SSHI, LLC v. Department of Labor & IndustriesSSHI, LLC v. Department of Labor & Industries
SSHI appeals to this court, arguing that a different standard for knowledge of a violative condition should apply to general contractors than that applied to subcontractors. SSHI also argues that substantial evidence does not support the Board‘s findings that SSHI had constructive knowledge of the violation. We disagree with SSHI‘s arguments and affirm.
BACKGROUND
SSHI was the general contractor for Windhaven, a large housing development project in Spokane, Washington. SSHI subcontracted the construction work for Windhaven to John 316, among others. John 316, in turn, subcontracted the framing of the homes to SVK Builders. SSHI typically had three superintendents and two assistants supervising safety and production at the Windhaven project. The superintendents and assistants each typically drove or walked by homes being constructed 10 or more times per day.
On June 8, 2022, Douglas Thoet, a Department inspector, inspected the Windhaven project. During his inspection, Mr. Thoet noticed that the second floor walls of a home were being erected with an extension ladder providing the only means of accessing the second floor. SSHI was cited for a serious violation of
SSHI appealed the citation to the Board, arguing that “it took reasonable steps to ensure its subcontractors complied with safety rules.” AR at 41. An evidentiary hearing was held before an IAJ. Numerous witnesses testified at the hearing and exhibits, including photographs of the alleged violations, were admitted.
Prior to the hearing, SSHI moved for admission of the CR 30(b)(6) deposition transcript of Terry Walley. SSHI argued Mr. Walley‘s deposition “provides the history and policy basis for the [Division of Occupational Safety and Health (DOSH)] Directive 27.00 which the Department expects its compliance staff to follow.” AR at 212. The IAJ did not consider Mr. Walley‘s deposition testimony in making its decision, but 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).” AR at 1885. DOSH Directive 27.00 provides “interpretation of appropriate application of [WISHA]” to “general contractor[s]” and “upper-tier subcontractor[s].” AR at 1885.
At the hearing, Mr. Thoet testified that he inspected the Windhaven project on June 8, 2022, and noticed a person not wearing fall protection while on the second level
Mr. Thoet also testified that this was a “repeat” citation because SSHI had been cited for violating
Sean Potter, a superintendent for SSHI, testified that he saw that “the second floor walls” of the home at issue were up on June 8, 2022. AR at 792. When asked whether
Zach Cody, the area construction manager for SSHI, testified that he drove by the home at issue “maybe 10 to 12 times a day,” and the superintendents collectively drove by the home “30 to 40 times throughout the day” on June 22, 2022. AR at 704. When asked if he was aware that stairs needed to be installed before the second floor walls were erected, Mr. Cody responded that he knew “that that was the case” but “that morning [the construction crew] had started the subfloor and by the end of the day they had their walls up so without actually walking into the house and checking on the stairs, we just assumed that they had thrown in the stairs as they were going.” AR at 721.
Following the evidentiary hearing, the IAJ issued a “Proposed Decision and Order” affirming the citation. AR at 41-48 (some capitalization omitted). The IAJ found, “SSHI had constructive knowledge of the lack of stairs. The violation was visible from the street and in plain view. SSHI, LLC could have known about the violations through the exercise of reasonable diligence.” AR at 47. Relatedly, the IAJ noted it was not persuaded by SSHI‘s argument that the violation was not in plain view because the “lack of a staircase was at this site visible from the street,” and if “an individual was close to the powder room window or the garage entrance, he or she would notice the lack of stairs.” AR at 45. The IAJ was also unpersuaded by SSHI‘s argument regarding the absence of supervisory personnel on the jobsite. The IAJ noted that the Board concluded in a prior appeal that “if the absence of supervisory personnel on a job site was enough to avoid the consequences of a safety violation, employers merely would begin to follow a practice of not having a supervisor or other managerial representatives present at its worksite.” AR at 44-45. The IAJ also found the base penalty was $6,600 but was multiplied by two, for a total of $13,200, because SSHI “had one prior final citation for fall protection violations dated within three years of this violation.” AR at 48.
SSHI petitioned for review of the IAJ‘s decision. The Board denied the petition and adopted the IAJ‘s proposed decision. SSHI appealed to the superior court, which affirmed the Board‘s order.
SSHI appeals.
ANALYSIS
STANDARD FOR PROVING KNOWLEDGE OF VIOLATIVE CONDITION
SSHI argues a different standard for proving knowledge of a violative condition should apply to general contractors than that applied to subcontractors. We disagree.
General contractors in the Evergreen State have a specific, nondelegable duty to ensure compliance with WISHA regulations. Stute v. P.B.M.C. Inc., 114 Wn.2d 454, 463-64, 788 P.2d 545 (1990);
SSHI argues that, as general contractor, it had a lower level of responsibility and less control over the day-to-day activities of employees than the subcontractor, SVK Builders. It contends the test for constructive knowledge should be different for general contractors.2 We disagree and hold that the standard for knowledge of a violative condition is the same for general contractors as it is for subcontractors.
Our Supreme Court has explained that a general contractor owes a “‘specific duty‘” to all employees on a job site to “‘comply with the 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
SSHI contends the Board did not address “whether the supervision conducted by [SSHI] superintendents met its non-delegable duty as the general contractor” or “the differences between subcontractors and general contractors.” Opening Br. of Appellant at 63. SSHI misunderstands the issues in this WISHA appeal. There is not a requisite number of safety inspections that would satisfy SSHI‘s nondelegable duty to ensure compliance with WISHA regulations. Indeed, SSHI could conduct a multitude of safety inspections per day, but the number of inspections is irrelevant if SSHI does not meet its duty to ensure compliance with safety regulations. Moreover, “the differences between subcontractors and general contractors” are immaterial to whether SSHI met its nondelegable duty. Opening Br. of Appellant at 63.
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 57-58. This argument fails because, as the Department points out, it only 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).
As the general contractor, SSHI is subject to the same test for constructive knowledge as the subcontractor.
CR 30(b)(6) DEPOSITION TRANSCRIPT
SSHI claims the IAJ erred in denying its motion to admit the CR 30(b)(6) deposition transcript of Mr. Walley. We disagree with SSHI.
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).
Here, the IAJ did not consider Mr. Walley‘s deposition testimony that SSHI moved to admit. The IAJ did not abuse its discretion in declining to consider Mr. Walley‘s deposition testimony. Under ER 401, the testimony regarding the history and development of DOSH Directive 27.00 was not relevant because the directive is not a legal statement or formal regulation regarding the requirements expected of general contractors. See In re Exxel Pacific, No. 96 W182, 1998 WL 718040, at *6 (Wash. Bd. Indus. Ins. Appeals July 6, 1998) (“[W]e cannot adopt [policy] as a definitive legal statement of the requirements of general contractors.“); J.E. Dunn Nw., Inc. v. Dep‘t of Lab. & Indus., 139 Wn. App. 35, 52, 156 P.3d 250 (2007) (“Policy statements are ‘advisory only.‘“). Indeed, why and how DOSH Directive 27.004 was developed has no legal relevance as it is not a regulation having any force of law.
The IAJ did not abuse its discretion in deciding not to consider Mr. Walley‘s CR 30(b)(6) deposition testimony.
Turning to the merits, SSHI argues it did not have actual or constructive notice of the safety violation. We disagree. Substantial evidence supports the Board‘s findings that SSHI had constructive knowledge of the violation which, in turn, supports its conclusion that SSHI committed a serious safety violation.
SSHI was cited for violating
To prove SSHI committed a serious violation, the Department was required to show: (1) “the cited standard applies;” (2) the employer failed to meet the standard; (3) “employees were exposed to, or had access to, the violative condition;” (4) the employer knew or should have known, through the exercise of reasonable diligence, of the violative condition; and (5) there is a substantial probability that serious bodily injury or death could result from the violative condition. Wash. Cedar & Supply Co. v. Dep‘t of Lab. & Indus., 119 Wn. App. 906, 914, 83 P.3d 1012 (2003);
“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
When analyzing a WISHA appeal, we review the Board‘s decision based on the record before it. Erection Co. v. Dep‘t of Lab. & 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
SSHI argues substantial evidence does not support the Board‘s findings that (1) “SSHI had constructive knowledge of the lack of stairs,” (2) the “violation was visible from the street and in plain view,” and (3) SSHI “could have known about the violations through the exercise of reasonable diligence.” AR at 47. The Board‘s findings are supported by substantial evidence.
The photographs of the violation admitted at the hearing show that an individual was able to view that stairs were not installed from the street. Mr. Thoet testified that a close examination of the photographs revealed the presence of an extension ladder and that the ladder appeared to be the only means of accessing the second floor of the home.
Moreover, Mr. Potter testified that he saw “[t]he second floor walls were up” on the day of the violation. AR at 792. When asked if he remembered what time employees were done installing floors in the home at issue, Mr. Potter stated, “I don‘t look that close. It‘s just the generic idea that people are on site and getting things done.” AR at 791. Mr. Potter further testified that he was aware that stairs needed to be installed before the second floor walls could be erected. However, Mr. Potter claimed that “[i]t‘s not always obvious” if stairs have been installed or not, especially in certain floor plans like this one. AR at 797. Finally, when asked if he was aware that stairs needed to be installed before second floor walls could be erected, Mr. Cody responded, “[T]hat morning they had started the subfloor and by the end of the day they had their walls up so
Mr. Cody and Mr. Potter essentially testified that they did not look very closely to determine whether stairs had been installed prior to the construction of walls on the second floor. Further, the photographs demonstrated that the lack of stairs was readily observable from the street. Based on the evidence before it, the IAJ and the Board could find that SSHI had constructive knowledge of the violation. SSHI could have discovered the violation had it exercised reasonable diligence.
In passing, SSHI also claims that findings of fact 8 and 9 are unsupported by the evidence.5 SSHI argues, “The Board further erred by concluding that the prior citations that occurred at other projects with different subcontractors should have put [SSHI] on notice that SVK [Builders] would not install the stairs.” SSHI claims, “This was the first time that SVK [Builders] failed to put in the stairs at Windhaven, and the duration of exposure was for a very limited period of time.” Opening Br. of Appellant at 64. The Board found the base penalty was $6,600 and that it should be multiplied by two because SSHI “had one prior final citation for fall protection violations dated within three years of this violation.” AR at 48.
SSHI does not argue that substantial evidence does not support the Board‘s findings. Instead, it argues the Board should not have concluded the prior citation put SSHI on notice that SVK Builders would not install stairs in accordance with the WAC. The Board did not, however, make a finding to this effect. The Board concluded that this was a “repeat” violation based on the evidence before it. The Board‘s finding is supported and SSHI‘s argument fails.
SSHI also points to the Board‘s recent decision in In re Acropolis Construction in support of its argument that it was “not reasonable, nor required, for upper tier general contractors to constantly observe subcontractor employees.” Opening Br. of Appellant at
In Acropolis, the Board vacated citations issued to Acropolis, a subcontractor, because the safety violations occurred on a Saturday, which was 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. *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 stark contrast to the facts in 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. The Board‘s reasoning in Acropolis is inapplicable to these facts.
SSHI next argues this court should not adopt the Board‘s statement that “if the absence of supervisory personnel on a job site was enough to avoid the consequences of a safety violation, employers merely would begin to follow a practice of not having a supervisor or other managerial representatives present at its worksite.” AR at 44-45. SSHI argues that, because violations can be proved through constructive knowledge, “if the employer had taken reasonable steps and exercised due diligence in supervising the job such that the violations would have been discovered, the knowledge element is
Additionally, SSHI alleges the Board needed to address “whether the frequency of safety inspections required of SVK [Construction] is the same for [SSHI]” and “how frequently [SSHI] superintendents were required to supervise its subcontractors.” Opening Br. of Appellant at 63. As discussed above, SSHI had a nondelegable duty to ensure compliance with all WISHA regulations. There is not a specific number of safety checks that will satisfy this requirement. Instead, general contractors like SSHI need to conduct as many safety checks as necessary to discover and correct safety violations within their work sites.
Substantial evidence supports the Board‘s findings that SSHI had constructive knowledge of the violations.
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.