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Atlantic Environmental Construction Company v. Malveaux

Court of Appeals of Virginia

September 2, 2014

ATLANTIC ENVIRONMENTAL CONSTRUCTION COMPANY
v.
COURTNEY M. MALVEAUX, COMMISSIONER VIRGINIA DEPARTMENT OF LABOR AND INDUSTRY

fro THE CIRCUIT COURT OF THE CITY OF NORFOLK. James A. Cales, Jr., Judge Designate.

R. Leonard Vance for appellant.

Joshua E. Laws, Assistant Attorney General (Mark R. Herring, Attorney General; Cynthia Hudson, Chief Deputy Attorney General; Kristina Perry Stoney, Senior Assistant Attorney General & Section Chief, on brief), for appellee.

Present: Judges Kelsey, Beales and Decker.

OPINION

Page 410

[63 Va.App. 658] D. ARTHUR KELSEY, JUDGE.

Atlantic Environmental Construction Company (AEC) appeals a judgment of the circuit court affirming citations proposed by the Commissioner of the Virginia Department of Labor and Industry against AEC for two workplace safety violations. AEC argues that the circuit court misapplied principles of respondeat superior by imputing to AEC its site supervisor's knowledge of the safety violations. We disagree and affirm.

I.

In March 2011, inspectors from the Virginia Department of Labor and Industry (VDLI) observed AEC construction workers on a roof at the Chrysler Museum in Norfolk without proper fall-protection equipment. Two workers were later observed walking next to a glass skylight, and two workers

Page 411

were " sitting at the edge of the skylight." App. at 61. Most of the workers were not tied up to any kind of " fall arrest system," id., a safety measure designed to keep them from falling from the roof and to break their fall if they do. One of the workers wore a harness, but the inspector could not confirm " whether he was attached" to a " fall arrest system." Id. Additionally, " [t]here was no guardrail system" installed, and " [t]he skylight did not have a cover." Id. VDLI issued three citations against AEC alleging " serious" violations of the Virginia Occupational Safety and Health Act, Code § 40.1-1 et seq. (VOSHA). See generally Code § 40.1-49.3 (defining " [s]erious violation" ).[1] When AEC contested the citations, [63 Va.App. 659] VDLI filed an enforcement action in circuit court, pursuant to Code § 40.1-49.4(E).

In the circuit court proceeding, VDLI proved that several roofers failed to use fall-protection equipment in violation of VOSHA safety regulations. VDLI also showed that AEC's site supervisor had been present on the job site at the time and knew of the safety violations. AEC conceded these facts but argued that the supervisor had an exemplary work record and that it was wholly unforeseeable he would have countenanced such basic violations of VOSHA safety rules.[2] For this reason, AEC argued, it could not be held liable for the safety violations under respondeat superior principles, and even if it could be, AEC would be entitled to assert the employee misconduct defense recognized by 16 Va. Admin. Code § 25-60-260(B).

The circuit court affirmed two of VDLI's citations for serious violations and vacated the third. The court explained its ruling on the two affirmed citations:

[T]he Court finds that AEC's defense of employee misconduct on the part of their supervisor, Eddy Wever, does not apply based on 16 VAC 25-60-260(C). Further AEC's defense of lack of foreseeability is also rejected. The Court further finds that [VDLI] proved by a preponderance of the evidence with regard to the skylight fall protection violation, § 1926.501(b)(4)(i) and the roof edge fall protection violation [63 Va.App. 660] § 1926.501(b)(10), that the cited standards ...

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