Cent. Steel, Inc. v. Wash. State Dep't of Labor & Indus.

498 P.3d 990

CENTRAL STEEL, INC., Appellant,

v.WASHINGTON STATE DEPARTMENT OF LABOR & INDUSTRIES, Respondent.

No. 82021-4-I (consol. with No. 82085-1-I)

Court of Appeals of Washington, Division 1.

FILED November 15, 2021

James P. Mills, Office of the Attorney General - Tacoma, P.O. Box 2317, Tacoma, WA, 98401-2317, for Appellant.

Aaron Kazuo Owada, Mitchell Tod Harada, Sean Walsh, Richard Isaiah Skeen, Owada Law PC, 975 Carpenter Rd. Ne Ste. 204, Lacey, WA, 98516-5560, for Respondent.

Aaron Kazuo Owada, Mitchell Tod Harada, Sean Walsh, Richard Isaiah Skeen, Owada Law PC, 975 Carpenter Rd. Ne Ste. 204, Lacey, WA, 98516-5560, for Appellant/Cross-Respondent.

James P. Mills, Office of the Attorney General - Tacoma, P.O. Box 2317, Tacoma, WA, 98401-2317, for Respondent/Cross-Appellant.

PUBLISHED OPINION

Dwyer, J. ¶1 Central Steel, Inc., appeals one citation issued by the Department of Labor and Industries (the Department) pursuant to the Washington Industrial Safety and Health Act of 1973¹ (WISHA). Central Steel contends that, in affirming this citation, the Board of Industrial Insurance Appeals (the Board) improperly held Central Steel strictly liable for the misconduct of one of its employees. Central Steel also asserts that substantial evidence does not support the Board's finding that its employee was exposed to a fall hazard. Finally, Central Steel contends that the Board erred by finding that Central Steel knew of the violative condition. Because Central Steel fails to establish an entitlement to relief on any of its claims, we affirm.

I

¶2 Central Steel and McClone Construction Company were subcontractors for the construction of a multistory residence hall at Seattle University. Central Steel was hired "[t]o place the rebar in the building and the post-tension cable." In December 2017, nine levels of the residence hall were under construction. A "cattle guard," or barrier, separated the ninth level into two sections: a northern section and a southern section. The northern section was designated as a leading-edge zone.² McClone constructed the leading edge on the ninth level.

¶3 Located at the cattle guard was a sign, which read "McClone Construction Company Personnel Only, Leading Edge Danger, Fall Protection Required Beyond This Point." An employee of McClone testified that, while workers were located on the northern section of level nine, they were required "to be 100 percent tied off at all times." Fall protection equipment was required in the northern section of level nine because the floor consisted of "an open steel skeleton," and workers were in the process of "putting down plywood [and] other types of materials to make a covering over that" skeleton. Furthermore, as another McClone employee testified, "[t]here might be areas where, in this building for instance, underneath, the piers had not been completely supported." The ninth level of the structure was approximately 90 feet above ground level.

¶4 Before workers entered the northern section of level nine, they were required to wear a full-body harness and attach to the harness a retractable device known as a "yo-yo." The yo-yo was designed to "arrest a fall," should the occasion arise. Once the workers accessed the location of the northern section where they planned to work, they were to attach a positioning hook, or lanyard, to the rebar of the structure. The positioning hook was designed "to stop [a fall] from happening to begin with." When the workers planned to exit the leading-edge zone, they were required to reattach the yo-yo, detach the positioning hook, and then "walk back into the safe zone."

¶5 On December 30, 2017, Central Steel employees Nicholas Hofmann and Ray Estores were assisting in the construction of a structure located on the northern section of the ninth level that was known as the "north core." The north core was an empty vertical shaft leading to the ground level in which an elevator would eventually be placed. On that day, Hofmann and Estores were the only Central Steel employees working on the residence hall. Hofmann was a journey-level worker. Estores was an apprentice. Joshua Ruckle, a general foreperson employed by Central Steel, testified that Hofmann was designated as the "supervisor" for the day.

¶6 Hofmann and Estores were assigned "[t]o tie back the rebar elements" inside the north core. Prior to accessing the northern section of the ninth level, Hofmann and Estores each wore a harness and each attached a yo-yo to his harness. Upon reaching the north core, Hofmann and Estores attached their positioning hooks to the rebar on the north core. Hofmann and Estores then detached the yo-yos from their harnesses.

¶7 After Hofmann and Estores finished working on the north core, they "climbed down" to the deck on the ninth level. Hofmann testified that, shortly after he descended onto the deck, Hofmann heard Estores's "wall-gear jingle." Hofmann then "looked back" and noticed that Estores "was gone." Alfred How, a McClone employee who was also on the ninth level at that time, informed Hofmann that Estores had fallen. How had heard the sound of a "loud crack," which he attributed to plywood decking on the ninth level breaking.

¶8 Indeed, Estores had fallen approximately 90 feet onto a concrete slab located at the bottom of the north core. He did not survive. An expert witness testified that Estores fell because "one of the legs of the lanyards he was using was attached to an incompatible object."

¶9 Hofmann testified that, after he was informed that Estores had fallen, he "stopped tying off" by taking his "lanyard off the rebar." How testified that, when Hofmann detached from his fall protection equipment, Hofmann was "[r]oughly about 10 feet" from the leading edge. Hofmann testified that he then "started booking it downstairs" in order to check on Estores.

¶10 That same day, the Department began investigating the fatality. On June 22, 2018, the Department cited Central Steel pursuant to WISHA for a single "serious" violation of former WAC 296-155-24609(1) (2016).³ Two incidences served as independent bases for the citation. First, the citation provided that Estores "did not have his fall protection attached to a proper attachment." Second, the citation stated that "[t]wo Employees were exposed to falls of 90 feet to the ground level, which resulted in the death of one worker and the possibility of severe disabling injuries or death to the other."

¶11 On July 6, 2018, Central Steel appealed the citation. On October 4, the Department issued a corrective notice of redetermination, which affirmed the issuance of the citation. On October 9, Central Steel appealed the corrective notice of redetermination.

¶12 On June 4, 2019, a two-day hearing commenced before an industrial appeals judge. On September 26, the industrial appeals judge entered a proposed decision and order, which affirmed the corrective notice of redetermination solely on the basis that "Central Steel committed a serious violation of WAC 296-155-24609(1) because its employee, acting in a supervisory role, failed to remain 100 percent tied off in an area where he was required to be tied off." Conclusion of Law 2. The industrial appeals judge declined to affirm the citation on the alternative basis that Estores was not attached to a compatible anchor point.

¶13 Notably, the industrial appeals judge found:

Because Mr. Hofmann first stopped tying off while at the corner of the north core, he was within 20 feet of the leading edge and was in the zone of danger. He was exposed to a fall hazard of approximately 90 feet. Had he suffered harm from the fall hazard, it would have been serious physical injury or death.

Finding of Fact 8.

¶14 Furthermore, the industrial appeals judge found that, "[b]ecause Mr. Hofmann was acting as a supervisor, his knowledge of his own violation is imputed to the employer.

Central Steel knew of the violative condition." Finding of Fact 7.

¶15 On November 7, 2019, both Central Steel and the Department petitioned for review of the proposed decision and order to the Board. On November 22, the Board entered an order denying the petitions for review. The order corrected several "clerical errors" in the proposed decision and order but otherwise provided that "[t]he Proposed Decision and Order becomes the final order of the Board."

¶16 On December 9, 2019, Central Steel appealed the Board's order denying its petition for review to the superior court. On October 19, 2020, the superior court entered an order affirming the Board's order.⁴

¶17 Central Steel appeals.

II

¶18 Central Steel contends that "the Board's affirmation of the fall protection violation improperly held Central Steel to a strict liability standard."⁵ This is so, Central Steel avers, because "Mr. Hofmann was reacting to an unforeseeable emergency situation when he unclipped from his fall protection, which Central Steel could not have foreseen or prevented."⁶ We disagree. Central Steel was not held strictly liable for Hofmann's violation.

¶19 To establish a "serious" WISHA safety violation, the Department is required to prove that

(1) the cited standard applies, (2) the employer did not meet the standard, (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.

Shimmick Constr. Co. v. Dep't of Labor & Indus., 12 Wash. App. 2d 770, 779, 460 P.3d 192 (2020).

¶20 In other words, "the ‘Department must ... prove an element of knowledge on the part of the employer’ before holding [the employer] liable." Potelco, Inc. v. Dep't of Labor & Indus., 191 Wash. App. 9, 34, 361 P.3d 767 (2015) (internal quotation marks omitted) (quoting In re Longview Fibre Co., No 02 W0321, 2003 WL 23269365, at *1, 2003 WA Wrk. Comp. LEXIS 229 (Wash. Bd. of Indus. Ins. Appeals Nov. 5,...