Sshi, Llc, D.b.a D R Horton, V. Department Of Labor And Industries
CourtCourt of Appeals of Washington
Date FiledNovember 10, 2026
Docket61243-7
StatusUnpublished
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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
SSHI, LLC, No. 61243-7-II
Appellant,
v.
WASHINGTON STATE DEPARTMENT OF UNPUBLISHED OPINION
LABOR AND INDUSTRIES,
Respondent.
GLASGOW, J.—SSHI LLC, d/b/a D.R. Horton Inc, was a general contractor overseeing the
construction of a housing development. An inspector from the Department of Labor and Industries
saw an SSHI subcontractor’s employee working on the second floor of a partially constructed
home. The employee was near an unprotected edge without fall protection. The Department cited
SSHI for two serious Washington Industrial Safety and Health Act (WISHA), chapter 49.17 RCW
violations—one for allowing workers to be near a fall hazard without fall protection, and one for
lacking a written fall protection plan. The Board of Industrial Insurance Appeals affirmed the
violations after a hearing, and SSHI appealed to the superior court, which also affirmed.
SSHI now appeals to this court, arguing that the Board applied the wrong legal standard
when it held SSHI, a general contractor, to the same standard of liability that applies to a
subcontractor that is the worker’s direct employer. SSHI also claims the Board abused its
No. 61243-7-II
discretion when it failed to admit evidence about a directive related to the Department’s policy
about citing general contractors.
We affirm the Board.
FACTS
I. BACKGROUND
SSHI was the general contractor constructing a housing development in Lake Tapps. SSHI
directly employed a superintendent and an assistant superintendent, who were on site Monday
through Friday, to oversee the construction of the development. All of the construction work was
performed by subcontractors. One of SSHI’s subcontractors was Valeras Construction, which was
responsible for framing homes in the development.
On a Wednesday in August 2022, a compliance investigator for the Department of Labor
and Industries, Jason Ashlock, arrived at SSHI’s development site and saw an employee of Valeras
Construction Services LLC, Jose Valera Sr., working on the second floor of a partially constructed
home without fall protection. Specifically, Ashlock noticed that there was no guardrail installed
over an unguarded edge and that Valera “was not tied off.” Clerk’s Papers (CP) at 1812. Ashlock
photographed the worksite and measured the height of the first floor (and therefore the fall hazard
Valera was exposed to) at 10 feet, 3 inches tall. Ashlock met with the SSHI superintendent on site
that day and the owner of Valeras Construction, Jesus Valera.1 During this meeting, Ashlock
learned that Valeras Construction did not have a written fall protection work plan.
1
Because Jesus Valera and Jose Valera Sr. share a last name, we respectfully refer to Jesus by his
first name to avoid confusion.
2
No. 61243-7-II
Based on Ashlock’s findings, the Department cited SSHI with one serious violation of
WAC 296-880-20005(1), which requires employers to ensure workers have fall protection when
exposed to fall hazards of 4 feet or more from the ground. The Department also cited SSHI with
one serious violation of WAC 296-880-10020(1), which requires employers to have a written fall
protection work plan whenever workers are exposed to a fall hazard of 10 feet or more.2 The
Department characterized these violations as repeat violations because SSHI had accrued six
violations involving fall hazards within the last three years. The Department assessed a combined
penalty of $99,000 for the violations. SSHI appealed the violations to the Board of Industrial
Insurance Appeals.
II. BOARD HEARING AND DECISION
At the board hearing, Ashlock testified that as soon as he drove up to the worksite, he saw
Valera on the second floor without fall protection. According to Ashlock, Valera “walk[ed] back
and forth several times” while bracing the walls and also spent some time on a ladder nailing a
block into the wall. CP at 1826. Ashlock stated that Valera got “close to the edge,” approximately
two feet away, several times without fall protection. Id. Photos taken by Ashlock admitted into
evidence showed Valera working near the unguarded edge without being tied off, in some cases
while standing on a ladder. Ashlock also told the Board that Valeras Construction did not have a
written fall protection work plan, but that they wrote one up after meeting with Ashlock. Jesus
confirmed in his testimony that there was no written fall protection work plan at the time Ashlock
inspected the site.
2
Our record does not indicate whether the Department also cited Valeras Construction.
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No. 61243-7-II
Valera testified that Valeras Construction had erected guardrails over the unguarded edge
but later removed them to facilitate lifting plywood up to the second floor. Valera confirmed that
he was the person in Ashlock’s photographs and acknowledged that there were no guardrails at
the time Ashlock had photographed him. Valera estimated that he had spent approximately an hour
and a half working on the second floor while the guardrails were down. But he stated that he had
been six and a half feet away from the unguarded edge and that he did not believe he was exposed
to a risk of falling. He also said that he had not been working in the room closest to the unguarded
edge. Defense counsel marked an area immediately next to the edge on one of the photos in
evidence and asked Valera if he had ever worked in that area while the guardrails were down;
Valera testified that he had not.
During the hearing, SSHI moved to admit into evidence excerpts from a deposition of a
Department CR 30(b)(6) designee. SSHI argued that the deposition testimony gave “the history
and policy basis for the Department’s [Division of Occupational Safety and Health (DOSH)]
Directive 27.00[,] which the Department expects its compliance staff to follow.” CP at 796. SSHI
attached DOSH Directive 27.00 as an exhibit to the deposition transcript. This directive
“establishes guidelines for ‘DOSH compliance and consultation staff when assessing an upper-tier
contractor’s compliance with [WISHA]’” and interprets “‘appropriate application of [WISHA]’ to
‘general contractor[s]’ and ‘upper-tier subcontractor[s].’” SSHI, LLC v. Dep’t of Lab. & Indus., 37
Wn. App. 2d 775, 596 P.3d 592 (2026) (SSHI I) (quoting record) (second, third, and fourth
alterations in original) (describing DOSH Directive 27.00).
The Board declined to admit the deposition transcript and the attached exhibits. It reasoned
that DOSH Directive 27.00 had “not been adopted as a formal regulation[] having the force of
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No. 61243-7-II
law” and that the deposition testimony about the directive was “irrelevant” as it was “not a
definitive legal statement of the requirements expected of general contractors.” CP at 71-72.
Instead, the directive was merely guidance in question-and-answer format that described both
requirements and permissive suggestions.
The Board affirmed both violations but reduced the total penalty to $49,500. In affirming,
the Board stated that general contractors have “per se control over the workplace” under WISHA
and could be cited “for failure to comply with WISHA regulations even when the general
contractor’s own employees are not exposed to the hazard.” CP at 16. The Board applied the five-
part test from Washington Cedar & Supply Co. v. Department of Labor & Industries,3 which
includes a requirement that “the employer knew or, through the exercise of reasonable diligence,
could have known of the violative condition.” CP at 16 (citing Wash. Cedar & Supply Co., 119
Wn. App. at 914).
The Board found that the Department had met its burden to establish both violations. It
reasoned that an employer has constructive knowledge of a violation when the violation is in
plain view, and that Ashlock’s photos and testimony demonstrated that a person could readily
see from the street that Valera was close to an unguarded edge that was over 10 feet high without
fall protection. It also noted that SSHI’s failure to ensure a fall protection plan was in place
evinced a lack of reasonable diligence. The Board issued written findings of fact and conclusions
of law consistent with its decision.
3
119 Wn. App. 906, 83 P.3d 1012 (2003).
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No. 61243-7-II
SSHI petitioned the Board for review, which the Board denied. The Board adopted its
proposed decision and order as its final order. SSHI appealed to the superior court, which affirmed.
SSHI now appeals to this court.
ANALYSIS
I. RELEVANT REGULATIONS AND STANDARDS OF REVIEW
The Department cited SSHI with violations of WAC 296-880-20005(1) and WAC 296-
880-10020(1). WAC 296-880-20005(1) requires employers to implement a fall protection system
in the form of a “guardrail system, . . . personal fall restraint system[,] . . . personal fall arrest
system[,] . . . safety net system[,] . . . catch platform[,] or . . . warning line system” whenever
employees are working on a “surface with an unprotected side or edge” and are exposed to a fall
hazard of “four feet or more above ground or lower level.” WAC 296-880-20005(1)(a), (b)-(f). An
employee is exposed to a fall hazard if they are in the “‘zone of danger’”; that is, the “‘area
surrounding the violative condition that presents the danger to employees which the standard is
intended to prevent.’” Cent. Steel, Inc. v. Dep’t of Lab. & Indus., 20 Wn. App. 2d 11, 22, 498 P.3d
990 (2021) (quoting Shimmick Constr. Co. v. Dep’t of Lab. & Indus., 12 Wn. App. 2d 770, 785,
460 P.3d 192 (2020)). WAC 296-880-10020(1) requires employers 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.”
“In WISHA appeals, ‘[w]e review the Board’s final order . . . and we sit in the same position
as the superior court.’” Nw. Cascade, Inc. v. Dep’t of Lab. & Indus., 37 Wn. App. 2d 724, 732,
594 P.3d 715 (2026) (alteration in original) (quoting Pro-Active Home Builders, Inc. v. Dep’t of
Lab. & Indus., 7 Wn. App. 2d 10, 16, 465 P.3d 375 (2018)). We will affirm the Board’s findings
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No. 61243-7-II
of fact if they are supported by substantial evidence. Id. “‘Evidence is substantial where it is
sufficient to persuade a fair-minded, rational person of the finding’s truth.’” Id. at 732-33 (quoting
Pro-Active Home Builders, 7 Wn. App. 2d at 16). “‘We view the evidence and its reasonable
inferences in the light most favorable to the prevailing party . . . in the highest forum that exercised
fact-finding authority,’” which here was the Board. Id. at 733 (alteration in original) (quoting
Erection Co. v. Dep’t of Lab. & Indus., 160 Wn. App. 194, 202, 248 P.3d 1085 (2011)). We do
not reweigh evidence on appeal. Id.
We consider unchallenged findings of fact as verities on appeal. Roller v. Dep’t of Lab. &
Indus., 128 Wn. App. 922, 927, 117 P.3d 385 (2005). We will also consider a finding a verity if
the appellant purports to challenge it but does not provide argument to support its challenge. See
Wallace v. Kuehner, 111 Wn. App. 809, 817, 46 P.3d 823 (2002).
“‘We review the Board’s conclusions of law de novo to determine whether the Board
correctly applied the law and whether the Board’s findings of fact support its conclusions of law.’”
Nw. Cascade, 37 Wn. App. 2d at 733 (quoting Pro-Active Home Builders, 7 Wn. App. 2d at 16).
“We interpret ‘WISHA statutes and regulations . . . liberally to achieve their purpose of providing
safe working conditions for every worker in Washington.’” Id. at 736 (alteration in original)
(quoting Dep’t of Lab. & Indus. v. Tradesmen Int’l, LLC, 198 Wn.2d 524, 534-35, 497 P.3d 353
(2021)). “In interpreting WISHA, we may look to federal decisions that interpret WISHA’s federal
analogue, the Occupational Safety and Health Act of 1970 (OSHA), but we will not resort to
federal case law when Washington law provides controlling precedent.” Shimmick, 12 Wn. App.
2d at 778 (footnote omitted).
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No. 61243-7-II
II. A GENERAL CONTRACTOR’S RESPONSIBILITY FOR VIOLATIONS
Both parties agree that to hold an employer liable for its own employee’s violation of a
specific WISHA standard, the Department
“must prove that (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.”
Wash. Cedar, 119 Wn. App. at 914 (internal quotation marks omitted) (quoting D.A. Collins
Constr. Co. v. Sec’y of Lab., 117 F.3d 691, 694 (2d Cir. 1997)). The Department argues that the
Board correctly determined that the same test applies when assessing the liability of general
contractors for violations committed by subcontractors. But SSHI urges us to hold that “the duty
of care for the general contractor is less than the duty of care a subcontractor owes to its own
employees,” citing federal OSHA case law. Corrected Opening Br. of Appellant at 39. SSHI argues
that “[t]he focus of this inquiry is whether the general contractor took reasonable steps to establish
due diligence” and “address safety concerns.” Id. at 27. We agree with the Department because
binding Washington cases address general contractor liability under WISHA differently from
nonbinding federal cases interpreting and applying OSHA.
Under Washington law, “[g]eneral contractors have expansive statutory and common law
duties to provide a safe workplace” and owe “‘all employees working on the premises’” a
nondelegable duty “to ‘comply with the rules, regulations, and orders promulgated under
[WISHA].’” Crisostomo Vargas v. Inland Wash., LLC, 194 Wn.2d 720, 722-23, 735-36, 452 P.3d
1205 (2019) (second alteration in original) (internal quotation marks omitted) (quoting Stute v.
P.B.M.C., Inc., 114 Wn.2d 454, 457, 788 P.2d 545 (1990)). Control over the work environment is
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No. 61243-7-II
a “primary consideration[] in determining employer liability under WISHA.” Tradesmen, 198
Wn.2d at 541. A “general contractor is in the best position to . . . protect employees of
subcontractors” and has “primary responsibility for compliance with safety regulations” based on
its “innate supervisory authority . . . over the workplace.” Stute, 114 Wn.2d at 462, 464. We
consider that authority to be “per se control over the workplace.” Id. at 464. Accordingly, “a
general contractor always owes” a duty to comply with WISHA regulations; “no analysis of
whether the general contractor retained control is necessary,” and the “‘expansive liability’ that a
general contractor faces” is justified. Crisostomo Vargas, 194 Wn.2d at 736 (quoting Kamla v.
Space Needle Corp., 147 Wn.2d 114, 122, 52 P.3d 472 (2002)).
Based on these principles adopted by the Washington Supreme Court, we cannot depart
from the well-established test for employer liability laid out in Washington Cedar when a general
contractor is involved. To the extent that federal law interpreting OSHA accords a lesser duty of
care to general contractors, as SSHI claims, it would be “neither necessary nor proper” for us to
adopt the federal standard “when controlling Washington precedent exists.” Shimmick, 12 Wn.
App. 2d at 788 n.6; see also Aviation W. Corp. v. Dep’t of Lab. & Indus., 138 Wn.2d 413, 424,
980 P.2d 701 (1999) (WISHA standards “can be more protective, although not less, of worker
safety than rules promulgated under [OSHA]”).
Accordingly, we hold that general contractors are not subject to a lesser liability standard
than direct employers and that it was proper for the Board to apply the five-part test from
Washington Cedar to evaluate SSHI’s liability.
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No. 61243-7-II
III. CONSTRUCTIVE KNOWLEDGE AND PLAIN VIEW
The fourth prong of the Washington Cedar test requires the Department to prove that “‘the
employer knew or . . . could have known of the violative condition.’” 119 Wn. App. at 914 (quoting
D.A. Collins, 117 F.3d at 694). To meet this requirement, the Department can prove actual or
constructive knowledge. Pro-Active Home Builders, 7 Wn. App. 2d at 18. “[E]vidence that a
violation was in plain view” or was “‘readily observable or in a conspicuous location in the area
of the employer’s crews,’” is sufficient to prove constructive knowledge. Potelco, Inc. v. Dep’t of
Lab. & Indus., 194 Wn. App. 428, 439-40, 377 P.3d 251 (2016) (quoting Erection Co., 160 Wn.
App. at 207).4
SSHI claims that the Department must show more to prove that a general contractor had
constructive knowledge of a violation, compared to a subcontractor, with regard to the
subcontractor’s employees. The Board held that SSHI had constructive knowledge of the violation
in part because the violation occurred in plain view. SSHI argues that the plain view standard
should not apply to general contractors as it does to direct employers. It urges us to hold instead
that because SSHI conducted daily safety inspections and took corrective action when it observed
violations, it “met its non-delegable duty of care as a general contractor.” Reply Br. of Appellant
at 16.
Division Three of this court recently considered the question of whether a lesser standard
for constructive knowledge applies to general contractors—in a different case also involving
SSHI—and concluded that it does not for many of the same reasons already addressed here. SSHI
4
We recognize that this rule, resulting in a finding of constructive knowledge whenever a violation
is in plain view, can lead to harsh results for general contractors in some circumstances. But it is
clear that this is the applicable legal rule.
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No. 61243-7-II
I, 37 Wn. App. 2d at 782. Division Three reasoned that because the Washington Supreme Court
has held that general contractors have “per se liability for WISHA violations” and are “‘in the best
position to ensure compliance with safety regulations,’” they are “subject to the same test for
constructive knowledge as . . . subcontractor[s].” Id. at 782-84 (quoting Stute, 114 Wn.2d at 463).
Accordingly, Division Three held that because substantial evidence showed that the violation in
that case occurred in plain view, the Department had shown that SSHI had constructive knowledge
of the violation. Id. at 791.
For the same reasons, we join Division Three in holding that the same knowledge standard
that applies to direct employers also applies to general contractors. Washington case law is clear
that general contractors maintain primary control over a construction site workplace and are
accordingly subject to an expansive duty to ensure compliance with WISHA regulations for the
safety of all workers at the site. Therefore, because showing that a violation occurred in plain view
is sufficient to prove constructive knowledge by direct employers, it also proves constructive
knowledge by general contractors.
IV. SUBSTANTIAL EVIDENCE TO SUPPORT THE BOARD’S OTHER FINDINGS
WAC 296-880-20005(1) requires employers to implement a fall protection system
whenever employees are working on “surfaces with unprotected sides” and “are exposed to fall
hazards of four feet or more.” In Central Steel, Division One of this court held that substantial
evidence supported the Board’s finding that a worker constructing a set of stairs was in the “zone
of danger” and therefore exposed to a fall hazard when there was testimony that the worker was
about 10 feet from the leading edge without fall protection. 20 Wn. App. 2d at 24-25. WAC 296-
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No. 61243-7-II
880-10020(1) requires employers to develop “a written fall protection work plan” for every
worksite that includes a hazard of falling at least 10 feet to the ground or a lower level.
SSHI’s briefing focuses almost exclusively on its theory that a lesser standard of liability
based on federal OSHA case law should apply to general contractors accused of violating WISHA
standards. Although SSHI challenges the Board’s conclusions of law affirming that SSHI
committed serious violations of WACs 296-880-20005(1) and 296-880-10020(1), it provides little
to no argument as to how the findings fail to support the Board’s conclusions that those violations
occurred.
SSHI assigns error to findings of fact related to SSHI’s knowledge of the violations. SSHI
challenges a finding that states that SSHI “had constructive knowledge of the fall hazard,” that the
hazard “was visible from the street and in plain view,” that SSHI “could have known about the
violations through the exercise of reasonable diligence,” that “[c]onstruction occurred in a
predictable manner and the existence of fall hazards were readily apparent from the state of
construction,” and that SSHI “failed to ensure that Valeras Construction . . . had a written fall
protection work plan in place [or] to enforce [SSHI’s] own protocol requiring” written fall
protection plans. CP at 22 (Finding of Fact (FF) 7). SSHI does not explicitly identify what parts of
this finding it is challenging. Instead, SSHI’s briefing focuses on its argument that a different legal
standard should apply, as discussed above. To the extent SSHI fails to argue that the record lacks
substantial evidence to support these findings, we decline to reverse them.
SSHI does argue that “the Board provided no analysis or explanation why there was
constructive knowledge.” Corrected Opening Br. of Appellant at 68. SSHI is incorrect. The Board
determined SSHI had constructive knowledge because the violation was in plain view, among
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other reasons. And there was substantial evidence in the record that the violation was in plain view
based on Ashlock’s photographs and his testimony that he could see from the street that Valera
was standing close to the edge of the second floor without fall protection. We therefore hold that
substantial evidence supports the Board’s finding that SSHI had constructive knowledge of the
violation.5
SSHI also relies on In re Acropolis Construction, No. 23 W1214 (Wash. Bd. of Indus. Ins.
Appeals Dec. 16, 2024),6 where the Board vacated a citation issued by a Department investigator
who observed a violation while driving past a construction site, to argue that the violation was not
in plain view. But even if that case controlled our decision, it is distinguishable. In Acropolis, the
violation involved an employee who had been suspended, and the violation occurred on a Saturday
when “no one was supposed to be working.” Acropolis, No. 23 W1214, at 3. The Board vacated
the citation because “Acropolis had no reason to suspect that any work would take place” on a
nonwork day. Id. Here, by contrast, the violation occurred in plain view during normally scheduled
work hours. See SSHI I, 37 Wn. App. 2d at 789 (holding that Acropolis was distinguishable from
the facts in that case because “the safety violation occurred on a scheduled workday”).
Accordingly, Acropolis does not change our conclusion that there was substantial evidence SSHI
had constructive knowledge of the violation.
SSHI next casts doubt on how close Valera stood to the edge of the second floor, claiming
in its statement of facts that Valera “testified that he was 6 ½ feet away from the open sided edge.”
5
To the extent that SSHI argues the Board erred by also finding SSHI had actual knowledge, we
need not address actual knowledge because the Board did not err in finding SSHI had constructive
knowledge.
6
https://biia.wa.gov/DO/23W1214_ORD_20241216_DO.PDF
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No. 61243-7-II
Corrected Opening Br. of Appellant at 7. This argument implicates the third prong of the
Washington Cedar test—whether “‘employees were exposed to . . . the violative condition.’” 119
Wn. App. at 914 (quoting D.A. Collins, 117 F.3d at 694). SSHI notes that “Ashlock admitted that
he couldn’t see where [Valera’s] feet were” in one of the photos admitted as an exhibit and “did
not take any measurements of how close [Valera] was to the fall hazard.”7 Corrected Opening Br.
of Appellant at 6-7. SSHI also points out that Valera testified that he never worked in the area
close to the edge marked in exhibit 8.
Significantly, several photo exhibits admitted into evidence showed Valera standing close
to the unguarded edge. And contrary to Valera’s testimony, Ashlock told the Board that he saw
Valera get as close as two to three feet from the unguarded edge. The Board was entitled to believe
Ashlock, and we do not reweigh the evidence on appeal. Nw. Cascade, 37 Wn. App. 2d at 733.
But even relying solely on Valera’s testimony that he was 6 1/2 feet from the edge, this was within
the “zone of danger” that Division One has recognized—at minimum 10 feet from the edge—and
thus Valera was exposed to a fall hazard. See Cent. Steel, 20 Wn. App. 2d at 24-25 (determining
worker who was 10 feet from unguarded edge was in the zone of danger).
SSHI also claims that the unguarded edge “was not directly in front of” Valera, apparently
to argue that Valera was not exposed to a fall hazard. Corrected Opening Br. of Appellant at 22.
7
SSHI assigns error to a finding of fact that includes a number of subfindings, including that “[a]
guardrail at one edge of the floor had been removed,” that Valera “worked on the second floor
without a guardrail for approximately” an hour and a half, that Valera “came within a couple of
feet of the unguarded edge,” that Valera “rose several feet above the floor using a ladder whose
midpoint was 6 1/2 feet from the edge,” that Valera “would have been exposed to a fall over the
unguarded edge” if the ladder had tipped over, and that Valera “wore no fall protection.” CP at 22
(FF 4). Except for its suggestion that Valera did not get closer to 6 1/2 feet from the edge, SSHI
does not adequately explain what parts of this finding it is challenging, and we therefore treat the
rest of the finding as a verity.
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But this argument is equally unavailing because the regulation does not require a worker to be
facing a fall hazard in order to be exposed to it.
In sum, we hold that substantial evidence supports the trial court’s finding that Valera
“came within a couple of feet of the unguarded edge.” CP at 22 (FF 4).
Although SSHI purports to challenge several of the Board’s other findings of fact, it does
not provide argument for those challenges, and we therefore consider all the remaining findings
verities. See Wallace, 111 Wn. App. at 817; see also Roller, 128 Wn. App. at 927. Among those
inadequately challenged findings is the Board’s finding that “[n]o written fall protection work plan
specific to the job site was in place,” which was supported by testimony from both Ashlock and
Jesus. CP at 22 (FF 6).
To the extent SSHI claims that any other elements of the Washington Cedar test were not
met for either violation, we have addressed all of the arguments SSHI adequately raised in its
briefing and we treat any remaining elements as uncontested.
In sum, we conclude that there was substantial evidence to support the properly challenged
Board findings, and SSHI fails to establish the findings do not support the conclusions.
V. DECISION TO NOT ADMIT DEPOSITION TESTIMONY
Next, SSHI claims the Board erred when it declined to admit into evidence deposition
testimony explaining the development of DOSH Directive 27.00, as well as the directive itself.
SSHI claims that DOSH Directive 27.00 directs compliance officers “to evaluate [whether] it
appears that the subcontractor can establish the affirmative defense of employee misconduct” and
to issue a citation “to both the subcontractor and the general contractor” if the subcontractor cannot
do so. Corrected Opening Br. of Appellant at 60. SSHI maintains that this was relevant because
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No. 61243-7-II
the directive “incorrectly focuse[d] on whether the subcontractor employee committed a safety
violation” instead of whether the general contractor failed to take required steps to ensure safety
compliance. Id. at 61. It also claims that the directive was at odds with the Board’s holding in In
re Exxel Pacific, Inc., No. 96 W182 (Wash. Bd. Indus. Ins. Appeals July 6, 1998).8 We review the
Board’s evidentiary rulings for abuse of discretion. SSHI I, 37 Wn. App. 2d at 784.
Division Three of this court recently addressed this same issue in SSHI I. There, SSHI
sought admission of the same directive and related deposition testimony. Id. Division Three held
that “the directive is not a legal statement or formal regulation regarding the requirements expected
of general contractors.” Id. at 784. Division Three also affirmed the Board’s decision not to admit
the deposition testimony on the grounds that “why and how DOSH Directive 27.00 was developed
has no legal relevance as it is not a regulation having any force of law.” Id. at 785. We agree with
Division Three’s reasoning.
Additionally, even if the directive’s instruction to consider whether unpreventable
misconduct occurred contradicted Exxel Pacific, it was irrelevant to the Board’s analysis because
neither the directive nor Exxel Pacific can take precedent over Washington Supreme Court
holdings that establish general contractors’ obligations under WISHA. And SSHI does not show
how the directive was otherwise relevant to the legal validity of the citations the Department
imposed on it. Moreover, the Board in this case further noted that the directive contained
permissive suggestions, and SSHI does not contest that characterization.
Accordingly, we hold that the Board here did not abuse its discretion when it declined to
admit the deposition testimony and the directive.
8
https://biia.wa.gov/DO/96W182_ORD_19980706_DO.PDF
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VI. ADDITIONAL ARGUMENTS
SSHI raises several additional arguments as to why it was improper for the Board to affirm
the violations.
First, SSHI claims the Board failed to make findings of fact and conclusions of law
consistent with SSHI’s arguments. For the same reasons we conclude there was substantial
evidence to support the Board’s findings, the Board also did not err when it declined to adopt the
conflicting findings that SSHI proposes.
Next, SSHI argues that “the Board erred in all evidentiary rulings adverse to [SSHI].”
Corrected Opening Br. of Appellant at 2. Other than its argument that the Board should have
admitted the deposition testimony, SSHI does not specify which rulings it challenges or explain
why they were erroneous, so we do not consider this broad claim. See Nw. Cascade, 37 Wn. App.
2d at 743 n.9.
SSHI also claims that the Board improperly imposed strict liability on it when it determined
SSHI was liable for the violations. Because knowledge is a required element for establishing a
violation, and because the Board found SSHI had constructive knowledge based on the violation
occurring in plain view, this argument fails. See SSHI I, 37 Wn. App. 2d at 784.
Finally, SSHI argues that the Board erred when it failed to apply an exception in WAC
296-880-20005(1)(a)(iii) that permits work to continue without a guardrail and despite a fall hazard
if the guardrail has been “temporarily removed to perform a specific task.” But that exception
requires the area to be “constantly attended by an employee” who is protected “by a personal fall
arrest . . . or personal fall restraint system” and whose “only duty . . . is to warn persons entering
the area of the fall hazard.” WAC 296-880-20005(1)(a)(iii). SSHI presented no evidence that there
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No. 61243-7-II
was an employee present whose sole duty was to warn others about the fall hazard while the
guardrail was down, and it therefore fails to show that this exception applies. See Asplundh Tree
Expert Co. v. Dep’t of Lab. & Indus., 145 Wn. App. 52, 60, 185 P.3d 646 (2008) (“the burden of
proving an exception to a safety regulation” rests with “the party seeking the benefit of the
exception”).
CONCLUSION
We affirm the Board and hold that general contractors charged with violating specific
WISHA regulations are not subject to lesser standards of liability or knowledge compared to direct
employers.
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.
GLASGOW, J.
We concur:
VELJACIC, C.J.
PRICE, J.
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