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Whiting-Turner Contracting Co. v. Commissioner of Labor and Industry

Court of Special Appeals of Maryland

April 26, 2018


          Circuit Court for Baltimore County Case No. 03-C-16-005006

          Meredith, Graeff, Eyler, James R. (Senior Judge, Specially Assigned), JJ. [*]


          GRAEFF, J.

         The Whiting-Turner Contracting Company ("Whiting-Turner"), appellant, challenges the decision of the Commissioner of Labor and Industry (the "Commissioner"), appellee, affirming the citation issued against Whiting-Turner for violating Md. Code (2016 Repl. Vol.) § 5-104(a) of the Labor and Employment (LE) Article, known as the General Duty Clause, [1] and ordering Whiting-Turner to pay the fine of $5, 800 levied by the Department of Labor, Licensing and Regulation ("DLLR"), Maryland Occupational Safety and Health ("MOSH"). Whiting-Turner subsequently sought judicial review of the Commissioner's decision, which the Circuit Court for Baltimore County affirmed.

         On appeal, Whiting-Turner presents four questions for this Court's review, which we have reorganized, as follows:

1. Did the Commissioner err in finding that Whiting-Turner violated the General Duty Clause by failing to utilize cross braces and in utilizing an allegedly insufficient spacer beam?
2. Did the Commissioner err in finding that the General Duty Clause was not preempted by the existence of more specific standards applicable to Whiting-Turner's activities?
3. Did the Commissioner err in admitting and relying upon the expert testimony of Dr. Jin in finding that Whiting-Turner violated the General Duty Clause?
4. Did the Commissioner err in admitting and relying upon the report of
Dr. Jin in finding that Whiting-Turner violated the General Duty Clause?

         For the reasons set forth below, we answer the first question in the affirmative, and therefore, we shall reverse the judgment of the circuit court.[2]




         In May 2013, Whiting-Turner was the general contractor on a construction project at the Westfield Montgomery Mall, in Bethesda, Maryland. Whiting-Turner was working on a project involving the construction of additional floors at the top of an existing garage structure to facilitate "a theater and a food court expansion." To construct the additional floors, Whiting-Turner developed a plan to remove four pre-stressed concrete sections, known as double tees, from the existing second floor and the roof, to enable the placement of a tower crane inside the garage.[3] Each double tee section was 60-feet long, 9-feet wide, and weighed approximately 42, 800 pounds.

         The two double tees on the roof were removed by a mobile crane and stored nearby. With respect to the two double tees on the second floor, Whiting-Turner planned to reuse them, so it developed a plan to set the double tees aside by a hydraulic jacking and skating method. The plan was to raise, or "jack, " the double tees, "maintaining a level position, " so they could be slid, or skated, onto the parking deck adjacent to their original location, and then placed back in their original location after the work was completed. To support and remove the double tees, Whiting-Turner employed the use of four jacking towers at each of the four corners of the double tee, and four shoring towers were positioned to the outside of the jacking towers.[4] Each shoring tower had the capability to support 44, 000 pounds, and the failure capability was two and half times that, 110, 000 pounds. Positioned at the top of the towers, Whiting-Turner utilized "a combination of W8 by 10 [and] W8 by 31 beams."

         Four individuals operated the jacking towers to raise the double tee by a "16th to an 8th of an inch." As those ironworkers were raising or "jacking" the double tee, four additional workers would raise the shoring towers, so that the double tee was supported within "an 8th of an inch." The lifting process, as described, would occur until the jacking towers "reach[ed] the maximum stroke limit, " and the workers would then transfer "the weight completely to the shoring towers that are outside [of] the jacking [towers], reposition the shoring towers[, ] and then repeat the process until [the workers] had lifted the double tee high enough to put it onto beams and skate or slide the double tee" aside. As the jacking process occurred, a foreman for Whiting-Turner "utilized mechanical levels and also laser levels" to ensure that the load was being raised in a leveled manner.

         May 23, 2013, Accident

         On the morning of May 23, 2013, workers at the construction site initiated the removal process of the western double tee from the second floor of the garage.[5] The workers successfully jacked the double tee and raised it to two feet, six inches prior to going to lunch. After returning from lunch, the workers re-inspected the double tee and continued the operation. Approximately one hour later, the workers noticed that "[o]ne of the beams was curled on top of the towers, " i.e., it was slightly bent, at the southeast tower. A bent shoring beam signaled that the double tee was "unstable, " and the damaged beam would have to be removed and replaced to ensure the safety of the system.

         To facilitate this process, the site foreman, Patrick Bruns, decided that the workers would need to jack the double tee to "take weight off the southeast shoring tower, " and once the weight was adjusted, workers would "switch out" the bent piece. Before the beam could be removed, workers heard a "loud crack" and then "steel crashing down." The ironworkers contacted emergency services, and the Montgomery County Fire and Rescue Service responded to the scene and immediately initiated a rescue operation. As a result of the collapse, one worker died and a second worker, who was pinned by the falling structure, sustained serious bodily injuries.

         MOSH Investigation

         Investigators from MOSH arrived at the scene to conduct an accident investigation. David Latham, a compliance specialist with MOSH, arrived that afternoon. He observed the rescue operation and took pictures of the scene to assist with the preparation of MOSH's inspection and investigative report, which was a routine procedure with industrial accidents. MOSH contacted the Directorate of Construction (DOC), federal Occupational Safety and Health Administration (OSHA), for assistance in investigating the incident and the cause of the collapse. Jau "Scott" Jin, Ph.D., an engineer from DOC, visited the construction site on May 24, 2013. Dr. Jin had worked with MOSH on prior inspections involving the agency. At the accident scene, Dr. Jin spoke with Whiting-Turner's construction site superintendent, Scott Peterson, to discuss the jacking procedure, as well as observe the collapse and obtain a full account of what transpired.

         KCE's Report

         Engineers from KCE Structural Engineers, P.C. ("KCE") were brought in on the evening of the collapse by Whiting-Turner to assist in an "'emergency' make-safe operation." They were retained to "determine the cause and origin" of the accident, as well as "the areas of the garage impacted by the construction incident, " and to "design the final make-safe work needed to stabilize the garage structure impacted."

         On August 30, 2013, KCE issued its report, which stated that "the partially collapsed tee exhibited a longitudinal crack in the Southeastern and Southwestern stem from the middle quarter toward the North." KCE noted that when workers returned from lunch they noticed that a beam had "partially buckled (top flange and web were bent ±¼″ to ½″) and determined they should replace that piece of steel - the correct thing to do."

         KCE indicated in its report that, based on Whiting-Turner's drawn configuration, "the W8x10 and W8x31 beams on the 'safety' and 'jacking' towers ha[d] adequate strength to support the load of the precast double tee even if the entire load [was] concentrated in one location on the beam." It stated, however, that "the as-designed shoring tower layout may not have been adhered to throughout, " noting that pictures showed "two smaller individual beams [] spanning the shoring towers in the longitudinal direction as opposed to the continuous 8′ W8x10′ spanning both 2′x2′ Adjust-A-Shore® framing towers as shown on WT drawings J1-J5."

         The KCE report further stated: "It appears that the workmen placed short pieces of wide flanges (not per the [Whiting-Turner] drawings) between the longitudinal W8x10s and the double tee stems, " and by doing this, the "wide flanges experienced a compressive load from the weight of the double tee as well as the reaction from the beam below. These loads caused compression in the web. When the capacity of the web is exceeded, the web buckles." The report concluded that, when "the double tee was jacked and consequently supported unevenly, the weight of the double tee would not be distributed evenly."

         With respect to the shoring system, Safway's "Adjust-A-ShoreTM Heavy Duty Shoring, " the report highlighted that the extension frames for the shoring towers "were installed in the base tower to achieve the necessary height in some towers with some 2′-0″ extension." The manual for Safway's shoring system stated that "extension frames can be used to extend the height of [] Base Frames, " and "[w]hen the height of the extension is 2′ or greater additional diagonal gooser (cross) braces are needed." The towers, however, had extension frames with a 2′ extension, "but no gooser bracing was installed." Without the gooser braces, "additional movement is likely to occur and more force is likely to be introduced into the intra-tower cross bracing." [6] On September 13, 2013, MOSH picked up a copy of KCE's report from the Montgomery County Department of Permitting Services.

         Dr. Jin's Report

         In October 2013, Dr. Jin, on behalf of MOSH, released his report regarding the May accident.[7] Dr. Jin's synopsis of the accident indicated that, "[w]hen the two employees from the SE and SW safety towers were removing the buckled beam from the SE safety tower, the double tee suddenly shifted and fell from the SE hydraulic jack, killing one employee and catching the arm of another."

         Dr. Jin noted that, for the jacking tower, a "10″ long and 8″ deep W8x31 steel spacer was placed on top of the 36″ long upper W8x31 beam to increase the height of the tower and to provide the seat for the hydraulic jack." Because the spacer and the upper beam were of the same size and their "webs oriented in the same direction, " Dr. Jin opined that this could result in a slight decrease of the rigidity of the jacking tower in the north-south direction. He also noted that, to increase the height of the safety tower and "spread the contact pressure of the concentrated load from the weight of the double tee, " "a spacer beam of the same size was [] placed on top of the 36″ long upper W8x[3]1 beam." This resulted in the "flange of the spacer [beam being] wider than that of the upper beam, " and "the bottom flange of the spacer cantilevered over the top flange of the upper beam, " creating a weak axis of the upper support system along the north-south direction.[8] Dr. Jin concluded that the "weak axis of the safety tower . . . was also in the north-south direction, " and the culmination of "adding the spacer beam on top of the safety tower would significantly decrease the rigidity of the safety tower in the north-south direction." Dr. Jin's report stated that, although "the W8x10 did not fail in the normal jacking operation, i.e., four hydraulic jacks to raise the double tee simultaneously, " it was "undersized to support the actual load."

         The report also concluded that there was a lack of diagonal braces for the safety towers. The manufacturer's instructions required the installation of diagonal gooser braces if the extension frames were raised two feet or more above the base frame. Based on Dr. Jin's observations from the pictures of the accident scene, "the extension frames were raised 2′ above the top of the base frame at all four safety towers, but without the required diagonal gooser braces." The omission of the diagonal gooser braces "would decrease the rigidity and impair the stability of the safety tower in the north-south direction."

         Ultimately, Dr. Jin concluded that the collapse of the double tee was caused by the following factors: (1) "[t]he placement of the 8″ high spacer beam between the double tee stem and the upper W8x10 beam, " which "weakened the rigidity of the upper support system on top of the shoring/skating towers in the north south direction"; (2) the "[l]ack of diagonal gooser braces on the extended frames decreased the rigidity of the shoring/skating tower in the north-south direction"; and (3) "[t]he single re-jacking at the SE jacking tower significantly increased the vertical load at the N.W. shoring/skating tower." As a result of those three factors, "the upper W8x10 beam of the N.W. shoring/skating tower buckled at its compression flange and initiated the collapse." cWith respect to the first two factors, Dr. Jin stated: "[1] The failure could have been avoided if a bigger beam, W8x31, rather than a W8x10 beam was used or if stiffener plates had been welded to the flanges and web at the loading locations"; and [2] the lack of "gooser braces for all four shoring/skating towers" "was a violation of the manufacturer's instructions, " and "[w]ithout the diagonal gooser braces, the shoring/skating towers became more flexible and less stable, contributing to the collapse."

         MOSH Citation

         On November 21, 2013, MOSH issued to Whiting-Turner a Citation and Notification of Penalty, which contained two citations. "Citation 1, " the citation at issue on appeal, was deemed a serious violation, and it contained two "items" or violations.[9]

         Item one alleged that Whiting-Turner "did not ensure that a 42, 800 pound double tee pre-stressed concrete beam was cribbed, blocked or otherwise secured after it had been raised by a hydraulic jack, " in violation of 29 C.F.R. 1926.305(d)(1)(i), which required that "[a]fter the load had been raised, it shall be cribbed, blocked, or otherwise secured at once." MOSH assessed a penalty of $5, 325. Item two alleged that Whiting-Turner "did not furnish employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or a serious physical harm to employees, " in violation of LE § 5-104(a). [10] Item two was predicated on the following three factors: (1) "the extension frames were raised 2 or more feet above the base frame" and "diagonal gooser braces were not installed as per the instructions of the manufacturer of the shoring towers"; (2) the "placement of an 8 inch high spacer beam between the double tee stem and the upper W8 by 10 beam weakened the rigidity of the upper support system on top of the shoring/skating towers in the north-south direction"; and (3) "[t]he single re-jacking at the SE jacking tower, " which initiated the partial collapse. The citation noted that the "feasible and acceptable abatement methods to correct this hazard would [have been] to follow the manufacturer's requirements, " to "follow recognized and generally accepted good engineering practices by using a bigger beam, " "or to weld stiffener plates to the flanges and web at the load locations." MOSH assessed a penalty of $5, 800 for this violation.

         A worksheet prepared by MOSH, dated November 21, 2013, the same day as the citation was issued, described the work hazard as:

Possible collapse and failure of shoring towers due to lack of gooser braces to support the 2 foot extensions that were on each tower, and only using spacer beams between the double tee and the beams, along with only jacking up one corner of the double tee while leaving the other three at their same elevations causing the double tee weighing 42, 800 pounds to fall striking the employees.

         The severity of the hazard was "[p]ossible death or serious physical harm to the employees from the collapse of the 42, 800 pound[] double tee."

         With respect to Whiting-Turner's actual or constructive knowledge of the hazard, the worksheet discussed the lack of gooser braces and the spacer beam. Regarding the gooser braces, it stated:

Safway delivered shoring tower materials to the site at The Whiting Turner Contracting Company's request. The materials included gooser braces. Whiting-Turner's drawings dated 05-05-13 did not call for gooser braces to be installed. Whiting-Turner did not follow the shoring tower manufacturer's instructions for the erection of and proper bracing of the shoring towers.

         With respect to the spacer beams, the worksheet stated: "Bigger beams were necessary on the shoring towers. One spacer beam measuring W8x10 had already buckled and stiffeners were used on the W8x31 beams of the jacking towers, but were not used on the shoring towers."

         On December 6, 2013, Whiting-Turner filed a notice of its intent to contest the citation and penalties. On August 27, 2014, MOSH referred the issue to the Office of Administrative Hearings.

         Administrative Hearing

         An Administrative Law Judge ("ALJ") conducted a hearing over a three-day period in December 2014. The ALJ admitted 33 exhibits from MOSH and six photographic exhibits from Whiting-Turner.[11]

         Mr. Latham, who as indicated was a compliance specialist with MOSH, testified that he prepared an inspection report related to the accident on May 23, 2013. He arrived on site at the accident scene at approximately 4:10 p.m. At that point, the fire department already "had constructed a lot of their shoring for the structure" to conduct their rescue operation. Mr. Latham walked the "periphery of the rescue" and construction site. One picture depicting shoring towers showed that the tower was comprised of three sections - two of those sections were four feet in height and the last section at the top was two feet in height. The top section "had no braces at all." Mr. Latham testified that gooser braces were "horizontal members [used] to support that section, " and they kept "the frame . . . plumb from twisting."

         The materials used to construct the shoring and jacking towers were leased from Safway Scaffolding.[12] As a part of his investigation, Mr. Latham received documentation regarding the materials Whiting-Turner received, which listed gooser braces as items delivered to the jobsite.

         With respect to the citation, Mr. Latham noted his familiarity with the standard for "Citation 1, Item 1, " and he stated that cribbing or blocking could occur with multiple things, i.e., wood or steel, to help support a load and keep it from failing. He explained that Whiting-Turner violated the standard when it "decided to jack the [southeast] end" of the double tee to replace the damaged piece of steel, and it failed to crib or block the load, i.e., the double tee. This determination was made based on his interview with Mr. Bruns, who stated that, as they jacked up the southeast corner, Mr. Bruns instructed his crew to stop, and he shook the tower to "see if there was still any load on the shoring tower, " and because the double tee was not cribbed, nine employees were all exposed if the double tee fell.

         With regard to "Citation 1, Item 2, " the General Duty Clause violation, Mr. Latham noted that the purpose of the General Duty Clause "is to issue a citation to an employer where there is not a specific MOSH standard . . . for the apparent violation that would have been observed or that occurred during the investigation." He testified that there were not "any federal standards that MOSH adopted, . . . [or] that would cover this process of shoring and jacking and skating a prestressed concrete double tee." Mr. Latham explained that the violation was predicated on Whiting-Turner's "placement of the [W8x10] spacer beams underneath of the prestressed concrete, the lack of gooser braces, and the lack of . . . stiffener plates welded to the [W8x10s] that were used." The recognized hazard was the "weight of the double-tee [and] the collapse of the structure down onto the employees."[13]Noting that nine employees were exposed to the hazard, he considered the violation to be serious and proposed a penalty accordingly. In addition to the KCE report, photographs, interviews, and information obtained, Dr. Jin's report also was "referenced and used" in MOSH's determination to issue the citation. On cross-examination, Mr. Latham stated that the decision to replace part of the cribbing was not considered to be a part of the violation.

         Mr. Latham testified that, with respect to Item 1 of Citation 1, this violation concerned the process of raising the southeast corner of the double tee. The basis for this violation was that there should have been new cribbing installed on the shoring tower prior to removing the beam.

         With regard to Item 2 of Citation 1, violation of the General Duty Clause, Mr. Latham stated that the hazard was the collapse of the 42, 800 pound structure, and the hazardous condition giving rise to the violation was "[t]he lack of gooser braces, the lack of stiffeners and the size of the beams that were being used on the shoring towers." The lack of gooser braces was a recognized hazard, based on the manufacturer's recommendation.[14] He could not say whether the lack of gooser braces, "in and of themselves would have led to . . . a failure, " noting that he was not an engineer.

         Mr. Bruns, an ironworker foreman employed by Whiting-Turner for approximately 16 years, testified regarding the operation to raise and skate the double tee. Prior to this project, he had never performed the process engineered by Whiting-Turner to raise the double tee, and he was not aware if Whiting-Turner had previously conducted this process. Mr. Bruns did not review the literature provided by Safway prior to erecting the shoring system, but an engineer would be responsible for the decision whether to use gooser braces. He could not recall if any engineer from Whiting-Turner instructed him to use gooser braces. Mr. Bruns explained that the shoring system was set-up a week prior to the double tee operation, and at the time, he thought Timothy Unrath, a project manager with Whiting-Turner, inspected the shoring system.

         After lunch on May 23, Mr. Bruns noticed that one of the beams "on top of the towers, was slightly bent." He knew that he had to remove it and put in a new one. He could not recall if he spoke with anyone at Whiting-Turner prior to his decision, but he instructed his workers how they would remedy the issue, and he decided which employees were to remove the bent piece.

         Mr. Bruns stated that he heard a crack prior to the collapse of the double tee. When counsel for Whiting-Turner asked if he had any concerns about the process utilized by Whiting-Turner during the raising of the first double tee, Mr. Bruns said that he did not. With respect to the second double tee, Mr. Bruns confirmed that, during the process of raising the ...

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