Magco of Mayland, Inc. v. John Mills Barr, Commissi ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judge Annunziata, Senior Judges Duff and Hodges
Argued at Alexandria, Virginia
MAGCO OF MARYLAND, INC.
OPINION BY
v. Record No. 2377-99-4 JUDGE ROSEMARIE ANNUNZIATA
AUGUST 1, 2000
JOHN MILLS BARR, COMMISSIONER OF
DEPARTMENT OF LABOR AND INDUSTRY
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Joanne F. Alper, Judge
Bruce M. Luchansky (Frank L. Kollman;
Seth C. Berenzweig; Juliet D. Hiznay;
Kollman & Sheehan, P.A.; Albo & Oblon,
L.L.P., on briefs), for appellant.
Ellen F. Brown, Assistant Attorney General
(Mark L. Earley, Attorney General, on
brief), for appellee.
Magco of Maryland, Inc. ("Magco"), appeals from the
decision of the Circuit Court of Arlington County, affirming
Magco's citation by the Commissioner of Labor and Industry
("Commissioner") for a serious violation of the safety standards
promulgated by the Virginia Occupational and Safety Health
Program ("VOSH"), 16 VAC §§ 25-175-1926.501(b)(4) and
1926.502(i)(2), including a penalty of $7,000. Magco contends
the trial court erred 1) in imputing to Magco its foreman's
knowledge of hazardous conditions on the worksite as a basis
for Magco's liability; and 2) in placing upon Magco the burden
of proof to establish "unpreventable employee misconduct" as a
defense to Magco's liability. We find no error and affirm the
decision of the trial court.
BACKGROUND
We view the facts in this case "in the light most favorable
to sustaining the Commissioner's action and 'take due account of
the presumption of official regularity, the experience and
specialized competence of the Commissioner, and the purposes of
the basic law under which the Commissioner has acted.'" Sentara
Norfolk General Hosp. v. State Health Comm'r, 30 Va. App. 267,
279, 516 S.E.2d 690, 696 (1999) (internal brackets omitted)
(quoting Bio-Medical Applications of Arlington, Inc. v. Kenley,
4 Va. App. 414, 427, 358 S.E.2d 722, 729 (1987)). In December,
1996, Magco was engaged in roofing work on a building in
Arlington, Virginia. Magco's foreman on the project, John
Hataloski, was "solely responsible for this project" as Magco's
on-site superintendent. His responsibility was, "inter alia, to
make all field calls and to act as the safety officer
responsible for project safety." Hataloski had extensive
experience and training in safety issues associated with roof
construction and repair and "was more familiar with the safety
regulations than any of Magco's other foremen," being Magco's
"most knowledgeable foreman" with respect to OSHA regulations.
During the course of the project, Hataloski observed
various holes in the roof of the building that were not properly
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covered. On numerous occasions, Hataloski complained to the
general contractor, Turner Construction ("Turner"), that the
open holes constituted a hazardous condition for the workmen on
the roof. Turner was responsible for attending to site safety,
including covering holes on the roof. At Hataloski's direction,
it covered all the roof openings with three-quarter inch
plywood. Periodically, however, the mechanical contractor
removed the covers to perform its ductwork and frequently failed
to replace the covers. Despite Hataloski's safety concerns and
Turner's generally inadequate response to Hataloski's
complaints, Magco continued to have its employees work on the
roof without wearing fall protection devices, properly covering
the holes in the roof, or erecting guardrails around the holes.
Magco employees Kevin Barnes and Frank Allen were working
on the site with Hataloski on December 20, 1996. Barnes was "a
relatively new employee," who was assigned to work with
Hataloski on a section of the roof close to a hole "which opened
to a seven to eight story shaft below." Hataloski was aware of
the presence of the hole, and he knew that it lay in close
proximity to the section of roof where he and Barnes would be
working. Upon arriving at the site on the day in question,
Hataloski noted that "a portion of the shaft . . . had been
covered with a piece of plywood and another portion of the shaft
had been covered with a wooden pallet or 'skid.' Neither the
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plywood nor the wooden pallet entirely covered the opening."
The uncovered surface area of the hole was approximately 1.2
square feet. A metal beam had been laid across the pallet and
rested on cinder blocks placed on either side of the shaft.
Hataloski directed Barnes and Allen to move the beam so that
they could better access the work area, which was located
approximately two feet from the opening of the shaft. Hataloski
did not check the pallet to ensure that it was secured.
Hataloski testified that "he should have checked the pallet and
that he probably knew the pallet was a risk to the safety of the
employees that morning."
Allen went to work on another area of the roof, while
Hataloski and Barnes began to work near the shaft. They were
not wearing fall protection equipment, and no guardrail had been
erected around the opening in the roof. The two men squatted in
an area between the wall of the building and the opening of the
shaft, a space approximately two feet wide. Barnes' back was
toward the shaft. As the men worked, Barnes leaned backward as
if to sit upon the wooden pallet covering the shaft. When he
placed his weight on the pallet, it gave way and Barnes fell
through the opening. He landed approximately 71 feet below,
suffering fatal injuries.
David Cline, a compliance officer for VOSH, investigated
the accident. Based upon his investigation, the Commissioner
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issued Magco a citation for a "serious violation" of
construction safety standards and assessed a penalty of $7,000,
citing § 1926.501(b)(4)(i) 1 of the VOSH regulations. The
Commissioner found the violation based on the following: "[the
wooden pallet] wasn't large enough to cover the hole . . . it
wasn't secure . . . it had slits in it that an employee could
actually step his feet through and break an ankle, sprain, or
actually go through. It's not an adequately covered hole using
that pallet."
Magco contested the citation, and the Commissioner filed a
Bill of Complaint in the Circuit Court of Arlington County,
pursuant to Code § 40.1-49.4(E), to enforce the penalty. The
circuit court heard the case on August 17, 1999, and issued an
order enforcing the Commissioner's citation and penalty on
September 7, 1999. This appeal followed.
IMPUTATION OF SUPERVISOR'S KNOWLEDGE
Magco contends that the trial court erred in imputing to it
its foreman's knowledge of hazardous conditions on the worksite.
We disagree.
1
The regulation provides:
Each employee on walking/working surfaces
shall be protected from falling through
holes . . . more than 6 feet (1.8 m) above
lower levels, by personal fall arrest
systems, covers, or guardrail systems around
such holes.
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The construction of the specific statutory provisions
implementing federal Occupational Safety and Health Act ("OSHA")
regulations before us raises issues of first impression in the
Commonwealth. OSHA regulates conditions in private industry
workplaces which affect worker safety and health. The federal
government assigned OSHA enforcement responsibilities in
Virginia to VOSH. To maintain federal OSHA approval, Virginia
is required to maintain an OSHA program standard that is "at
least as effective as" the federal standard. See 29 C.F.R.
§ 1902.37(b)(4).
Under the Virginia OSHA plan, VOSH inspects the private
industry workplace for compliance with the applicable standards.
Upon "reasonable cause to believe" that a violation has
occurred, VOSH will issue a citation to the employer. Code
§ 40.1-49.4(A)(1). VOSH identifies a violation as "serious" if
there is a substantial probability that
death or serious physical harm could result
from a condition which exists, or from one
or more practices, means, methods,
operations, or processes which have been
adopted, or are in use, in such place of
employment unless the employer did not, and
could not with the exercise of reasonable
diligence, know of the presence of the
violations.
Code § 40.1-49.3.
Magco has not challenged the trial court's factual findings
in this case. Those findings include: 1) that Hataloski was
Magco's foreman on the project; 2) that he was the
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"superintendent" of the project; 3) that he was responsible for
project safety; 4) that he knew of the hazard presented by holes
in the roof of the building in question; and 5) that he was
specifically aware of the danger presented by the hole through
which Barnes fell. Based on these findings, the trial court
imputed Hataloski's knowledge of the safety hazard to Magco, a
decision which Magco contends constitutes reversible error.
Magco's position is not supported by applicable Virginia law.
Although the proof required to show an employer's knowledge
of violations under this statute has not been addressed by our
appellate courts, whether knowledge of certain worksite
conditions may be imputed to an employer is well settled in
Virginia case law. Indeed, it is a longstanding principle in
the Commonwealth that a foreman's knowledge of facts or events
on a worksite is imputed to his employer. See Duke v. Luck, 150
Va. 406, 409, 143 S.E. 692, 693 (1928) (foreman's knowledge that
one of his crewmen had caused accident imputed to employer);
Dept. of Game & Inland Fisheries v. Joyce, 147 Va. 89, 97, 136
S.E. 651, 654 (1927) (notice to foreman of accident constituted
notice to employer); Low Moor Iron Co. v. La Bianca's Adm'r, 106
Va. 83, 91, 55 S.E. 532, 533 (1906) ("Ordinarily the foreman or
boss of a gang of hands employed in executing the master's
orders is a mere fellow servant with the other members of the
gang, but if he is discharging a nonassignable duty of the
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master, he is to that extent a vice principal. One of these
nonassignable duties is to exercise ordinary care to provide a
reasonably safe place in which the servant is to work.").
Furthermore, the imputation of a supervisor's knowledge of
safety hazards to his employer comports with federal law and
policy. See Sec. of Labor v. Capform, Inc., 13 OSHC 2219 (1989)
(where employer's supervisors were "continually present at the
worksite," Secretary established prima facie case that employer
knew of safety violations); Sec. of Labor v. Wright & Lopez,
Inc., 8 OSHC 1261 (1980) (foreman's knowledge of conditions at
construction site was imputable to employer, considering
discretion given to the foreman in regard to safety procedures);
Sec. of Labor v. Safeway Stores, Inc., 6 OSHC 1176 (1977)
(grocery store's produce manager was a "supervisory employee"
because he had personnel working under him whom he could
discipline, was charged with ordering produce, and was charged
with general maintenance of his department, and therefore his
actions and knowledge were imputable to his employer). Magco
concedes that Hataloski was aware of the danger posed by
improperly covered holes on the worksite. Thus, Hataloski's
knowledge is to be imputed to Magco, and we, therefore, affirm
the trial court's decision.
Moreover, the trial court's decision is fully supported on
the ground that, under Code § 40.1-49.3, the Commissioner's
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burden of proof may be met upon a showing that Magco should have
known of the violation in the exercise of reasonable diligence.
See, e.g., Kokosing Construction Co., 17 OSHC 1869 (1996) ("The
conspicuous location, the readily observable nature of the
violative condition, and the presence of Kokosing's crews in the
area warrant a finding of constructive knowledge."). See also
Austin Building Co. v. OSHRC, 647 F.2d 1063, 1068 (10th Cir.
1981) (evidence sufficient to prove that the company knew or
should have known that hazardous practice existed, where "the
employee welding in this precarious spot was easily observable.
A diligent foreman checking the safety of his workers should
have discovered the hazardous conduct.").
Our review of the record establishes that Michael Gaulin,
the company's operations manager and vice president, and Mark
Gaulin, the company's president, had primary responsibility for
inspecting the site and regularly did so. The record also
establishes that the safety hazard posed by uncovered or
incompletely covered holes in the roof at the site was open and
obvious, and the Gaulins were informed about the absence of full
coverings for the holes and the safety hazard they posed. In
short, the record fully supports the court's conclusion that
Magco knew or should have known of the problem on the worksite
that resulted in Barnes' death. Therefore, because Hataloski's
knowledge of the hazards on the site may be imputed to Magco,
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and because the senior officers of Magco knew or should have
known of those hazards, we affirm the trial court's decision.
THE BURDEN OF PROVING EMPLOYER DEFENSES
In its defense, Magco argued that it did all it could do to
ensure the safety of its employees and that it was not liable
for the unforeseeable, idiosyncratic conduct of its foreman who
failed to check and secure the pallet. It contends the court
erred in placing on it the burden of proving unforeseeable and
unpreventable employee misconduct, citing in support Ocean
Electric Corp. v. Sec. of Labor, 594 F.2d 396 (4th Cir. 1979),
and L. R. Willson & Sons, Inc. v. Occupational Safety and Health
Review Comm'n, 134 F.3d 1235 (4th Cir.), cert. denied, 525 U.S.
962 (1998). In these cases, the United States Court of Appeals
for the Fourth Circuit has held that unpreventable employee
misconduct was not an affirmative defense to a citation 2 and
that, although a supervisor's knowledge of a safety hazard could
be imputed to the employer, employer liability is not strict
liability. Accordingly, the Fourth Circuit has held that when a
2
We note that the Fourth Circuit's holding is a minority
view, with most of the federal circuits holding that employee
misconduct is an affirmative defense, the burden of proof for
which falls on the employer. See D. A. Collins Constr. Co. v.
Sec. of Labor, 117 F.3d 691, 695 (2d Cir. 1997); Brock v. L. E.
Myers Co., High Voltage Div., 818 F.2d 1270, 1276 (6th Cir.),
cert. denied, 484 U.S. 989 (1987); Daniel Internat'l Co. v.
OSHRC, 683 F.2d 361, 364 (11th Cir. 1982); H. B. Zachry Co. v.
OSHRC, 638 F.2d 812, 818 (5th Cir. 1981); General Dynamics Corp.
v. OSHRC, 599 F.2d 453, 458-59 (1st Cir. 1979); Danco Constr.
Co. v. OSHRC, 586 F.2d 1243, 1247 n.6 (8th Cir. 1978).
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violation is the result of employee misconduct, i.e., where it
is created by an isolated, idiosyncratic act of an employee, the
Secretary of Labor 3 must prove as part of his case-in-chief that
the employee's conduct was "not unpreventable and not
unforeseeable." 4
The conclusions reached by the Fourth Circuit regarding the
burden of proof on the issue of employee misconduct are not
binding on this Court, see Maxey v. American Casualty Co. of
Reading, Pa., 180 Va. 285, 290, 23 S.E.2d 221, 223 (1942), and
we decline to follow its allocation of the burden of proof,
because it is inconsistent with Virginia law. While we agree
that employer liability based on worksite safety violations is
not absolute, see Pike v. Dept. of Labor and Industry, 222 Va.
317, 322-23, 281 S.E.2d 804, 807 (1981), the burden of proof in
establishing employee misconduct as a limitation on employer
3
Under Virginia law, the Commissioner is the counterpart of
the Secretary of Labor.
4
In Ocean Electric, the specific element that the Secretary
of Labor failed to prove was the "adequacy of the employer's
safety policy." In Ocean Electric, as in Willson, the violation
was created by an employee/supervisor's failure to adhere to a
specific safety rule. In such instances, it must be determined
whether the conduct was foreseeable, implicating the adequacy of
the employer's safety regulations and program. See Ocean
Electric, 594 F.2d at 402 (where it was stipulated that
employee/supervisor's violation of safety regulation was
"accidental, not intentional, and purely a human error," it was
incumbent upon the Secretary to introduce evidence on the
adequacy of the employer's safety program. Having failed to
meet its burden of proof on this issue, liability could not be
imposed on the employer.).
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liability resides with the employer. VOSH has enacted
regulations defining the parameters of the employee misconduct
defense under Virginia law. These regulations are set forth in
the VOSH Administrative Regulations Manual, codified at 16 VAC
§ 25-60-260. According to the pertinent regulation, an employer
may avoid liability for a safety violation due to employee
misconduct if
[the] employer demonstrates that:
1) employees of such employer have been
provided with the proper training and
equipment to prevent . . . a violation;
2) work rules designed to prevent such a
violation have been established and
adequately communicated to employees by
such employer and have been effectively
enforced when such a violation has been
discovered;
3) the failure of employees to observe work
rules led to the violation; and
4) reasonable steps have been taken by such
employer to discover any such violation.
16 VAC § 25-60-260 (emphasis added). Thus, under Virginia law,
the burden of proving any such defense to a citation, including
unforeseeability, is on the employer. Cf. Ocean Electric, 594
F.2d at 401-02 (Secretary has burden of proving inadequacy of
safety regulations); cf. also Willson, 134 F.3d at 1241.
Moreover, under the pertinent regulations, employers cannot
claim the defense based on the misconduct of "any officer,
management official or supervisor having direction, management
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control or custody of any place of employment which was the
subject of the violative condition cited." 16 VAC § 25-60-260.
The regulation defines "employee" to exclude supervisory
personnel. 5 See id. Thus, under the regulations adopted
pursuant to Code § 40.1-22(5), the defense of employee
misconduct does not apply to the acts of supervisory personnel
and does not insulate Magco from liability in this case.
For the reasons stated, we affirm the decision of the trial
court.
Affirmed.
5
16 VAC § 25-60-260 provides: "[T]he term 'employee' shall
not include any officer, management official or supervisor
having direction, management control, or custody of any place of
employment which was the subject of the violative condition."
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