Rick's Elec. v. Occupational Safety & Health

• Decision Date: 18 May 2000
• Docket Number: No. C032121.,C032121.
• Citation: 95 Cal.Rptr.2d 847,80 Cal.App.4th 1023
• Court: California Court of Appeals Court of Appeals
• Parties: RICK'S ELECTRIC, INC., Plaintiff and Appellant, v. CALIFORNIA OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD, Defendant and Respondent, Department of Industrial Relations, Division of Occupational Safety and Health, Real Party in Interest and Respondent.

95 Cal.Rptr.2d 847

80 Cal.App.4th 1023

RICK'S ELECTRIC, INC., Plaintiff and Appellant, v. CALIFORNIA OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD, Defendant and Respondent Department of Industrial Relations, Division of Occupational Safety and Health, Real Party in Interest and Respondent.

No. C032121.

Court of Appeal, Third District.

May 18, 2000.

Robert D. Peterson, Rocklin, for Plaintiff and Appellant.

Robert H. Murray, Assistant Chief Counsel, for Defendant and Respondent.

Michael D. Mason, Chief Counsel, Katherine R. Wolff, Staff Counsel, for Real Party in Interest and Respondent.

NICHOLSON, J.

This appeal arises from a judgment affirming an administrative decision finding appellant willfully violated an occupational safety standard. Appellant claims it lacked the requisite state of mind to have committed a willful violation. We conclude substantial evidence supports the administrative decision and affirm.

PROCEDURAL HISTORY

Real party in interest Department of Industrial Relations, Division of Occupational Safety and Health ("Division"), shoulders primary responsibility for administering and enforcing the California Occupational Safety and Health Act of 1973 ("Cal/OSHA" or the "Act"), Labor Code section 6300 et seq. It does this through investigating workplaces and enforcing occupational safety and health standards. (Lab.Code, §§ 6309, 6313, 6314.) Many of these standards, commonly referred to as safety orders, are codified at Title 8 of the California Code of Regulations.¹

Appellant Rick's Electric, Inc. ("appellant") is a general electrical contractor. During December 1994 and January 1995, the Division issued three citations to appellant for violations of certain safety orders. Two citations, dated December 15, 1994, arose from work appellant performed at 4350 La Jolla Village Drive in San Diego. Appellant does not challenge either of these citations on this appeal. The second of these two citations, however, is relevant to the issues before us. That citation charged appellant with violating section 2320.2, subdivision (a), resulting in one of appellant's employees, James Serrano, receiving an electric shock and suffering injuries.² The citation designated this violation as "serious" and assessed a penalty in the amount of $4,000.³

The third citation, the only citation being litigated, arose from work appellant performed at 9855 Scranton Road in San Diego. This citation dated January 5, 1995, charged appellant again with violating section 2320.2, subdivision (a), resulting in a different employee, John Blackstock, receiving an electric shock and suffering severe injuries. The citation designated this violation not only as serious, but also as willful. It assessed a penalty in the amount of $40,000.

Appellant appealed each of the citations to respondent California Occupational Safety and Health Appeals Board ("Board"). The Board is an independent adjudicatory agency responsible, among other matters, for resolving appeals from citations. (Lab.Code, § 148.) The Board consolidated appellant's appeals for hearing and decision. The matter was heard over two days of hearings conducted on March 27 and May 2, 1996, by administrative law judge Ashaki A. Hesson.

By a decision dated August 26, 1996, Judge Hesson denied appellants' appeals in their entirety except on one point. Judge Hesson reversed the Division's determination that the Blackstock incident constituted a willful violation of section 2320, subdivision (a), and reduced the penalty on that citation to $4,000.

On September 23, 1996, the Board, on its own motion, ordered Judge Hesson's decision to be reconsidered by the Board. The Board limited its reconsideration to determining whether the evidence established the Blackstock incident constituted a willful violation of section 2320, subdivision (a). All other matters in Judge Hesson's decision were not reconsidered by the Board or challenged further by appellant, and are thus final and not before us.

On September 24, 1997, the Board reversed Judge Hesson's decision, concluding the Blackstock incident was a willful violation and reinstating the $40,000 penalty.

Appellant thereafter filed a petition for a writ of mandamus in the Sacramento County Superior Court, seeking an order directing the Board to set aside its decision. Following trial on January 8, 1999, the superior court denied the petition and entered judgment accordingly. Appellant timely appealed the judgment to us.

FACTS

Testimony before Judge Hesson produced the following evidence: On December 1, 1994, John Blackstock was employed by appellant as a mid-level apprentice electrician. As a matter of policy, appellant prohibited apprentices from working on energized equipment. Blackstock thus had not been trained to work on energized equipment, nor was he provided that day with sufficient protective equipment necessary to work safely on energized equipment.

Blackstock and three other apprentices were working that day at 9855 Scratton Road, San Diego, under the supervision of Glen Woodmansee, a lead journeyman for appellant and a foreman on the project. The project involved installing electrical circuits in a vacant commercial building undergoing renovation. Woodmansee was in charge of wiring the building. He did not, though, personally install each foot of the approximately 10,000 to 15,000 feet of wiring he estimated had been installed in the building.

Woodmansee explained that on December 1, painters working in the building had requested lighting. He supplied then) with extension cords for them to plug in their lighting. The power for these lights was 120-voltage temporary power from the building's electric room off of the "house panel," and was not a part of the tenant improvement portions of the building where appellant was working.

Woodmansee testified that by December 1, the renovation had advanced to its final stages. Woodmansee determined to test the newly installed electrical systems and light receptacles. The lighting in the building was divided into four distinct sections. A section was served by two lighting circuits supplying 277 volts of electricity each. Woodmansee intended to energize and test each circuit one at a time to determine which lights worked and which did not. To do this, he would power up the circuit, turn on a switch, identify the first light that did not work, turn off the switch, then, using a ladder, climb up into the ceiling to remedy the malfunctioning light, climb down the ladder, turn the switch back on, and so forth throughout the building. The 277-volt power was at that time also supplied off of the house panel.

Woodmansee instructed the four apprentices, including Blackstock, to work on other 120-volt circuits because there was no electricity supplied to those circuits that day. Woodmansee also told them not to work in the ceilings themselves, especially in the area where Woodmansee would be working. Woodmansee began working in an area of the building designated for electrical purposes as section 1. Initially, Woodmansee intended Blackstock to work in the area where Woodmansee would be working. Woodmansee subsequently changed his mind, and directed Blackstock to another area of the building, so-called section 2, to work on three cables, or "tails" or "pigtails" as they were called. These cables were hanging down from the ceiling, not connected to any light fixture. Woodmansee directed Blackstock to strip the cables of their armor coating and insulation and tie them off in preparation for eventual connection to fixtures.

Woodmansee believed these three cables did not originate from section 1, where he was turning the lights on and off, but from section 2, where he had not turned on any power. The cables were run through the ceiling in a cable tray, and appeared to Woodmansee to be coming out of section 2 and laying over towards section 1. Woodmansee thus believed these cables were not energized with power. His belief was incorrect.

At some point after sending Blackstock to work on the cables, Woodmansee heard someone holler he had "a man down." Woodmansee ran and found Blackstock lying on the floor holding a cable in his hand. Woodmansee jumped onto the cable to pull it loose from Blackstock's hand. Woodmansee then administered cardiopulmonary resuscitation, rescue breathing and chest compressions to Blackstock until paramedics arrived.

The electric shock stopped Blackstock's heart and severely burned his hands, scalp and feet. He was revived and transported to the University of California, San Diego Medical Center where he remained for 16 days, spending his first five days there in a coma. He required two skin graft surgeries during that time, and another skin graft surgery approximately two months later. He also suffered short-term memory loss. Blackstock has no personal recall of the accident itself.

Between December 2, 1994, the day after the accident, and January 4, 1995, Melvin Dunn, an associate safety engineer with the Division, conducted an inspection at the accident site. On January 5, 1995, Dunn issued the citation, claiming Blackstock's accident occurred due to a violation of section 2320.2. The citation stated appellant "did not ensure that work on exposed energized equipment would not be performed until the following conditions [were] met: Responsible supervision has determined that the work is to be performed in an energized condition, involved personnel have received instructions on the work techniques and hazards involved in working on energized equipment, suitable personal protective equipment has been provided."

The citation provided the following detail: "On 12-01-94 employer had an employee working on a 277 volt energized electrical circuit [without] the above conditions being met. Company policy is that energized work will not be done, except in emergency conditions. Employee had not received instructions that the electrical circuit was to be energized...