Davenport v. Summit Contractors, Inc.

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Elder and Kelsey
Argued at Richmond, Virginia

C. RAY DAVENPORT, COMMISSIONER,
DEPARTMENT OF LABOR AND INDUSTRY
OPINION BY
v. Record No. 1643-04-2 JUDGE D. ARTHUR KELSEY
MAY 3, 2005
SUMMIT CONTRACTORS, INC.,
d/b/a SCI, CORP.

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
T. J. Hauler, Judge

Catherina F. Hutchins, Assistant Attorney General (Jerry W.
Kilgore, Attorney General, on briefs), for appellant.

Robert E. Rader, Jr. (D. Stan Barnhill; Rader & Campbell;
Woods Rogers PLC, on brief), for appellee.

The Virginia Occupational and Safety Health Program (VOSH) issued civil penalty

citations to Summit Contractors, Inc., alleging violations of the Virginia Occupational Safety and

Health Act, Code § 40.1-1 et seq. (VOSHA). When Summit contested the citations, VOSH filed

an enforcement action in circuit court pursuant to Code § 40.1-49.4(E). At Summit’s request, the

circuit court entered a summary judgment order dismissing the case. Finding no error in this

decision, we affirm.

I.

Summit acted as a general contractor at an apartment project in Chester, Virginia.

Summit subcontracted the siding work to Sunbelt Contractors, Inc., to install exterior siding on

the apartment buildings. VOSH agents inspected the siding worksite and found four “serious

violations” of OSHA Standards for the Construction Industry, 16 Va. Admin. Code

§ 25-175-1926, which incorporates various provisions of 29 C.F.R. § 1926. The citations

asserted that Sunbelt failed to provide its employees with hard hats and with fall protection while
on overhead working platforms.1 Though Summit’s employees either had hardhats or did not

need them and did not work on the overhead platforms, VOSH issued civil penalties both to

Summit and Sunbelt. Summit contested the citations, arguing that they should be asserted only

against Sunbelt.

In response, VOSH filed an enforcement action against Summit pursuant to Code

§ 40.1-49.4(E), which authorizes the circuit court to “issue a written order, based on findings of

fact and conclusions of law, affirming, modifying or vacating” the proposed VOSHA citation.

During the litigation, the parties exchanged requests for admissions establishing:

At the time of VOSH’s inspection, Summit had only two employees on
the project, a superintendent and an assistant superintendent.

Summit created none of the worksite conditions involved in the
citations. All were created by Sunbelt.

Sunbelt was in the best position to correct the violative conditions.

No Summit employee was exposed to the violative conditions.

VOSH cited Summit under the agency’s “multi-employer citation
policy” contained in its “Field Operations Manual.” Summit would not
have been cited “but for” this administrative policy.

The “multi-employer citation policy” has not been promulgated as a rule
or regulation pursuant to the Virginia Administrative Process Act, Code
§ 2.2-4000 et seq.

Relying on these admissions, Summit moved the court to enter summary judgment

dismissing the civil penalty action as a matter of law. The statute, Summit argued, did not

authorize VOSH to issue citations to general contractors for worksite conditions caused by

subcontractors. The agency’s internal guidance policy, Summit concluded, could not create

1
Specifically, VOSH cited Summit for violations of 29 C.F.R. §§ 1926.100(a) (requiring
hard hats), 1926.451(g)(1)(vii) (requiring guardrails for scaffolds), 1926.501(b)(1) (requiring
guardrails for stair landings), and 1926.1052(c) (requiring guardrails for stairs). Sunbelt was
cited for the same, and other, violations.

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authority where it did not already exist by statute. The circuit court agreed and entered summary

judgment dismissing the action.2 VOSH now appeals, seeking a reinstatement of the penalty

action on the circuit court’s docket for a hearing on the merits. See Code § 40.1-49.5.

II.

This case presents the question whether a general contractor can be held liable under the

VOSHA for a subcontractor’s failure to protect its own employees. If such authority exists, it

must be rooted either in the text of the statute or in agency regulations properly promulgated

under the statute. We find it in neither.

A. VOSHA & THE ROLE OF FEDERAL LAW

In 1970, Congress passed the Occupational Safety and Health Act, 29 U.S.C. § 651 et

seq. The Act permits states to regulate worker safety by developing and enforcing their own

worker safety laws so long as they are at least as stringent as the federal statute. See 29 U.S.C.

§ 667(c)(2). Virginia adopted its own set of worker safety laws in 1972. See 1972 Va. Acts, chs.

567, 602. Drawing from nearly identical language in 29 U.S.C. § 654(a), Virginia’s statute

provides:

It shall be the duty of every employer to furnish to each of his
employees safe employment and a place of employment which is
free from recognized hazards that are causing or are likely to cause
death or serious physical harm to his employees, and to comply
with all applicable occupational safety and health rules and
regulations promulgated under this title.

Code § 40.1-51.1(A). The VOSHA also gives employees a statutory right to “bring to the

attention of their employer any hazardous conditions that exist” or to report the suspected hazard

2
Summit also argued that the action should be dismissed on laches grounds because
VOSH waited over two years to bring the circuit court action. Given our holding, we need not
address this issue.

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directly to VOSH. Code § 40.1-51.2(b) (emphasis added). The emphasis on the employer-

employee relationship parallels similar provisions of the federal regulations. See, e.g., 29 C.F.R.

§ 1910.12(a) (“Each employer shall protect the employment and places of employment of each

of his employees engaged in construction work by complying with the appropriate standards

prescribed in this paragraph.” (emphasis added)).

The Virginia Safety and Health Codes Board adopted most, but not all, of the federal

Construction Industry Standards, 29 C.F.R. § 1926 et seq. See Code § 40.1-22(5); 16 Va.

Admin. Code § 25-175-1926.3 Each of the citations in this case involves one of the incorporated

federal standards. One requires all employees to wear hard hats. See 29 C.F.R. § 1926.100(a).

The other three require employers to provide handrails or other forms of fall protection for

employees working on elevated work platforms. See 29 C.F.R. §§ 1926.451(g)(1)(vii),

1926.501(b)(1), 1926.1052(c).

Not included among the provisions adopted into Virginia law, however, were subparts A

and B of 29 C.F.R. Part 1926.4 One of those omitted provisions, 29 C.F.R. § 1926.16(b), states

that “the prime contractor assumes all obligations prescribed as employer obligations under the

standards contained in this part, whether or not he subcontracts any part of the work.”5 Nothing

3
The Virginia “state plan” assumed OSHA authority to regulate occupational safety and
health within its jurisdiction for the general industry, construction, agriculture, and public sector
categories. Federal OSHA retains authority over maritime and longshoring industries, the
mining industry, federal government workers in Virginia, federal government enclaves in
Virginia, and any other industries regulated by other federal agencies.
4
See Virginia Occupational Safety & Health Standards for the Construction Industry,
preface ¶ 1 (with amendments as of November 1, 1993) (noting that the Board “adopted the
Construction Industry Standards as contained in this volume, except for Subpart A, Subpart B,
Part 1926.30, and Part 1926.32(a), (e), (i), (j) and (n)”).
5
This provision, along with all of subparts A and B, address public works contracts
governed by the Contract Work Hours and Safety Standards Act (CWHSS Act), 40 U.S.C. § 327
et seq. See generally 29 C.F.R. §§ 1910.12(c), 1926.1, 1926.10. The CWHSS Act predated the
OSHA and applies to federally funded contracts for construction described at 29 C.F.R.
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similar to this provision was incorporated by reference into Virginia law. Nor did the Board

promulgate any regulations addressing the relationship between a general contractor and the

employees of a subcontractor.

B. SUMMIT’S LIABILITY FOR SUNBELT’S VOSHA VIOLATIONS

We “begin, as always, with the language of the statute.” Meador v. Va. Birth-Related

Neurological Injury Comp. Program, 44 Va. App. 149, 153, 604 S.E.2d 88, 90 (2004) (citations

omitted). Like the federal statute, Code § 40.1-51.1(A) requires an employer to provide a safe

place to work for “each of his employees.” It then adds that the employer, without reference to

his specific employees, must also comply with all applicable “rules and regulations promulgated

under this title.” Id.

Read together, these provisions suggest that VOSHA duties ⎯ once breached by an

employer to his own employees ⎯ may extend to any other employee on the same worksite if

the applicable safety rule or regulation contemplates such reach. A carpentry contractor, for

example, must comply with VOSHA ladder standards to protect his carpenters from the risk of

falling off a dangerous ladder. But he can still be liable if his unsafe ladders endanger a crew of

painters employed by someone else at the same worksite. As one court explains the point,

since the contractor is subject to OSHA’s regulations of safety in
construction by virtue of being engaged in the construction business,
and has to comply with those regulations in order to protect his own
workers at the site, it is sensible to think of him as assuming the same
duty to the other workers at the site who might be injured or killed if
he violated the regulations. From a safety standpoint, it is a joint-
employment case. . . . Each employer at the worksite controls a part
of the dangerous activities occurring at the site and is the logical
person to be made responsible for protecting everyone at the site from
the dangers that are within his power to control.

§ 1926.10. When Congress passed OSHA, it included at 29 U.S.C. § 653(b)(2) as part of OSHA
the standards previously promulgated pursuant to the CWHSS Act.

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United States v. MYR Group, Inc., 361 F.3d 364, 366 (7th Cir. 2004) (citations omitted). Thus,

properly understood, this “doctrine only seeks to hold liable those employers who actually create

hazardous situations by violating safety standards.” United States v. Pitt-Des Moines, Inc., 168

F.3d 976, 984 (7th Cir. 1999); see also MYR Group, Inc., 361 F.3d at 367 (finding doctrine

inapplicable where no employee of the cited employer was “engaged” in the work subject to the

violative condition).

Without some statutory basis for doing so, this joint-employment concept cannot be

judicially extended to an employer who neither creates the worksite hazard nor allows his

employees to be exposed to it. To impute OSHA violations under these circumstances is simply

to adopt a form of vicarious statutory liability. True, the legislature can do exactly that when

distributing statutory duties between a general and a subcontractor. See, e.g., Code

§ 65.2-302(B) (deeming a “statutory” employer, for purposes of workers’ compensation liability,

any general contractor that contracts with a subcontractor to perform all or part of the general’s

“trade, business or occupation”). The General Assembly, however, included no such provision

in the VOSHA.

Despite the absence of any textual support in the statute, VOSH contends a general

contractor in control of a worksite should be held liable under tort principles for a

subcontractor’s VOSHA violations. In its internal “guidance documents” and “field operation

manuals,” VOSH applies a “reasonable care standard” that imputes the subcontractor’s violation

to the general when the latter fails to exercise ordinary care to inspect the worksite and to remedy

any violations found. Only when general contractors “know or should have known” of the

subcontractor’s default, VOSH reasons, should the general be held liable for the subcontractor’s

statutory violation.

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 In its most recent description of this administrative policy, VOSH Program Directive

02-102 (Feb. 2000), VOSH concedes that the policy “is an internal guideline, not a statutory or

regulatory rule” and “is not being enforced as having the force of law.” See generally Code

§ 2.2-4001 (defining a guidance document as merely an agency’s effort to “interpret or

implement” statutes, rules, or regulations within its administrative responsibility).6 Not subject

to the scrutiny associated with promulgated regulations, agency guidelines “do not purport to be

a substitute for the statute.” Jackson v. W., 14 Va. App. 391, 399, 419 S.E.2d 385, 389 (1992).7

We have no quarrel with the policy judgments underlying VOSH’s finely balanced

treatment of general contractors and its admixture of both statutory and common law principles

to achieve the goal of worker safety. Our only objection is that not a word of it can be found in

the VOSHA or any “rules and regulations promulgated under this title.” Code § 40.1-51.1(A).

None of these promulgated “rules and regulations” address the liability interplay between general

and subcontractors, much less the imputation of a subcontractor’s statutory defaults to a general

contractor under a tort-based reasonable care standard. And the only federal regulation

addressing the subject of general contractor liability for subcontractor defaults, 29 C.F.R.

6
VOSH’s policy tracks the prevailing federal administrative view, despite its somewhat
“checkered history.” IBP, Inc. v. Herman, 144 F.3d 861, 866 n.3 (D.C. Cir. 1998). See
generally Southeast Contractors, Inc. v. Dunlop, 512 F.2d 675, 675 (5th Cir. 1975) (per curiam)
(noting the view of OSHA Commission Chairman that “a contractor is not responsible for the
acts of his subcontractors or their employees”); Brennan v. Gilles & Cotting, Inc., 504 F.2d
1255, 1257 (4th Cir. 1974) (affirming OSHA Commission’s initial rejection of doctrine as a
basis for holding a general contractor responsible when two employees of its subcontractor were
killed in a scaffolding collapse).
7
Our reasoning does not rely on any preclusive effect of VOSH’s admission that it “cited
Summit under VOSH’s multi-employer citation policy set forth in VOSH’s Field Operations
Manual” and would not have issued the citations “but for” this policy. Thus we need not address
VOSH’s argument that the circuit court misinterpreted these admissions as a concession that
neither the statute nor the regulations supported the internal policy.

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§ 1926.16(b), was specifically omitted from the list of regulations incorporated into Virginia

law.8

III.

In sum, no provision of the VOSHA or any state administrative regulation promulgated

under it authorizes the imposition of civil penalty liability on a general contractor for a

subcontractor’s violations of safety standards causing risk of harm only to the subcontractor’s

employees. Given the uncontested facts before the circuit court, we find no error in its decision

to enter summary judgment dismissing VOSH’s enforcement action against Summit.

Affirmed.

8
We are aware that, to maintain federal OSHA approval, the VOSHA program standard
must be “at least as effective as” the federal standard. See 29 C.F.R. § 1902.37(b)(4). Even so,
29 C.F.R. § 1926.16(b) applies only to the CWHSS. See supra n.5. Due to the absence of any
express OSHA provision or regulation, the federal courts have struggled to reach a principled
consensus on whether general contractors have vicarious liability for violations committed by
their subcontractors. Some courts reject the underlying principle altogether. Melerine v.
Avondale Shipyards, Inc., 659 F.2d 706 (Former 5th Cir. Oct. 1981); Southeast Contractors, Inc.,
512 F.2d at 675. Others question it. MYR Group, Inc., 361 F.3d at 366 (referring to the doctrine
as a statutory “gloss”); IBP, Inc., 144 F.3d at 866 n.3; Anthony Crane Rental, Inc. v. Reich, 70
F.3d 1298, 1306 (D.C. Cir. 1995). Still others find it an acceptable example of agency
lawmaking within the interstices of an ambiguous statutory scheme. Universal Constr. Co., Inc.
v. OSHRC, 182 F.3d 726, 728 (10th Cir. 1999); Teal v. E.I. DuPont de Nemours & Co., 728
F.2d 799, 804 (6th Cir. 1984); Brennan v. OSHRC, 513 F.2d 1032, 1038 (2d Cir. 1975) ⎯
though most of these courts overlook the fact that, in their cases, the party held liable actually
created the worksite hazard, e.g., Teal, 728 F.2d at 801; Brennan, 513 F.2d at 1039.

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