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By John W. Ralls
Thelen Reid Brown Raysman & Steiner LLP
A
California Court of Appeal has clarified the meaning of
"willful" in safety violations. The case involved
an electrician's apprentice who suffered severe injuries
while working on an energized electrical cable. The apprentice
had been asked to work on the cable by a foreman who mistakenly
assumed the cable was not energized.
The
California Department of Industrial Relations, Division
of Occupational Safety and Health cited the contractor for
a violation of CalOSHA regulations. Specifically, the Division
found the contractor had violated 8 CCR §2320.2, which
provides that work may be performed on "exposed energized
parts of equipment or systems" only when responsible
supervision has determined that the work must be performed
while the equipment is energized and only after particular
safety training and personnel protection measures are taken.
The division concluded that the violation was "willful,"
apparently because a similar incident had occurred approximately
three weeks earlier. After that incident, division personnel
cited the contractor and instructed the contractor to take
steps to ensure that its employees did not unintentionally
perform work on energized circuits. The division assessed
a $40,000 penalty for the second violation.
The
contractor filed an appeal with the California Occupational
Safety and Health Appeals Board. After initially finding
that the violation was serious but not willful, the board
ultimately concluded the incident was a willful violation
and reinstated the $40,000 penalty. The board relied in
part upon 8 CCR §2320.3, which requires contractors
to treat all electrical equipment as energized until tested
or proven otherwise.
The
contractor then filed a petition for writ of mandamus. The
Superior Court denied the petition and entered judgment.
The electrical contractor appealed to the Court of Appeal.
The Court of Appeal affirmed. Rick's Electric, Inc. v.
California Occupational Safety and Health Appeals Board,
____ Cal.App.4th ____, 2000 Daily Journal D.A.R. 5236 (Cal.App.
2000)
Section
334 of the CalOSHA regulations establishes two alternate
tests for determining whether a violation is willful. Under
the first test, the division must prove "the employer
committed an intentional and knowing, as contrasted with
inadvertent violation, and the employer is conscious of
the fact that what he is doing constitutes a violation of
a safety law.…" 8 CCR §334(e). Under the
second test, the Division must prove that the employer,
even though "not consciously violating a safety law…,
was aware that an unsafe or hazardous condition existed
and made no reasonable effort to eliminate the condition."
Id.
Regarding
the first test (characterized by the court as the "intent
and knowledge" test), the court found irrelevant what
the contractor's foreman may have subjectively and in good
faith believed about the cable. The contractor "knew
that whenever it came upon an electrical cable, it had to
take one of two actions before commencing any work on that
cable: either test the cable to see if it was in fact energized
or ensure the person working on the cable had sufficient
training and protective equipment before starting the work."
Regarding
the second test (the "awareness and elimination of
hazard test"), the court found that the violation was
willful because the contractor was aware of a hazardous
condition and failed to take reasonable steps to remove
the condition. The court noted the contractor had actual
notice that it was required by the regulations to treat
the cable as a hazardous condition. The court also noted
that the hazard could have been rendered safe by use of
a simple tester, which all of the contractor's electricians
were supposed to carry on their person.
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For more information about the issues covered in this report, please contact John Ralls in our San Francisco office at 415-369-7210 or at jralls@thelen.com or contact your Thelen attorney. For more information about Thelen's Construction and Government Contracts Department, click here.
©2000
Thelen Reid Brown Raysman & Steiner LLP
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