Virginia Lawyers Weekly VA Lawyers Weekly
Appellant company is liable for serious safety violations by its roofers who were working on the roof of the Chrysler Museum in Norfolk near an open skylight without any fall-protection equipment; the presence of a job site supervisor who was aware of the violations makes the company liable under respondeat superior principles, the Court of Appeals says.
Workers were observed on the roof without proper fall-protection equipment. Two workers were observed walking next to a glass skylight and two workers were sitting at the edge of the skylight. Most of the workers were not tied up to any kind of “fall arrest system.” One worker wore a harness, but the inspector could not confirm it was attached to a fall arrest system. There was no guardrail system installed and the skylight did not have a cover. The company argued the job site supervisor had an exemplary work record and it was wholly unforeseeable that he would have countenanced such basic violations of VOSHA safety rules.
Under Va. Code § 40.1-49.3, a “serious violation” is one involving a “substantial probability” of death or serious physical harm. A serious violation cannot be found if the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation. The Virginia Occupational Safety and Health Act eschews a strict liability scheme and incorporates foreseeability into the statutory standard.
Under respondeat superior principles, the knowledge of a “job foreman” or a “supervisor” that employees under his watch are violating VOSHA can be imputed to his employer. VOSHA regulations also provide an affirmative defense to liability, usually called the employee misconduct defense. It applies if the employer proves it provided employees with the proper training and equipment; established, communicated and enforced applicable safety rules; and took reasonable steps to discover safety violations.
Sitting as a fact finder, the circuit court found that appellant Atlantic Environmental Construction Company’s supervisor on the job site was aware of the two safety violations involving the roofers working without proper fall-protection equipment. Despite this knowledge, the supervisor did not intervene or take any corrective action. AEC does not contest these findings on appeal. Instead, AEC contends simply that the corporate entity did not have actual or constructive knowledge of these violations. Under respondeat superior principles, AEC and its job site supervisor are one and the same for purposes of determining AEC’s knowledge.
The circuit court correctly applied respondeat superior principles to this VOSHA enforcement action. The court’s unchallenged factual findings fully support its decision to affirm the Virginia Department of Labor and Industry’s two citations against AEC for serious violations of the VOSHA standards for fall protection.
Judgment affirmed.
Atlantic Environmental Construction Co. v. Malveaux, Comm’r (Kelsey) No. 1844-13-1, Sept. 2, 2014; Norfolk Cir.Ct. (Cales) R. Leonard Vance for appellant; Joshua E. Laws, AAG, for appellee. VLW 014-7-262, 8 pp.
