Whiting-Turner Contracting Co. v. Comm'r Labor, No. 2655, Sept. Term, 2016

CourtCourt of Special Appeals of Maryland
Writing for the CourtGraeff, J.
Citation183 A.3d 799,237 Md.App. 24
Docket NumberNo. 2655, Sept. Term, 2016
Decision Date26 April 2018
Parties WHITING–TURNER CONTRACTING COMPANY v. COMMISSIONER OF LABOR AND INDUSTRY

237 Md.App. 24
183 A.3d 799

WHITING–TURNER CONTRACTING COMPANY
v.
COMMISSIONER OF LABOR AND INDUSTRY

No. 2655, Sept. Term, 2016

Court of Special Appeals of Maryland.

April 26, 2018


Argued by: Ronald Taylor (Thomas H. Strong, Venable LLP on the brief) all of Baltimore, MD, for Appellant.

Argued by: Catherine H. Bellinger (Sarah O. Harlan, Brian E. Frosh, Attorney General on the brief all of Baltimore, MD, for Appellee.

Panel: Meredith, Graeff, James R. Eyler, (Senior Judge, Specially Assigned), JJ.*

Graeff, J.

237 Md.App. 26

The Whiting–Turner Contracting Company ("Whiting–Turner"), appellant, challenges the decision of the Commissioner of Labor and Industry (the "Commissioner"), appellee, affirming the citation issued against Whiting–Turner for violating Md. Code (2016 Repl. Vol.) § 5–104(a) of the Labor and Employment (LE) Article,

183 A.3d 801

known as the General Duty Clause,1 and ordering Whiting–Turner to pay the fine of $5,800 levied by the Department of Labor, Licensing and Regulation ("DLLR"), Maryland Occupational Safety and Health ("MOSH"). Whiting–Turner subsequently sought judicial review of the Commissioner's decision, which the Circuit Court for Baltimore County affirmed.

On appeal, Whiting–Turner presents four questions for this Court's review, which we have reorganized, as follows:

1. Did the Commissioner err in finding that Whiting–Turner violated the General Duty Clause by failing to utilize cross braces and in utilizing an allegedly insufficient spacer beam?
237 Md.App. 27
2. Did the Commissioner err in finding that the General Duty Clause was not preempted by the existence of more specific standards applicable to Whiting–Turner's activities?

3. Did the Commissioner err in admitting and relying upon the expert testimony of Dr. Jin in finding that Whiting–Turner violated the General Duty Clause?

4. Did the Commissioner err in admitting and relying upon the report of Dr. Jin in finding that Whiting–Turner violated the General Duty Clause?

For the reasons set forth below, we answer the first question in the affirmative, and therefore, we shall reverse the judgment of the circuit court.2

FACTUAL AND PROCEDURAL BACKGROUND

I.

Background

In May 2013, Whiting–Turner was the general contractor on a construction project at the Westfield Montgomery Mall, in Bethesda, Maryland. Whiting–Turner was working on a project involving the construction of additional floors at the top of an existing garage structure to facilitate "a theater and a food court expansion." To construct the additional floors, Whiting–Turner developed a plan to remove four pre-stressed concrete sections, known as double tees, from the existing second floor and the roof, to enable the placement of a tower crane inside the garage.3 Each double tee section was 60–feet long, 9–feet wide, and weighed approximately 42,800 pounds.

237 Md.App. 28

The two double tees on the roof were removed by a mobile crane and stored nearby. With respect to the two double tees on the second floor, Whiting–Turner planned to reuse them, so it developed a plan to set the double tees aside by a hydraulic jacking and skating method. The plan was to raise, or "jack," the double tees, "maintaining a level position," so they could be slid, or skated, onto the parking deck adjacent to their original location,

183 A.3d 802

and then placed back in their original location after the work was completed. To support and remove the double tees, Whiting–Turner employed the use of four jacking towers at each of the four corners of the double tee, and four shoring towers were positioned to the outside of the jacking towers.4 Each shoring tower had the capability to support 44,000 pounds, and the failure capability was two and half times that, 110,000 pounds. Positioned at the top of the towers, Whiting–Turner utilized "a combination of W8 by 10 [and] W8 by 31 beams."

Four individuals operated the jacking towers to raise the double tee by a "16th to an 8th of an inch." As those ironworkers were raising or "jacking" the double tee, four additional workers would raise the shoring towers, so that the double tee was supported within "an 8th of an inch." The lifting process, as described, would occur until the jacking towers "reach[ed] the maximum stroke limit," and the workers would then transfer "the weight completely to the shoring towers that are outside [of] the jacking [towers], reposition the shoring towers[,] and then repeat the process until [the workers] had lifted the double tee high enough to put it onto beams and skate or slide the double tee" aside. As the jacking process occurred, a foreman for Whiting–Turner "utilized

237 Md.App. 29

mechanical levels and also laser levels" to ensure that the load was being raised in a leveled manner.

May 23, 2013, Accident

On the morning of May 23, 2013, workers at the construction site initiated the removal process of the western double tee from the second floor of the garage.5 The workers successfully jacked the double tee and raised it to two feet, six inches prior to going to lunch. After returning from lunch, the workers re-inspected the double tee and continued the operation. Approximately one hour later, the workers noticed that "[o]ne of the beams was curled on top of the towers," i.e., it was slightly bent, at the southeast tower. A bent shoring beam signaled that the double tee was "unstable," and the damaged beam would have to be removed and replaced to ensure the safety of the system.

To facilitate this process, the site foreman, Patrick Bruns, decided that the workers would need to jack the double tee to "take weight off the southeast shoring tower," and once the weight was adjusted, workers would "switch out" the bent piece. Before the beam could be removed, workers heard a "loud crack" and then "steel crashing down." The ironworkers contacted emergency services, and the Montgomery County Fire and Rescue Service responded to the scene and immediately initiated a rescue operation. As a result of the collapse, one worker died and a second worker, who was pinned by the falling structure, sustained serious bodily injuries.

MOSH Investigation

Investigators from MOSH arrived at the scene to conduct an accident investigation. David Latham, a compliance specialist

183 A.3d 803

with MOSH, arrived that afternoon. He observed the rescue operation and took pictures of the scene to assist with the preparation of MOSH's inspection and investigative report, which was a routine procedure with industrial accidents.

237 Md.App. 30

MOSH contacted the Directorate of Construction (DOC), federal Occupational Safety and Health Administration (OSHA), for assistance in investigating the incident and the cause of the collapse. Jau "Scott" Jin, Ph.D., an engineer from DOC, visited the construction site on May 24, 2013. Dr. Jin had worked with MOSH on prior inspections involving the agency. At the accident scene, Dr. Jin spoke with Whiting–Turner's construction site superintendent, Scott Peterson, to discuss the jacking procedure, as well as observe the collapse and obtain a full account of what transpired.

KCE's Report

Engineers from KCE Structural Engineers, P.C. ("KCE") were brought in on the evening of the collapse by Whiting–Turner to assist in an " ‘emergency’ make-safe operation." They were retained to "determine the cause and origin" of the accident, as well as "the areas of the garage impacted by the construction incident," and to "design the final make-safe work needed to stabilize the garage structure impacted."

On August 30, 2013, KCE issued its report, which stated that "the partially collapsed tee exhibited a longitudinal crack in the Southeastern and Southwestern stem from the middle quarter toward the North." KCE noted that when workers returned from lunch they noticed that a beam had "partially buckled (top flange and web were bent ±¼? to ½?) and determined they should replace that piece of steel—the correct thing to do."

KCE indicated in its report that, based on Whiting–Turner's drawn configuration, "the W8x10 and W8x31 beams on the ‘safety’ and ‘jacking’ towers ha[d] adequate strength to support the load of the precast double tee even if the entire load [was] concentrated in one location on the beam." It stated, however, that "the as-designed shoring tower layout may not have been adhered to throughout," noting that pictures showed "two smaller individual beams [ ] spanning the shoring towers in the longitudinal direction as opposed to the continuous 8' W8x10' spanning both 2'x2' Adjust–A–Shore® framing...

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3 practice notes
  • Barbosa v. Osbourne, No. 1258, Sept. Term, 2015
    • United States
    • Court of Special Appeals of Maryland
    • April 26, 2018
    ...was the trial court's refusal to give the plaintiffs' requested special instruction as to that issue, which, insofar as it was a 183 A.3d 799correct statement of the law, was properly covered by the instructions actually given. Landon , 389 Md. at 225–27, 884 A.2d 142.In both Consolidated W......
  • Comm'r of Labor & Indus. v. Whiting-Turner Contracting Co., No. 30, Sept. Term, 2018
    • United States
    • Court of Special Appeals of Maryland
    • January 23, 2019
    ...the conclusion that the hazards were "recognized." Whiting-Turner Contracting Company v. Commissioner of Labor and Industry , 237 Md. App. 24, 183 A.3d 799 (2018). With regard to the gooser braces, the court noted that the assembly manual gave "merely an explanation of how to......
  • Comm'r Labor v. Whiting-Turner Contracting Co., No. 30
    • United States
    • Court of Special Appeals of Maryland
    • January 23, 2019
    ...the conclusion that the hazards were "recognized." Whiting-Turner Contracting Company v. Commissioner of Labor and Industry, 237 Md. App. 24, 183 A.3d 799 (2018). With regard to the gooser braces, the court noted that the assembly manual gave "merely an explanation of how to ......
3 cases
  • Barbosa v. Osbourne, No. 1258, Sept. Term, 2015
    • United States
    • Court of Special Appeals of Maryland
    • April 26, 2018
    ...was the trial court's refusal to give the plaintiffs' requested special instruction as to that issue, which, insofar as it was a 183 A.3d 799correct statement of the law, was properly covered by the instructions actually given. Landon , 389 Md. at 225–27, 884 A.2d 142.In both Consolidated W......
  • Comm'r of Labor & Indus. v. Whiting-Turner Contracting Co., No. 30, Sept. Term, 2018
    • United States
    • Court of Special Appeals of Maryland
    • January 23, 2019
    ...to support the conclusion that the hazards were "recognized." Whiting-Turner Contracting Company v. Commissioner of Labor and Industry , 237 Md. App. 24, 183 A.3d 799 (2018). With regard to the gooser braces, the court noted that the assembly manual gave "merely an explanation of how to set......
  • Comm'r Labor v. Whiting-Turner Contracting Co., No. 30
    • United States
    • Court of Special Appeals of Maryland
    • January 23, 2019
    ...to support the conclusion that the hazards were "recognized." Whiting-Turner Contracting Company v. Commissioner of Labor and Industry, 237 Md. App. 24, 183 A.3d 799 (2018). With regard to the gooser braces, the court noted that the assembly manual gave "merely an explanation of how to set ......

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