Davenport v. Util. Trailer Mfg. Co.

Decision Date18 January 2022
Docket Number0285-21-3
CourtCourt of Appeals of Virginia


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.

Present: Judges Humphreys, AtLee and Raphael



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 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.


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 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.

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 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."

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.


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...

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