Comm'r of Labor & Indus. v. Whiting-Turner Contracting Co.

• Decision Date: 23 January 2019
• Docket Number: No. 30, Sept. Term, 2018,30, Sept. Term, 2018
• Citation: 200 A.3d 844,462 Md. 479
• Parties: COMMISSIONER OF LABOR AND INDUSTRY v. The WHITING-TURNER CONTRACTING COMPANY
• Court: Court of Special Appeals of Maryland

462 Md. 479

200 A.3d 844

COMMISSIONER OF LABOR AND INDUSTRY

v.The WHITING-TURNER CONTRACTING COMPANY

No. 30, Sept. Term, 2018

Court of Appeals of Maryland.

January 23, 2019

Argued by Catherine H. Bellinger, Asst. Atty. Gen. (Sarah P. Harlan, Asst. Atty. Gen. and Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Petitioner.

Argued by Ronald W. Taylor (Thomas H. Strong, Venable LLP, Baltimore, MD), on brief, for Respondent.

Argued Before Barbera, C.J., Greene, McDonald, Watts, Hotten, Getty, Sally D. Adkins, (Senior Judge, Specially Assigned) JJ.

Hotten, J.Petitioner, the Commissioner of Labor and Industry (the "Commissioner"), seeks review of a decision by the Court of Special Appeals, which reversed the Commissioner's determination that Respondent, the Whiting-Turner Contracting Company ("Whiting-Turner") violated Maryland Code, Labor and Employment Article, § 5-104(a), the General Duty Clause, by failing to "furnish employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to employees[.]" On appeal, the Commissioner asks this Court to consider the following questions:

1. Did Petitioner correctly determine that Respondent's failure to follow the shoring-tower manufacturer's instructions to use gooser braces in assembling a shoring tower supporting a concrete slab, which resulted in serious injury and death, constituted a recognized hazard within the meaning of § 5-104(a) of the Labor & Employment Article [ (Lab. & Empl.) ]?

2. Did Petitioner correctly determine that Respondent's use of an undersized spacer beam in the upper support system of a shoring tower constituted a recognized hazard within the meaning of [Lab. & Empl.] § 5-104(a) ?

For the reasons articulated below, we answer both questions in the affirmative and shall reverse the judgment of the Court of Special Appeals.

FACTUAL AND PROCEDURAL BACKGROUND

The Incident and Investigation

On May 23, 2013, Whiting-Turner was involved in a construction project to increase the size of the parking garage at the Westfield Montgomery Mall in Bethesda, Maryland. Part of this construction involved removing and relocating portions of the parking deck, known as double-tees,¹ in order to make room for a crane tower that would be used to construct new floors on top of the existing garage structure. Because Whiting-Turner intended on reusing the double-tees, a Whiting-Turner engineer developed a system whereby workers would raise the double-tees using a hydraulic jack.² In order for the process to be conducted safely, the engineer required the placement of four shoring/safety towers,³ one under each corner of the double-tee. As the hydraulic jack lifted the double-tee in small increments, the workers would adjust the shoring/safety towers using the screw jacks⁴ to follow the height that the double-tee had been raised to. Once the double-tees were lifted to a certain height, rail assemblies were to be installed beneath it so that the double-tee could slide onto the adjacent parking deck. This created an opening in the parking deck for the crane tower while still preserving the double-tees for future use.

Whiting-Turner assembled the shoring towers using materials from Safway Services, a commercial construction company whom Whiting-Turner had worked with previously. Safway provided Whiting-Turner with a manual for the assembly of the shoring towers. Among their instructions, the assembly manual provided that "[t]he positioning of the gooser braces start when the extension frame is put at a [two inch] or more extension. As the extension frames are extended, the diagonal gooser braces are connected to the various horizontals of the base frame and the extension frame." Gooser braces are bars that connect the legs of scaffolding and are used to ensure the stability and structural integrity of the scaffolding/shoring tower.⁵ Despite the assembly manual's instructions, the gooser braces provided by Safway were never installed or utilized in the construction of the shoring towers.

On May 21, 2013, the construction crew successfully raised and relocated one of the double-tees using the process detailed above. On May 23, 2013, the construction crew began to remove a second double-tee, using the same process. Partially through the removal process on May 23, the workers took a break for lunch. After the workers had returned from lunch and continued raising the double-tee, one of the employees observed that a steel support beam under a steel spacer beam⁶ had bent and twisted at the southeast corner of the shoring tower. The site foreman determined that the beam needed to be replaced before proceeding. To replace the support beam, the employees were instructed to jack up the southeast corner of the double-tee in order for the beam to be detached from the shoring tower and replaced. Before the support beam could be replaced, the double-tee and shoring towers collapsed, resulting in the death of one employee and the pinning and severe injury of another.

The Maryland Occupational Safety and Health Unit ("MOSH"), with assistance from Dr. J. Scott Jin, a civil engineer in the Federal Occupational Safety and Health Administration ("OSHA") initiated an investigation into the accident. Whiting-Turner also employed the services of KCE Structural Engineers, P.C. ("KCE") to determine the cause of the accident and design an "emergency make-safe operation" plan to stabilize the garage. Reports from both Dr. Jin and KCE concluded that Whiting-Turner should have installed gooser braces in the shoring towers and that their failure to do so contributed to the accident. Dr. Jin also concluded that Whiting-Turner's use of an eight-inch high spacer beam between the double-tee stem and the upper beam weakened the stability of the system and rendered the shoring tower unable to support the actual load of the double-tee.

MOSH ultimately issued two citations to Whiting-Turner. First, Whiting-Turner was charged with violating 29 C.F.R. § 1926.305(d)(1)(i),⁷ due to their failure to secure the double-tee after it was raised by the hydraulic jack. Second, Whiting-Turner was charged with violating Maryland Code, Lab. & Empl. Article, § 5-104(a), also known as the General Duty Clause,⁸ due to their failure to "furnish employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to employees[.]" MOSH based this second violation on three factors: 1) Whiting-Turner's failure to install gooser braces on the shoring towers; 2) Whiting-Turner's use of an undersized spacer beam, an eight-inch high spacer beam, between the double-tee stem and the upper beam; and 3) the single jacking of the southeast shoring tower.

MOSH assessed Whiting-Turner a total fine of $11,125: $5,325 for violating 29 C.F.R. § 1926.305(d)(1)(i) and $5,800 for violating the General Duty Clause. Whiting-Turner filed a notice of intent to contest the citation and subsequent penalties on December 6, 2013 and the case was referred to the Office of Administrative Hearings on August 7, 2014.

Procedural History

An Administrative Law Judge (ALJ) held a three-day hearing in December 2014. The ALJ heard testimony from Dr. Jin, David Latham, a compliance specialist with MOSH, Patrick Bruns, an ironworker employed by Whiting-Turner, and two other employees, both project managers for Whiting-Turner. The ALJ also considered numerous exhibits, including reports from KCE and OSHA, Dr. Jin's written investigation report, and a number of photograph exhibits of the construction site prior to and after the collapse of the towers.

The ALJ issued a proposed decision on March 23, 2015. With regard to violating 29 C.F.R. § 1926.305(d)(1)(i), the ALJ concluded that Whiting-Turner failed "to crib, block, or otherwise secure a load at once after the load was raised[,]" and recommended that the penalty of $5,325 be affirmed. With respect to violating the General Duty Clause, the ALJ noted the following:

• Whiting-Turner claimed that gooser braces were not needed on the shoring tower.

• The extension frames were raised to the level that called for the gooser braces to be used, two inches or higher, and that a failure to use them "created a hazardous condition[.]"

• Whiting-Turner "was on notice from the Safway material that gooser braces should have been used[ ]" and failure to use them was therefore a recognized hazard.

• Whiting-Turner's use of an undersized spacer beam contributed to the collapse of the double-tee and Whiting-Turner had actual knowledge of the hazard that this posed.

• The single jacking of the southeast corner was a recognized hazard that contributed to the collapse of the double-tee.

• Whiting-Turner could have jacked all of the corners of the double-tee to ensure uniform distribution of weight.

Accordingly, the ALJ recommended that the proposed penalty of $5,800 against Whiting-Turner be affirmed.

Whiting-Turner filed for a review of the ALJ's proposed findings and decision before the Commissioner of Labor and Industry. The Commissioner held a hearing regarding the ALJ's proposed decision on November 18, 2015. On April 14, 2016, the Commissioner issued a Final Decision and Order, affirming the violation and citation under the General Duty Clause, but vacating the violation and citation under 29 C.F.R. § 1926.305(d)(1)(i). The Commissioner concluded that while MOSH failed to prove that the third factor, jacking only the southeast corner of the double-tee, constituted a recognized hazard, the first two factors, the failure to install gooser braces and the use of an undersized spacer beam, were recognized hazards and therefore constituted a violation of the General Duty Clause.

The Commissioner noted that the failure to use gooser braces when the extension frame is extended two feet or higher causes the tower to become "more flexible and less stable[.]" This hazard is "one recognized by the...