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The Maryland Court of Appeals determined that state workplace safety regulators had substantial evidence to find that a construction contractor violated the general duty clause in the state’s labor and employment code in an incident that led to an employee being fatally injured by a collapsed beam.
Baltimore-based Whiting-Turner Contracting Co. was involved in a construction project to increase the size of the parking garage at the Westfield Montgomery Mall in Bethesda, Maryland, at the time of the May 2013 incident, which resulted in the death of one employee and the pinning and severe injury of another, according to court documents in Commissioner of Labor and Industry v. Whiting-Turner Contracting Co. published on Wednesday.
The Maryland Occupational Safety and Health Unit, with assistance from Scott Jin, a civil engineer for the U.S. Occupational Safety and Health Administration, investigated the accident while Whiting-Turner also employed the services of KCE Structural Engineers PC to determine the cause and design an emergency make-safe operation plan to stabilize the garage. Reports from Mr. Jin and KCE both concluded that Whiting-Turner should have installed gooser braces in the shoring towers and that its failure to do so contributed to the accident, according to court records. Mr. 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. Part of the construction involved removing and relocating portions of the parking deck, known as double-tees, to make room for a crane tower that would be used to construct new floors on top of the existing garage structure.
MOSH issued two citations to Whiting-Turner, one for failing to secure the double-tee after it was raised by a hydraulic jack and one for violating the general duty clause due to its failure to install gooser braces on the shoring towers, its use of an undersized spacer beam and the single jacking of the southeast shoring tower. The agency assessed Whiting-Turner a total fine of $11,125 – $5,325 for violating the jack regulation and $5,800 for violating the general duty clause, which the contractor contested.
An administrative law judge recommended both penalties be affirmed, but the Commissioner of Labor and Industry issued a final order affirming the general duty clause violation and citation and vacating the jack regulation violation and citation. The commissioner concluded that the agency failed to prove that the third factor, jacking only the southeast corner of the double-tee, constituted a recognized hazard, but 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. But the Court of Special Appeals reversed the commissioner's decision after determining that the decision lacked substantial evidence to support the conclusion that the hazards were recognized.
In reversing the Court of Special Appeals, a majority of the Maryland Court of Appeals concluded 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.”
For example, the Court of Appeals noted that the materials for the shorting towers included a manual with instructions for how to properly assemble the towers.
“It is clear from the assembly manual that gooser braces are called for when the extension frame is extended to two feet or higher,” the court said. “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 … the gooser braces should have been installed on the tower.”
But a dissenting opinion by two appeals court judges stated 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 (Services), 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.”
An employee answering the phone at the company’s Baltimore headquarters said the company does not speak to the media.
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