In this tragic case of a safety protocol failure resulting in a construction employee’s death, a subcontractor working on the construction of a college dormitory was held liable for violating safety standards under the Washington Industrial Safety and Health Act (WISHA).
Central Steel and McClone Construction Company worked as subcontractors in the construction of a multi-story dormitory at Seattle University. Central Steel was tasked with installing rebar and post-tension cable.
The fall occurred at level nine of the northern section of the project, referred to as the “North Core” and designated as a leading-edge zone. All employees were required to be tied off at all times while working there because the floor was an “open steel skeleton” where workers were in the process of floor coverings. Workers were required to wear a fully body harness and attach to a retractable device, called a yo-yo, meant to stop a fall.
On the day of the incident, employees Nicholas Hoffman and Ray Estores were working alone on the North Core. Hoffman was a journey level worker and Estores was an apprentice. Both men wore a harness and attached a yo-yo, in compliance with safety protocols. Upon reaching the North Core, they attached their positioning hooks to the rebar. At that point, they detached their yo-yos. After completing their work on the North Core, they climbed down to the deck located on the ninth level.
Hoffman provided testimony that, after they reached the deck, he heard a noise coming from the wall gear and, when he looked, Estores was gone. A McClone employee, who was also on that level during this time, stated that Estores had fallen. Hoffman quickly detached himself from the protective equipment and descended to check on Estores. Unfortunately, Estores had fallen approximately 90 feet directly into a concrete slab and was deceased.
The Washington State Department of Labor and Industries started investigating the incident immediately. Central Steel was cited by the department pursuant to WISHA for a single violation of former WAC 296-155-24609(1) (2016), which the Board of Industrial Insurance Appeals affirmed. The department stated that two incidents each provided independent justification for the citation: One citation stated that Estores’ fall protection gear was not hooked up to a safe attachment; the second pointed to evidence that both employees were exposed to falls of 90 feet from the ground, which ultimately resulted in the death of one worker, and in the possibility of severe or disabling injuries to the other.”
Central Steel appealed the board’s decision to superior court. The superior court affirmed the board’s order, and Central Steel appealed.
Establishing a “Serious”
WISHA Safety Violation
In order to establish a serious WISHA violation has occurred, the department must show that the employer must have knowledge of the violation in order to be held liable for any injuries or fatalities that occur as a result of it. In order to prove knowledge, the department must provide evidence that the condition was foreseeable.
The issue to be examined here is not whether the behavior that led to the violation was foreseeable, but rather whether the employer knew or should have known about the unsafe condition or area. The employer can then attempt to overcome the presentation of this evidence by showing that an employee’s misconduct was the cause of the problem and, therefore, was not a foreseeable result of a dangerous condition.
Among its contentions, Central Steel argued that, because Hoffman was reacting to an emergency situation when he made the decision to detach himself from his fall protection equipment—as well as the fact that he was still 20 feet away from the leading edge when this happened, there was no substantial evidence to show that Hoffman was actually exposed to a fall hazard. The court disagreed.
The court looked to the board’s reasoning and agreed that Hoffman was within the zone of danger (of the leading edge 20 feet away) when he removed his protective gear and, therefore, was exposed to a fall hazard in that moment. The zone of damage is defined as “the area surrounding the violative condition that presents danger to employees which the standard is intended to prevent.” [Shimmick Constr. Co. v. Dep’t of Labor & Indus., 12 Wn. App.2d at 785 (2020)].
Shimmick notes that the board does not need to prove an actual employee exposure to successfully show a violation of the standard. If an employee even had access to a condition in violation of the standard, that would be sufficient to show a misstep by the employer.
Thus, the court found that there was substantial evidence that Hoffman was exposed to a fall hazard: He was on the ninth floor near a 90 foot drop to a concrete slab below; some portions of that floor were not yet completely supported to allow workers to safely move about without wearing the fall protection equipment.
Who Is a Supervisor?
Case law clearly supports imputed liability to an employer when a supervisor has actual or constructive knowledge of a safety violation. In addition, supervisory authority may exist even if the worker is not formally designated as a supervisor by job title or other formal differentiators.
Central Steel argues that Hoffman’s knowledge of the violation cannot be imputed to the company because he was a journey level employee and not a supervisor. The court disagreed again, finding that the department successfully proved that Central Steel “knew, or through the exercise of reasonable diligence could have known, of the violative condition.”
The court found that Hoffman was acting in a supervisory capacity at the time of the incident and, therefore, liability could be imputed to Central Steel. Hoffman himself testified before the board that he was the senior employee on site that day and designated as the supervisor as well as mentor to Estores. Hoffman’s formal job title does not relieve him of his supervisory role and did not allow Central Steel to dodge liability.
Central Steel also claimed that the board erred in finding that the employer should be liable when an employee is aware of his own safety violation. It points to a line of caselaw that establishes that an employer may only be held liable for a worker’s violation of a safety protocol if it was foreseeable to the employer.
However, according to well-established precedent under WISHA, it is clear that the department does not bear the burden to show that an employee’s conduct was foreseeable.
The court also decided that imputing liability to Central Steel based on Hoffman’s knowledge of the violation was in line with the scope and purpose of WISHA and supported by significant case law as well. The fact that an employee was reacting to an emergency situation does not negate or mitigate the employer’s responsibility to make the condition safe or take adequate safety measures to make it as safe as possible.
The takeaway here is that worker knowledge of a safety violation may be imputed to his employer if he holds a supervisory role (even lacking the title). The board does not have the duty to prove it was foreseeable, but rather an employer may use unforseeability as an affirmative defense