Lanzce G. Douglass, Inc. v. Dep't of Labor & Indus.

FILED
NOVEMBER 15, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
LANZCE G. DOUGLASS, INC., a )
Washington Corporation, ) No. 35399-1-III
)
Appellant, )
)
v. )
) UNPUBLISHED OPINION
WASHINGTON DEPARTMENT OF )
LABOR AND INDUSTRIES, )
)
Respondent. )
FEARING, J. — Lanzce G. Douglass appeals from the Board of Industrial Insurance
Appeals’ and the superior court’s upholding of a Department of Labor & Industries
citation for failing to enforce a safe work environment for subcontractor employees. We
find substantial evidence to sustain the Board of Industrial Insurance Appeals’ conclusion
and affirm.
FACTS
General contractor Lanzce G. Douglass, Inc. (Douglass) hires subcontractors to
build houses on its behalf. Lanzce Douglass is the company’s president and owner. He
has operated the company for over twenty years and has been involved in hundreds of
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building projects. Douglass employs five to ten workers and constructs around seven
houses contemporaneously. In 2014, Douglass built a residence on Cypress Court in
Spokane.
Brad Sollie, an employee of Douglass, acted as the Cypress Court project’s
foreman. Sollie managed other projects simultaneously. Sollie hired subcontractors,
ordered materials, and visited the numerous projects to monitor work. Sollie reported
directly to Lanzce Douglass and the two met three to four mornings per week to discuss
the progress of various projects. Brad Sollie visited the Cypress Court jobsite every two
to three days.
Lanzce Douglass hired a subcontractor, Richard Neilson, to frame the Cypress
Court house. Richard Neilson is the president and owner of Richard Neilson, Inc.
(Neilson, Inc.). Douglass and Neilson lacked a written subcontract. Neilson maintained
snippets of a manual outlining its employee safety program. Neilson did not provide
Douglass this partial safety manual.
On December 17, 2014, a neighbor in the Cypress Court neighborhood e-mailed,
to a safety supervisor at the Department of Labor and Industries (DLI), a photograph of a
man working on the Douglass residence. The photograph, taken from across the street,
depicted a man on a platform lifted by a Skytrak forklift. The platform lacked a guardrail
in violation of Washington Industrial Safety and Health Act of 1973, chapter 49.17 RCW
(WISHA) standards. A WISHA regulation requires guardrails for work platforms raised
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with forklifts and for working surfaces over four feet above the ground. WAC 296-863-
40060(1)(b); WAC 296-155-24609(2)(a).
DLI inspector Sheri Hadwiger visited the Cypress Court construction site on the
morning of December 18, 2014. As she approached the site, Hadwiger espied a worker,
holding a nail gun, on an elevated platform on the Skytrak forklift without a guardrail.
Hadwiger recognized the work activity as consistent with the neighbor’s photograph shot
the previous day. From the street, she photographed the man on the platform and another
man working on the ground directly underneath the platform. The ground-standing
worker cut trim and handed the trim to the platform sited worker.
Sheri Hadwiger saw a white truck drive onto the Cypress Court construction site
and stop in front of the residence in progress. The truck’s panel read “Lanzce Douglass.”
Administrative Record (AR) (Oct. 22, 2015) at 132.
During her December 18 visit, Sheri Hadwiger approached the Cypress Court site
and identified herself to the man on the Skytrak platform. She inspected the lift’s
platform, observed the platform to extend twelve feet in the air, saw rounds of nails
stacked on the platform, and confirmed the absence of a basket or guardrail on the
platform.
Sheri Hadwiger connoitered the outside of the Cypress Court construction site to
identify any other potential safety hazards. She observed an extended unprotected edge
on the house’s backside where an opening for a slider door had been framed four feet
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above the ground. This edge lacked a guardrail. This unguarded edge violated the
regulation demanding guardrails for work platforms raised with forklifts and for working
surfaces over four feet above the ground. As Hadwiger conducted the inspection, a
worker installed a guardrail for the edge in an attempt to abate the violation.
DLI inspector Sheri Hadwiger next inspected the house’s interior. The stairs
leading to the second story of the residence lacked handrails, and the walking area on the
second level lacked a middle guardrail. A step leading to the garage exceeded the
permissible height for missing a ramp or intermediate step.
At some unidentified time Neilson provided DLI two documents, each dated
November 12, 2014. The first document was a “SUB-CONTRACTOR’S WARRANTY
STATEMENT,” in which Neilson guaranteed to Douglass that the former’s work and
materials would be free from defects for one year. EX. 12. The next document was a
“SUB-CONTRACTOR’S SAFETY STATEMENT,” in which Neilson, Inc. certified to
Douglass that Neilson, Inc. instructed all employees working on the site in company
safety policy and procedures and that Neilson, Inc. complied with safety requirements.
Ex. 13.
On December 18, 2014 and as a result of Sheri Hadwiger’s inspection, DLI cited
Neilson, Inc. for three WISHA violations. The citation against Neilson, Inc. is not at
issue in this appeal, and both parties proceed on the assumption of the validity of the
citation.
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On December 19, Sheri Hadwiger, on behalf of DLI, commenced an investigation
to determine whether Douglass met its duty as a general contractor to ensure a safe
workplace. As part of the investigation, Hadwiger spoke with Lanzce Douglass. She
asked Lanzce Douglass for documents to determine whether his construction company
met its duty of care, such as records about the subcontractor, any safety agreements with
the subcontractor, and Douglass’ own safety program. Lanzce Douglass promised to
provide Hadwiger with the records, but neither he nor his company ever did.
On March 6, 2015, DLI cited Douglass for one violation of WAC 296-155-
100(1)(a) based on Douglass’ failure to establish, supervise, and enforce a safe work
environment for its subcontractor and its employees in a manner effective in practice.
The citation accused Douglass of exposing workers to three hazards: (1) the elevated
platform of the Skytrak forklift at a height of ten feet where the worker worked without a
guardrail or bucket, (2) the unprotected edge on the backside of the house where framers
worked, and (3) the lack of a handrail on the stairway leading to the second floor of the
house.
PROCEDURE
On April 28, 2015, Douglass appealed the citation to the Board of Industrial
Insurance Appeals (Board). The Board, through a hearings judge, conducted an
evidentiary hearing. Richard Neilson and Lanzce Douglass testified at the hearing.
During the DLI hearing, Richard Neilson testified that his company maintained a
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written but general fall protection plan posted on a power pole right next to the Cypress
Court jobsite. Richard Neilson conceded the lack of any site-specific fall protection plan
for the Cypress Court project. The contractor must post at the jobsite a site-specific fall
protection work plan when workers are exposed to fall hazards of ten or more feet. WAC
296-155-24611(2)(a)(vii).
Richard Neilson also admitted that he only had portions of the required written
accident prevention plan. He believed his company’s full accident prevention plan had
been stored in a trailer, but was stolen from the trailer. Neilson had not recently provided
this written accident prevention plan to Douglass. Contractors must develop formal
written accident prevention plans tailored to the needs of particular operations and to the
hazards involved at those operations. WAC 296-800-14005.
Richard Neilson further testified that he purchased, before the Cypress Court
project, a basket for his company’s Skytrak forklift, which basket attached to the
machine’s lift mechanism. The basket’s purpose was to safely lift workers who needed
to toil at an elevated height. Richard Neilson claimed that someone purloined the railings
for the basket, which left the standing platform unprotected. Richard Neilson stated the
theft occurred before Neilson began work on the Cypress Court house and that the
company had not replaced the railings. Richard Neilson estimated that the construction
company maintained the Skytrak forklift at the jobsite without a basket for ten days.
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At the DLI evidentiary hearing, Lanzce Douglass testified to general familiarity
with Washington State rules and regulations relating to construction safety. Lanzce
Douglass testified, however, that his construction company’s foreman, Brad Sollie,
oversaw subcontractor safety. Lanzce Douglass avowed that his company required each
subcontractor to sign a statement that it knew and would obey Washington safety
regulations. Lanzce Douglass testified that Neilson provided him a copy of its safety
manual several years earlier. Lanzce Douglass kept the manual in a file he maintained
for Neilson. Douglass received no fall protection plan or accident prevention plan from
Neilson.
Lanzce Douglass further testified that his construction firm retained a general
safety plan for all its jobsites. Lanzce Douglass conceded that he did not know the
content of the safety plan, since he was “not totally up on a hundred percent of the law.”
AR (Oct. 22, 2015) at 80-81. Lanzce Douglass stated that he conducted no conversations
with Richard Neilson regarding safety expectations at the jobsite and did not know if any
Douglass representative spoke with Richard Neilson about worker safety.
On February 1, 2016, the hearings judge issued a proposed decision and order to
affirm the DLI citation against Douglass. In the decision, the hearings judge rejected the
credibility of Neilson, Inc.’s partial safety documents. The judge concluded that
Douglass failed to establish a program to ensure an effective, safe work environment.
The judge characterized the discrete safety violations at the Cypress Court project as
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readily viewable for anyone to see. The judge noted Richard Neilson’s testimony that
workers used the Skytrak to lift materials to the second floor and found that workers
commonly used the Skytrak in its dangerous condition.
The hearings judge entered three findings of fact important to this appeal. The
findings read that Douglass:
5. . . . [d]id not take effective steps to discover and correct
violations of safety rules related to the use of: guardrails on [the] platform
of a SkyTrak boom lift vehicle; inadequate guardrail systems on open-sided
walking and working surfaces; and, inadequate stair-rails.
6. . . . [k]new or, through the exercise of reasonable diligence, could
have known of the presence of the three jobsite events . . . .
7. . . . [d]id not adequately communicate its safety rules to workers
on its jobsite at 1415 Cypress Court, in Spokane, Washington, regarding
use of the SkyTrak boom lift vehicle or construction and use of guardrail
and stair-rail systems.
AR at 38. The hearings judge concluded that Douglass violated WAC 296-155-
100(1)(a) by failing to establish, supervise, and enforce, in a manner which is
effective in practice, a safe and healthful working environment.
On February 19, 2016, Douglass filed a petition for review with the Board of
Industrial Insurance Appeals. The Board denied Douglass’ petition for review and
adopted the hearings judge’s decision and order as its own. Douglass filed an appeal of
the Board’s decision with the superior court. The superior court affirmed the Board and
the issuance of the citation.
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LAW AND ANALYSIS
This appeals court reviews Board’s decisions de novo, standing in the same
position as the superior court. Asplundh Tree Expert Co. v. Department of Labor &
Industries, 145 Wn. App. 52, 56-57, 185 P.3d 646 (2008). Thus, we review the Board’s
decision based on the agency record and not the superior court’s ruling. Robison
Construction Inc. v. Department of Labor & Industries, 136 Wn. App. 369, 373, 149 P.3d
424 (2006). Although review is de novo, deference is given to an agency’s interpretation
of a regulation within its area of expertise. Asplundh Tree Expert Co. v. Department of
Labor & Industries, 145 Wn. App. at 56-57. Washington courts liberally construe
WISHA rules to achieve its stated purpose of ensuring safe and healthful working
conditions for all Washington workers. Frank Coluccio Construction Co. v. Department
of Labor & Industries, 181 Wn. App. 25, 36, 329 P.3d 91 (2014).
We grant the Board’s findings of fact conclusive effect if supported by substantial
evidence. Erection Co. v. Department of Labor & Industries, 160 Wn. App. 194, 202,
248 P.3d 1085 (2011). Substantial evidence is evidence that would persuade a fair-
minded individual of the truth of the matter. Erection Co. v. Department of Labor &
Industries, 160 Wn. App. at 202. We view the evidence and its reasonable inferences in
the light most favorable to the prevailing party. Erection Co. v. Department of Labor &
Industries, 160 Wn. App. at 202. We then review whether the findings of fact support the
conclusions of law. Erection Co. v. Department of Labor & Industries, 160 Wn. App. at
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202.
DLI cited Douglass for a serious violation of WAC 296-155-100(1)(a). DLI bears
the burden of proving that Douglass violated WAC 296-155-100(1)(a). J.E. Dunn
Northwest Inc. v. Department of Labor & Industries, 139 Wn. App. 35, 49-50, 156 P.3d
250 (2007). The regulation provides:
(1) It is the responsibility of management to establish, supervise, and
enforce, in a manner which is effective in practice:
(a) A safe and healthful working environment.
WAC 296-155-100. A serious violation exists:
[I]f 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(6).
On appeal, Douglass does not contend that any violation was not a serious
violation, assuming any violation occurred. Douglass contends the evidence does not
support a conclusion that it failed to establish, supervise, or enforce, in an effective
manner and in practice, a safe working environment. We disagree.
DLI argues that Douglass’ safety program must be ineffective in practice and, in
turn, Douglass violated WAC 296-155-100(1)(a) simply because its subcontractor
Neilson committed three WISHA violations. We question whether the authorities cited
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by DLI support this contention. We also posit that if WISHA or regulations thereunder
intended to impose strict liability on a general contractor for all violations of a
subcontractor, a statute or regulation would so read. Nevertheless, we affirm the Board
on other grounds.
When considering whether a general contractor fulfilled its duty to maintain a
safety program effective in practice, the Board may look at the number and seriousness of
safety violations. In re Mediterranean Pacific Corp., No. 06 W0162, 2007 WL 3054885,
at *3 (Wash. Bd. of Indus. Ins. Appeals June 28, 2007). Another consideration includes
steps a general contractor undertakes to identify safety hazards. In Re: Exxel Pac. Inc.,
No. 96 W182, 1998 WL 718040, at *10 (Wash. Bd. of Indus. Ins. Appeals July 6 1998).
A general contractor’s steps to discover or correct safety violations are inadequate when
it infrequently performs unannounced inspections or when it inconsistently disciplines
workers caught violating safety rules. Potelco, Inc. v. Department of Labor & Industries,
194 Wn. App. 428, 435, 377 P.3d 251 (2016). DLI may also consider efforts of the
general contractor to communicate safety requirements and regulations. In Re: Exxel
Pac. Inc., 1998 WL 718040, at *10. Douglass produced evidence of its safety protocols,
including the subcontractor’s warranty statement and safety statement. Lanzce Douglass
testified that he required all subcontractors to sign these statements and to abide by safety
regulations. Nevertheless, the Board reasonably found that these documents failed to
credibly police the safety habits of subcontractors. Douglass presented no information
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that it ensured that Neilson provided a safe working environment. Richard Neilson only
testified to an incomplete safety program manual.
Douglass appointed Brad Sollie as the Cypress Court project’s foreman.
According to Lanzce Douglass, Sollie visited the site every two to three days to ensure
the planned progress of the project and to confirm that subcontractor employees followed
safety rules and regulations. Nevertheless, Sollie never testified. Douglass presented no
evidence as to whether Sollie ever checked for compliance with safety regulations.
Douglass presented no evidence regarding efforts to communicate safety
requirements and regulations to Neilson. Lanzce Douglass testified he had no
conversations with the subcontractor regarding safety and did not know if anyone else
did. Without the documents on which Douglass sought to rely, Douglass identified no
current agreements between it and Neilson, Inc. regarding safety at the construction site.
The totality of these facts supplied substantial evidence that Douglass’ safety program, to
the extent it existed, was not effective in practice at maintaining a safe work environment
as the Board found.
DLI also carried the burden of proving that Douglass knew, or through the
exercise of reasonable diligence, could have known of the safety regulations violated by
its subcontractor. Reasonable diligence involves several factors including an employer’s
obligation to inspect the work area, to anticipate hazards to which employees may be
exposed, and to take measures to prevent the occurrence. Erection Co. v. Department of
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Labor & Industries, 160 Wn. App. at 206-07 (2011). Constructive knowledge of a
violative condition may be demonstrated in numerous ways such as evidence showing
that the violative condition was readily observable or in a conspicuous location in the
area of the employer’s crews. Erection Co. v. Department of Labor & Industries, 160
Wn. App. at 207.
The Board reasonably affirmed that Douglass should have known of Neilson’s
safety violations due to the obvious nature of the violations. A bystander could view the
violations outside the residence from across the street. Testimony established the Skytrak
forklift had been at the site for ten days. Richard Neilson stated that the guardrail was
taken from the lift before the subcontractor took the forklift to the Cypress Court site.
The hearings judge heard no evidence that any worker stood on the forklift platform
before December 18, but, since the forklift with the missing guard sat on the worksite for
more than one week, Douglass supervisors should have anticipated the unsafe use of the
lift. Douglass supervisors should have also been present inside the house to observe the
unsafe work conditions. Even if Douglass knew or should have known of only one of the
three violations, the evidence supports the citation.
A regulation requires safety inspections “at least weekly.” WAC 296-155-
110(9)(a). Douglass emphasizes this regulation by arguing that all three safety violations
may have not arisen until the day of Sheri Hadwiger’s visit or the day preceding the visit.
Nevertheless, the regulation only refers to a maximum allowable passage of time for an
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inspection. Under some circumstances, the contractor should inspect more often,
particularly when it does not know if a subcontractor maintains a current safety plan. The
unsafe forklift had been present for more than one week. Hadwiger saw a truck with
“Lanzce Douglass” on the side the day of her inspection.
Douglass emphasizes that DLI carried the burden of proving that Douglass lacked
effective management of the safety of onsite workers and that DLI provided no
affirmative testimony as to a lack of proper management. Douglass also highlights that
DLI carried the burden of showing that Douglass should have known of safety violations
and DLI provide no affirmative showing of when Douglass should have first seen
violations. DLI did not present evidence as to how often Douglass supervisors were
present in order to see violations. But Douglass was in the best position to supply
evidence of its management and supervisory efforts since it knew best as to its conduct.
When information necessary to prove what is exclusively within the knowledge of one of
the parties, the burden would be on the party possessed of that knowledge to make the
proof. Cedar River Water & Sewer Dist. v. King County, 178 Wn.2d 763, 779, 315 P.3d
1065 (2013). Regardless, DLI effectively cross-examined Richard Neilson and Lanzce
Douglass to show the lack of any ongoing safety efforts by Neilson, Inc. or Douglass. A
contractor cannot ignore the duty of frequently appearing at the jobsite to inspect for
unsafe conditions and then argue that DLI lacks evidence as to if and when the contractor
knew or should have known of violations.
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CONCLUSION
We affirm the trial court's and the Board's citation against Douglass.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
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Fearing~ t S-,
WE CONCUR:
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Siddoway, J.
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