Hamilton Construction Co., V. Dept. Of L&i ( 2021 )

Filed
Washington State
Court of Appeals
Division Two
October 12, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
HAMILTON CONSTRUCTION CO., No. 54578-1-II
Appellant,
v. UNPUBLISHED OPINION
DEPARTMENT OF LABOR & INDUSTRIES
OF THE STATE OF WASHINGTON,
Respondent.
MAXA, J. – The Department of Labor and Industries (DLI) issued a citation against
Hamilton Construction Company for violations of regulations under the Washington Industrial
Safety and Health Act of 1973 (WISHA), chapter 49.17 RCW, related to demolition work on a
highway overpass in Bonney Lake. The citations arose from an incident in which two Hamilton
workers for Hamilton’s subsidiary were using a curb saw to cut a concrete rail barrier on the
overpass when the barrier fell onto the roadway below and killed three people in a passing
vehicle.
DLI cited Hamilton for failing to have a written engineering survey, failing to ensure that
nobody was working below the bridge during the cutting operation, and failing to ensure that the
barrier was secured or braced during demolition. The Board of Industrial Insurance Appeals
(Board) issued a decision and order that affirmed three violations. On appeal, the superior court
affirmed the Board’s decision and order.
No. 54578-1-II
We conclude that (1) substantial evidence supports the Board’s findings that Hamilton
was a subcontractor and an “employer” subject to liability under WISHA, (2) substantial
evidence supports the Board’s findings of fact and conclusions of law affirming the three
WISHA violations, and (3) substantial evidence supports the Board’s implied findings of fact
that Hamilton had actual or constructive knowledge of the WISHA violations. Accordingly, we
affirm the superior court’s order affirming the Board’s decision and order.
FACTS
Background
Hamilton operates as a prime contractor on construction projects and primarily builds
bridges. Hamilton is the parent company of American Concrete Company, which specializes in
concrete cutting, including saw cutting, grinding, and surface preparation. American Concrete
operates as a subcontractor on most projects. American Concrete had approximately 20
employees at the time of the DLI inspection.
When a third party wants American Concrete to perform concrete cutting on a project,
the procedure is to contact American Concrete’s dispatcher with the details of the project. Based
on the information given from the third party, American Concrete determines the type of
equipment necessary to complete the requested cut and which operators should be sent for the
job. American Concrete typically provides its own equipment for a job.
If the third party request involves a large project or requires American Concrete to be
involved in the planning process, then American Concrete will enter into a written contract with
the requesting party. If the third party request is on short notice or for a project lasting a day or
less, no contract typically is created because usually there is not enough time to complete the
paperwork and execute a contract before the work takes place.
2
No. 54578-1-II
Bonney Lake Project
The City of Bonney Lake contracted with a general contractor to modify and/or repair a
bridge on State Route 410, which was an overpass over another road. The general contractor
hired a number of subcontractors, including Staton Companies, to work on the Bonney Lake
project. Staton was a demolition subcontractor.
On April 12, 2015, a Staton employee contacted Rick Garrick, an American Concrete
dispatcher, about the Bonney Lake project. Staton wanted to hire American Concrete to remove
a concrete rail barrier on a bridge deck.
Because of the small size of the job, no written contract was created. Based on the
information given from Staton, Garrick dispatched two American Concrete employees, Richard
Dugan and Donald Corkhill, with a large curb saw on a trailer, a vacuum truck, a water tank, and
other equipment. A curb saw is a large machine, eight feet long and five feet wide, that is used
to cut concrete.
Dugan was a trained curb saw operator while Corkhill was a vacuum operator. Dugan
operated the curb saw, which involved spraying water from the water tank to cut concrete. This
produced a liquid substance called slurry, a mixture of concrete and water. Corkhill vacuumed
the slurry behind the curb saw.
On April 13, Dugan and Corkhill met the Staton foreman, Morgan Marney, at a freeway
exit away from the jobsite. Dugan and Corkhill did not know where the job was located until
they were taken there. When they arrived at the job site, Marney showed schematic as-built
diagrams to Dugan. The as-built diagrams showed how the bridge originally was built but did
not provide information as to how Dugan should cut the barrier. Dugan explained that the as-
built diagrams showed where the steel was located to give him an idea as to how deep he needed
3
No. 54578-1-II
to cut. The as-built diagrams did not accurately depict the bridge deck at the time the work was
to be performed. There were important differences between the bridge deck depicted and the
bridge deck at the time the demolition was being performed. Dugan and Marney discussed the
as-built diagrams and agreed as to how Dugan would cut the barrier.
Hamilton did not perform an engineering survey. And at no time were Dugan and
Corkhill presented with a written engineering survey of the structural integrity of the bridge or a
demolition plan for the job. Dugan was unaware of any engineering survey. However, Dugan
was aware of Staton’s demolition plan and performed saw cutting activities consistent with the
plan.
According to Dugan, the plan was to make a horizontal cut of the concrete rail barrier at
the edge of the bridge along the full length of the bridge, followed by vertical cuts with a
different saw to divide the barrier into smaller pieces that an excavator could detach and remove
safely. The excavator was on site and manned by employees from a different company. Marney
had control of the use of the excavator. The excavator was supposed to be used to brace or
stabilize the barrier during the concrete cutting operation. However, the curb saw was so large
that the excavator could not be used as anticipated. This left the cut portions of the barrier
unbraced. In addition, the excavator was missing an attachment that was supposed to help brace
the structure. No other method of bracing was provided. Regardless, Dugan and Corkhill began
their concrete cutting operation.
Two WHH Nisqually employees were present on the roadway below the bridge to
monitor and stop traffic on the road when the last cut was made. Carla Vandiver was a traffic
control supervisor who was supervising one other flagger, Shelby King. Marney was responsible
for calling Vandiver before American Concrete made the final cut.
4
No. 54578-1-II
Only Dugan, Corkhill, and Marney were present in the immediate concrete cutting area.
Marney was responsible for overseeing the job, but Dugan stated that Marney was not allowed to
operate the curb saw machine. Dugan made two complete horizontal cuts of four and eight
inches deep. The concrete barrier remained stable during those cuts. A larger blade was used for
the third and final horizontal cut. Approximately 50 feet into the cut, Dugan and Corkhill
noticed slurry seepage. Dugan reduced the depth of the cut. After another 50 feet, Corkhill told
Dugan to stop cutting because he saw the barrier rail move. Dugan, Corkhill, and Marney
inspected the structure and Dugan told Corkhill that it was typical for a barrier rail to settle onto
the bridge deck. Marney spoke to Dugan for the first time since the operation started, and he
reached the same conclusion as Dugan regarding the barrier settling. Marney told Dugan to
continue cutting.
As the concrete cutting operation proceeded, Vandiver and King continued to walk under
the bridge several times while Vandiver waited for a phone call from Marney. Dugan and
Corkhill saw that the flaggers were below them before the barrier fell. Vandiver was 50 feet
away standing on the shoulder at the time the barrier fell off the bridge.
During the last cut, the barrier rail on the bridge deck fell onto the surface of the road
below. No workers were injured when this happened, but a vehicle that happened to be driving
on the road below was crushed and three people were killed.
DLI Citation
In October 2015, DLI issued a citation and notice to Hamilton after an inspection of the
Bonney Lake jobsite. The citation listed three serious violations: (1) violation 1-1 alleged that
Hamilton carried on the demolition operation of the concrete barrier without following
procedures in the demolition plan and engineering survey in violation of WAC 296-155-040(1),
5
No. 54578-1-II
(2) violation 1-2 was for failure to ensure that workers carrying on a demolition operation
prevented exposure to persons working on a lower level in violation of WAC 296-155-775(15),
and (3) violation 1-3 was for failure to ensure that the concrete barrier was secured or braced to
prevent collapse or failure during the cutting of the concrete barrier in violation of WAC 296-
155-035(8). Each citation carried a monetary penalty of $4,900.
DLI also issued a citation to Staton for willful WISHA violations.
Procedural History
Hamilton appealed to DLI the violations identified in the citation. DLI decided to not
reassume jurisdiction and the appeal was sent directly to the Board. The case was heard by an
industrial appeals judge (IAJ).
Hamilton stipulated that two of its employees were exposed to the alleged hazards; that
the violations, if proven, were properly characterized as “serious” under WISHA; and that the
“severity” rating for purposes of calculating the proposed penalty should be at the “highest
rating.” Clerk’s Papers at 33. Because of these stipulations, the only issues were whether
Hamilton violated the cited standards at the worksite, and if so, whether the penalties for those
violations were correctly calculated.
At the hearing, several witnesses testified to the facts described above, including
Corkhill, Dugan, Vandiver, American Concrete employee Eric Hill, King, and Garrick. Vincent
McClure also testified as Hamilton’s expert.
In addition to the facts recited above, Dugan and Corkhill testified that they saw the
flaggers who were on the road below the bridge before they cut the barrier. Both also testified
that they did not observe any sort of bracing or securing of the barrier during their work. Dugan
stated that he considered Marney to be in charge of the concrete cutting project.
6
No. 54578-1-II
Hill was the general manager for American Concrete. He testified that American
Concrete is a subcontractor that specializes in concrete cutting. American Concrete did not bid
for any portion of the Bonney Lake project and had no responsibility for the overall project. He
acknowledged that Hamilton and American Concrete did not prepare an engineering survey for
the project. Hill stated that Dugan and Corkhill were to follow Staton’s plan for the job and if
Dugan had any questions about how to perform his job, he was supposed to contact Staton.
McClure testified that he reviewed the as-built diagrams and demolition plan after the
fact and noted that there were important differences between the documents and the bridge deck
at the time the demolition was being performed. McClure testified that Dugan and Corkhill’s
actions were consistent with the demolition plan, but that the plan itself was not based on the
actual construction of the bridge barrier rail that collapsed. He also explained that an
engineering survey was different from a demolition plan.
The IAJ issued a proposed decision and order vacating the citation and notice in its
entirety on the grounds that DLI failed to present a prima facie case establishing that Hamilton
had violated any specific safety and health rules or a general duty to provide a safe work
environment. DLI filed a petition for review, which the Board denied. The Board adopted the
proposed decision and order.
DLI appealed the Board’s decision and order to the superior court. The superior court
issued an order affirming in part and remanding in part the Board’s decision, which directed the
Board to determine whether Hamilton had violated WAC 296-155-775(15) (violation 1-2), WAC
296-155-035(8) (violation 1-3), and WAC 296-155-775(1)..
On remand, the Board issued a decision and order finding that Hamilton had violated
WAC 296-155-775(1) (renumbered as violation 1-1a), WAC 296-155-775(15) (violation 1-2),
7
No. 54578-1-II
and WAC 296-155-035(8) (violation 1-3). The Board reduced the penalty for each violation to
$100 on the grounds that DLI failed to provide sufficient proof to calculate the penalty pursuant
to WAC 296-900-140.
Both Hamilton and DLI appealed the Board’s 2018 decision and order to the superior
court. The appeals were consolidated.
The superior court affirmed the Board’s 2018 decision and order regarding whether
Hamilton committed three serious violations, but determined that the Board had erred in its
penalty reductions. The court modified the penalties and remanded to the Board for Hamilton
and DLI to present additional testimony, evidence, and argument regarding the adjustments to
the gravity-based penalties. The court also determined that substantial evidence supported the
Board’s findings of fact except for finding of fact 3. That finding stated that Hamilton
employees were aware of the demolition plan created by Staton and performed saw cutting
activities consistent with the plan.
Hamilton appeals the superior court’s order affirming the Board’s order and decision
regarding the three serious violations.
ANALYSIS
A. APPLICABLE REGULATIONS
The purpose of WISHA is to “assure, insofar as may reasonably be possible, safe and
healthful working conditions for every [person] working in the state of Washington” and “to
create, maintain, continue, and enhance the industrial safety and health program of the state.”
RCW 49.17.010. DLI has statutory authority to adopt workplace safety regulations. RCW
49.17.040. DLI has done so in Title 296 WAC.
8
No. 54578-1-II
DLI has the authority to issue citations to an “employer” who violates the requirements of
RCW 49.17.060. RCW 49.17.120(1). A “serious” violation exists “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 workplace, unless the employer did not, and could not with the exercise of
reasonable diligence, know of the presence of the violation.” RCW 49.17.180(7).1
DLI bears the burden of proving a WISHA violation. Ostrom Mushroom Farm Co. v.
Dep’t of Labor & Indus., 13 Wn. App. 2d 262, 272, 463 P.3d 149 (2020); see also WAC 263-12-
115(2)(b), (c). To establish a serious violation of a WISHA safety regulation, DLI must prove
“(1) the cited standard applies, (2) the requirements of the standard were not met, (3) employees
were exposed to or had access to the violative condition, (4) the employer knew or through the
exercise of reasonable diligence could have known of the violative condition, and (5) there is a
substantial probability that death or serious physical harm could result from the violative
condition.” Ostrom Mushroom, 13 Wn. App. 2d at 272.
B. STANDARD OF REVIEW
In a WISHA appeal, we directly review the Board’s decision – not the superior court’s
decision – based on the record before the agency. Ostrom Mushroom, 13 Wn. App. 2d at 271.
We review the Board’s findings of fact to determine whether substantial evidence supports them,
and if so, whether the findings of fact support the conclusions of law. Potelco, Inc. v. Dep’t of
Labor & Indus., 7 Wn. App. 2d 236, 243, 433 P.3d 513 (2018). Evidence is substantial if it is
sufficient in quantity to persuade a fair-minded person of the truth of the declared premise. Id.1
RCW 49.17.180 has been amended since the events of this case transpired. The definition of
“serious violation” was renumbered in 2021. Because these amendments do not affect the issues
in this appeal, we cite to the current version of the statute.
9
No. 54578-1-II
When determining whether substantial evidence supports the factual findings, we view the
evidence in the light most favorable to the party that prevailed before the Board. Id. at 243-44.
On appeal, this court does not reweigh evidence. Ostrom Mushroom, 13 Wn. App. 2d at 271.
We liberally construe regulations promulgated pursuant to WISHA to protect workers
from hazardous conditions at their place of employment. Id. at 272. DLI’s interpretation of
statutes and regulations are given substantial weight and will be upheld as long as the
interpretation does not contradict legislative intent. Id.C. EMPLOYER LIABILITY
Hamilton argues that substantial evidence does not support the Board’s determination
that American Concrete was a subcontractor or was an “employer” for purposes of WISHA.
Hamilton claims that there is no evidence that American Concrete had any control at the Bonney
Lake jobsite nor did it create or control the hazard at the jobsite. We disagree.
1. Legal Principles
Under WISHA, employers are responsible for the health and safety of their employees.
Potelco, Inc. v. Dep’t of Labor & Indus., 191 Wn. App. 9, 30, 361 P.3d 767 (2015). RCW
49.17.020(4) defines “employer” as any corporation that “engages in any business, industry,
profession, or activity in this state and employs one or more employees or who contracts with
one or more persons, the essence of which is the personal labor of such person or persons.”
“ ‘Any entity that engages in any business and employs one or more employees is an employer
for WISHA purposes.’ ” Dep’t of Labor & Indus. v. Tradesmen Int’l, LLC, 14 Wn. App. 2d 168,
175, 470 P.3d 519 (2020), review granted, 196 Wn.2d 1036 (2021) (quoting Martinez Melgoza
& Assocs., Inc. v. Dep’t of Labor & Indus., 125 Wn. App. 843, 848, 106 P.3d 776 (2005)).
10
No. 54578-1-II
RCW 49.17.060 requires that employers comply with two distinct duties. Afoa v. Port of
Seattle, 176 Wn.2d 460, 470, 296 P.3d 800 (2013). First, RCW 49.17.060(1) establishes a
general duty to furnish a workplace that is “free from recognized hazards that are causing or
likely to cause serious injury or death to [their] employees.” Id. at 470. Second, RCW
49.17.060(2) establishes a specific duty for employers to “comply with the rules, regulations, and
orders promulgated under [WISHA].” Id. at 471. This second duty applies to “any employee
who may be harmed by the employer’s violation of the safety rules,” regardless of any employer-
employee relationship. Id. In other words, one employer may be liable under WISHA for
endangering the employees of another employer when multiple employers are working at the
same worksite. Id. at 472; see also Martinez Melgoza, 125 Wn. App. at 848-49.
Even when a corporation meets the broad definition of “employer” under WISHA, it is
not necessarily liable for a WISHA violation. An employer can be held liable for WISHA
violations if it exercises sufficient control over the worksite. See Afoa, 176 Wn.2d at 472.
When the contractor at a worksite obtains leased or temporary workers from another
company, the question presented is whether the lessor company or the lessee company is the
“employer” of those workers. See generally Tradesmen Int’l, 14 Wn. App. 2d at 170-71;
Potelco, 191 Wn. App. at 14. Courts apply a seven-factor “economic realities test” to determine
who is an employer for purposes of a WISHA violation. Tradesmen Int’l, 14 Wn. App. 2d at
177-78; Potelco, 191 Wn. App. at 30-31. Under the economic realities test, “[t]he key question
is whether the employer has the right to control the worker.” Potelco, 191 Wn. App. at 31.
2. Subcontractor vs. Leased Worker
The Board made a finding that Staton hired Hamilton as a concrete cutting subcontractor.
Hamilton assigns error to this finding, arguing that it was not a subcontractor because Staton had
11
No. 54578-1-II
control of the cutting operation. Hamilton appears to argue that Dugan and Corkhill were leased
or temporary employees rather than subcontractors, and therefore the economic realities test
must be used to determine their employer for WISHA purposes. We conclude that substantial
evidence supports the Board’s finding that Hamilton was a subcontractor and not the supplier of
leased employees, and therefore that the economic realities test does not apply.
All the cases in which courts have applied the economic realities test in the WISHA
context have involved general laborers provided by an employment agency or a staffing
company on a temporary basis. See, e.g., Tradesmen Int’l, 14 Wn. App. 2d at 171-72
(construction worker); Potelco, 191 Wn. App. at 14 (road flaggers).
Hamilton’s subsidiary American Concrete, who dispatched Dugan and Corkhill, is not an
employment agency. Hill testified that American Concrete is a subcontractor that specializes in
concrete cutting. Contractors hired American Concrete to perform specific concrete cutting jobs
rather than to obtain laborers for a job to be performed by someone else.
In addition, American Concrete did not merely provide general laborers. An essential
part of American Concrete’s job was providing specialized equipment – the large curb saw, the
vacuum truck, and the water tank. This equipment was necessary to cut the concrete rail barrier.
And Dugan was dispatched not merely to do whatever work Staton needed, but because he had
specialized skill and expertise in the operation of the curb saw. Corkhill’s specific function was
to operate the vacuum truck to suck up slurry the curb saw generated.
Staton hired American Concrete to perform a specific task using American Concrete’s
specialized equipment to remove the concrete rail barrier. Using its expertise, American
Concrete selected the appropriate employees to dispatch and the equipment necessary to
complete the job. We conclude that the details of this arrangement support the Board’s finding
12
No. 54578-1-II
that American Concrete was a subcontractor.2 There is no evidence supporting Hamilton’s
contention that the economic realities test should apply because American Concrete merely
supplied leased or temporary workers to Staton.
As a subcontractor, there is no question that Hamilton/American Concrete falls within
WISHA’s definition of “employer.” The record shows that Hamilton is a business entity with at
least one employee, as required under RCW 49.17.020(4).
3. Borrowed Servant Doctrine
Hamilton argues that the Board erred in declining to apply the borrowed servant doctrine
applied in personal injury cases to determine whether it was liable under WISHA as an
employer. We disagree.
The borrowed servant doctrine is an exception to the tort doctrine of respondeat superior,
under which an employer is vicariously liable for the torts of its employees committed within the
scope of their employment. Wilcox v. Basehore, 187 Wn.2d 772, 783, 389 P.3d 531 (2017). If a
general employer loans its employee to a borrowing employer, the general employer can avoid
liability for the employee’s actions. Id. The borrowing employer must have complete control
over the employee for the injury-causing transaction. Id.Hamilton claims that the borrowed servant doctrine is applicable because DLI historically
has cited general contractors for safety violations committed by its subcontractors in personal
injury cases, such as in Stute v. P.B.M.C., Inc., 114 Wn.2d 454, 788 P.2d 545 (1990). But the
borrowed servant doctrine is a tort principle that has been applied in tort cases. No case has
2
Hamilton notes that there was no written contact between Hamilton and Staton. But Hamilton
presents no argument or authority supporting the proposition that a subcontractor relationship
requires a written contract.
13
No. 54578-1-II
applied the borrowed servant doctrine to determine whether a particular entity is an “employer”
under WISHA. We decline to do so here.3
4. Liable Employer Under WISHA
Hamilton argues that even if it falls within WISHA’s definition of “employer,” it is not
subject to WISHA liability because Staton was in control of its operations at the worksite.
Hamilton claims that American Concrete lacked control over the worksite and merely followed
the demolition plan that Staton provided. We disagree.
a. Legal Principles
“Washington courts have assessed an employer’s liability for WISHA violations by
considering the employer’s supervisory authority and control over the worksite and whether the
employer controlled or created the worksite’s dangerous condition.” Martinez Melgoza, 125
Wn. App. at 850. An employer at a multiple employer worksite is liable under WISHA “if the
violating employer was a creating, exposing, correcting, or controlling employer.” Id. And DLI
“may cite multiple employers for violating workplace safety standards.” Potelco, 191 Wn. App.
at 30.4
3
Hamilton also argues for the first time in its reply brief that it was not an employer as defined
by RCW 49.17.020(4) because Dugan did not provide “personal labor,” citing White v.
Department of Labor & Industries, 48 Wn.2d 470, 474, 294 P.2d 650 (1956). We decline to
address this argument because Hamilton failed to raise it in its opening brief. See Grange Ins.
Ass’n v. Roberts, 179 Wn. App. 739, 771, 320 P.3d 77 (2013); RAP 10.3(c).
4
Hamilton argues for the first time in its reply brief that American Concrete is not an employer
under the “common law of agency” or “right to control” test stated in Nationwide Mutual
Insurance Company v. Darden, 503 U.S. 318, 323-24, 112 S. Ct. 1344, 117 L. Ed. 2d 581(1992). Again, we decline to consider this argument. But the Darden test, which involves
federal law, appears generally consistent with Washington law as expressed in Martinez
Melgoza, 125 Wn. App. at 853.
14
No. 54578-1-II
These rules apply to subcontractors at a multiple employer worksite: “ ‘[l]iability may
arise if the subcontractor contractually assumed responsibility for safety precautions at the
worksite or is shown to have been in control of the method of performing the work.’ ” Martinez
Melgoza, 125 Wn. App. at 851 (quoting Jones v. Halvorson-Berg, 69 Wn. App. 117, 124, 847
P.2d 945 (1993) (brackets in original).
In Martinez Melgoza, the court held that an asbestos consultant exercised sufficient
control over the worksite to make it liable for WISHA violations at a multiple employer
worksite. 125 Wn. App. at 845, 853. The consultant provided asbestos consulting services on a
Port of Seattle asbestos abatement project under various contracts that granted final decision-
making responsibility to the Port. Id. at 845-46. The court determined that regardless of the
contract provisions, the consultant still was liable for the WISHA violations because it
“exercised a great deal of control over the worksite in actual practice.” Id. at 851. For example,
several witnesses testified that the consultant had total authority over asbestos abatement
contractors and directed workers on how to proceed at the jobsite. Id. at 851-53.
b. Analysis
Here, Staton was in control of the overall demolition project, provided the faulty
demolition plan, and supervised Dugan’s and Corkhill’s work. So there is no question that
Staton was subject to WISHA liability, and in fact Staton received a citation. But as noted, DLI
can cite multiple employers for the same hazard. Potelco, 191 Wn. App. at 30. The question is
whether Hamilton also is subject to WISHA liability.
First, the evidence shows that American Concrete created the hazard that resulted in the
WISHA violations. Dugan, American Concrete’s employee, was the person who used the curb
saw to cut the concrete barrier that ultimately fell to the road below. Dugan began the cutting
15
No. 54578-1-II
operations without ensuring that an engineering survey had been performed. Dugan continued
cutting even though other people were walking under the bridge. And Dugan continued cutting
even though the barrier obviously was not secured or braced. As a result, American Concrete
exposed other workers to harm.
Second, the evidence shows that American Concrete had at least partial control over the
concrete cutting operation that created the hazard. American Concrete selected and provided the
equipment necessary to cut the concrete barrier. Only Dugan was authorized to operate the curb
saw, and only Dugan did operate the saw. Dugan decided how deep the cuts should be after
consulting the as-built diagrams, and had no interaction with Marney, the Staton supervisor,
during the three horizontal cuts that he made. In fact, the first time that Dugan talked to Marney
during the actual concrete cutting operation was after Corkhill told Dugan to stop cutting when
he saw the rail move. Although Marney ultimately told Dugan to finish cutting the barrier,
Dugan explained that he had come to the conclusion that it was typical for the barrier to settle
and that Marney agreed with him. And Dugan’s description of what happened during the actual
concrete cutting operations suggests that he was exercising his own specialized knowledge to
complete the concrete cutting job.
Hamilton argues that Staton, through Marney, had complete control over Dugan and
Corkhill. It relies on testimony from Garrick to support the contention that Hamilton completely
relinquished control to Marney. There is no question that Marney directed and supervised the
work of Dugan and Corkhill on the demolition project. But there also is no question that Dugan
controlled the “ ‘method of performing the work.’ ” Martinez Melgoza, 125 Wn. App. at 850
(quoting Jones, 69 Wn. App. at 124). Dugan operated the curb saw and made the cuts, using his
expertise and experience. Although Marney may have been the site supervisor, the record shows
16
No. 54578-1-II
that similar to Martinez Melgoza, American Concrete had significant control of the concrete
cutting operations in actual practice. Stated differently, Staton had control over the work that
needed to be done, but Dugan had control over how the work was to be performed.
Hamilton also argues that American Concrete had no ability to avoid the WISHA
violations because Staton controlled the project. But as a subcontractor in charge of the
equipment necessary to complete the job, American Concrete had ultimate control. Dugan may
not have had the ability to prepare an engineering survey, to control the activities of the flaggers
below, or to secure or brace the barrier he was cutting. But he simply could have refused to
begin or continue the cutting operations until he saw an engineering survey, everyone was
cleared below the bridge, and the barrier was secured or braced.
Finally, Hamilton argues that imposing liability for the cited WISHA violations is
contrary to the underlying purpose of the federal Occupational Safety and Health Act of 1970
(OSHA) and WISHA to hold entities responsible for the hazards that are within their control. As
a result, it claims that the Board’s decision to affirm DLI’s citations creates strict liability on
American Concrete. But as noted above, American Concrete did have control over the manner
in which the work was performed. And imposing liability here does not create strict liability
because DLI still had the burden to prove all five elements of a serious WISHA violation,
including knowledge of the violative condition. Potelco, 191 Wn. App. at 33-34.
We conclude that substantial evidence supports the conclusion that Hamilton was subject
to liability under WISHA.
D. VIOLATION OF WISHA PROVISIONS
Hamilton does not expressly argue that it did not violate the WISHA provisions listed in
the DLI citation, but that argument is implied and is weaved throughout Hamilton’s briefs.
17
No. 54578-1-II
Hamilton’s argument seems to be that the violations were caused by the fault of others and the
defective demotion plan. We disagree.
1. Violation 1-1a
Violation 1-1a was brought under WAC 296-155-775(1),5 which states that “[p]rior to
permitting employees to start demolition operations, a competent person must perform an
engineering survey of the structure” to determine, among other things, “the possibility of
unplanned collapse of any portion of the structure.” The regulation also requires that a copy of
the engineering survey be maintained at the job site. WAC 296-155-775(1)(b). This violation
was based on Hamilton’s failure to perform the concrete cutting operations without the guidance
of a written engineering survey. The Board upheld this violation.
Here, there was no evidence that Hamilton, Staton, or any other employer involved at the
Bonney Lake worksite had prepared an engineering survey. Dugan and Corkhill both testified
that they did not personally see any engineering survey.
Hamilton argues that violation 1-1a should not be affirmed because WAC 296-155-
775(1) does not require the actual engineering survey to be shown to all workers involved in the
demolition. But this argument is misplaced because it ignores the clear language in WAC 296-
155-775(1), which requires an engineering survey be performed before employees start
demolition operations and to provide written evidence that such an engineering survey has been
performed.
Hamilton also argues that Dugan merely was following Staton’s demolition plan and
cannot be faulted for not knowing that the demolition plan was inadequate. But it is immaterial
5
WAC 296-155-775 has been amended since 2015, but the amendments did not affect the
provisions at issue here. Therefore, this court cites to the current version of the WAC.
18
No. 54578-1-II
that Dugan reviewed an inadequate demolition plan because WAC 296-155-775(1) requires a
written engineering survey. And McClure testified that an engineering survey is different from a
demolition plan. Therefore, we reject Hamilton’s argument that an inadequate demolition plan
relieves it of any liability for violation 1-1a.
We conclude that substantial evidence supports the Board’s conclusion of law that
Hamilton committed a serious violation of WAC 296-155-775(1).
2. Violation 1-2
DLI issued violation 1-2 under WAC 296-155-775(15), which prohibits employers from
allowing workers to “carry on a demolition operation which will expose persons working on a
lower level to danger.” This violation was based on Vandiver and King’s continued presence
under the bridge and three other workers who were on the lower level containment area as the
concrete cutting operations occurred. The Board upheld this violation.
Here, there was undisputed evidence that Vandiver and King walked back and forth
under the overpass while Dugan and Corkhill were engaged in cutting operations. Dugan and
Corkhill testified that they saw the flaggers down below them.
Hamilton argues that there were no American Concrete employees who were exposed to
the hazard and that American Concrete did not create any hazard or have any control over the
flaggers below. But under RCW 49.17.060(2), Hamilton’s specific duty to comply with WISHA
regulations runs to “any employee who may be harmed by the employer’s violation of the safety
rules,” including Vandiver and King who worked for the general contractor. Afoa, 176 Wn.2d at
471. Further, Hamilton created the hazard because it was in control of the curb saw as stated
above and could have taken measures to prevent the violative condition by informing Marney to
clear the area below.
19
No. 54578-1-II
We conclude that substantial evidence supports the Board’s conclusion of law that
Hamilton committed a serious violation of WAC 296-155-775(15).
3. Violation 1-3
DLI issued violation 1-3 under WAC 296-155-035(8), which requires employers to
“secure or brace the component parts of structures to prevent collapse or failure.” This violation
was based on Hamilton’s failure to secure or brace the barrier it was working on during the
concrete cutting operation. The Board upheld this violation.
There was undisputed evidence that the concrete barrier that Dugan was cutting was not
secured or braced. As stated above, Dugan explained that the original plan was to have the
excavator hold the barrier pieces in place during the concrete cutting operations, but that the
excavator ultimately was not utilized when Dugan began to cut the concrete barrier.
Hamilton again argues that it cannot be held liable for violation 1-3 because it was not
aware of the deficient demolition plan. It also argues that it was not responsible for operating the
excavator that was supposed to provide support for the barrier being cut. But the inadequacy of
the demolition plan or who was responsible for providing the excavator are separate issues from
the plain requirement under WAC 296-155-035(8) to brace or secure the relevant parts of the
structures to prevent collapse or failure.
We conclude that substantial evidence supports the Board’s conclusion of law that
Hamilton committed a serious violation of WAC 296-155-035(8).
E. KNOWLEDGE OF VIOLATIVE CONDITIONS
Hamilton argues that there is insufficient evidence to show that Hamilton had knowledge
of the alleged violative conditions. We disagree.
20
No. 54578-1-II
1. Legal Principles
To prove a serious violation under WISHA, DLI must show that the employer knew or by
exercising reasonable diligence could have known of the violative condition. RCW
49.17.180(7); Ostrom Mushroom, 13 Wn. App. 2d at 272. Whether an employer has exercised
reasonable diligence involves consideration of factors such as the employer’s obligations to
inspect the work site, to anticipate potential hazards that its employees may encounter, and to
take measures to prevent a violative condition from occurring. Bayley Constr. v. Dep’t of Labor
& Indus., 10 Wn. App. 2d 768, 783, 450 P.3d 647 (2019), review denied, 195 Wn.2d 1004(2020).
Further, an “employer has constructive knowledge of a hazardous condition if it is readily
observable or in a conspicuous work site location.” Id. Therefore, DLI can show constructive
knowledge if the violation was in plain view. Potelco, 7 Wn. App. 2d at 244. A violation is in
plain view when any bystander easily can observe the violation. Id. at 245.
Knowledge may be imputed to an employer when a supervisor has actual or constructive
knowledge of a safety violation. Id. at 244. An employee need not hold the official title of
foreman or supervisor to be considered a supervisor for the purposes of imputing knowledge
onto the employer as long as the employee has significant control over the actual work in
practice and the ability to stop work when faced with clear safety hazards. See Mountain States
Contractors, LLC v. Perez, 825 F.3d 274, 284-85 (6th Cir. 2016).6
In Mountain States Contractors, the Sixth Circuit held that substantial evidence
supported the administrative law judge’s finding that a construction contractor had both actual
6
Federal decisions that interpret OSHA may inform us when interpreting WISHA. Shimmick
Constr. Co. v. Dep’t of Labor & Indus., 12 Wn. App. 2d 770, 778, 460 P.3d 192 (2020).
21
No. 54578-1-II
and constructive knowledge of a crane’s broken boom cable before the cable snapped and caused
the boom to fall onto the adjacent highway. Id. at 277, 286. Two crane operators, one of whom
was also the site foreman, noted that the cable needed to be replaced in their daily inspection
forms several times over the span of a few months. Id. at 280. A third crane operator also
eventually noted that the boom cable needed to be replaced. Id. The employees continued to
operate the crane despite the cable’s poor condition. Id. at 280-81.
In addition to imputing knowledge onto the employer based on the foreman’s actual
knowledge of the boom cable’s poor condition, the court separately concluded that the other two
crane operators had actual knowledge that also could be imputed onto the employer. Id. at 285.
The court stated that the two crane operator in essence were “supervisors” for purposes of
imputing knowledge based on the fact that they had complete responsibility for monitoring the
crane’s condition, had minimal supervision over the operation of the crane, and could have
halted operations based on the clear safety hazards related to the poor cable conditions. Id.
2. Violation 1-1a
The record shows that Hamilton had actual or constructive knowledge that no
engineering survey had been completed before Dugan began cutting the barrier and that there
was no written evidence that there was a completed engineering survey in violation of WAC
296-155-775(1). Hill testified that Hamilton did not create an engineering survey before starting
the concrete cutting operation. Dugan and Corkhill testified that they did not see an engineering
survey for the Bonney Lake jobsite. Further, Garrick in the exercise of due diligence could have
asked a Staton employee whether there had been an engineering survey completed for the
requested concrete cutting job during his initial contact with Staton. If he had done so, he would
have discovered that no engineering survey had been performed.
22
No. 54578-1-II
We conclude that substantial evidence supported the Board’s implied finding that
Hamilton had knowledge that there was no engineering survey and no written evidence of an
engineering survey before Dugan and Corkhill began cutting the barrier in violation of WAC
296-155-775(1).
3. Violation 1-2
Here, there was evidence that the flaggers were walking in plain view under the bridge,
establishing constructive knowledge of the hazardous condition posed by cutting the barrier.
Vandiver and King both testified that they walked under the bridge several times while the
cutting operations were happening. In addition, there was evidence of actual knowledge because
Dugan and Corkhill testified that they saw that the flaggers were down below them before the
barrier fell. Further, Dugan was a supervisor in actual practice for purposes of imputing
knowledge to Hamilton based on his complete control over the operation of the curb saw and his
supervision of Corkhill’s work. Mountain States Contractors, 825 F.3d at 285. Not only could
Dugan have informed Marney about the presence of other employees below the concrete cutting
operation, but Dugan could have refused to operate the curb saw until the area below was clear.
We conclude that substantial evidence supported the Board’s implied finding that
Hamilton had knowledge that the concrete cutting operations exposed persons working on a
lower level to danger in violation of WAC 296-155-775(15).
4. Violation 1-3
The testimony of Dugan and Corkhill shows that they had actual knowledge that the
barrier was not secured or braced during their concrete cutting operation. They testified that the
barrier was not braced or secured at all while they were working on it. Dugan further explained
that Corkhill saw the rail move and told him to stop cutting, but that he continued to cut after he
23
No. 54578-1-II
and Marney decided to continue with the concrete cutting operations. And as stated above,
actual knowledge can be imputed onto Hamilton because Dugan was a supervisor in actual
practice and could have refused to operate the curb saw once he realized that the excavator could
not be utilized for its intended purpose. Further, there was evidence of constructive knowledge
because the absence of bracing was in plain view.
We conclude that substantial evidence supported the Board’s implied finding that
Hamilton had knowledge that the component parts of the bridge and concrete barrier were not
secured or braced in violation of WAC 296-155-035(8).
F. FINDING OF FACT 3
Hamilton argues that the superior court erred in determining that substantial evidence
does not support the Board’s finding of fact 3, which states that Hamilton employees were aware
of the demolition plan created by Staton and performed saw cutting activities consistent with the
plan.
But the issue of whether the superior court erred in determining that substantial evidence
does not support the Board’s finding of fact 3 is immaterial because we review the Board’s
finding directly. See Ostrom Mushroom, 13 Wn. App. 2d at 271. And neither Hamilton nor DLI
assigns error to the Board’s finding of fact 3 on appeal. Accordingly, we decline to address
Hamilton’s argument.
CONCLUSION
We affirm the superior court’s order affirming the Board’s 2018 decision and order.
24
No. 54578-1-II
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
MAXA, J.
We concur:
WORSWICK, P.J.
CRUSER, J.
25