAC (and whether the 10‑ft rule controls) | No violation because booms never came within 10 ft of the lines; tandem lift prevented full boom vertical extension | WAC prohibits any part of a crane/load beneath a power line when the crane’s design allows it to reach the minimum clearance plane when fully extended at true vertical | Violation: exception inapplicable because booms, when fully extended at true vertical, could reach above the Table 4 minimum‑clearance plane |
| Whether the violation exposed employees to a substantial probability of serious injury (seriousness) | No substantial probability: precautions prevented encroachment and made injury unlikely | Violation of the specific crane‑under‑line standard presumes a hazard; employees worked in the zone of danger adjacent to the equipment | Exposure found and violation serious; employer’s precautionary measures and low likelihood of an accident do not negate seriousness |
Key Cases Cited
- Erection Co. v. Dep’t of Labor & Indus., 160 Wn. App. 194, 248 P.3d 1085 (Wash. Ct. App. 2011) (standard of review and substantial‑evidence rules in WISHA appeals)
- Wash. Cedar & Supply Co. v. Dep’t of Labor & Indus., 137 Wn. App. 592, 154 P.3d 287 (Wash. Ct. App. 2007) (interpretation of agency regulations and weight to Department’s view)
- Frank Coluccio Constr. Co. v. Dep’t of Labor & Indus., 181 Wn. App. 25, 329 P.3d 91 (Wash. Ct. App. 2014) (violation of a specific standard presumes a safety hazard)
- SuperValu, Inc. v. Dep’t of Labor & Indus., 158 Wn.2d 422, 144 P.3d 1160 (Wash. 2006) (treatment of specific‑standard violations)
- Mid Mountain Contractors, Inc. v. Dep’t of Labor & Indus., 136 Wn. App. 1, 146 P.3d 1212 (Wash. Ct. App. 2006) (employee exposure / zone of danger principles)
- Potelco, Inc. v. Dep’t of Labor & Indus., 166 Wn. App. 647, 272 P.3d 262 (Wash. Ct. App. 2012) (employer precautions affect penalty, not whether a violation is serious)