Here at Construction Law Musings, I’ve discussed the need to keep up with your safety program and stay out of the cross-hairs of the state and federal safety inspectors.
The Virginia Court of Appeals gave a stark reminder of this fact in the case of Atlantic Environmental Construction Co. v. Malveaux, Comm’r. In this case, Atlantic Environmental had some roofers under their supervision working around a skylight at the Chrysler Museum in Norfolk, VA. Unfortunately, these roofers were not using proper guardrails or fall arrest system and the skylights was not covered when the inspector decided to visit the job site. Needless to say, the VOSHA inspector cited Atlantic Environmental for a “Serious” violation.
Atlantic Environmental appealed the citation arguing that its job site supervisor could not have been aware of the lack of safety equipment and compliance because the supervisor had an exemplary safety and job site supervision record. By making this argument, Atlantic Environmental sought to avoid being cited for the misconduct of its employees and show that it had properly trained and supervised the employees but they acted incorrectly in any event.
Both the Circuit Court and the Court of Appeals rejected this argument. The lower and appeals court both found that Atlantic Environmental was liable for the actions of its employees and that because of having a supervisor there on site while the safety violations occurred, the employee misconduct defense did not apply and that, because the supervisor’s knowledge was imputed to Atlantic Environmental:
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.
In short, as an employer and contractor you need to know that the actions of your employees can be held against you, particularly on a safety issue. Of ourse, having your employees properly trained and consulting with a knowledgeable construction lawyer can and will help you avoid situations like this on your construction site.
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