Hamilton Constr. Co. v. Dep't of Labor & Indus. of State of Wash.

Decision Date12 October 2021
Docket Number54578-1-II
CourtWashington Court of Appeals
PartiesHAMILTON CONSTRUCTION CO., Appellant, v. DEPARTMENT OF LABOR & INDUSTRIES OF THE STATE OF WASHINGTON, Respondent.

UNPUBLISHED OPINION

MAXA J.

The Department of Labor and Industries (DLI) issued a citation against Hamilton Construction Company for violations of regulations under the Washington Industrial Safety and Health Act of 1973 (WISHA), chapter 49.17 RCW, related to demolition work on a highway overpass in Bonney Lake. The citations arose from an incident in which two Hamilton workers for Hamilton's subsidiary were using a curb saw to cut a concrete rail barrier on the overpass when the barrier fell onto the roadway below and killed three people in a passing vehicle.

DLI cited Hamilton for failing to have a written engineering survey, failing to ensure that nobody was working below the bridge during the cutting operation, and failing to ensure that the barrier was secured or braced during demolition. The Board of Industrial Insurance Appeals (Board) issued a decision and order that affirmed three violations. On appeal the superior court affirmed the Board's decision and order.

We conclude that (1) substantial evidence supports the Board's findings that Hamilton was a subcontractor and an "employer" subject to liability under WISHA, (2) substantial evidence supports the Board's findings of fact and conclusions of law affirming the three WISHA violations, and (3) substantial evidence supports the Board's implied findings of fact that Hamilton had actual or constructive knowledge of the WISHA violations. Accordingly, we affirm the superior court's order affirming the Board's decision and order.

FACTS
Background

Hamilton operates as a prime contractor on construction projects and primarily builds bridges. Hamilton is the parent company of American Concrete Company, which specializes in concrete cutting, including saw cutting, grinding, and surface preparation. American Concrete operates as a subcontractor on most projects. American Concrete had approximately 20 employees at the time of the DLI inspection.

When a third party wants American Concrete to perform concrete cutting on a project, the procedure is to contact American Concrete's dispatcher with the details of the project. Based on the information given from the third party, American Concrete determines the type of equipment necessary to complete the requested cut and which operators should be sent for the job. American Concrete typically provides its own equipment for a job.

If the third party request involves a large project or requires American Concrete to be involved in the planning process then American Concrete will enter into a written contract with the requesting party. If the third party request is on short notice or for a project lasting a day or less, no contract typically is created because usually there is not enough time to complete the paperwork and execute a contract before the work takes place.

Bonney Lake Project

The City of Bonney Lake contracted with a general contractor to modify and/or repair a bridge on State Route 410, which was an overpass over another road. The general contractor hired a number of subcontractors, including Staton Companies, to work on the Bonney Lake project. Staton was a demolition subcontractor.

On April 12, 2015, a Staton employee contacted Rick Garrick, an American Concrete dispatcher, about the Bonney Lake project. Staton wanted to hire American Concrete to remove a concrete rail barrier on a bridge deck.

Because of the small size of the job, no written contract was created. Based on the information given from Staton, Garrick dispatched two American Concrete employees, Richard Dugan and Donald Corkhill, with a large curb saw on a trailer, a vacuum truck, a water tank, and other equipment. A curb saw is a large machine, eight feet long and five feet wide, that is used to cut concrete.

Dugan was a trained curb saw operator while Corkhill was a vacuum operator. Dugan operated the curb saw, which involved spraying water from the water tank to cut concrete. This produced a liquid substance called slurry, a mixture of concrete and water. Corkhill vacuumed the slurry behind the curb saw.

On April 13, Dugan and Corkhill met the Staton foreman, Morgan Marney, at a freeway exit away from the jobsite. Dugan and Corkhill did not know where the job was located until they were taken there. When they arrived at the job site, Marney showed schematic as-built diagrams to Dugan. The as-built diagrams showed how the bridge originally was built but did not provide information as to how Dugan should cut the barrier. Dugan explained that the as-built diagrams showed where the steel was located to give him an idea as to how deep he needed to cut. The as-built diagrams did not accurately depict the bridge deck at the time the work was to be performed. There were important differences between the bridge deck depicted and the bridge deck at the time the demolition was being performed. Dugan and Marney discussed the as-built diagrams and agreed as to how Dugan would cut the barrier.

Hamilton did not perform an engineering survey. And at no time were Dugan and Corkhill presented with a written engineering survey of the structural integrity of the bridge or a demolition plan for the job. Dugan was unaware of any engineering survey. However, Dugan was aware of Staton's demolition plan and performed saw cutting activities consistent with the plan.

According to Dugan, the plan was to make a horizontal cut of the concrete rail barrier at the edge of the bridge along the full length of the bridge, followed by vertical cuts with a different saw to divide the barrier into smaller pieces that an excavator could detach and remove safely. The excavator was on site and manned by employees from a different company. Marney had control of the use of the excavator. The excavator was supposed to be used to brace or stabilize the barrier during the concrete cutting operation. However, the curb saw was so large that the excavator could not be used as anticipated. This left the cut portions of the barrier unbraced. In addition, the excavator was missing an attachment that was supposed to help brace the structure. No other method of bracing was provided. Regardless, Dugan and Corkhill began their concrete cutting operation.

Two WHH Nisqually employees were present on the roadway below the bridge to monitor and stop traffic on the road when the last cut was made. Carla Vandiver was a traffic control supervisor who was supervising one other flagger, Shelby King. Marney was responsible for calling Vandiver before American Concrete made the final cut.

Only Dugan, Corkhill, and Marney were present in the immediate concrete cutting area. Marney was responsible for overseeing the job, but Dugan stated that Marney was not allowed to operate the curb saw machine. Dugan made two complete horizontal cuts of four and eight inches deep. The concrete barrier remained stable during those cuts. A larger blade was used for the third and final horizontal cut. Approximately 50 feet into the cut, Dugan and Corkhill noticed slurry seepage. Dugan reduced the depth of the cut. After another 50 feet Corkhill told Dugan to stop cutting because he saw the barrier rail move. Dugan, Corkhill, and Marney inspected the structure and Dugan told Corkhill that it was typical for a barrier rail to settle onto the bridge deck. Marney spoke to Dugan for the first time since the operation started, and he reached the same conclusion as Dugan regarding the barrier settling. Marney told Dugan to continue cutting.

As the concrete cutting operation proceeded, Vandiver and King continued to walk under the bridge several times while Vandiver waited for a phone call from Marney. Dugan and Corkhill saw that the flaggers were below them before the barrier fell. Vandiver was 50 feet away standing on the shoulder at the time the barrier fell off the bridge.

During the last cut, the barrier rail on the bridge deck fell onto the surface of the road below. No workers were injured when this happened, but a vehicle that happened to be driving on the road below was crushed and three people were killed.

DLI Citation

In October 2015, DLI issued a citation and notice to Hamilton after an inspection of the Bonney Lake jobsite. The citation listed three serious violations: (1) violation 1-1 alleged that Hamilton carried on the demolition operation of the concrete barrier without following procedures in the demolition plan and engineering survey in violation of WAC 296-155-040(1), (2) violation 1-2 was for failure to ensure that workers carrying on a demolition operation prevented exposure to persons working on a lower level in violation of WAC 296-155-775(15), and (3) violation 1-3 was for failure to ensure that the concrete barrier was secured or braced to prevent collapse or failure during the cutting of the concrete barrier in violation of WAC 296-155-035(8). Each citation carried a monetary penalty of $4, 900.

DLI also issued a citation to Staton for willful WISHA violations.

Procedural History

Hamilton appealed to DLI the violations identified in the citation. DLI decided to not reassume jurisdiction and the appeal was sent directly to the Board. The case was heard by an industrial appeals judge (IAJ).

Hamilton stipulated that two of its employees were exposed to the alleged hazards; that the violations, if proven, were properly characterized as "serious" under WISHA and that the "severity" rating for purposes of calculating the proposed penalty should be at the "highest rating." Clerk's Papers at 33. Because of these stipulations, the only issues were whether Hamilton violated the cited standards...

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