Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Commissioner of Labor v. Eustis Cable Enterprises, Ltd

Supreme Court of Vermont

January 25, 2019

Commissioner of Labor
v.
Eustis Cable Enterprises, LTD

          On Appeal from Superior Court, Orange Unit, Civil Division Michael J. Harris, J.

          Annika Green, Department of Labor, Montpelier, for Petitioner-Appellee.

          Pietro J. Lynn and Sean M. Toohey of Lynn, Lynn, Blackman & Manitsky, P.C., Burlington, for Respondent-Appellant

          PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

          ROBINSON, J.

         ¶ 1. Following a workplace accident involving one of its trucks, Eustis Cable Enterprises, LTD (Eustis) appeals the civil division's affirmance of the Vermont Occupational Safety and Health Act (VOSHA) review board's determination that Eustis failed to meet VOSHA's motor-vehicle requirements and the resulting assessment of a fine for the violations. We conclude that the evidence and findings do not support the board's conclusion that Eustis was on notice of the violation and accordingly reverse and strike the citation alleging a violation of 29 C.F.R. 1926.601(b)(14) and associated penalty.

         ¶ 2. During road-construction operations on March 11, 2016, a truck owned or operated by Eustis, which was participating in the construction activity, struck and killed a flagger for Green Mountain Flaggers. The truck hit the flagger when the driver began backing it up in the southbound breakdown lane on Route 7 in Middlebury. In response to the accident, the Commissioner of Labor investigated and ultimately cited Eustis for two alleged violations of 29 C.F.R. § 1926.601: a failure to ensure that the vehicle's backup alarm was audible above the surrounding noise level, pursuant to § 1926.601(b)(4); and a failure to assure the safety devices were in a safe condition at the beginning of each shift, pursuant to § 1926.601(b)(14).[1] The Commissioner assessed $11, 340 in fines ($5670 for each violation).

         ¶ 3. At the hearing in April 2017, the VOSHA hearing officer dismissed the first alleged violation of § 1926.601(b)(4) (failure to ensure that the backup alarm was audible) on the basis that VOSHA's evidence on this point was insufficient. But the hearing officer affirmed the second violation of § 1926.601(b)(14), finding that Eustis knew or should have known that the truck was not checked at the beginning of the shift to assure that safety devices, including the backup alarm, were in a safe operating condition. The officer assessed a $5670 penalty. Notably, with respect to Eustis's knowledge of the driver's failure to conduct the requisite safety check on the day in question, the hearing officer wrote the following:

While an argument could be made that constructive knowledge of the violation could be imputed to Eustis by virtue of Carrier's status as foreman, it is unnecessary to do so here. Carrier's failure to prepare and submit "Driver Vehicle Inspection Reports" for six of the thirty-four workdays preceding the accident should have put Eustis on notice of something amiss.

         The hearing officer based this conclusion on the fact that, for a six-week period in 2016, Eustis submitted a completed "Driver Vehicle Inspection Report" for each workday except for six.

         ¶ 4. Eustis filed a petition for discretionary review by the VOSHA review board, challenging the hearing officer's determinations that the truck was "off-highway" under 29 C.F.R. § 1926.601(a), that Eustis failed to conduct an inspection of the truck, and that Eustis knew of the violation. On the first point, Eustis argued that because the truck was operating in the breakdown lane of a public highway, it was not operating within an "off-highway jobsite, not open to public traffic" and thus did not qualify as a "motor vehicle" for purposes of the OSHA regulation. It further argued that VOSHA's evidence that the Eustis driver had failed to conduct a daily safety check, which was based primarily on the absence of a written record of the check, was insufficient where no written record is required, and the driver testified that he would have conducted a check that morning. Finally, Eustis argued that its failure to provide Driver Vehicle Inspection Reports for the six days in question meant nothing because the driver at issue did not work on all those dates.

         ¶ 5. In July 2017, the VOSHA review board upheld the hearing officer's findings and conclusions and denied Eustis's request for discretionary review. The VOSHA review board concluded that because the jobsite was closed to public traffic, it was an "off-highway jobsite" subject to 29 C.F.R. § 1926.601(a). It determined that the hearing officer's conclusion that the driver had failed to conduct the daily inspection was supported by the absence of written documentation of the daily check, in contrast to other days, and that the hearing officer could reasonably conclude that the driver's testimony was vague. Finally, with respect to Eustis's liability for its driver's conduct, the board rejected Eustis's argument that the absence of Driver Vehicle Inspection Reports for the six days in question meant nothing because the driver did not work on those dates. The board explained, "this argument is based on facts and evidence not considered or admitted at the hearing, so cannot be introduced, created, or relied upon after the hearing to support an argument to grant the petition for review." It thus concluded that "the decision of the Hearing Officer in this matter . . . becomes a final order of the Review Board."

         ¶ 6. Eustis appealed the board's decision to the civil division, asserting that: (1) the Eustis truck was not a motor vehicle covered by 29 C.F.R. § 1926.601 at the time of the accident because the vehicle was located on a highway, and therefore did not fall within § 1926.601(a); (2) the evidence did not support the conclusion that Eustis's driver failed to conduct a safety inspection; and (3) the evidence did not establish that Eustis had knowledge of the violation. The civil division affirmed.

         ¶ 7. Eustis now makes the same arguments to this Court. We conclude that the board's conclusion that the driver's violation can be imputed to Eustis is not supported by the record, and thus the Commissioner's case against Eustis cannot stand. We therefore need not decide whether Eustis's truck was a motor vehicle covered by 29 C.F.R. § 1926.601, or whether there was sufficient ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.