SSHI, LLC d/b/a D R Horton v. Department of Labor & IndustriesSSHI, LLC d/b/a D R Horton v. Department of Labor & Industries
SSHI appeals, arguing that a different standard for knowledge of a violative condition should apply to general contractors than that applied to subcontractors. It also contends that one of the safety standards did not apply because the backhoe was not in operation within the meaning of the code, and that substantial evidence does not support the Board’s finding that SSHI had constructive knowledge of the violations. We disagree with SSHI’s arguments and affirm.
BACKGROUND
SSHI was the general contractor of Rainier Ridge, a large housing development project in Puyallup, Washington. SSHI subcontracted the construction work for Rainier Ridge to Ruhnke Construction, among other subcontractors. SSHI had “superintendents [who] would perform daily walks while they [were] out on the jobsite” and would “watch over and oversee all the operations happening in the field.” Clerk’s Papers (CP) at 1547-48. SSHI typically had five full-time superintendents and two assistant superintendents at the jobsite.
On November 9, 2022, Mr. Petraca, a Ruhnke Construction employee, was operating a backhoe1 and using a 20-to-30-pound post pounder to install posts for caution
The Department of Labor and Industries (Department) initiated an investigation. The investigation revealed Mr. Petraca was attempting to retrieve the post pounder from the cab of the backhoe when the post pounder fell or dropped onto the pedal that activated the backhoe’s shovel. It was determined the backhoe was working properly and the engine was running at the time of the incident because the engine also operates the hydraulic system that moves the shovel.
As a result of the incident, the Department cited SSHI for violating
SSHI appealed the citations to the Board. An evidentiary hearing was held before an IAJ. Prior to the hearing, SSHI moved to admit the deposition testimony of Terry Walley. SSHI argued Mr. Walley’s deposition “provides the history and policy basis for
Numerous witnesses testified at the evidentiary hearing and the recording of the incident was admitted. Richard Medlen, a compliance safety and health inspector with the Department, testified that he did not believe Ruhnke Construction could establish the affirmative defense of employee misconduct to the violations. He testified the backhoe was running at the time of the incident and the post pounder was left in the cab. Mr. Medlen also testified that he followed DOSH Directive 27.00 in assessing whether SSHI, as the general contractor, should be cited for the safety violations. A copy of DOSH Directive 27.00 was admitted. DOSH Directive 27.00 establishes guidelines for “DOSH compliance and consultation staff when assessing an upper-tier contractor’s compliance with the Washington Industrial Safety and Health Act (WISHA).” CP at 1722. DOSH Directive 27.00 provides “interpretation of appropriate application of [WISHA]” to “general contractor[s]” and “upper-tier subcontractor[s].” CP at 1722.
George Whiting, the quality control manager for SSHI, testified that “four to five” SSHI superintendents and a “site foreman” for Ruhnke Construction were assigned to the
At the conclusion of the evidentiary hearing, the IAJ issued a proposed decision and order affirming the violations. For purposes of
SSHI petitioned for review and the Board affirmed. SSHI appealed to the superior court, which affirmed the Board’s order. SSHI timely appeals to this court.
WHETHER A GENERAL CONTRACTOR IS SUBJECT TO THE SAME KNOWLEDGE REQUIREMENT AS A SUBCONTRACTOR
SSHI argues that a different standard for proving knowledge of a violative condition should apply to general contractors than that applied to subcontractors. We disagree.
In Washington, general contractors have a nondelegable specific duty to ensure compliance with all WISHA regulations. Stute v. P.B.M.C. Inc., 114 Wn.2d 454, 463-64, 788 P.2d 545 (1990);
SSHI argues that it had a lower level of responsibility as general contractor and less control over the day-to-day activities of employees than the subcontractor, Ruhnke Construction, who directly employed Mr. Petraca. It contends the test for constructive knowledge should be different for general contractors. We disagree with SSHI. The standard for knowledge is the same for general contractors and subcontractors alike.
A general contractor owes a “‘specific duty’” to all employees on a job site to “‘comply with rules, regulations, and orders promulgated under [WISHA].’” Vargas v. Inland Wash., LLC, 194 Wn.2d 720, 735-36, 452 P.3d 1205 (2019) (internal quotation marks omitted) (quoting
To the extent SSHI contends the citation should not be issued because the subcontractor chose to forego the affirmative defense of unpreventable employee misconduct, such an argument fails. First, contrary to SSHI’s contention that Mr. Medlen “testified that Ruhnke Construction had established the elements of employee misconduct,” the record reflects that Mr. Medlen testified that he did not find that Ruhnke Construction could establish employee misconduct. Opening Br. of Appellant at 50. Moreover, SSHI does not explain why it could not assert the affirmative defense of unpreventable employee misconduct itself. See
SSHI also argues that the proposed decision and order “constitutes the application of strict liability as no explanation is provided to support the conclusion that [SSHI’s] safety plan failed.” Opening Br. of Appellant at 51. We disagree with SSHI because, as the Department points out, it merely needed to prove SSHI knew or should have known of the violative conditions through the exercise of reasonable diligence. Potelco, Inc. v. Dep’t of Lab. & Indus., 191 Wn. App. 9, 34, 361 P.3d 767 (2015).
Finally, SSHI argues the IAJ erred in denying its motion to admit Mr. Walley’s CR 30(b)(6) deposition testimony. We review a presiding officer’s evidentiary rulings for abuse of discretion. Univ. of Wash. Med. Ctr. v. Dep’t of Health, 164 Wn.2d 95, 104, 187 P.3d 243 (2008).
APPLICABILITY OF WAC 296-155-77100(3)(d) AND WHETHER SUBSTANTIAL EVIDENCE SUPPORTS THE BOARD’S FINDING THAT RUHNKE CONSTRUCTION AND SSHI HAD KNOWLEDGE OF THE VIOLATIONS.
Turning to the merits, SSHI argues
To prove SSHI committed a serious violation, the Department must show: (1) “the cited standard applies;” (2) the employer failed to meet the standard; (3) “employees
SSHI was cited for serious violations of
Application of WAC 296-155-77100(3)(d)
SSHI first argues that, as a matter of law,
“We construe WISHA statutes and regulations liberally to achieve their purpose of providing safe working conditions for workers in Washington.” Frank Coluccio Constr. Co. v. Dep’t of Lab. & Indus., 181 Wn. App. 25, 36, 329 P.3d 91 (2014); see also
Here, the IAJ interpreted “during operation or moving of the shovel” to mean “[t]he engine that activated the hydraulic system was running.” CP at 118. It noted, “No distinction was made between a stationary excavation machine, with its internal combustion engine running but not moving, and a moving excavation machine.” CP at 118. It therefore found that “[t]he backhoe was on or during operation because its engine was running” and
The backhoe’s shovel could only move because the engine was running. The shovel moved, meaning the machine was “in operation,” and Mr. Petraca was prohibited from being within the shovel’s swing radius. Furthermore, interpreting “in operation” to mean the engine that activates the hydraulic system is running protects workers from being injured by the shovel of the backhoe. Thus, because the backhoe was “in operation,” and Mr. Petraca was within the shovel’s swing radius,
SSHI next argues the Board’s findings that it and Ruhnke Construction had knowledge of the violative conditions are not supported by substantial evidence.
When analyzing a WISHA appeal, we review the Board’s decision based on the record before it. Erection Co. v. Dep’t of Labor & Indus., 160 Wn. App. 194, 201, 248 P.3d 1085 (2011). If the Board’s findings are supported by substantial evidence, they are conclusive. Id. at 202;
The knowledge element may be proved by evidence of actual or constructive knowledge. See
Testimony at the hearing demonstrated that the backhoe was running at the time of the incident and a post pounder was in the backhoe’s cab. Moreover, photographs taken during the investigation showed that the post pounder was visible from outside of the swing radius of the backhoe. SSHI’s director of construction, Mr. Burke, testified the post pounder could be seen in the cab from 20-to-30 feet away. Finally, the incident occurred at an active worksite on a busy street and, as evidenced by the video recording of the incident, anyone could have observed Mr. Petraca standing in the backhoe shovel’s swing radius. This evidence supports the Board’s findings that the violations were in plain view and that SSHI therefore had constructive knowledge of them.
SSHI points to the Board’s recent decision in In re Acropolis Construction, claiming that case “held that a subcontractor violation, even if it is in plain view, does not establish a Stute citation against the general contractor.” Opening Br. of Appellant at 57;
In Acropolis, the Board vacated citations issued to Acropolis, a subcontractor, because the safety violations occurred on a Saturday, not a scheduled workday, by an employee who was suspended. 2024 WL 5336676, at *3-5. Thus, the Board determined that Acropolis did not have knowledge of the violations because it “had no reason to inspect the work area, to anticipate hazards” on a non-workday. Id. at *2. Though the violations were in plain view, “employers can’t be expected to exercise reasonable diligence to make sure safety rules are being followed on non-work days.” Id.
In contrast to Acropolis, here, the safety violation occurred on a scheduled workday during which SSHI was expected to exercise reasonable diligence to ensure compliance with all WISHA regulations and to observe those violations occurring in plain view. The Board’s reasoning in Acropolis is inapplicable to these facts.
SSHI argues the plain view doctrine should not be applied because there was no substantive evidence that the violations were readily observable and conspicuous. As explained above, this argument fails. Substantial evidence supports the Board’s findings that the violations were readily observable by SSHI.
Finally, SSHI contends that “even if either employer were present to observe the tragedy, there was nothing that either employer could have reasonably done to prevent the incident from occurring.” Opening Br. of Appellant at 61. However, had SSHI or
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to
Cooney, A.C.J.
WE CONCUR:
Murphy, J.
Hill, J.