C. Ray Davenport, Commissioner of Labor and Industry v. Utility Trailer Manufacturing Company

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, AtLee and Raphael
PUBLISHED
Argued at Lexington, Virginia
C. RAY DAVENPORT, COMMISSIONER
OF LABOR AND INDUSTRY
OPINION BY
v. Record No. 0285-21-3 JUDGE ROBERT J. HUMPHREYS
JANUARY 18, 2022
UTILITY TRAILER MANUFACTURING COMPANY
FROM THE CIRCUIT COURT OF WASHINGTON COUNTY
Frederick A. Rowlett, Judge
Alex W. West, Special Assistant Commonwealth’s Attorney
(Mark R. Herring,1 Attorney General; Donald D. Anderson, Deputy
Attorney General; Heather Hays Lockerman, Senior Assistant
Attorney General and Section Chief; Joshua E. Laws, Assistant
Attorney General, on briefs), for appellant.
Travis W. Vance (David I. Klass; Fisher & Phillips, LLP, on brief),
for appellee.
On July 31, 2017, the Virginia Department of Labor and Industry (“the Commissioner”)
issued a citation to Utility Trailer Manufacturing Company (“UTMC”) for a violation of safety
standards issued by the Virginia Department of Labor and Industry Occupational Safety and
Health Administration (“VOSH”). UTMC contested the citation, and the Commissioner filed a
complaint in the Circuit Court of Washington County in accordance with Code § 40.1-49.4 to
enforce the citation.2 At trial, the circuit court sustained UTMC’s objection to the introduction
1
Jason S. Miyares succeeded Mark R. Herring as Attorney General on January 15, 2022.
2
Pursuant to Code § 40.1-49.4(E), when a citation for a safety or health violation is
contested, the Commissioner is required to file a civil action in the circuit court for that court to
affirm, modify or vacate the citation or proposed penalty, or to direct other appropriate relief,
upon making findings of fact and conclusions of law.
of an investigative report generated by UTMC on the grounds that it was a subsequent remedial
measure. Additionally, at the close of the Commissioner’s evidence, the circuit court granted
UTMC’s motion to strike on the grounds that the Commissioner failed to prove the existence of a
noncomplying condition. The Commissioner appealed these rulings to this Court pursuant to
Code § 40.1-49.5.
BACKGROUND
On appeal of an order granting a motion to strike, we view the evidence in the light most
favorable to the non-moving party—the Commissioner—and accord him “the benefit of any
inferences that may be fairly drawn from the evidence.” Curtis v. Highfill, 298 Va. 499, 502-03
(2020).
UTMC is a corporation that manufactures dry vans at a facility in Washington County
(“the worksite”). To construct these dry vans, eighteen-foot-long slider rails are welded to cross
members and vertical bars in a part of the worksite called the “marriage area.” The slider rails
are stored on a table some distance from the marriage area and must be transported via forklift to
the marriage area before they can be welded to the cross members or bars. The cross members
and vertical bars are stored in boxes on pallets that are placed near the path of the slider rails and
the marriage area. The location of the pallets required the forklift operators to elevate the forks
to prevent a collision between the long slider rails and the pallets.
On May 22, 2017, a forklift operator was transporting slider rails to the marriage area
with the forks elevated when a welder turned into the slider rails, striking his face on the rails in
the process. UTMC reported the incident to VOSH, which initiated an inspection.
The Code authorizes the Virginia Safety and Health Codes Board (“the Board”) to
promulgate and adopt regulations to assure “that no employee will suffer material impairment of
health or functional capacity.” Code § 40.1-22(5). Pursuant to this authorization, the Board has
-2-
incorporated several federal regulations, including 29 C.F.R. § 1910.176(a), into its
administrative code. 16 Va. Admin. Code § 25-90-1910. 29 C.F.R. § 1910.176(a) reads as
follows:
Use of mechanical equipment. Where mechanical handling
equipment is used, sufficient safe clearances shall be allowed for
aisles, at loading docks, through doorways and wherever turns or
passage must be made. Aisles and passageways shall be kept clear
and in good repair, with no obstruction across or in aisles that
could create a hazard. Permanent aisles and passageways shall be
appropriately marked.
Following the inspection of the UTMC facility, the Commissioner issued a “serious
violation” citation against UTMC.3 The citation notes the following alleged violations:
(a) Pallets with trailer parts stacked on them were allowed to be
stored in an area commonly used by forklift operators to transport
materials into the area. On May 22, 2017, a forklift operator was
transporting a load of approximately 10 slider rails to the marriage
area with a Hyster 60 forklift. Due to the pallets and trailer parts
that were obstructing the forklift passageway, the forklift operator
had to raise the load in order to clear the items in the forklift
passageway. An employee who was retrieving a welding helmet
nearby and had his back to the load, turned as the load approached
and walked into the slider rails striking his nose and face and
causing the rails to fall to the floor.
(b) Aisle ways [sic] and passageways used by forklifts to transport
slider rails to the marriage area welders were not appropriately
marked. Items had been placed in the forklift path where the
18-foot-long slider rails were transported. The forklift operators
often had to raise their loads several feet above the floor surface in
order to clear the obstructions.
3
Code § 40.1-49.3 defines “serious violation” as
a violation deemed to exist in a place of employment 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 violation.
-3-
The Commissioner then issued a $4,845 penalty for the serious violation, which UTMC
subsequently contested.4
Pursuant to Code § 40.1-49.4(E), upon receipt of written notice from UTMC that it
contested the citation, the Commissioner filed a complaint in the circuit court. In his complaint,
the Commissioner attached the citation as exhibit A and relied on its explanation of the violation
as the basis for the complaint.
Trial began on November 19, 2020. The Commissioner’s main witness was VOSH
investigator Robert Farmer. Mr. Farmer’s testimony was at times contradictory, but he testified
that travelling with the forks elevated could have caused a visual hazard due to the load or the
mast of the forklift. Mr. Farmer also testified that traveling with the forks raised could have
created a collision hazard or a tip-over hazard and that traveling with raised forks posed a risk of
“more significant injury” due to contact higher on the body. Finally, Mr. Farmer testified that
the aisle in which the forklifts operated was not marked.
Additionally, the Commissioner called Keith Walsh, UTMC’s safety manager and
corporate representative. Following the accident, Mr. Walsh helped draft a report on behalf of
UTMC detailing its view on the basic causes of the accident and necessary remedial steps to
prevent future incidents. The Commissioner sought to introduce the report into evidence, but
UTMC objected on the grounds of hearsay, subsequent remedial measures, and relevance. The
4
At the time of the citation, Code § 40.1-49.4 required the Commissioner to issue a civil
penalty of up to $7,000 for any serious violations but made any penalty discretionary for an
other-than-serious violation. Code § 40.1-49.4 permits the Commissioner to determine the exact
amount of the penalty by giving “due consideration to the appropriateness of the penalty with
respect to the size of the business of the employer being charged, the gravity of the violation, the
good faith of the employer, and the history of previous violations.” The Department of Labor
and Industry has standardized its practices for determining the amount of a violation in its Field
Operations Manual, but the manual “is not and does not purport to establish substantive law.”
Nat’l Coll. of Bus. & Tech., Inc v. Davenport, 57 Va. App. 677, 683 n.6 (2011).
-4-
Commissioner argued that the party-admission exception to the hearsay rule applied, that the
portions of the report that he sought to be admitted were not a subsequent remedial measure, and
that the report was relevant. The Commissioner then offered to introduce a redacted version of
the report to include only the portion of the report entitled “basic causes.” Specifically, the
relevant portion of the report identified the following as one of the causes of the accident:
Mr. Greer raised a load on the forklift higher than needed. Forks
were elevated approximately 60 inches above ground level upon
clearing pallets in the area, and at least 20 inches higher than
needed. He did not then lower the load before traveling further, all
contrary to his training.
Following the argument of counsel, the circuit court sustained the objection on the
grounds that the report constituted a subsequent remedial measure:
I have to say that I agree with Mr. Vance [counsel for UTMC]. I
mean, this is just full of the assessment of the purported violations
and incorrect measures that they are trying to correct. So I am
going to sustain your objection, Mr. Vance.
The Commissioner thereafter sought to elicit Mr. Walsh’s opinion on the causes of the
accident. UTMC objected on the same grounds, and the circuit court sustained its objection.
The Commissioner proffered that Mr. Walsh’s expected testimony was that the elevation of the
load created a visual hazard.
At the close of the Commissioner’s evidence, UTMC made a motion to strike on the
grounds that the Commissioner failed to prove the existence of a noncomplying condition.
UTMC argued that the Commissioner was required to prove the existence of an obstruction
which created an actual hazard. UTMC specifically argued that the Commissioner failed to
present any evidence on the actual existence of a hazard caused by the presence of the pallets.
The circuit court sustained the motion to strike on the grounds that “there was no violation.”
-5-
On February 23, 2021, the circuit court entered a sketch order submitted by UTMC
memorializing its ruling at trial. The written order reasoned that the federal administrative case
law required the Commissioner prove that the obstructions created an actual hazard. In applying
this interpretation, the circuit court ruled that the Commissioner failed to present any evidence on
this fact. The circuit court focused exclusively on the causes of the accident and injury at issue.
On March 24, 2021, the Commissioner filed his notice of appeal.
ANALYSIS
The Commissioner alleges two assignments of error in the proceedings below. First, that
the circuit court erroneously required proof of causation between an injury and a hazard when it
sustained UTMC’s motion to strike. Second, that the circuit court abused its discretion in
excluding an investigative report and testimony from the investigator who generated the report.
A. The Motion to Strike
The Commissioner appeals from the circuit court’s ruling sustaining UTMC’s motion to
strike because the Commissioner failed to make a prima facie case for the existence of
noncomplying conditions. The core of the Commissioner’s argument is that the circuit court
improperly required proof that the pallets created an actual hazard and/or an injury.
1. The Standard of Review and Regulatory Scheme
The circuit court’s legal interpretations of a regulation are questions of law which we
review de novo. See New Age Care, LLC v. Juran, 71 Va. App. 407, 421 (2020).
The Code requires that the Commissioner file a civil action in circuit court when he
receives written notice that a company contests a VOSH citation. Code § 40.1-49.4(E). Unlike
the typical agency review process under the Virginia Administrative Process Act, the circuit
court reviews the agency action de novo. Atl. Env’t Constr. Co. v. Malveaux, 63 Va. App. 656,
660, 661 n.3 (2014). To prevail, the Commissioner must prove four elements: “(1) the
-6-
applicability of the standard, (2) the existence of noncomplying conditions, (3) employee
exposure or access, and (4) that the employer knew or with the exercise of reasonable diligence
could have known of the violative condition.” Nat’l Coll. of Bus. & Tech., Inc. v. Davenport, 57
Va. App. 677, 685 (2011) (emphasis omitted). Accordingly, VOSH actions require a
multi-layered analysis when weighing a motion to strike. In other words, in order to prove the
existence of a noncomplying condition, the Commissioner must also prove all of the facts
necessary to show the employer’s noncompliance with a given regulation. Here, the circuit court
ruled that the Commissioner made a prima facie case as to the first element—the applicability of
the standard—but failed to prove the existence of noncomplying conditions. The circuit court
did not reach the exposure or knowledge elements.
In this case, the parties dispute what the Commissioner must show to prove the existence
of a noncomplying condition under 29 C.F.R. § 1910.176, as incorporated into Virginia law by
16 Va. Admin. Code § 25-90-1910. The Commissioner contends that the plain text of the
regulation controls: that a noncomplying condition exists if there are (1) obstructions, (2) across
or in aisles, (3) that could create a hazard. UTMC argues that several federal administrative law
cases require the Commissioner prove that there are (1) obstructions, (2) across or in aisles,
(3) that actually create a hazard.
There is no controlling case law on the meaning of the regulation at issue in this case.
There are no Virginia cases interpreting this regulation, and there are no federal Article III court
decisions interpreting this regulation. While the federal Occupational Safety and Health Review
Commission (“OSHRC”) has published cases and decisions involving this regulation, none speak
directly to the meaning of the word “could” in the regulation. For the reasons that follow, we
hold that the word “could” as used in the regulation only requires that the Commissioner prove
that it was reasonably foreseeable that an obstruction could create a hazard.
-7-
When interpreting the meaning of a regulation under VAPA, we ordinarily give
deference to an agency’s interpretation of that regulation. See Bd. of Supervisors v. State Bldg.
Code Tech. Rev. Bd., 52 Va. App. 460, 466 (2008).5 However, as noted, VOSH citations are not
reviewed under VAPA, but instead under a specially designated procedure contained in Code
§ 40.1-49.4. Under this procedure, VOSH’s citation decisions are reviewed de novo by the
circuit court for “‘findings of fact and conclusions of law, affirming, modifying or vacating [the
Commissioner’s] citation or proposed penalty, or directing other appropriate relief’ deemed
necessary by the court.” Atl. Envt’l Constr. Co., 63 Va. App. at 660 (quoting Code
§ 40.1-49.4(E)). The Code, therefore, does not direct courts to give any deference to the
agency’s interpretation.
Accordingly, courts should employ the traditional tools of statutory interpretation when
interpreting VOSH safety standards. First, it is axiomatic that statutory interpretation must begin
with the text itself to determine the intent of the legislature. See Potter v. BFK, Inc., 300 Va.
177, 182 (2021). When determining that intent, words are “given their ordinary meaning, unless
it is apparent that the legislative intent is otherwise.” Cox v. Commonwealth, 73 Va. App. 339,
344 (2021) (quoting Phelps v. Commonwealth, 275 Va. 139, 142 (2008)). Where a word is not
defined by the legislature, courts can look to dictionary definitions to supply the ordinary
meaning of a word. E.g., Rose v. Commonwealth, 53 Va. App. 505, 512 (2009) (applying
dictionary definition of “use”).
First, UTMC concedes that the Commissioner was not required to present evidence of an
actual harm caused by the obstruction in the aisleway. The word “hazard” as used in the
5
“This deference stems from Code § 2.2-4027, which requires that reviewing courts ‘take
due account’ of the ‘experience and specialized competence of the agency’ promulgating the
regulation.” Bd. of Supervisors, 52 Va. App. at 466 (quoting Va. Real Est. Bd. v. Clay, 9
Va. App. 152, 160-61 (1989)).
-8-
regulation is not synonymous with the word “harm.” “The term ‘hazard’ has been defined as ‘a
thing or condition that might operate against success or safety . . . a possible source of peril,
danger, duress or difficulty.’” Holtzman Oil Corp. v. Commonwealth, 32 Va. App. 532, 544
(2000) (emphasis added) (quoting Hazard, Webster’s Third New International Dictionary
(1993)). In Pelron Corp., 12 BNA OSHC 1833, at *4 (No. 83-388, 1986), the OSHRC defined a
“hazard” as “practices, procedures or conditions which increase the likelihood” of harm.
Accordingly, it is completely irrelevant in this case whether the pallets actually caused the
accident that triggered the VOSH investigation. In other words, at a minimum, the parties agree
that the regulation prohibits obstructions in aisleways that create an increased likelihood of harm.
However, the regulation not only prohibits obstructions that create a hazard, but also
obstructions that could create a hazard. In this case, the word “could” is not defined in the
regulation. Webster’s Dictionary defines “could” as the past tense of the word “can,” and
defines the word “can” as meaning “may perhaps: may possibly,” or, alternatively, “be
inherently able or designed to.”6 Applying the plain meaning of the word “could” in the
regulation therefore indicates that the regulation prohibits obstructions that possibly create
hazards, subject to certain limitations.7
In other words, combining the definition of the word “hazard” and the word “could”
leads us to conclude that the regulation prohibits obstructions in aisleways that “may possibly”
create a “condition which increases the likelihood of harm.” Accordingly, the regulation
prohibits not only actual hazards, but what the OSHRC in Pelron Corp. called “potential
6
Could, Webster’s Third New International Dictionary (1993); Can, Webster’s Third
New International Dictionary, supra.
7
As we explain further below, the regulation only prohibits obstructions which could
create a reasonably foreseeable hazard in light of the facts and circumstances of a given
workplace.
-9-
hazards.” See Pelron Corp., 12 BNA OSHC 1833, at *3 (defining a “potential hazard” as “the
‘possibility’ that a condition will occur”). Therefore, in this case, the noncomplying condition
that the Commissioner was required to establish was an obstruction in an aisleway that created a
potential hazard, not an actual hazard as the circuit court ruled.8
That said, the regulation’s reach is not limitless. The regulation does not require
employers to consider any and every condition which could conceivably increase the chances of
harm. First, the test for a violation of a VOSH safety standard eschews strict liability and
requires that the Commissioner prove actual or constructive knowledge by the employer. Nat’l
Coll. of Bus. & Tech., Inc., 57 Va. App. at 685. This Court has interpreted this element as
precluding citations for violations “which are not generally foreseeable.” Atl. Env’t Constr. Co.,
63 Va. App. at 661. As the Virginia Supreme Court said in Floyd Southern Pike Electrical
Contractor, Inc. v. Commissioner, 222 Va. 317 (1981) (per curiam), “[a]n employer . . . need not
take steps to prevent hazards which are not generally foreseeable . . . but at the same time an
employer must do all it feasibly can to prevent foreseeable hazards.” Id. at 322-23 (quoting Gen.
Dynamics Corp. v. Occupational Safety & Health Rev. Comm’n, 599 F.2d 453, 458 (1st Cir.
1979)). Accordingly, an employer cannot be held liable for a condition which is not reasonably
foreseeable to create an increased risk of harm.
Second, the federal administrative case law makes clear that courts should consider the
facts and circumstances of a given workplace to determine whether an obstruction creates a
potential hazard. For example, in Anchor Hocking Glass Co., 17 BNA OSHC 1644, at *3 (No.
94-0178, 1996) (ALJ), the administrative law judge found that the mere presence of an
obstruction in an aisleway did not create a hazard “[u]nder the circumstances in [company’s]
8
Of course, if the Commissioner established that the obstruction created an actual hazard,
then he has necessarily established that the obstruction was a potential hazard.
- 10 -
location.” In Anchor Hocking Glass Co., the Secretary of Labor claimed that pallets in an
aisleway prohibited the safe operation of multiple forklifts if there was pedestrian traffic at the
same time. Id. The administrative law judge considered this potential hazard in light of the
circumstances of the workplace including the “mammoth” size of the aisle, the specific traffic
patterns and schedules established by the company for the forklifts, and training regarding the
presence of the pallets. Id. In light of these circumstances, the pallets did not create a hazard.
Id. Therefore, in order to prove the existence of a noncomplying condition under the regulation,
the Commissioner must show that an obstruction in an aisleway is reasonably foreseeable to
create a potential hazard in light of the facts and circumstances of a given workplace.
The federal administrative case law is consistent with interpreting the regulation as
prohibiting potential hazards in addition to actual hazards. While none of the decisions are
binding or directly on point, their reasoning is persuasive.
UTMC cites Pelron Corp., 12 BNA OSHC 1833, in support of its argument that the
regulation only prevents actual hazards, however, this case actually supports the opposite
argument. In Pelron Corp., the employer was cited for a violation of the OSHA general duty
clause, not 29 C.F.R. § 1910.176(a). The general duty clause guarantees workers the right to
work in an environment “free from recognized hazards.” 29 U.S.C. § 654(a)(1). The OSHRC
found that the general duty clause only prohibited actual hazards, not potential hazards. Notably,
however, the general duty clause does not include the word “could,” “can,” or any other word of
possibility. See id. Unlike the general duty clause, the regulation in this case does include a
word of possibility and defining the regulation as prohibiting potential hazards would be
consistent with the OSHRC’s decision in Pelron Corp.
UTMC also cites General Motors Co., Packard Electric Division, 7 BNA OSHC 1205(No. 78-1368, 1979) (ALJ) for the proposition that the word “could” should be excised from the
- 11 -
regulation. In General Motors Co., Packard Electric Division, the administrative law judge
ruled that a twenty-two-inch intrusion into a ten-foot-wide aisleway did not create a hazard when
the only vehicular traffic consisted of forty-inch-wide forklifts carrying forty-two-inch-wide
loads. 7 BNA OSHC 1205, at *1. UTMC relies heavily on language from this ruling that notes
that “only those obstructions which create a hazard are prohibited.” Id. However, this ruling
was issued in response to the Secretary of Labor’s argument that any obstruction in an aisle
constituted a violation of the regulation, an argument that the Commissioner does not make here.
Indeed, the administrative law judge’s ruling was inconsistent in its inclusion of the word
“could.” E.g., id. at *2 (“Since the skid was not an obstruction which could create a hazard,
there was no violation of 29 C.F.R. § 1910.176(a).” (emphasis added)). General Motors Co.,
Packard Electric Division stands for the proposition that not all obstructions can create hazards,
not that an obstruction must create an actual hazard. See also Anchor Hocking Glass Co., 17
BNA OSHC 1644 (relying on Gen. Motors Co., Packard Elec. Div.).9
Nonetheless, UTMC argues that reading “could” as meaning that the Commissioner need
only present evidence of a reasonably foreseeable hazard as violating the canon against
superfluity by rendering the phrase “could create a hazard” superfluous. Virginia courts
“disfavor a construction of statutes that renders any part of the statute useless or superfluous.”
9
In fact, other federal administrative case law clearly shows that the OSHRC will
consider potential hazards when interpreting this regulation. For example, in Pharmasol Corp.,
2018 CCH OSHD ¶ 33,692 (No. 16-1172, 2018), the OSHRC found a violation of the regulation
despite the fact that the obstructions did not actually create hazards. The OSHRC considered
reasonable hypothetical scenarios created by the obstructions in light of the actual practices of
the company in finding a violation. Id. (finding that company’s expert opinion that obstruction
could not create a hazard was unpersuasive when it relied on the driving ability of the forklift
operator and did not consider possible abilities of other operators); Hughes Tool Co., 6 BNA
OSHC 1366 (No. 15086, 1978) (same). The federal administrative case law supports the
conclusion that the word “could” extends the reach of the regulation to reasonable potential
hazards.
- 12 -
Shoemaker v. Funkhouser, 299 Va. 471, 487 (2021). However, as noted above, the phrase
“could create a hazard” operates as a vitally important limitation on the scope of the regulation,
notwithstanding the plain meaning of the word “could.”
Indeed, the interpretation proposed by UTMC would require this Court to treat the word
“could” as superfluous, violating the canon against superfluity by requiring the Commissioner to
show that an “obstruction across or in [an] aisle[] . . . create[d] a hazard.” This interpretation
simply excises the word “could” from the regulation and would give it no meaning whatsoever.
See Shoemaker, 299 Va. at 487.
UTMC also argues that applying the plain meaning of the word “could” will open the
floodgates to employer liability by requiring courts to consider any conceivable hazard no matter
how absurd or attenuated. However, UTMC’s argument not only neglects the
“facts-and-circumstances” limitation found in the federal administrative case law and Virginia
case law prohibiting only foreseeable hazards, but also the substantial procedural safeguards
contained in the regulatory enforcement scheme that protect employers from liability from the
most extreme interpretations of the plain meaning of the word “could.”
For example, the regulations provide an employer with an affirmative defense. 16
Va. Admin. Code § 25-60-260(B) provides that a citation shall be vacated if an employer
demonstrates that
1. Employees of such employer have been provided with the
proper training and equipment to prevent such 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
- 13 -
4. Reasonable steps have been taken by such employer to discover
any such violation.
Therefore, UTMC may avoid liability if it can show that it took appropriate steps to prevent
violations.10
Finally, an employer’s liability is limited by the statutory definition of a “serious
violation.” The most severe punishments under the regulatory scheme are limited to those
violations that carry “substantial probability that death or serious physical harm could result.”
Code § 40.1-49.3. Therefore, employers do not face significant liability for technical violations
of the regulations that do not pose serious risks to employee safety.
UTMC’s concerns that a decision applying the plain meaning of the word “could” would
open the floodgates to employer liability is unfounded. The Commissioner was only required to
prove that it was foreseeable that the pallets created a potential hazard in light of the facts and
circumstances of the case. He was not required to prove that the pallets caused a specific
accident or injury, nor was he required to prove that the pallets created an actual hazard.
2. The Regulation as Applied in the Circuit Court
It is important to note that this case comes to us from the appeal of a grant of a motion to
strike the evidence. With the case before us in that posture, it is irrelevant whether UTMC has a
defense or whether the evidence is sufficiently credible or should be given sufficient weight for
the Commissioner to ultimately prevail and we offer no opinion regarding the ultimate
disposition of this case. The issue before us is only whether the Commissioner’s evidence was
sufficient to establish a regulatory violation when the evidence presented is considered in the
light most favorable to him.
10
Because this case comes before us on review of a motion to strike, whether UTMC will
ultimately prevail on such a defense is not before us in this case.
- 14 -
Both parties agree that the Commissioner was not required to prove a causal connection
between any injury and the alleged hazard. The regulation is wholly silent on injuries, accidents,
or harms. While an injury could be relevant to proving the exposure or knowledge elements of
the case (or the seriousness of the violation), the Commissioner does not need to show actual
harm or injury to prove the existence of a noncomplying condition.
Here, the circuit court did not expressly rule that the Commissioner was required to prove
a causal link between the injury and the alleged hazard. However, the circuit court’s ruling
focuses heavily on the cause of the accident that triggered the Commissioner’s investigation. For
example, the circuit court found that the Commissioner failed to present evidence that the forklift
operator or the injured worker’s visions were obstructed by the elevated load “at the time of the
accident.” The circuit court explained that “the testimony demonstrated that the accident
occurred at least in part because the injured worker was not paying attention.” Additionally, the
circuit court clearly held that the regulation required the Commissioner to prove an actual hazard
as opposed to a potential hazard.
We hold that the circuit court erred by requiring proof of an actual hazard instead of
simply a reasonably foreseeable potential hazard. At first glance, the distinction between
potential hazards and actual hazards appears to be a nebulous and vague one. The distinction is
more clearly drawn by applying it to the facts of this case. Here, the Commissioner presented
evidence that raising the forks in order for the forklift to clear the pallets created three potential
hazards: a visual hazard, a “tip-over” hazard, and the risk that a collision would create a greater
risk of injury.
To prove that the pallets created an actual visual hazard, the Commissioner would be
required to present evidence that raising the forks actually obstructed the operator’s vision. If the
operator’s vision was not actually obstructed by raising the forks, then doing so did not increase
- 15 -
the likelihood of harm and therefore did not create an actual hazard. However, to prove that the
pallets created a potential hazard, the Commissioner simply needed to show that raising the forks
could have obstructed the operator’s vision—assuming that such a possibility was reasonably
foreseeable in light of the facts and circumstances of the UTMC workplace. Mr. Farmer testified
that the height of the load meant that the load itself or the mast of the forklift could have
obstructed the forklift operator’s vision.11 This testimony is sufficient to survive a motion to
strike.
Relatedly, to prove that the pallets created an actual “tip-over” hazard or a risk of greater
injury, the Commissioner would have needed to present evidence that traveling with the forks
raised increased the likelihood that the forklift would tip over or that an injury caused by a
collision would be more significant. In fact, Mr. Farmer testified that travelling with an elevated
load could have created a “tip-over” hazard or a risk of greater injury, facts which the circuit
court ignored in its ruling.12 It is irrelevant that no “tip over” happened in this case, and there is
evidence that a collision occurred with a worker’s head instead of his leg. Accordingly, the
Commissioner presented evidence that travelling with the forks elevated created an actual hazard
and the circuit court erred by disregarding that evidence on a motion to strike.
11
UTMC argues on brief that the mast of a forklift is a stationary component of the
machinery and that any visual obstruction risk created by the mast is present regardless of the
heights of the forks. However, this fact was not presented to the circuit court and we cannot
consider it on appeal.
While Mr. Farmer’s testimony is lacking detail as to the facts and circumstances
12
necessary for an elevated load to create a “tip-over” hazard or a greater risk of injury, as noted
above, this case is before us on a motion to strike and we only consider whether any rational fact
finder could find for the Commissioner. See Newton v. Veney, 220 Va. 947, 951 (1980) (citing
Reagan v. Reagan, 215 Va. 222, 224 (1974)).
- 16 -
3. Citation 1(b)
Finally, the Commissioner also argues that the circuit court erred because it did not
consider evidence presented as to citation 1(b) regarding insufficiently marked aisles. The
Commissioner clearly presented evidence that the aisle was not marked.
However, UTMC argues that the Commissioner has waived this argument by not
expressly stating it in his assignments of error. Rule 5A:12(c)(1) requires that petitions for
appeal “must list, clearly and concisely and without extraneous argument, the specific errors in
the rulings below.” This Court has held that Rule 5A:20(c)’s requirements that the opening brief
contain the assignments of error imposes the same requirement on an appellant as Rule
5A:12(c)(1) imposes on a petitioner. See Fox v. Fox, 61 Va. App. 185, 202-03 (2012). The
purpose of the assignment of error is “to ‘point out the errors with reasonable certainty in order
to direct [the] court and opposing counsel to the points on which [the] appellant intends to ask a
reversal of the judgment, and to limit discussion to these points.’” Carroll v. Commonwealth,
280 Va. 641, 649 (2010) (first alteration in original) (quoting Yeatts v. Murray, 249 Va. 285, 290
(1995)). The Virginia Supreme Court has held that Rule 5A:12(c)(1) does not demand the
inclusion of a “because clause” in an assignment of error. Findlay v. Commonwealth, 287 Va.
111, 116 (2014). Such a requirement would “create an unnecessary procedural trap that may bar
appellate review of meritorious claims.” Id.Here, the Commissioner clearly identified his argument as to citation 1(b) to the circuit
court below. In his assignment of error, he sufficiently identified the point on which he contends
the circuit court erred: requiring the Commissioner to prove something that the regulation does
- 17 -
not require.13 Additionally, the Commissioner clearly identified this argument in his brief.
UTMC was on notice as to the nature of the Commissioner’s argument, and the Commissioner
has complied with the requirement to “point out the errors with reasonable certainty.” Carroll,
280 Va. at 649 (quoting Yeatts, 249 Va. at 290).
Accordingly, the circuit court also erred by requiring proof of an injury or actual hazard
because the regulation provides an alternative noncomplying condition on which the
Commissioner presented evidence. See 29 C.F.R. § 1910.176(a) (“Permanent aisles and
passageways shall be appropriately marked.”).
B. The Evidentiary Ruling
In his second assignment of error, the Commissioner argues that the circuit court erred by
sustaining UTMC’s objections to the introduction of a post-accident investigative report
prepared by UTMC. Separately, but relatedly, the Commissioner also argues that the circuit
court erred by sustaining UTMC’s objections to follow-up questions to the report’s author.
Appellate courts review a circuit court’s ruling on the admissibility of evidence under an
abuse of discretion standard. Thomas v. Commonwealth, 279 Va. 131, 168 (2010). A court
always abuses its discretion when it makes an error of law. See, e.g., Warnick v. Commonwealth,
72 Va. App. 251, 263 (2020). A court can also abuse its discretion in three other ways: (1) by
failing to consider a relevant factor that should have been given significant weight, (2) by
considering and giving significant weight to an irrelevant or improper factor, and (3) by
committing a clear error of judgment, even while weighing “all proper factors.” Lawlor v.
13
Specifically, the Commissioner’s assignment of error claims that “The circuit court
erred by misinterpreting the Regulation to require proof of causation between an injury and the
alleged hazard – obstructed aisleways – and by discounting evidence of an actual hazard that
likely caused this injury.”
- 18 -
Commonwealth, 285 Va. 187, 213 (2013) (quoting Landrum v. Chippenham & Johnston-Willis
Hosps., Inc., 282 Va. 346, 352 (2011)).
Virginia Rule of Evidence 2:407, derived from Code § 8.01-418.1, provides that:
When, after the occurrence of an event, measures are taken which,
if taken prior to the event, would have made the event less likely to
occur, evidence of such subsequent measures is not admissible to
prove negligence or culpable conduct as a cause of the occurrence
of the event; provided that evidence of subsequent measures is not
required to be excluded when offered for another purpose for
which it may be admissible, including, but not limited to, proof of
ownership, control, feasibility of precautionary measures if
controverted, or for impeachment.
Therefore, when faced with such questions, courts must consider two questions: is the
evidence offered actually a remedial measure, i.e. a measure which “if taken prior to [an] event,
would have made the event less likely to occur”; and, second, whether the evidence is offered to
prove negligence or culpable conduct as a cause of the event.
We deal first with the purpose element. The inferential process that the rule prohibits is
that the defendant, by remedying a given situation, has admitted by his conduct that the situation
was dangerous or illegal, or that he was otherwise at fault for causing that situation. See Fed. R.
Evid. 407 advisory committee’s note to 1972 proposed rule.14 The rationale behind this rule is
two-fold. First, this inference is weak in any event. There are myriad other explanations for why
a defendant would change a condition other than as an admission of fault by conduct. Id.
Second, and more importantly, the law should not discourage potential defendants from making
working conditions within their control safer for fear that such a remedial measure will later be
used against them to prove their culpability. See Turner v. Manning, Maxwell & Moore, Inc.,
216 Va. 245, 253 (1975).
14
While there are some stylistic differences between Federal Rule of Evidence 407 and
Rule 2:407, we find the rationales behind the rules to be similar.
- 19 -
In this case, the situation or “event” in question is the existence of a noncomplying
condition under the VOSH standards. Accordingly, the inferential process that the rule prohibits
in this case is that the Commissioner may not rely on any action taken by UTMC that would
make the presence of an obstruction that could create a hazard less likely to occur, if that action
is offered to prove that UTMC’s negligence or culpable conduct caused the presence of an
obstruction that could create a hazard.
We note that this is not a torts case. Negligence is not an element of the Commissioner’s
claim. As such, the report could not have been offered to prove that UTMC’s negligence caused
the existence of a noncomplying condition. The question then becomes whether the evidence
was offered to prove UTMC’s culpable conduct as a cause of the existence of a noncomplying
condition.15
In Werner v. Upjohn Co., Inc., 628 F.2d 848 (4th Cir. 1980), the Fourth Circuit
interpreted “culpable conduct” as used in the federal analogue to Rule 2:407 as conduct which is
“blamable; censurable; involving the breach of a legal duty or the commission of a fault. . . . [I]t
implies that the act or conduct spoken of is reprehensible or wrong, but not that it involves
malice or a guilty purpose.” Id. at 856-57 (quoting Black’s Law Dictionary (4th ed. 1968)).
The Werner court interpreted the phrase “culpable conduct” in the context of a strict
products liability case where, as is the case here, negligence is not an element of the claim.
There, the plaintiff argued that Rule 407 did not apply in such a situation because the inquiry
only focused on the dangerousness of the product, not the bad actions of the defendant. Id. at
856. The Werner court disagreed, reasoning that, “[f]rom a defendant’s point of view it is the
fact that the evidence may be used against him which will inhibit subsequent repairs or
15
The phrase “culpable conduct” is not defined in the Rule or in the statute, and there are
no Virginia cases interpreting the phrase in the context of Rule 2:407.
- 20 -
improvement. It makes no difference to the defendant on what theory the evidence is admitted;
his inclination to make subsequent improvements will be similarly repressed.” Id. at 857.16
Based on the policy purposes behind the rule and the Werner court’s persuasive
reasoning on its application to strict liability cases, we find that Rule 2:407 applies in an action to
enforce a citation for violations of the VOSH safety regulations. The goal of Rule 2:407 is to
encourage potential defendants to make improvements to prevent injuries. This goal would be
thwarted by refusing to apply Rule 2:407 in VOSH safety regulation cases.17
Having found that Rule 2:407 applies to VOSH safety regulations cases, we turn to
whether the investigative report generated by UTMC can fairly be considered a subsequent
remedial measure within the meaning of the rule. There are no reported Virginia cases
determining whether a party’s subsequent identification of the cause of an accident constitutes a
subsequent remedial measure. However, other jurisdictions have interpreted their analogues to
Rule 2:407 and their analyses are instructive.
The majority of courts hold that investigative reports, by their very nature, cannot be
subsequent remedial measures. As the Tenth Circuit has noted “such [reports] are conducted for
the purpose of investigating the occurrence to discover what might have gone wrong or right.
Remedial measures are those actions taken to remedy any flaws or failures indicated by the
[report].” Rocky Mountain Helicopters, Inc. v. Bell Helicopters, 805 F.2d 907, 918 (10th Cir.
16
See also Bauman v. Volkswagenwerk Aktiengesellschaft, 621 F.2d 230, 232 (6th Cir.
1980); Flaminio v. Honda Motor Co., Ltd., 733 F.2d 463, 469 (7th Cir. 1984); Gauthier v. AMF,
Inc., 788 F.2d 634, 636-37 (9th Cir.), amended on denial of reh’g, 805 F.2d 337 (9th Cir. 1986);
Fed. R. Evid. 407 advisory committee’s note to 1997 amendments.
17
We note also that the OSHRC has applied the federal rule in its proceedings with little
controversy. See, e.g., Houston Sys. Manuf. Co., 1978 CCH OSHD ¶ 23,024 (No. 77-2117,
1978); Gen. Dynamics Corp., Elec. Boat Div., 1980 CCH OSHD ¶ 24,892 (No. 79-6844, 1980).
- 21 -
1986).18 These courts reason that post-accident investigations cannot logically be measures that
would make an event less likely to occur because one cannot identify the cause of an event
before it happens. However, these reports do occasionally include recommendations for how to
prevent accidents happening in the future. When investigative reports do include
recommendations for subsequent remedial measures, most of these courts agree that simply
redacting any mention of the remedial recommendations from the version of the report ultimately
admitted is an appropriate compromise. See, e.g., City of Bethel v. Peters, 97 P.3d 822, 827
(Alaska 2004).
Other courts have held that the policy purposes behind the rule prohibit the introduction
of these investigative reports in their entirety. In Martel v. Massachusetts Bay Transportation
Authority, 525 N.E.2d 662, 664 (Mass. 1988), the Massachusetts Supreme Judicial Court
18
Other jurisdictions have adopted the reasoning of the Tenth Circuit. See, e.g., Brazos
River Auth. v. GE Ionics, Inc., 469 F.3d 416, 431 (5th Cir. 2006) (declining to extend Rule 407 to
investigations “which by themselves do not make the accident less likely to occur”); Benitez-
Allende v. Alcan Aluminio do Brasil, S.A., 857 F.2d 26, 33 (1st Cir. 1988) (holding that report at
issue was “‘internal investigatory report’ of the sort not protected by Rule 407”); J.M. v. City of
Milwaukee, 249 F. Supp. 3d 920, 932 (E.D. Wis. 2017) (holding that the investigation leading to
the remedial act of employee discipline did not fall within scope of Rule 407); Aranda v. City of
McMinnville, 942 F. Supp. 2d 1096, 1103 (D. Or. 2013); (“By it [sic] terms, [Rule 407] is limited
to measures that would have made the harm less likely to occur; it does not extend to
post-incident investigations into what did occur.”); Bullock v. BNSF Ry. Co., 399 P.3d 148, 158
(Kan. 2017) (“[I]t is not unusual for some evidence to include information that is permissible,
such as investigative conclusions, and information that is impermissible, such as [the
recommended remedial measure of] employee discipline.”); City of Bethel v. Peters, 97 P.3d
822, 827 (Alaska 2004) (holding that post-incident report, with “corrective action” section
redacted, was admissible); Fox v. Kramer, 994 P.2d 343, 352 (Cal. 2000) (noting that the
majority of courts “distinguish between an investigation and actual steps taken to correct a
problem; post[-]event investigations do not themselves constitute remedial measures, although
they might provide the basis for such measures”); J.B. Hunt Transp., Inc. v. Guardianship of
Zak, 58 N.E.3d 956, 966 (Ind. Ct. App. 2016) (“The majority of jurisdictions agree that a
post-incident investigation and report of the investigation do not constitute inadmissible
subsequent remedial measures.”).
- 22 -
explained that while such reports are not themselves remedial, they are a necessary prerequisite
to any remedial safety measures.
Finally, in a recent case, Thomas v. University Medical Center, Inc., 620 S.W.3d 576(Ky. 2020), the Kentucky Supreme Court announced a third approach. Under the Kentucky
approach, a court should consider whether a defendant has actually adopted any of the remedial
measures contained in the investigative report. Id. at 586. If so, the Thomas court reasons, the
report merges with the measures and the policy purposes of the rule are best served by total
exclusion. Id. However, where any measures recommended by a report are not implemented,
the “information alone would not have made the incident less likely to occur.” Id. Accordingly,
the Kentucky test constitutes a case-by-case approach wherein trial courts must determine
whether any remedial actions recommended by an investigative report were actually
implemented by the defendant. Id. at 587. If so, then the entirety of the report is excluded from
evidence. Id. If the recommendations are not taken, then the court should admit the document in
its entirety. Id.We think the majority rule—admitting investigative reports with redactions for remedial
measures recommended—is the best approach. While we find many aspects of the Kentucky
approach attractive, it presents several pitfalls that give us pause. First, it has the consequence of
excluding more evidence than the rule explicitly allows. Rule 2:407 only excludes measures
which “if taken prior to [an] event, would have made the event less likely to occur.”
Significantly, the rule is derived from the Virginia Code, and it is a long-standing rule of
statutory construction that we may not add language to statutes. Berglund Chevrolet, Inc. v. Va.
Dep’t of Motor Vehicles, 71 Va. App. 747, 754 (2020). The rule and statute only reach specific
conduct (measures that would make an event less likely to occur) and do not permit potential
- 23 -
defendants to immunize incriminating evidence by including it in a report that also happens to
recommend remedial measures.
Additionally, the Kentucky rule could prove difficult to implement in marginal cases.
Should entire reports be inadmissible if only one minor recommendation is adopted? What if a
recommendation is adopted in part or in a modified manner? What if remedial changes were
made following an accident but prior to or contemporaneous with a report? When do a report’s
recommendations become stale? The Kentucky rule provides more questions than answers.
Accordingly, we hold that the mere identification of the causes of an event are not
subsequent remedial measures within the meaning of Rule 2:407. Where such a report includes a
recommendation for a remedial measure or evidence of an actual remedial measure taken, such
inclusions should be redacted or otherwise excised from the report ultimately admitted into
evidence.
Applying this holding to the facts of this case, the fact that UTMC investigated the
worksite accident and generated a report as to its causes is not a measure “which if taken prior to
the event would have made the event less likely to occur.” Had the Commissioner sought to
introduce evidence of some subsequent physical change UTMC made to the worksite (such as
moving the pallets), that evidence would have been inadmissible as a subsequent remedial
measure, but UTMC’s identification of a cause of the accident is admissible. Accordingly, the
circuit court made an error of law and abused its discretion by classifying UTMC’s identification
of the causes of the accident as a subsequent remedial measure. To the extent to which the report
contained recommendations for how to prevent such accidents in the future, the circuit court did
not err as those recommendations should have been redacted from the version of the report
ultimately admitted.
- 24 -
UTMC argues that even if the circuit court erred by excluding the report as a subsequent
remedial measure, this Court should affirm as the report was inadmissible hearsay. We disagree.
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. See
Va. R. Evid. 2:801. Hearsay is inadmissible unless it falls within one of the exceptions to the
hearsay rule. Va. R. Evid. 2:802. Among these exceptions is the party admissions exception.
Va. R. Evid. 2:803(0). Under that exception
A statement offered against a party that is (A) the party’s own
statement, in either an individual or a representative capacity, or
(B) a statement of which the party has manifested adoption or
belief in its truth, or (C) a statement by a person authorized by the
party to make a statement concerning the subject, or (D) a
statement by the party’s agent or employee, made during the term
of the agency or employment, concerning a matter within the scope
of such agency or employment, or (E) a statement by a
co-conspirator of a party during the course and in furtherance of
the conspiracy.
Id.The report is undeniably hearsay; however, it is also undeniably a party admission.
Mr. Walsh was an employee of UTMC who generated the report during the term of his
employment, concerning a matter within the scope of his employment as safety manager. See
Va. R. Evid. 2:803(0)(D). Furthermore, Mr. Walsh was present at trial as the corporate
representative of UTMC. See Va. R. Evid. 2:803(0)(A). Mr. Walsh’s statements qualify as a
party admission under two separate theories, and the circuit court could not have excluded the
report on hearsay grounds.
UTMC additionally argues, however, that any error by the circuit court in excluding the
report and the Commissioner’s follow-up questions was harmless because the report and
follow-up questions would not have revealed relevant evidence. See Commonwealth v. White,
293 Va. 411, 420-21 (2017). An error is harmless if “the error did not influence the [factfinder],
- 25 -
or had but slight effect.” Commonwealth v. Swann, 290 Va. 194, 201 (2015) (per curiam)
(quoting Anderson v. Commonwealth, 282 Va. 457, 467 (2011)). Evidence is relevant if it has
“any tendency to make the existence of any fact in issue more probable or less probable than it
would be without the evidence.” Va. R. Evid. 2:401.
The section of the report that the Commissioner sought to introduce meets this low
threshold. Although much of the Commissioner’s evidence irrelevantly focused on the causes of
the accident that triggered the compliance investigation, the cause of the accident itself was not
an element of the Commissioner’s claim. Instead, the “fact in issue” in this case was whether the
pallets caused an obstruction that could have created a hazard. Accordingly, the relevance
question becomes whether the fact that UTMC identified the elevation of the load as a cause of
the accident made it more probable that the pallets could have created a hazard. Based on the
Commissioner’s proffer of Mr. Walsh’s expected testimony in response to the Commissioner’s
follow-up questions (that the elevated load caused the accident because it obstructed the
operator’s vision), we find that the report in redacted form and questions were relevant, and the
circuit court’s error was not harmless.
CONCLUSION
Because the circuit court erred by requiring the Commissioner to prove that the pallets
created an actual hazard, and because the circuit court abused its discretion by excluding a
post-accident investigative report generated by UTMC, we reverse the judgment of the circuit
court in sustaining UTMC’s motion to strike the evidence and in refusing to admit a redacted
version of UTMC’s report on the accident and remand for further proceedings consistent with
this opinion.
Reversed and remanded.
- 26 -