Dhi Communities Construction Of Washington, V. Labor & Industries
CourtCourt of Appeals of Washington
Date FiledNovember 10, 2026
Docket61057-4
StatusPublished
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Full Opinion
Filed
Washington State
Court of Appeals
Division Two
November 10, 2026
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
DHI COMMUNITIES CONSTRUCTION OF No. 61057-4-II
WASHINGTON,
Appellant,
v.
ORDER GRANTING MOTION TO
WASHINGTON STATE DEPARTMENT OF PUBLISH AND PUBLISHING OPINION
LABOR AND INDUSTRIES,
Respondent.
The unpublished opinion in this matter was filed on October 6, 2026. Respondent,
Department of Labor and Industries, filed a motion to publish on October 22, 2026. Appellant,
DHI Communities Construction of Washington, filed an answer to the motion to publish on
October 28, 2026. After consideration, the court grants the motion. It is hereby
ORDERED that the final paragraph of the opinion, which reads “A majority of the panel
having determined that this opinion will not be printed in the Washington Appellate Reports, but
will be filed for public record in accordance with RCW 2.06.040, it is so ordered.” is deleted. It is
further
ORDERED that this opinion will now be published.
PANEL: Jj. CRUSER, MAXA, VELJACIC
FOR THE COURT:
CRUSER, J.
Filed
Washington State
Court of Appeals
Division Two
October 6, 2026
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
DHI COMMUNITIES CONSTRUCTION OF No. 61057-4-II
WASHINGTON,
Appellant,
v.
WASHINGTON STATE DEPARTMENT OF UNPUBLISHED OPINION
LABOR AND INDUSTRIES,
Respondent.
CRUSER, J.—DHI Communities Construction of Washington (DHI), a general contractor,
appeals a Board of Industrial Insurance Appeals (BIIA) decision and order affirming the
Department of Labor and Industries’ (L&I) Citation and Notice No. 317970447. The citation
alleged five violations of the Washington Industrial Safety and Health Act of 1973 (WISHA), ch.
49.17 RCW, by DHI’s subcontractor, Northwest Framing. DHI argues (1) the BIIA erred by failing
to adopt the federal standard for multi-employer violations, (2) substantial evidence did not support
the BIIA’s finding that DHI had actual or constructive knowledge of the lack of fall protection for
Northwest Framing’s workers and of Northwest Framing’s failure to develop and implement a
written fall protection work plan, (3) substantial evidence did not support the BIIA’s finding that
the violations were willful because DHI could not willfully violate a standard that has not been
clearly defined, and (4) the BIIA abused its discretion by excluding a CR 30(b)(6) deposition
No. 61057-4-II
concerning the history and purpose of Division of Occupational Safety and Health (DOSH)
Directive 27.00.
We conclude (1) the BIIA did not err by applying established and binding Washington
precedent rather than adopting the federal test for multi-employer work sites, (2) substantial
evidence supported the BIIA’s finding that DHI had constructive knowledge of Northwest
Framing’s WISHA violations because the violations occurred in plain view on a day when DHI
superintendents were working on the job site, were visible from outside the job trailer, and DHI
had already observed several fall safety violations by Northwest Framing employees, (3)
substantial evidence supported the BIIA’s finding that the violations were willful because DHI had
previously been cited for violating the WISHA fall safety regulations, DHI had previously cited
Northwest Framing for fall safety concerns, there were no anchor points, and the violations
occurred at multiple houses visible from outside the job trailer on a day when the project managers
were working at the site, and (4) DHI has not demonstrated that it was prejudiced by the BIIA’s
decision to exclude the deposition from evidence. Accordingly, we affirm.
FACTS
I. BACKGROUND
DHI is the commercial division of DR Horton, a housing construction company. As the
commercial division, DHI builds apartments and rental homes. DHI employees do not perform
any of the building work themselves, instead they hire and supervise subcontractors. In 2017, DHI
began the Rainier Ridge project, a group of 307 apartments and rental casitas in Puyallup,
Washington. DHI hired Northwest Framing to frame the apartments and rental casitas for the
project.
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DHI employed superintendents to monitor safety and the progress of its projects. DRH had
a written safety program. DHI assigned four superintendents to the Rainier Ridge project.
Superintendents held weekly safety meetings with subcontractor employees and conducted daily
on-site safety checks. If a superintendent sees a safety violation during a safety check, they employ
a sliding scale of disciplinary measures based on the number of occurrences. A superintendent,
after seeing a safety violation and correcting the behavior, can (1) issue a verbal warning, (2) issue
a written reprimand, or (3) remove the employee or crew from the project. Superintendents would
arrive at the trailer in the mornings and discuss the plan for the day. Then they would separate to
complete their individual tasks. Typically, the superintendents would be on-site checking on safety
and production. According to John Houston, a superintendent for the Rainier Ridge project, “[t]he
majority” of a superintendent’s day was spent in the field. Clerk’s Papers (CP) at 2810. Houston
estimated that most superintendents on the Rainier Ridge project spent “a little less” than “70/80
percent” of the day in the field. Id. Subcontractors also held their own safety meetings, which DHI
kept track of.
During the Rainier Ridge project, DHI supervisors wrote up Northwest Framing employees
for fall safety concerns on numerous occasions. Houston testified that he raised concerns regarding
Northwest Framing’s fall exposure to his supervisors, but he could not remember what the result
of his report was.
II. L&I INSPECTION
In August 2022, Jason Ashlock, a compliance industrial safety and health investigator
(CISHI) for the Department of Labor and Industries (L&I), was doing stop-by inspections. While
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driving in front of the Rainier Ridge project, Ashlock observed personnel working on trusses
higher than 10 feet without the required fall protection. Ashlock stopped and took photos.
It is undisputed that Northwest Framing employees at three different houses were working
on the roof trusses without fall protection. During his inspection, Ashlock observed that the
Northwest Framing employees did not have anchors installed anywhere for them to tie off their
fall protection system. Ashlock also noticed a worker using a nail gun without the required eye
protection. And Ashlock found that DHI did not have the required fall protection work plan in any
of the three houses where employees were exposed to a fall hazard of more than 10 feet. WAC
296-880-10020(1). DHI was also unable to produce documentation for 6 out of the prior 12 weeks
of formal safety inspections.
DHI had one job trailer at Rainier Ridge. The fall safety violations occurred in houses
located in the same block as DHI’s job trailer. The west side of the trailer faced the lot where the
violations occurred, but there were no windows on the west side of the trailer. Houston was in the
job trailer at the time of the inspection. He testified that he could not see any of the lots or houses
where the violations occurred from where he was inside the trailer. All three houses where
violations were occurring were visible from outside the job trailer.
Based on the inspection, L&I issued DHI a citation with five violations.
In Violation 1-1(a), [L&I] allege[d] [DHI] violated a former version of WAC 296-
880-30005(1)(c), related to insufficient fall protection; in Violation 1-1(b), that
[DHI] violated WAC 296-880-20005(6), again related to insufficient fall
protection; in Violation 1-1(c), that [DHI] violated WAC 296-880-10020(1),
related to the absence of a fall protection work plan; in Violation 1-2, that [DHI]
violated WAC 296-155-350(3), related to lack of personal protective equipment
(PPE); and in Violation 2-1, [L&I] alleged that [DHI] violated WAC 296-155-
110(9), related to a lack of a walk-around safety inspection.
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CP at 122. L&I classified the first four violations as willful and serious Stute violations,1 the fifth
as general, and assessed a total of $132,000 in penalties. A Stute violation is a violation that an
upper-tiered contractor receives based on their subcontractor’s violations.
DHI appealed the citation to the BIIA, arguing that L&I did not properly cite it for the first
four violations, that it took all reasonable steps to ensure subcontractor compliance with the cited
safety standards, and that L&I did not prove the violations were willful and serious.
DHI filed a motion to admit a deposition under CR 30(b)(6). The deposition provided the
history and policy basis of DOSH Directive 27.00. The deposition was of Terry Walley, a DOSH
compliance operations manager. According to Walley, the directive was formulated to give
inspectors guidance on how to implement Stute, 114 Wn.2d at 464, a Washington Supreme Court
decision holding that general contractors have the primary responsibility for safety on their
worksites. The IAJ held a hearing on the matter. The IAJ ruled that DOSH Directive 27.00 and all
questions based upon it were not relevant and were “prejudicial in the sense that it is capable of
injecting confusion and waste of time into the case.” CP at 126.
Following a hearing, the IAJ issued a proposed decision and order reclassifying the eye
protection violation from “willful” to “general” but otherwise affirming the citation. Id. at 122.
DHI and L&I filed petitions for review. The BIIA denied the petitions for review and adopted the
proposed decision and order. The superior court affirmed. DHI appeals.
1
Stute v. P.B.M.C., Inc., 114 Wn.2d 454, 788 P.2d 545 (1990).
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DISCUSSION
I. LEGAL PRINCIPLES AND STANDARD OF REVIEW
In WISHA appeals, we sit in the same position as the superior court in reviewing the
Board’s decision. Dep’t of Lab. & Indus. v. Tradesmen Int’l, LLC, 198 Wn.2d 524, 534, 497 P.3d
353 (2021). We review the BIIA’s decision on its own record. Id. We determine whether the
BIIA’s findings of fact are supported by substantial evidence and whether they support its
conclusions of law. Id.
In Stute, our supreme court held that general contractors have a duty to comply with
WISHA regulations regarding oversight of all employees, including subcontractor employees, on
the worksite. 114 Wn.2d. at 463. The court relied on the “specific duty” clause of RCW
49.17.060(2), that states employers “[s]hall comply with the rules, regulations, and orders
promulgated under this chapter.” Stute, 114 Wn.2d at 457. This clause imposes a specific duty on
employers to comply with WISHA regulations, and extends to subcontractors when a party asserts
that the employer did not follow particular WISHA regulations. Id. In determining that general
contractors have a duty to protect the safety of all employees on a worksite, the Stute court
reasoned, “A general contractor’s supervisory authority places the general in the best position to
ensure compliance with safety regulations. For this reason, the prime responsibility for safety of
all workers should rest on the general contractor.” Id. at 463.
Here, L&I cited DHI for several serious specific WISHA violations. Specifically, L&I cited
DHI for violating former WAC 296-880-30005(1)(c) (2020) which requires the employer to
“ensure that a fall arrest system, fall restraint system, or positioning device system is provided,
installed, and implemented . . . when employees are exposed to fall hazards of ten feet or more to
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No. 61057-4-II
the ground or lower level while. . . [e]ngaged in the erection or placement of structural members;”
former WAC 296-880-20005(6) (2020) which requires the employer to “ensure that employees
exposed to fall hazards of four feet or more while working on a roof with a pitch greater than four
in twelve use” fall protection; WAC 296-880-10020(1) which requires the employer to “develop
and implement a written fall protection work plan including each area of the work place where the
employees are assigned and where fall hazards of ten feet or more exist;” WAC 296-155-350(3)
which requires “[e]mployees using hand and power tools and exposed to the hazard of falling,
flying, abrasive, and splashing objects, or exposed to harmful dusts, fumes, mists, vapors, or gases
must use the particular personal protective equipment necessary to protect them from the hazard;”
and WAC 296-155-110(9) which requires the employer to “document walk-around safety
inspections and such documentation must be available for inspection by personnel of the
department.”
To establish a prima facie case of a serious violation of a WISHA regulation, L&I must
prove:
(1) the cited standard applies; (2) the requirements of the standard were not met;
(3) employees were exposed to, or had access to, the violative condition; (4) the
employer knew or, through the exercise of reasonable diligence, could have known
of the violative condition; and (5) there is a substantial probability that death or
serious physical harm could result from the violative condition.
Express Constr. Co. v. Dep’t of Lab. & Indus., 151 Wn. App. 589, 597-98, 215 P.3d 951 (2009);
WAC 263-12-115(2)(b).2 We apply this standard when reviewing Stute citations against general
2
WAC 263-12-12-115 was amended effective December 15, 2024. Because the amendment did
not affect subsection (2)(b), we cite the current version.
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No. 61057-4-II
contractors. Express Constr. Co., 151 Wn. App. at 597-98; J.E. Dunn Nw. v. Dep’t of Lab. &
Indus., 139 Wn. App. 35, 44-48, 156 P.3d 250 (2007).
II. GENERAL CONTRACTOR LIABILITY
DHI asks this court to adopt the federal OSHA analysis for a general contractor’s liability,
which, DHI contends, recognizes that the “non-delegable duty of care for general contractors is
not the same as the duty owed by the subcontractor to its own employees.” Br. of Appellant at 50.
Under this test, DHI argues, “[t]he burden is on the Secretary to prove [a] ‘reasonable [person]’
standard of employer conduct; and in the absence of such evidence the citation must be dismissed
even where, it may seem, the employee misconduct was probably feasibly preventable.” Id. at 20.
DHI contends that the Stute court adopted the federal “ ‘controlling employer’ doctrine.” Id. at 28.
But in Stute, our supreme court held that “[a] general contractor’s supervisory authority is
per se control over the workplace, and the duty is placed upon the general contractor as a matter
of law.” Stute, 114 Wn.2d at 464. Relatedly, DHI asks us to hold that a general contractor’s role
in supervision of work should be secondary and not primary. But our supreme court explicitly held
that “the prime responsibility for safety of all workers should rest on the general contractor.” Id.
at 463. Our supreme court’s rulings are binding on this court. State v. Gore, 101 Wn.2d 481, 486-
87, 681 P.2d 227 (1984).
In Washington State, it is well established that, for L&I to hold a general contractor liable
for a Stute violation, it must prove:
(1) the cited standard applies; (2) the requirements of the standard were not met;
(3) employees were exposed to, or had access to, the violative condition; (4) the
employer knew or, through the exercise of reasonable diligence, could have known
of the violative condition; and (5) there is a substantial probability that death or
serious physical harm could result from the violative condition.
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Express Constr. Co., 151 Wn. App. at 597-98; J.E. Dunn Nw., 139 Wn. App. at 44-45, 48.
DHI argues that applying the same test to Stute violations by general contractors as is
applied to direct violations by subcontractors contradicts the BIIA’s holding in In re Exxel Pacific,
Inc., No. 96 W182, 1998 WL 718040, at *5 (Wash. Bd. of Indus. Ins. Appeals July 6, 1998), that
“proof of a cited safety violation [does not] constitute sufficient proof the responsibility [for safety
on the jobsite] was not met.” (Emphasis omitted.) But the fourth element requires L&I to prove
that the general contractor had actual or constructive knowledge of the violation by the
subcontractor. Express Constr. Co., 151 Wn. App. at 599. Accordingly, and contrary to DHI’s
concern, a general contractor is not strictly liable where a subcontractor commits a violation.
Rather, L&I must prove that the general contractor knew, or through the reasonable exercise of
diligence could have known, of the violative condition. Id.
We decline DHI’s invitation to deviate from binding and established precedent.
III. SUBSTANTIAL EVIDENCE OF KNOWLEDGE OF THE WISHA VIOLATIONS
To sustain a serious violation of a WISHA safety regulation, L&I must prove that “the
employer knew or, through the exercise of reasonable diligence, could have known of the violative
condition.” Id. at 597-98. An employer has constructive knowledge of a violation, where the
violation was in plain view, meaning the violation was “ ‘readily observable or in a conspicuous
location in the area of the employer’s crews.’ ” Potelco, Inc. v. Dep’t of Lab. & Indus., 194 Wn.
App. 428, 439-40, 377 P.3d 251 (2016) (quoting Erection Co. v. Dep’t of Lab. & Indus., 160 Wn.
App. 194, 207, 248 P.3d 1085 (2011)). A supervisor’s constructive knowledge can be imputed to
the employer. Id. at 440.
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DHI argues that substantial evidence did not support the BIIA’s finding that DHI had actual
or constructive knowledge of the WISHA violations. DHI contends that it did not have actual
knowledge of the violations because the superintendents were inside the job trailer where they
could not see the violations. And, DHI argues, it did not have constructive knowledge of the
violations because “it is not reasonable, nor required, for upper tier general contractors to
constantly observe subcontractor employees.” Br. of Appellant at 26. Because it is undisputed that
none of the superintendents actually saw the violations in progress, we agree that DHI did not have
actual knowledge of the violations. However, we conclude that DHI had constructive knowledge
of the violations.
DHI compares this case to In re Acropolis Constr., LLC, No. 23 W1214, 2024 WL
5336676, at *2 (Wash. Bd. of Indus. Ins. Appeals Dec. 16, 2024), arguing that, as in Acropolis,
although the violation was in plain view, it was not reasonable for DHI to observe the subcontractor
employees. But in Acropolis, the BIIA concluded it was not reasonable to expect the general
contractor to observe violations committed by a suspended employee who was working on a day
when no work was scheduled. Id.
Here, the violations occurred on a workday when the superintendents were present on the
site. And the violations were in plain view. They were readily viewable from the street and from
just outside of the job trailer. Moreover, DHI itself had recently cited Northwest Framing for fall
safety violations and Houston expressed concerns over Northwest Framing’s fall protection to his
supervisors. Accordingly, substantial evidence supported the BIIA’s finding that DHI had at least
constructive knowledge of the violations.
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IV. SUBSTANTIAL EVIDENCE OF WILLFULNESS
“[A] ‘willful violation’ is one involving a ‘voluntary action, done either with an intentional
disregard of or plain indifference to the requirements of the statute.’ ” Elder Demolition, Inc. v.
Dep’t of Lab. & Indus., 149 Wn. App. 799, 807, 207 P.3d 453 (2009) (quoting administrative
record).
DHI argues that there was not substantial evidence in the record that DHI’s violations were
willful because DHI could not be plainly indifferent to complying with a duty that has yet to be
clearly defined. We disagree.
DHI’s argument that its duty had not been clearly defined is undercut by the fact that it had
previously been cited for violating the standards in question. And DHI clearly was on notice that
the violative conditions could exist because it had previously documented fall safety violations by
Northwest Framing and Houston expressed his concerns about Northwest Framing to his
supervisors. Although DHI represented that its supervisors spent most of the day in the field doing
walk-around safety checks, it could not produce documentation for 6 of the 12 formal walk-around
inspections for the prior 12 weeks. Moreover, this was not merely an issue of subcontractor
employees failing to utilize provided equipment because there were no anchors available for the
harnesses even though work on the trusses started the day before the inspection. And several
subcontractor employees were violating safety regulations at the same time in three different
houses. A thorough walk-around safety inspection would have revealed these deficiencies.
Accordingly, substantial evidence supported the BIIA’s finding that the fall safety violations were
willful.
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V. ADMISSIBILITY OF DEPOSITION
We review the IAJ’s evidentiary decisions for abuse of discretion. McClure & Sons, Inc.
v. Dep’t of Lab. & Indus., 16 Wn. App. 2d 854, 862, 487 P.3d 186 (2021). The appellant has the
burden of demonstrating that the IAJ abused its discretion on appeal. Id. “[E]rror without prejudice
is not grounds for reversal.” Brown v. Spokane County Fire Prot. Dist. No. 1, 100 Wn.2d 188, 196,
668 P.2d 571 (1983).
DHI argues that the IAJ abused its discretion by excluding a deposition transcript from
evidence. L&I argues that the IAJ did not abuse its discretion by declining to admit the deposition
into evidence because it was not relevant and because any error was not prejudicial. We agree with
L&I.
The deposition at issue was of Terry Walley, a DOSH compliance operations manager.
According to Walley, the directive was formulated to give inspectors guidance on how to
implement Stute, 114 Wn. 2d 454. DOSH Directive 27.00 states that, under WISHA, general
contractors have the ultimate responsibility for worker job safety at the job site. Walley also
explained that while an initial version of the directive stated that general contractors are not strictly
liable for WISHA violations by their subcontractors and that general contractors have only a
general duty of care, subsequent versions of the directive state that courts now hold general
contractors per se liable for subcontractor violations. DHI argues that the deposition showed that
DOSH Directive 27.00 was inconsistent with the BIIA’s holding in Exxel Pacific, No. 96 W182,
that, according to DHI, L&I adopted the federal OSHA standard for general contractor liability.
And, DHI argues, because L&I employees comply with the directive, L&I incorrectly enforces
Stute violations.
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But DHI has not demonstrated that it was prejudiced by the IAJ’s decision not to admit the
deposition transcript. DHI fails to articulate how exclusion of the deposition prevented it from
arguing its theory of the law to the IAJ. DHI could have, and did, present its theory of the law to
the IAJ by citing case law and administrative decisions. The fact that L&I, in DHI’s view,
incorrectly understood the law at the time of enforcement is irrelevant.
CONCLUSION
We conclude (1) the BIIA did not err by applying established and binding precedent rather
than adopting the federal test for multi-employer work sites, (2) substantial evidence supported the
BIIA’s finding that DHI had constructive knowledge of Northwest Framing’s WISHA violations
because the violations occurred in plain view on a day when DHI superintendents were working
on the job site, were visible from outside the job trailer, and DHI had already observed several fall
safety violations by Northwest Framing employees, (3) substantial evidence supported the BIIA’s
finding that the violations were willful because DHI was aware of its obligations and failed to
adequately ensure subcontractor safety, and (4) DHI has not demonstrated that it was prejudiced
by the BIIA’s decision to exclude the deposition from evidence. Accordingly, we affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
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CRUSER, J.
We concur:
VELJACIC, C.J.
MAXA, J.
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