The Court of Appeals Holds That Indifference to Safety Satisfies the Standard for a Willful Violation Under WISHA

In March 2022, the Washington State Court of Appeals, Division One, issued Marpac Constr., LLC v. Dep’t of Lab. & Indus., No. 82200-4-I, 2022 WL 896850, at *1 (Wash. Ct. App. Mar. 28, 2022) holding Marpac Construction, LLC (“Marpac”) liable for three willful Washington Industrial Safety and Health Act of 1973 (WISHA) violations pertaining to safe crane operation near energized power lines.

Marpac was the general contractor on an apartment complex construction project in West Seattle. The worksite had high voltage power lines running throughout the site. Seattle City Light had flagged some with a 10-foot offset, but none of the other power lines were flagged. Marpac’s superintendent assumed that the lines were between 26 kilovolts (kV) and 50 kV based on their connection to the lines flagged by Seattle City Light. The superintendent never called Seattle City Light to check the voltage of the lines and the lines remained above ground.

In September 2016, a subcontractor began work on the project’s structural foundation. The subcontractor expressed concerns about working around the power lines, but Marpac promised it was working on mitigation of the power line hazard and directed the subcontractor continue working. At one point, the subcontractor’s employees had to move the crane and concrete forms away from the power lines to allow a cement truck to park in its place. The crane’s line contacted the power lines, causing serious injuries to two of the subcontractor’s employees.

The Department of Labor and Industries (DLI) responded to the scene and cited Marpac for three citations for serious violations and three citations for willful serious violations, assessing a total penalty $133,500. The Board of Industrial Insurance Appeals (Board) upheld the citations, finding that the “repetition, frequency and seriousness of Marpac’s failures to comply with safety standards were the result of a culture of indifference created largely by [Marpac’s superintendent].” The King County Superior Court affirmed the Board’s decision and Marpac appealed the three willful classifications to the Court of Appeals.

On appeal, Marpac argued that its violation of WAC 296-155-53408(2)(b) (concerning crane/derrick operations and the prevention of encroachment/electrocution) was not willful because it had a “good faith belief that it complied with the cited regulations.” In particular, Marpac had observed a 15-foot zone under the power lines that exceeded the 10-foot minimum distance for power lines under 50 kVs required by WAC 296-155-53408 Table 4. The Court of Appeals affirmed DLI’s willful designation, reasoning that Marpac’s failure to determine the voltage of the power lines and proximately use the precautions prescribed in the regulation showed a “plain indifference” to the requirements amounting to a willful violation. Further, Marpac knew that construction was encroaching on the power lines but directed work to continue. The Court held that Marpac’s weeks of work under the power lines without proper mitigation showed a level of indifference to safety to support the willful designation.

Marpac also argued that its violation of WAC 296-155-53408(2)(d)(i) (concerning crane/derrick operations below power lines) was not willful because it was unaware that adding an attachment to a forklift would subject it to the crane power line regulations and it took “numerous steps to ensure that the forklift did not come within 10 feet of the power lines.” The Court held that Marpac’s lack of knowledge showed an indifference to safety to support the willful designation.

Marpac also argued that its violation of WAC 296-155-53401 (concerning duties and qualifications of lift director) was not willful because it assigned the site foreman to perform the duties of the lift director. The Court rejected this argument because the evidence in the record showed that the foreman adamantly denied he was lift director, was not qualified to be lift director, and had informed Marpac of his lack of qualification. Accordingly, Marpac showed an indifference to safety either by failing to appoint a lift director or appointing an unqualified lift director, either of which supports the willfulness designation.

Commentary: Although the Court of Appeals’ decision is unpublished, it suggests that a lack of knowledge and/or reckless disregard of a known risk may support the willfulness designation.

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