Opinion
Civil Docket No.: CL15-7591
01-05-2016
Re: C. Ray Davenport v. KBS, Inc.
Alfred B. Albiston, Esq. Special Assistant Attorney for the Commonwealth Department of Labor and Industry 600 East Main Street, Suite 207 Richmond, Virginia 23219 Kelly Bundy, Esq. Hirschler Fleisher, P.C. 2100 East Cary Street P.O. Box 500 Richmond, Virginia 23218
Alfred B. Albiston, Esq.
Special Assistant Attorney for the Commonwealth
Department of Labor and Industry
600 East Main Street, Suite 207
Richmond, Virginia 23219 Kelly Bundy, Esq.
Hirschler Fleisher, P.C.
2100 East Cary Street
P.O. Box 500
Richmond, Virginia 23218 Dear Counsel:
Today the Court rules on the demurrer (the "Demurrer") and motion to dismiss (the "Motion to Dismiss") filed by Defendant KBS, Inc. ("KBS") in response to the complaint (the "Complaint") filed by Plaintiff C. Ray Davenport, Commissioner of Labor and Industry (the "Commissioner"), to affirm a Virginia Occupational Safety and Health ("VOSH") citation issued by the Commissioner to KBS. The issue before the Court via the Demurrer is whether the Complaint alleges sufficient facts to support a violation of VOSH Standard Section 1926.20(b)(2). The issues before the Court via the Motion to Dismiss are whether the Citation describes with particularity the nature of the violation and whether the Citation states a cognizable violation of the cited VOSH Standard. The Court finds that the Commissioner's Complaint states sufficient facts, with the requisite particularity, to support a violation of VOSH Standard Section 1926.20(b)(2). The Court also finds that the Citation describes with particularity the nature of a violation that is recognized in the cited VOSH Standard Section.
The Court therefore OVERRULES KBS's Demurrer and DENIES KBS's Motion to Dismiss.
Background
The Commissioner issued a "Citation and Notification of Penalty," Inspection Number 317309482 (the "Citation"), to KBS on October 3, 2013. The Citation alleges that KBS, a general contractor on a multi-family housing unit construction project, violated VOSH Standard Section 1926.20(b)(2) because its representative "failed to take measures to correct and eliminate three specific workplace hazards on the scaffolding at its worksite" (the "Safety Violations"). (Compl. ¶ 12 & Ex. A.)
A copy of the Citation is attached to and incorporated into the Complaint. (Compl. ¶ 12 & Ex. A.)
According to the Commissioner, on September 10, 2013, a VOSH inspector observed the Safety Violations while inspecting one of KBS's subcontractors, and upon inquiry of KBS Superintendent Wayne House ("House"), "House acknowledged that he had been aware of the missing guardrails for several days." (Id. ¶¶ 10-11.) The Commissioner alleges that House "provided the VOSH [inspector] copies of photographs of the same conditions, taken ten days previous," and that House "averred that it was the responsibility of subcontractors to correct unsafe working conditions, and not the general contractor." (Id. ¶ 11.)
In his Memorandum in Opposition to KBS's Demurrer & Motion to Dismiss, the Commissioner characterizes the photographs differently. He states that House "photographed at least one similar violation as [the VOSH inspector] had described" and that House provided the VOSH inspector with a copy of the photograph to which he referred. (Mem. in Opp'n 2.) The Court nevertheless assumes the allegations in the Complaint are true for purposes of the Demurrer.
The Commissioner issued the Citation to KBS for a "serious" violation of VOSH standards and proposed a civil penalty of $1,925.00, "calculated in accordance with the VOSH Field Operations Manual, Chapter XI." (Id. ¶¶ 16-19.) Specifically, KBS was cited for a violation of VOSH Standard Section 1926.20(b)(2) because "the employer's designated individual who conducted frequent and regular inspections and documented hazards at the job site did not meet the definition of 'competent person' in accordance with 1926.32(f) where this individual failed to correct the below listed, existing hazards and failed to take prompt corrective measures to eliminate them." (Id., Ex. A, at 8 (listing the three alleged hazards).) KBS notified the Commissioner in writing on October 8, 2013, that it contested the Citation and the related proposed penalty. (Id. ¶ 13.) The Commissioner filed the Complaint, which requests that the Court affirm the Citation and proposed penalty and require KBS to abate the Safety Violations. (Id. ¶ 20.)
KBS demurred to the Commissioner's Complaint and also moved for dismissal. After considering pre-hearing briefs and argument at an October 9, 2015, hearing (the "Hearing") on the demurrer and motion to dismiss, the Court found that material facts are in dispute regarding whether a closing conference occurred or is required and overruled KBS's Motion to Dismiss on that ground. (See Order on KBS, Inc.'s Demurrer and Motion to Dismiss (Oct. 28, 2015).) The Court also granted the parties leave to submit post-hearing briefs.
Positions of the Parties
KBS's Demurrer and Motion to Dismiss
In the Demurrer, KBS asserts that "[t]he Complaint fails to allege sufficient facts to support a violation of VOSH Std. § 1926.20(b)(2)." (Dem. & Mot. to Dismiss 7.) Specifically, KBS contends that "the Commissioner fails to allege that KBS failed to conduct frequent and regular inspections of the jobsite" and that "the presence of violations of safety standards does not per se establish a violation of § 1926.20(b)(2)." (Id. (citation and internal quotation marks omitted).) KBS further asserts that although at the Hearing
[the Commissioner] argued that it intended to prove that KBS violated VOSH Std. § 1926.20(b)(2) by showing that its designated person failed to meet the definition of a "competent person" under VOSH Std. § 1926.32(f), because Mr. House lacked authority to correct hazards[, t]his does not appear in either the Citation or the Complaint, the latter of which merely seeks to affirm the Citation.(KBS Suppl. Br. 4.) KBS argues that the Commissioner is attempting to proceed under a new theory, "the factual basis [of which] has never previously been alleged and for which KBS was not cited." (Id.)
In addition to the Motion to Dismiss argument on which the Court already ruled, KBS argues that "[t]he VOSH Standard that forms the basis of the Citation does not require correction of hazards." (Dem. & Mot. to Dismiss 6.) KBS further contends that the underlying basis for the Citation—to the extent the Commissioner now is alleging that the violation is that House was not a competent person because he was not authorized to ensure hazards were corrected—was not stated in the Citation with particularity, as required by both Section 40.1-49.4(A)(1) of the Code of Virginia and Title 16, Section 25-60-260, of the Virginia Administrative Code. (Id.; KBS Suppl. Br. 1.) KBS asserts that the cited standard "merely requires 'frequent and regular inspections of jobsites,' not the correction of hazards," and that the Commissioner "has failed to allege or show the absence of frequent and regular inspections." (Dem. & Mot. to Dismiss 6.) KBS further points out that although the Citation references VOSH Standard Section 1926.32(f), which defines a competent person, "KBS was not cited for a failure to abide by this standard," and "[t]his definition does not require the correction of hazards either." (Id.)
The Commissioner's Response
The Commissioner argues that the Complaint, with the attached Citation, alleges sufficient facts to support its contention that KBS violated the cited VOSH Standard—VOSH Standard Section 1926.20(b)(2)—and that the Complaint therefore can withstand the Demurrer. (Mem. in Opp'n 7-8.)
In response to KBS's Motion to Dismiss argument that the Citation does not describe a violation of the cited VOSH Standard Section because the Section does not require correction of hazards, the Commissioner asserts that "[b]oth the regulation and citation clearly require that a 'competent person' conduct the described inspections. Further, such a person must be one authorized to take effective action." (Id. at 6.) The Commissioner further opines that the very purpose of job site inspections "is to decrease unsafe hazards," which purpose, it asserts, would be ineffective unless "conducted by personnel both capable and authorized to take action, [i.e.,] an appropriate 'competent person,' prepared to effect positive change." (Id. at 6-7.)
Although the Commissioner does not expressly state the context of the inspections to which he refers, it is apparent from his brief that he is referring to job site inspections conducted by an employer representative and not by a VOSH inspector.
Analysis
Legal Standard
A demurrer tests the legal sufficiency of the claims stated in the pleading challenged. Dray v. New Mkt. Poultry Prods., Inc., 258 Va. 187, 189, 518 S.E.2d 312, 312 (1999). The only question for the court to decide is whether the facts pleaded, implied, and fairly and justly inferred are legally sufficient to state a cause of action against the defendant. Thompson v. Skate Am., Inc., 261 Va. 121, 128, 540 S.E.2d 123, 126-27 (2001). On demurrer, the court must admit the truth of all material facts properly pleaded, facts that are impliedly alleged, and facts that may be fairly and justly inferred from the alleged facts. Cox Cable Hampton Rds., Inc. v. City of Norfolk, 242 Va. 394, 397, 410 S.E.2d 652, 653 (1991). A demurrer does not admit the correctness of any conclusions of law. Ward's Equip., Inc. v. New Holland N. Am., Inc., 254 Va. 379, 382, 493 S.E.2d 516, 518 (1997).
Even if imperfect, a complaint drafted such that a defendant cannot mistake the true nature of the claim should withstand demurrer. Catercorp, Inc. v. Catering Concepts, Inc., 246 Va. 22, 24, 431 S.E.2d 277, 279 (1993). The court will not consider any factual assertions outside the pleadings for purposes of a demurrer. See Va . Code Ann. § 8.01-273 (Repl. Vol. 2015). If a court sustains a demurrer, it is within the court's discretion to allow leave to amend the complaint, and such leave "shall be liberally granted in furtherance of the ends of justice." Va. Sup. Ct. R. 1:8.
Certain rules in the Rules of Supreme Court of Virginia apply to all proceedings. See Va . Code § 8.01-3. Accordingly, "[e]very pleading shall state the facts on which the party relies in numbered paragraphs, and it shall be sufficient if it clearly informs the opposite party of the true nature of the claim or defense." Va. Sup. Ct. R. 1:4(d). Moreover, "[b]revity is enjoined as the outstanding characteristic of good pleading. In any pleading a simple statement, in numbered paragraphs, of the essential facts is sufficient." Id. R. 1:4(j).
A motion to dismiss is a responsive pleading to a complaint. Id. R. 3:8(a). Styling a pleading as a motion to dismiss is not dispositive of the actual intent of the pleading. See Gay v. Norfolk and W. Ry., 253 Va. 212, 214 n.*, 483 S.E.2d 216, 218 (1997) (examining a motion to dismiss as a summary judgment motion, "regardless of the label" placed on the motion).
"[T]he contention that a pleading does not state a cause of action or that such pleading fails to state facts upon which the relief demanded can be granted" is properly styled as a demurrer in Virginia. Va. Code § 8.01-273.
"Because [Section] 40.1-49.4 [of the Code of Virginia] is a remedial statute, it should be construed liberally so as to suppress the mischief and advance the remedy, as the legislature intended." Barr v. S. W. Rodgers Co., 34 Va. App. 50, 58, 537 S.E.2d 620, 623 (2000) (quoting Bd. of Supervisors v. King Land Corp., 238 Va. 97, 103, 380 S.E.2d 895, 897-98 (1989)).
Discussion
The Court has considered the pleadings, oral argument at the Hearing, post-hearing briefs, and applicable authorities.
A. The Complaint alleges sufficient facts to support a violation of VOSH Standard Section 1926.20(b)(2)
KBS asserts in its Demurrer that the Complaint "fails to allege sufficient facts to support a violation of VOSH Std. § 1926.20(b)(2)." (Dem. & Mot. to Dismiss 7.) VOSH Standard Section 1926.20(b)(2), which is identical to the analogous federal Occupational Safety & Health Administration ("OSHA") regulation, requires that employers, which are required to maintain programs for the health and safety of their employees, "shall provide for frequent and regular inspections of the job sites, materials, and equipment to be made by competent persons designated by the employers." A competent person, as defined by the VOSH Standard Section and referenced in the Citation, is "one who is capable of identifying existing and predictable hazards in the surrounding or working conditions which are unsanitary, hazardous, or dangerous to employees and who has authorization to take prompt corrective measures to eliminate them." VOSH Std. § 1926.32(f).
Accepting the facts alleged in the Complaint as true, as the Court must for purposes of the Demurrer, the Commissioner states sufficient facts to support a violation of VOSH Standard Section 1926.20(b)(2). The Complaint alleges that when the VOSH inspector addressed the Safety Violations with House, House "averred that it was the responsibility of subcontractors to correct unsafe working conditions, and not the general contractor KBS." (Compl. ¶ 11.) House's statement to the VOSH inspector, if proven, may be sufficient for the factfinder at trial to conclude that House did not have the authority—by his own action or via his direction—to correct the Safety Violations, which could constitute a violation of VOSH Standard Section 1926.20(b)(2). Additional facts and statements alleged in the Complaint, including that "KBS['s] representative failed to take measures to correct and eliminate the three specific workplace hazards on the scaffolding at its worksite," (Compl. 4), also could support a violation of VOSH Standard Section 1926.20(b)(2) if proven at trial.
This viewpoint is buttressed by the Commissioner's allegation that House provided the VOSH inspector a photograph of the same violations taken ten days prior to the VOSH inspector's visit. (Compl. ¶ 11.) Even without this fact, however, the Court still would find the facts pleaded in the Complaint sufficient to withstand the Demurrer.
The Court recognizes KBS's argument that it was not cited for failing to have a competent person. This argument is addressed in more detail in the Motion to Dismiss analysis, infra.
As discussed in more detail below, the Court also rejects KBS's assertion that the Commissioner is attempting to proceed under a new theory, "the factual basis [of which] has never previously been alleged and for which KBS was not cited." (KBS Suppl. Br. 4.)
Because the Complaint states sufficient facts to support a violation of VOSH Standard Section 1926.20(b)(2), the Court OVERRULES KBS's Demurrer.
B. The Citation describes with sufficient particularity the nature of the alleged violation and alleges a recognized violation of the cited VOSH Standard Section.
Although Virginia recognizes motions to dismiss as responsive pleadings, they typically are limited to non-evidentiary issues such as jurisdiction, defective process, and failure to join an indispensable party. See Va. Sup. Ct. R. 3:8; Kent Sinclair & Leigh B. Middleditch, Jr., Virginia Civil Procedure § 9.3 (6th ed. 2014). Further, a motion to dismiss is not the proper vehicle to address an alleged failure to state a claim upon which relief can be granted; rather, a demurrer is reserved for that purpose. Va. Code § 8.01-273.
The remaining basis for KBS's Motion to Dismiss—that the "VOSH Standard that forms the basis of the Citation does not require correction of hazards" and that KBS therefore did not violate the cited Standard Section—essentially is a challenge that the Complaint does not state a claim upon which relief can be granted. The Motion to Dismiss therefore is the functional equivalent of a demurrer, and the Court will treat it as such.
As mentioned supra, the Court has already overruled KBS's Motion to Dismiss based on KBS's allegation that the VOSH inspector failed to conduct a closing conference. (See Order on KBS, Inc.'s Demurrer and Motion to Dismiss (Oct. 28, 2015).)
Although the Court alternatively could treat the Motion to Dismiss as a Motion for Summary Judgment, see, e.g., Gay, 253 Va. at 214 n.*, 483 S.E.2d at 218, the motion was filed as a responsive pleading, and no evidence has been offered to support it.
Both Section 40.1-49.4(A)1 of the Code of Virginia and Title 16, Section 25-60-260, of the Virginia Administrative Code require that "[e]ach [VOSH] citation shall be in writing and describe with particularity the nature of the violation or violations, including a reference to the appropriate safety or health provision of Title 40.1 of the Code of Virginia or the appropriate rule, regulation, or standard." Va. Code Ann. § 40.1-49.4(A)1 (Repl. Vol. 2013); 16 Va. Admin. Code § 25-60-260 (2006). As the Commissioner notes, OSHA "has an identical counterpart to the VOSH particularity requirement." (Commissioner Suppl. Br. 3.) Interpreting the federal particularity requirement in affirming an OSHA citation, the U.S. Court of Appeals for the D.C. Circuit held that "despite the awkwardness of [the Secretary of Labor's] charges and pleadings," they "were not so misleading as to foreclose the Secretary from litigating the statutory sufficiency of [the defendant's] safety program." Nat'l Realty & Constr. Co. v. OSAHRC, 489 F.2d 1257, 1264-65 (D.C. Cir. 1973).
In National Realty, defendant National Realty was cited "for serious breach of its general duty 'in that an employee was permitted to stand as a passenger on the running board of an Allis Chalmers 645 Front end loader while the loader was in motion.'" Id. at 1261 (emphasis added). The court found that, despite the charge that National Realty had "permitted" the employee's actions and that "[p]ermission usually connotes knowing consent, which is not a necessary element of a general duty violation," here "the word 'permitted' could fairly have been read to suggest merely a wrongful failure to prevent the . . . incident, rather than a knowing authorization of his conduct." Id. at 1262, 1264. Although the citation was poorly worded, the court held that "any ambiguities surrounding the Secretary's allegations could have been cured at the hearing itself. So long as fair notice is afforded, an issue litigated at an administrative hearing may be decided by the hearing agency even though the formal pleadings did not squarely raise the issue." Id. at 1264. Moreover, as the court noted, citations "are drafted by non-legal personnel acting with necessary dispatch. Enforcement of [OSHA] would be crippled if the Secretary were inflexibly held to a narrow construction of citations issued by his inspectors." Id.
As in National Realty, the Court finds that the Citation in the instant case is poorly worded and contains information that appears to be impertinent to the violation itself. Rather than concluding its description of the violation of VOSH Standard Section 1926.20(b)(2) with a statement that "the employer's designated individual who conducted frequent and regular inspections and documented hazards at the job site did not meet the definition of 'competent person' in accordance with 1926.32(f)," the Citation continued with the following statement, which arguably was unnecessary and is potentially confusing: "where this individual failed to correct the below listed, existing hazards and failed to take prompt corrective measures to eliminate them." (Compl. Ex. A, at 8.) As the Commissioner notes, however, it cited KBS for a violation of VOSH Standard Section 1926.20(b)(2), which requires that "[s]uch programs shall provide for frequent and regular inspections of the job sites, materials, and equipment to be made by competent persons designated by the employers." (Mem. in Opp'n 7-8 (emphasis added).)
In fact, the Section number is the first word of the text of the Citation. (See Compl. Ex. A, at 8.)
KBS implies that if the Commissioner believed that House was not a competent person as defined by VOSH Standard Section 1926.32(f), the Commissioner should have cited KBS for that violation. (Br. in Supp. of Dem. & Mot. to Dismiss 6-7.) As the Commissioner emphasizes, however, because Section 1926.32(f) is merely a definitional section, "[t]he citation obviously does not allege a violation of § 1926.32(f)." (Mem. in Opp'n 6-7.) Instead, the Commissioner asserts that "the accompanying definition is inserted as a reference, useful in describing exactly what part of KBS's inspection program did not comply." (Id. at 7.)
KBS focuses solely on Section 1926.20(b)(2)'s requirement for inspections and overlooks the associated requirement that those inspections be conducted by "competent persons designated by the employers." (See Br. in Supp. of Dem. & Mot. to Dismiss 6-7.) Although KBS asserts that House "clearly" was a competent person, (id. at 7), this is belied by the allegations in the Complaint, (see Compl. ¶¶ 10-12). Specifically, the Commissioner alleges that House "acknowledged that he had been aware of the [Safety Violations] for several days," "provided the VOSH [inspector] copies of photographs of the same conditions, taken ten days previous," and "averred that it was the responsibility of subcontractors to correct unsafe working conditions, and not the general contractor." (Id.) In short, the gravamen of the Citation is not the failure of House or KBS to correct the hazardous conditions—as KBS asserts—but rather House's admission that he was not authorized to correct or take the necessary action to correct the Safety Violations. The Commissioner's allegations, which the Court treats as true for purposes of the Motion to Dismiss, adequately support his contention that House was not a competent person and that KBS therefore was in violation of VOSH Standard Section 1926.20(b)(2).
In its Memorandum in Opposition to KBS's Demurrer & Motion to Dismiss, the Commissioner also alleges that when House was reminded that, as the general contractor, "KBS was also responsible for having hazardous jobsite conditions corrected," House responded that "all he could do with the subcontractor employers was 'get on them a bit,'" which the Commissioner characterizes as "implying [House] was not authorized to take further measures to address and correct apparent safety violations." (Mem. in Opp'n 2.) Because the Court is treating the Motion to Dismiss as a Demurrer, however, the Court does not consider this additional allegation, as it is not included in the Complaint.
KBS seems to imply that if the Commissioner believed that KBS was not properly correcting hazards, the Citation should have referenced VOSH Standard Section 1926.20(b)(1)—which requires employers to maintain an accident prevention program—instead of VOSH Standard Section 1926.20(b)(2). (Br. in Supp. of Dem. & Mot. to Dismiss 6.) In light of the Court's ruling that, for purposes of the Motion to Dismiss, the Commissioner has sufficiently alleged a violation of VOSH Standard 1926.20(b)(2), the Court need not address this issue. --------
The Citation expressly states that KBS's "designated individual who conducted frequent and regular inspections and documented hazards at the job site did not meet the definition of 'competent person' in accordance with 1926.32(f)." The Court finds that, if proven at trial, this is sufficient to find that KBS violated VOSH Standard Section 1926.20(b)(2). The Court also finds that although the additional language in the Citation—i.e., "where this individual failed to correct the below listed, existing hazards and failed to take prompt corrective measures to eliminate them"—may be confusing, the Citation as a whole was sufficient to provide KBS with "fair notice" of the alleged violation. The Court also notes that the Citation itself informed KBS of its "right to an Informal Conference with the DOLI Regional Director at which [it] may present evidence which [it] believe[s] supports amending either the citation or penalties proposed," at which KBS should have been able to clear up any confusion. (Compl. Ex. A, at 1.)
The Court finds that, in light of the remedial nature of the statute, reference in the Citation to the VOSH Standard Section that KBS allegedly violated, along with the allegation that the individual who conducted KBS's inspections did not meet the definition of a competent person, afforded KBS "fair notice" of the alleged violation for which it was cited. See Nat'l Realty, 489 F.2d at 1264. The additional language in the Citation apparently was provided by the Commissioner to assist KBS in understanding the alleged violation; although that language arguably is confusing, it does not invalidate the Citation.
The Court therefore DENIES KBS's Motion to Dismiss because the Citation states with sufficient particularity a violation of the cited VOSH Standard Section.
Conclusion
Because the Court finds that the Commissioner's Complaint states sufficient facts to support a violation of VOSH Standard Section 1926.20(b)(2) and because the Citation describes with particularity the nature of the violation—a violation recognized by the cited VOSH Standard—the Court OVERRULES KBS's Demurrer and DENIES KBS's Motion to Dismiss.
The Court directs counsel for Plaintiff to prepare and circulate an Order consistent with the ruling in this Opinion and submit it to the Court for entry within fourteen days.
Sincerely,
/s/
David W. Lannetti
Circuit Court Judge DWL/bih