Comm'r of Labor & Ind. v. Whiting-Turner

462 Md. 479

• Court: Court of Appeals of Maryland
• Decided: January 23, 2019
• Docket: 30/18
• Status: Published

Opinion

Commissioner of Labor and Industry v. The Whiting-Turner Contracting Company, No. 30, September Term 2018. Opinion by Hotten, J.

LABOR AND EMPLOYMENT – RECOGNIZED HAZARDS – SUBSTANTIAL EVIDENCE – The Court of Appeals held that there was substantial evidence before the Commissioner of Labor and Employment to conclude that the Whiting-Turner Contracting Company’s failure to install gooser braces and use of an undersized spacer beam during construction constituted recognized hazards in violation of Maryland Code, Labor and Employment Article, § 5-104(a). Circuit Court for Baltimore County Case No. 03-C-16-005006 Argued: November 29, 2018 IN THE COURT OF APPEALS

OF MARYLAND

No. 30

September Term, 2018

__________________________________

COMMISSIONER OF LABOR AND INDUSTRY v. THE WHITING-TURNER CONTRACTING COMPANY __________________________________

Barbera, C.J., Greene, McDonald, Watts, Hotten, Getty, Adkins, Sally D., (Senior Judge, Specially Assigned)

JJ. __________________________________

Opinion by Hotten, J. Watts, J., joins in judgment only. Getty and Adkins, JJ., dissent. __________________________________

Filed: January 23, 2019 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.

2019-05-21 12:56-04:00

Suzanne C. Johnson, Clerk Petitioner, the Commissioner of Labor and Industry (the “Commissioner”), seeks

review of a decision by the Court of Special Appeals, which reversed the Commissioner’s

determination that Respondent, the Whiting-Turner Contracting Company (“Whiting-

Turner”) violated Maryland Code, Labor and Employment Article, § 5-104(a), the General

Duty Clause, by failing to “furnish employment and a place of employment which were

free from recognized hazards that were causing or likely to cause death or serious physical

harm to employees[.]” On appeal, the Commissioner asks this Court to consider the

following questions:

1. Did Petitioner correctly determine that Respondent’s failure to follow the shoring-tower manufacturer’s instructions to use gooser braces in assembling a shoring tower supporting a concrete slab, which resulted in serious injury and death, constituted a recognized hazard within the meaning of § 5-104(a) of the Labor & Employment Article [(Lab. & Empl.)]?

2. Did Petitioner correctly determine that Respondent’s use of an undersized spacer beam in the upper support system of a shoring tower constituted a recognized hazard within the meaning of [Lab. & Empl.] § 5-104(a)? For the reasons articulated below, we answer both questions in the affirmative and shall

reverse the judgment of the Court of Special Appeals.

FACTUAL AND PROCEDURAL BACKGROUND

The Incident and Investigation

On May 23, 2013, Whiting-Turner was involved in a construction project to increase

the size of the parking garage at the Westfield Montgomery Mall in Bethesda, Maryland.

Part of this construction involved removing and relocating portions of the parking deck, known as double-tees,1 in order to make room for a crane tower that would be used to

construct new floors on top of the existing garage structure. Because Whiting-Turner

intended on reusing the double-tees, a Whiting-Turner engineer developed a system

whereby workers would raise the double-tees using a hydraulic jack.2 In order for the

process to be conducted safely, the engineer required the placement of four shoring/safety

towers,3 one under each corner of the double-tee. As the hydraulic jack lifted the double-

1 Each double-tee involved in this construction project weighed approximately 42,800 pounds and was made out of pre-stressed concrete. Pre-stressed concrete is concrete that contains steel cables or rods that are placed inside of the concrete once it is poured in order to reinforce it.

2 A hydraulic jack is a mechanism that uses force to lift the heavy load on top of it. 3 Shoring towers generally consist of metal frames stacked on top of one another, similar to scaffolding. 2 tee in small increments, the workers would adjust the shoring/safety towers using the screw

jacks4 to follow the height that the double-tee had been raised to. Once the double-tees

were lifted to a certain height, rail assemblies were to be installed beneath it so that the

double-tee could slide onto the adjacent parking deck. This created an opening in the

parking deck for the crane tower while still preserving the double-tees for future use.

Whiting-Turner assembled the shoring towers using materials from Safway

Services, a commercial construction company whom Whiting-Turner had worked with

previously. Safway provided Whiting-Turner with a manual for the assembly of the

shoring towers. Among their instructions, the assembly manual provided that “[t]he

positioning of the gooser braces start when the extension frame is put at a [two foot] or

4 Screw jacks are small pieces of equipment placed atop each shoring tower that are used to raise or lower the double-tee on top of the towers by small increments, generally fractions of an inch at a time. 3 more extension. As the extension frames are extended, the diagonal gooser braces are

connected to the various horizontals of the base frame and the extension frame.” Gooser

braces are bars that connect the legs of scaffolding and are used to ensure the stability and

structural integrity of the scaffolding/shoring tower.5 Despite the assembly manual’s

instructions, the gooser braces provided by Safway were never installed or utilized in the

construction of the shoring towers.

On May 21, 2013, the construction crew successfully raised and relocated one of

the double-tees using the process detailed above. On May 23, 2013, the construction crew

began to remove a second double-tee, using the same process. Partially through the

removal process on May 23, the workers took a break for lunch. After the workers had

returned from lunch and continued raising the double-tee, one of the employees observed

that a steel support beam under a steel spacer beam6 had bent and twisted at the southeast

corner of the shoring tower. The site foreman determined that the beam needed to be

replaced before proceeding. To replace the support beam, the employees were instructed

to jack up the southeast corner of the double-tee in order for the beam to be detached from

the shoring tower and replaced. Before the support beam could be replaced, the double-

tee and shoring towers collapsed, resulting in the death of one employee and the pinning

and severe injury of another.

5 Footnote 3 depicts a scaffolding/shoring tower with a properly installed gooser brace, labeled as a “horizontal diagonal gooser.” 6 The spacer beams were used to shim the shoring tower as it was raised. 4 The Maryland Occupational Safety and Health Unit (“MOSH”), with assistance

from Dr. J. Scott Jin, a civil engineer in the Federal Occupational Safety and Health

Administration (“OSHA”) initiated an investigation into the accident. Whiting-Turner also

employed the services of KCE Structural Engineers, P.C. (“KCE”) to determine the cause

of the accident and design an “emergency make-safe operation” plan to stabilize the garage.

Reports from both Dr. Jin and KCE concluded that Whiting-Turner should have installed

gooser braces in the shoring towers and that their failure to do so contributed to the

accident. Dr. Jin also concluded that Whiting-Turner’s use of an eight-inch high spacer

beam between the double-tee stem and the upper beam weakened the stability of the system

and rendered the shoring tower unable to support the actual load of the double-tee.

MOSH ultimately issued two citations to Whiting-Turner. First, Whiting-Turner

was charged with violating 29 C.F.R. § 1926.305(d)(1)(i),7 due to their failure to secure the

double-tee after it was raised by the hydraulic jack. Second, Whiting-Turner was charged

with violating Maryland Code, Lab. & Empl. Article, § 5-104(a), also known as the General

Duty Clause,8 due to their failure to “furnish employment and a place of employment which

were free from recognized hazards that were causing or likely to cause death or serious

7 29 C.F.R. § 1926.305(d)(1)(i) states that “[a]fter a load has been raised, it shall be cribbed, blocked, or otherwise secured at once.” 8 The General Duty Clause provides: (a) Each employer shall provide each employee of the employer with employment and a place of employment that are: (1) safe and healthful; and (2) free from each recognized hazard that is causing or likely to cause death or serious physical harm to the employee.

5 physical harm to employees[.]” MOSH based this second violation on three factors: 1)

Whiting-Turner’s failure to install gooser braces on the shoring towers; 2) Whiting-

Turner’s use of an undersized spacer beam, an eight-inch high spacer beam, between the

double-tee stem and the upper beam; and 3) the single jacking of the southeast shoring

tower.

MOSH assessed Whiting-Turner a total fine of $11,125: $5,325 for violating 29

C.F.R. § 1926.305(d)(1)(i) and $5,800 for violating the General Duty Clause. Whiting-

Turner filed a notice of intent to contest the citation and subsequent penalties on December

6, 2013 and the case was referred to the Office of Administrative Hearings on August 7,

2014.

Procedural History

An Administrative Law Judge (ALJ) held a three-day hearing in December 2014.

The ALJ heard testimony from Dr. Jin, David Latham, a compliance specialist with MOSH,

Patrick Bruns, an ironworker employed by Whiting-Turner, and two other employees, both

project managers for Whiting-Turner. The ALJ also considered numerous exhibits,

including reports from KCE and OSHA, Dr. Jin’s written investigation report, and a

number of photograph exhibits of the construction site prior to and after the collapse of the

towers.

The ALJ issued a proposed decision on March 23, 2015. With regard to violating

29 C.F.R. § 1926.305(d)(1)(i), the ALJ concluded that Whiting-Turner failed “to crib,

6 block, or otherwise secure a load at once after the load was raised[,]” and recommended

that the penalty of $5,325 be affirmed. With respect to violating the General Duty Clause,

the ALJ noted the following:

• Whiting-Turner claimed that gooser braces were not needed on the shoring tower. • The extension frames were raised to the level that called for the gooser braces to be used, two feet or higher, and that a failure to use them “created a hazardous condition[.]” • Whiting-Turner “was on notice from the Safway material that gooser braces should have been used[]” and failure to use them was therefore a recognized hazard. • Whiting-Turner’s use of an undersized spacer beam contributed to the collapse of the double-tee and Whiting-Turner had actual knowledge of the hazard that this posed. • The single jacking of the southeast corner was a recognized hazard that contributed to the collapse of the double-tee. • Whiting-Turner could have jacked all of the corners of the double-tee to ensure uniform distribution of weight. Accordingly, the ALJ recommended that the proposed penalty of $5,800 against Whiting-

Turner be affirmed.

Whiting-Turner filed for a review of the ALJ’s proposed findings and decision

before the Commissioner of Labor and Industry. The Commissioner held a hearing

regarding the ALJ’s proposed decision on November 18, 2015. On April 14, 2016, the

Commissioner issued a Final Decision and Order, affirming the violation and citation under

the General Duty Clause, but vacating the violation and citation under 29 C.F.R. §

1926.305(d)(1)(i). The Commissioner concluded that while MOSH failed to prove that the

third factor, jacking only the southeast corner of the double-tee, constituted a recognized

7 hazard, the first two factors, the failure to install gooser braces and the use of an undersized

spacer beam, were recognized hazards and therefore constituted a violation of the General

Duty Clause.

The Commissioner noted that the failure to use gooser braces when the extension

frame is extended two feet or higher causes the tower to become “more flexible and less

stable[.]” This hazard is “one recognized by the construction industry, specifically the

manufacturer . . . [and Whiting-Turner’s] employees were familiar with Safway’s system

and knew that Safway had provided gooser braces . . . .” Because the assembly manual

clearly provided installation instructions for the gooser braces, Whiting-Turner “knew or

should have known that failure to use the gooser braces was a hazard that was likely to

cause death or serious injury to an employee.”

With regard to the spacer beam, the Commissioner observed that the spacer beam

used was not “sufficiently sized to support the actual load” and that this “weakened the

rigidity of the upper support system on top of the shoring towers thereby creating a

hazardous condition.” Whiting-Turner had previously used “sound engineering practices”

in the removal of the double-tees, yet failed to offer any explanation as to why it neglected

to employ similarly sound principles in the use of a properly sized spacer beam. Therefore,

the use of the eight-inch high spacer beam, which the Commissioner concluded to be

undersized, was a recognized hazard.

Whiting-Turner petitioned for judicial review and the Circuit Court for Baltimore

County affirmed the Commissioner’s decision, concluding that it was legally correct and

8 supported by substantial evidence in the record. On appeal, the Court of Special Appeals

reversed the Commissioner’s decision on the ground that the decision lacked substantial

evidence 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 up the shoring system[]” and that there was no

“suggestion that the gooser frames were a safety requirement or that the failure to use the

gooser braces could cause injury.” Id. at 57, 183 A.3d at 818-19. Regarding the spacer

beams, the court concluded that the testimony from Dr. Jin, concerning sound engineering

principles necessitating the use of a different beam, was not enough to establish that

Whiting-Turner had actual knowledge of the hazard. Id. at 59, 183 A.3d at 820.

STANDARD OF REVIEW

“We review an administrative agency’s decision under the same statutory standards

as the [c]ircuit [c]ourt. Therefore, we reevaluate the decision of the agency, not the

decision of the lower court.” Gigeous v. E. Corr. Inst., 363 Md. 481, 495-96, 769 A.2d

912, 921 (2001) (footnote omitted). We, however, “may always determine whether the

administrative agency made an error of law. Therefore, ordinarily, the court reviewing a

final decision of an administrative agency shall determine (1) the legality of the decision

and (2) whether there was substantial evidence from the record as a whole to support the

decision.” Baltimore Lutheran High Sch., v. Employment Sec. Admin., 302 Md. 649, 662,

490 A.2d 701, 708 (1985). Substantial evidence is defined as “such relevant evidence as a

9 reasonable mind might accept as adequate to support a conclusion[.]” Bulluck v. Pelham

Wood Apartments, 283 Md. 505, 512, 390 A.2d 1119, 1123 (1978). Additionally, purely

legal questions are reviewed de novo with considerable “weight [afforded] to an agency’s

experience in interpretation of a statute that it administers[.]” Schwartz v. Md. Dep’t of

Nat. Res., 385 Md. 534, 554, 870 A.2d 168, 180 (2005).

DISCUSSION

The General Duty Clause of the Maryland Occupational Safety and Health Act

(“MOSHA”), set forth in § 5-104(a) of the Labor and Employment Article, provides: “Each

employer shall provide each employee of the employer with employment and a place of

employment that are: (1) safe and healthful; and (2) free from each recognized hazard that

is causing or likely to cause death or serious physical harm to the employee.” Because

MOSHA is modeled after the Federal Occupational Safety and Health Act, Maryland

courts frequently turn to Federal decisions for guidance in interpreting MOSHA. Md.

Comm’r of Labor & Indus. v. Cole Roofing Co., 368 Md. 459, 470, 796 A.2d 63, 69 (2002);

Bethlehem Steel Corp. v. Comm ’r of Labor & Industry, 339 Md. 323, 328, 662 A.2d 256,

258 (1995).

In order to establish a violation of the General Duty Clause, MOSH must prove: 1)

some condition or activity in the workplace presented a hazard; 2) the hazard was

“recognized”; 3) the hazard was likely to cause death or serious physical harm; and 4)

10 “feasible means to eliminate or materially reduce the hazard existed.”9 Sea World of

Florida, LLC v. Perez, 748 F.3d 1202, 1207 (D.C. Cir. 2014) (quoting Fabi Constr. Co. v.

Sec’y of Labor, 508 F.3d 1077, 1081 (D.C. Cir. 2007)). A failure to prove at least one of

the above elements results in a lack of substantial evidence to support a violation of

MOSHA. “Establishing that a hazard was recognized requires proof that the employer had

actual knowledge that the condition was hazardous or proof that the condition is generally

known to be hazardous in the industry.” Kelly Springfield Tire Co. v. Donovan, 729 F.2d

317, 321 (5th Cir. 1984). In Comm’r of Labor & Indus. v. Bethlehem Steel Corp., this

Court considered whether the presence of a deteriorating toaster oven for use in an

employee lunch room, which resulted in the electrocution of an employee, constituted a

recognized hazard in violation of 29 C.F.R. § 1910.303(b)(1). 344 Md. 17, 20-21, 684

A.2d 845, 846-47 (1996). In concluding that such action was a recognized hazard, we

explained that “either actual or constructive [knowledge] is the gravamen of employer

responsibility under the Act[.]” Id. at 25, 684 A.2d at 849. This interpretation instructs

this Court to conclude that a hazard is “recognized” under Lab. & Empl. § 5-104(a) when

the employer has actual or constructive knowledge of the hazard.

9 This appeal does not concern the last two elements of a General Duty Clause violation – that the hazard was likely to cause death or serious physical harm and that feasible means to eliminate or materially reduce the hazard existed, as those issues were not raised on appeal. Accordingly, our opinion only discusses whether Whiting-Turner’s failure to use gooser braces and use of an undersized spacer beam presented hazards, and whether those hazards were “recognized.” 11 Because this case focuses on the presence of substantial evidence to support the

Commissioner’s findings, we conclude that there was substantial evidence to prove that

Whiting-Turner’s failure to use gooser braces and use of an undersized spacer beam both

constitute recognized hazards in violation of the General Duty Clause.

Whiting-Turner’s Failure to Use Gooser Braces Constituted a Recognized Hazard

The materials for the shoring towers from Safway included a manual with

instructions for how to properly assemble the towers. Included in the assembly instructions

was the following information:

The diagonal gooser braces, which attach to the horizontal member of the frames, have spring actuated slides. *** The extension frames are individually braced. The positioning of the diagonal gooser braces start when the extension frame is put at a 2’ or more extension . . . . As the extension frames are extended, the diagonal gooser braces are connected to various horizontals of the base frame and the extension frame. Illustrated in figure 3 (3’ extension), the diagonal gooser braces are attached to the bottom rungs of the base frame and extension frame. The placement of the diagonal gooser braces is simplified because there is only one combination per height adjustment. It is clear from the assembly manual that gooser braces are called for when the extension

frame is extended to two feet or higher. It is also undisputed that the extension frames here

were extended to a height greater than two feet at the time of the accident. Therefore, as

the above information instructs, the gooser braces should have been installed on the tower.

As the Commissioner properly noted, “[t]he hazard associated with not following

Safway’s recommendation to utilize the gooser braces when the extension frames were

12 added is that as the shoring tower is extended higher, it becomes more flexible and less

stable, creating the potential for the load to shift or fall.” In F & H Coatings, LLC v. Acosta,

the Tenth Circuit considered whether placement of a vessel on pipe racks constituted a

recognized hazard. 900 F.3d 1214, 1225 (2018). Concluding that such an action was a

recognized hazard, the Tenth Circuit observed that, “[a]t its most basic, the condition

involved elevating an incredibly heavy object, placing it on a set of racks, [and] allowing

work to be performed on it without securing it against unexpected movement.” Id.

(quotations omitted). Similarly here, the act of raising a 42,800 pound concrete double-tee

without installing gooser braces for stability and safety is clearly a hazard to those working

underneath and in the proximity of the raised object. Dr. Jin determined that the “[l]ack

of the diagonal gooser braces on the extended frames decreased the rigidity of the

shoring/skating tower in the north-south direction . . . . Without the diagonal gooser braces,

the shoring/skating towers became more flexible and less stable, contributing to the

collapse.”

However, Whiting-Turner contends that because there were no explicit warnings

regarding the danger of failing to use gooser braces when the extension frames have

reached a height of two feet or more, there lacked substantial evidence to conclude the

presence of a recognized hazard. In Secretary of Labor v. K.E.R. Enterprises, Inc., three

employees of an underground utility contractor were injured while performing a pressure

test on a pipe that exploded after the employees tightened the bolts in order to repair a small

leak without first depressurizing the pipe. 23 BNA OSHC 2241 (No. 08-1225 2013). The

13 Review Commission vacated a citation against K.E.R. that alleged a failure to follow the

manufacturer’s instructions and industry standards regarding the proper response to a pipe

leak. Id. at *5. The Review Commission first noted that the conditions did not pose a

hazard to the employees, then went on to comment that even if there were a hazard, it was

not recognized because the installation instructions did not “contain a safety warning or

suggest a link between noncompliance and a safety hazard.” Id. at *3-4. The instructions

were, generally, to “[t]ighten the bolts to the normal range[,]” but did not specify a specific

range, tool, or warning for repairing the leak. Id. at *4. Additionally, the Review

Commission concluded that K.E.R. did in fact comply with both the manufacturer’s

specifications and the industry standards for dealing with the type of leak observed. Id.

Conversely, here Whiting-Turner did not comply with either the manufacturer’s

instructions or industry standards. The reports and testimony submitted by Dr. Jin, KCE,

and MOSH’s compliance analyst, Mr. Latham, explained that the installation of gooser

braces is required and recommended by the manufacturer of the equipment, Safway,

making the hazard known under industry standards. Additionally, the Safway assembly

manual clearly provided the material and instructions for installing the gooser braces,

providing Whiting-Turner with actual knowledge that they should have been installed.

Although the instructions lacked an explicit warning, it was inherently obvious that all of

the materials provided by Safway were necessary to build a stable tower. Under these

circumstances, substantial evidence existed for the Commissioner to conclude that

14 Whiting-Turner’s failure to install gooser braces on the shoring towers constituted a

recognized hazard in violation of the General Duty Clause.

Whiting-Turner’s Use of an Undersized Spacer Beam Constituted a Recognized Hazard

Whiting-Turner’s plan to raise and move the double-tees, developed by Whiting-

Turner engineers, called for the use of cribbing10 to support the double-tees while they were

being moved. While the plan originally called for lumber cribbing, Whiting-Turner

utilized a steel, eight-inch spacer beam instead. Dr. Jin acknowledged in his testimony

before the ALJ that using timber would be “preferable as a method of cribbing” because it

is a solid piece and prevents the shifting and rotation of the shoring system. Whiting-

Turner does not account for the inconsistency in the execution of their plan, an

inconsistency that ultimately contributed to the collapse of the shoring tower. According

to Dr. Jin, “[t]he placement of the [eight inch] high spacer beam between the double tee

stem and the upper W8x10 beam . . . weakened the rigidity of the upper support system on

top of the shoring/skating towers in the north-south direction.” While the spacer beam

used may have been an adequate height to support the load of the normal jacking process

in which the weight of the double-tee was equally distributed between all of the shoring

towers, that support became tenuous when a single corner was jacked, creating more

10 Cribbing is a technique that is frequently used to secure, stabilize, and support heavy objects during a construction project. It prevents movement and buckling of the steel frames that support heavy objects. 15 pressure on the other towers.11 There was therefore substantial evidence before the

Commissioner to conclude that the use of an eight-inch spacer beam weakened the rigidity

of the shoring system, thereby causing a hazard to the employees involved in the jacking

of the double-tee.

Additionally, Dr. Jin’s expert opinion, as well as Whiting-Turner’s own plan calling

for some form of cribbing and support, provides sufficient evidence that the hazard of using

an undersized, eight-inch spacer beam was recognized. Because Whiting-Turner’s own

engineer developed detailed plans for the jacking and moving of the double-tees, including

the use of timber cribbing for support and stability, it is clear to us that Whiting-Turner had

actual knowledge of the proper type of cribbing and spacer beams that should be used in a

process like the one utilized here. Sound engineering principles indicate that the weakened

nature of the structure “could have been avoided if a bigger beam [were] used or if stiffer

plates had been welded to the flanges and web at the loading locations.” This information

provided the Commissioner with substantial evidence to conclude that Whiting-Turner’s

use of an eight-inch high spacer beam constituted a recognized hazard.

CONCLUSION

We conclude that there was substantial evidence for the Commissioner to determine

that Whiting-Turner’s failure to install gooser braces and use of an undersized spacer beam

11 The Commissioner concluded in his findings that MOSH failed to prove that this conduct alone, the single jacking of one tower, constituted a recognized hazard and the issue was not raised on appeal. 16 both constituted recognized hazards in violation of the General Duty Clause. A hazard is

“recognized” if the employer has actual or constructive knowledge of it. The

Commissioner was presented with an assembly manual from Safway providing for the

installation of gooser braces on the shoring towers, plans from Whiting-Turner’s own

engineers calling for the use of proper cribbing and support beams, as well as the expert

opinion of Dr. J. Scott Jin and investigation reports from MOSH and KCE Structural

Engineers identifying Whiting-Turner’s alleged violations as contributing to the accident.

The record clearly includes “such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion[]” that Whiting-Turner violated § 5-104(a) of the Labor

and Employment Article by failing to install gooser braces and using an undersized spacer

beam. Bulluck v. Pelham Wood Apartments, 283 Md. 505, 512, 390 A.2d 1119, 1123

(1978).

JUDGMENT OF THE COURT OF SPECIAL APPEALS IS REVERSED. COSTS TO BE PAID BY RESPONDENT.

Judge Watts joins in judgment only.

17 Circuit Court for Baltimore County Case No. 03-C-16-005006 Argued: November 29, 2018

IN THE COURT OF APPEALS

COMMISSIONER OF LABOR AND INDUSTRY

v. THE WHITING-TURNER CONTRACTING COMPANY

Barbera, C.J. Greene, McDonald, Watts, Hotten, Getty, Adkins, Sally D., (Senior Judge, Specially Assigned)

JJ.

Dissenting Opinion by Getty, J., which Adkins, J., joins

Filed: January 23, 2019 I respectfully dissent from the Majority’s decision. Based upon the record before

the Court, I believe that even if there was evidence to support the finding that the lack of

gooser braces and use of undersized spacer beams were hazards, there was not substantial

evidence to support a finding that such hazards were recognized by the industry. Thus,

under OSHA precedent concerning general duty clause violations, the literature provided

by Safway, the manufacturer, did not contain an explicit safety warning nor was there

probative evidence of a hazard recognized by the industry that would trigger a violation of

the general duty clause. Ultimately, the Majority’s decision would permit provisions

within a manufacturer’s promotional materials, even absent explicit safety warnings, to

exclusively control and supersede any construction decisions or plans by project engineers.

Throughout the opinion, the Majority painstakingly attempts to mischaracterize the

brochure provided by Safway as an “assembly manual” or “installation instructions.”

Majority Slip Op. at 3, 4, 8, 11, 13, 14. However, the record clearly reflects that the

brochure associated with promoting Safway’s “Adjust-A-Shore” system is essentially

promotional literature and does not constitute a step-by-step guide to assembling the

product. Accordingly, a promotional brochure should not be given the same weight as an

“assembly manual” because these two types of literature serve different and distinct

functions.

The Majority notes that courts interpreting OSHA have indicated that a

manufacturer’s instructions containing explicit safety warnings “may be probative

evidence in establishing a general duty clause violation.” Sec’y of Labor v. K.E.R. Enter.,

Inc., 23 BNA OSHC 2241 (No. 08-1225, 2013). Considering the facts of this case, however, the Majority’s holding that an instruction contained within a promotional

brochure, that lacks any explicit safety warnings, may substantiate a general duty clause

violation contravenes the Occupational Safety Health and Review Commission’s (“the

Commission”) precedent on this issue. The Majority’s reliance on K.E.R. Enterprises is

misplaced, because there the Commission found that employees of K.E.R. Enterprises

complied with warnings in the literature provided by the manufacturer. Majority Slip Op.

at 13. Instead, the Commission concluded that the employees did not comply with all

relevant installation instructions or warnings within the industry. While the Majority only

notes the Sigma instructions provided by the manufacturer in K.E.R., the Commission

significantly relied upon separate warnings found within the American Water Works

Association standard C-111 (“AWA standard”). Sec’y of Labor v. K.E.R. Enter., Inc., 23

BNA OSHC 2241 (No. 08-1225, 2013). The AWA standard provided that “[i]f effective

sealing is not attained at the maximum torque indicated, the joint should be dissembled,

thoroughly cleaned, and reassembled. Overstressing bolts to compensate for poor

installation practice is not acceptable.” Id.

Thus, in K.E.R. Enterprises, the Commission found that “neither Sigma’s

installation instructions nor the AWA standard contain a safety warning or suggest a link

between noncompliance and a safety hazard.” Id. Accordingly, the Commission

concluded that “Sigma’s installation instructions and the AWA standard do not establish

that overtightening of the T-bolts creates a struck-by hazard during a hydrostatic pressure

test.” Id. (emphasis added). The use of the term overtightening clearly indicates that,

while K.E.R. employees may have complied with Sigma’s installation instructions, they

2 did not comply with the AWA standard. The Majority’s strained interpretation of K.E.R.

Enterprises focuses exclusively on Sigma’s installation instructions and neglects to

consider the implications of the AWA standard in determining K.E.R.’s lack of

compliance. In the case before us, no separate standard such as the AWA exists to justify

a finding of a recognized industry hazard.

The Majority also relies on F & H Coatings, LLC v. Acosta, for the proposition that

a general duty clause violation existed, because “[a]t its most basic, the condition involved

elevating an incredibly heavy object, placing it on a set of racks, [and] allowing work to be

performed on it without securing it against unexpected movement.” 900 F.3d 1214, 1225

(2018). The Majority then likens such a scenario to the instant appeal and summarily

concludes that “the act of raising a 42,800 pound concrete double-tee without installing

gooser braces for stability and safety is clearly a hazard to those working underneath and

in the proximity of the raised object.” Majority Slip Op. at 12.

However, the decision in F & H Coatings, LLC is inherently distinguishable from

the facts encountered in the present appeal. Here, Whiting-Turner supported the double-

tees with the four shoring towers and four jacking towers, each capable of supporting up

to 44,000 pounds. Unquestionably, the record supports sound engineering practices by

Whiting-Turner dissimilar to the finding of “allowing work to be performed on it without

securing it against unexpected movement.” F & H Coatings, LLC, 900 F.3d at 1225.

With regard to the undersized spacer beams, the Majority points out that Dr. Jin

testified that timber cribbing, as per Whiting-Turner’s initial plans, would have been

preferable. Majority Slip Op. at 14. The Majority goes on to point out that Dr. Jin testified

3 that the use of undersized spacer beams reduced the rigidity of the support system and

concludes that “support became tenuous when a single corner was jacked, creating more

pressure on the other towers.” Majority Slip Op. at 15. However, the Majority fails to

consider contrary evidence – including the KCE report which concluded that the “safety

and jacking towers have adequate strength to support the load of the precast double[-]tee

even if the entire load is concentrated in one location on the beam.” Accordingly, KCE’s

report did not conclude that the use of undersized spacer beams contributed to the collapse.

Despite this, the Majority indicates that Whiting-Turner’s plan to utilize timber

cribbing evinces that Whiting-Turner had actual knowledge of the hazard associated with

utilizing the undersized spacer beams. However, although Dr. Jin testified that the use of

timber cribbing would be preferable, his report did not explicitly indicate that the collapse

would not have occurred had Whiting-Turner utilized lumber cribbing. In this section of

its discussion, the Majority conflates the use of timber versus steel cribbing with grounds

for a general duty clause violation. As such, the Majority concludes that “Whiting-Turner

had actual knowledge of the proper type of cribbing and spacer beams that should be used

in a process like the one utilized here.” Majority Slip Op. at 15. The question presented is

not whether Whiting-Turner’s failure to utilize timber cribbing constituted a general duty

clause violation – but whether the use of undersized spacer beams does. The distinction

between timber and steel cribbing should not be determinative in the Majority’s analysis

of whether this constituted a hazard recognized within the industry.

The Majority’s decision today essentially allows literature provided by a

manufacturer that is promotional in nature and not an “assembly manual” to be absolute in

4 terms of a general duty clause violation. Hereafter, a general duty clause violation will

result for any entity or individual that attempts to deviate to any degree from literature

provided by a manufacturer – even where the literature does not contain explicit safety

warnings – a stark break from federal precedent involving OSHA, which this Court

rightfully looks to for guidance when interpreting the Maryland Occupational Safety

Hazard Act. See Comm’r of Labor and Industry v. Bethlehem Steel Corp., 344 Md. 17

(1996); Bethlehem Steel Corp. v. Comm’r of Labor and Industry, 339 Md. 323 (1995).

Within the present case, Whiting-Turner tasked one of its engineers with devising a

strategy to lift and remove the double-tees. In the future, corporate engineers will have no

discretion when it comes to following steps set forth in literature provided by

manufacturers and the engineers’ hands will essentially be tied – regardless of whether the

manufacturer’s literature contains an explicit safety warning. Ultimately, when

encountering literature from a manufacturer, even absent explicit safety warnings,

engineers will be forced to defer to the manufacturer’s recommendations – even in

situations where the task is uniquely situated in a manner that may not necessitate strict

adherence to the manufacturer’s literature. Overall, the Majority’s decision potentially

eliminates discretion that engineers may have in tailoring equipment to specific projects

and instead creates a standard that manufacturer’s instructions are essentially the law of the

land and strict adherence is necessary.

In addition, the reports by Dr. Jin and KCE are contradictory and fail to establish

that either the failure to use gooser bracers or that the use of undersized spacer beams

constituted recognized hazards. As mentioned above, in contrast to Dr. Jin’s report, the

5 KCE report did not conclude that the use of undersized spacer beams contributed to the

collapse. Further, both reports rely upon the Safway brochure to justify their conclusion

that the lack of gooser braces contributed to the collapse and therefore constituted a

recognized hazard. This is in sharp contrast with federal precedent interpreting OSHA,

which requires that materials provided by a manufacturer contain explicit safety warnings

or that there be probative evidence of a hazard recognized by the industry to establish a

general duty clause violation. Thus, the record before us contains insufficient evidence to

conclude, as the Majority does, that either Whiting-Turner’s failure to utilize a gooser brace

or its use of undersized spacer beams constituted a hazard recognized within the

construction industry.

In conclusion, for the reasons presented above, I respectfully dissent from the

Majority’s decision and would affirm the judgment of the Court of Special Appeals.

Judge Adkins has authorized me to state that she joins in this opinion.