BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

In the Matter of the Appeal of:

WESTERN COMMTOWER, INC.
847 Arnold Drive
Martinez, CA 94553

                                   Employer

Docket No. 95-R3D2-2804

 

DECISION AFTER RECONSIDERATION

The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code and having granted the petition for reconsideration filed by Western CommTower, Inc. (Employer) makes the following decision after reconsideration.

JURISDICTION

On February 7, 1995, the Division of Occupational Safety and Health (Division) conducted an accident inspection at a place of employment maintained by Employer on Beal Road, Niland, California. On July 5, 1995, the Division issued a citation alleging a serious violation of section 2946(b)(3) [required clearance not maintained between crane and high voltage lines] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations. A civil penalty of $3,500 was proposed.

Employer filed a timely appeal. After a hearing before an administrative law judge (ALJ) of the Board, a decision was issued on January 6, 1997, followed by an amended decision on January 13, 1997, denying Employer’s appeal in part and granting it in part. A violation of section 2946(b)(3) was found but its classification was reduced to general with a penalty assessed of $225.

On February 10, 1997, Employer petitioned the Board for reconsideration of the ALJ’s decision. The Board granted Employer’s petition on March 6, 1997, and stayed the ALJ’s decision pending a decision on the petition for reconsideration. On March 17, 1997, the Division filed an answer to Employer’s petition.

EVIDENCE

The Board has taken no new evidence and relies upon its independent review of the record in making this decision. The Board adopts and incorporates by this reference the Summary of Evidence set forth on pages two through five of the decision of the ALJ.

Employer was erecting microwave communications towers in accordance with an erection plan that called for tower sections, which were lying on their sides, to be raised upright, then lifted and bolted in place, one atop the other. Employer had leased a 100-ton crane with a crane operator and oiler from a company named Mr. Crane.

Initially, a smaller truck crane was used to raise the tower sections into the air. At which point, the line attached to the jib boom of the larger crane was attached to the top of the tower section to lift it to an upright position. Once that was done, the sling from the smaller crane was removed and the section was lifted into place.

On the day of the accident, the ground was too muddy to use the truck crane. At the suggestion of the crane operator, Employer’s field superintendent decided that the boom line of the 100-ton crane would be used in place of the truck crane to raise the section into the air, then the crane’s jib line would be attached and used to turn the section upright and complete the placement.

The sections to be lifted were lying on their sides, 35 to 38 feet east of the nearest of several high voltage lines, which were 50 feet overhead.

The superintendent mounted an aluminum ladder leaning against one of the sections in order to attach the boom line. As he was attempting to push the nylon rope of the sling through the throat of the safety hook, he suddenly noticed that the jib line of the crane was moving dangerously close to the power line. He yelled, but before anything could be done, the jib line either contacted or came close enough to the power lines to cause the current to pass through his body to ground. He suffered severe entry and exit burns and neck injuries that required hospitalization for more than 6 days.

Section 2946(b)(3) prohibits the "operation of boom type lifting . . . equipment, or any part thereof, closer than the minimum clearances from overhead high voltage lines set forth in Table 2." Under the circumstances here presented, it was necessary for the Division to prove, in accordance with Table 2, that the high-voltage lines were energized to between 125,000 and 175,000 volts (124 kv to 175 kv) and that there was less than 15 feet of clearance between the jib line and the nearest conductor.

ISSUES

1. Were the high voltage conductors energized to 161 kv?

2. Was there less than 15 feet of clearance between the jib line and the nearest conductor?

3. Did Employer exercise sufficient control over the work site to be held responsible for the manner in which the crane was operated?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

1. The High Voltage Conductors Were Energized to 161 kv.

In determining that the conductors were carrying 161,000 volts, the ALJ relied primarily on the notation "161 kv" with arrows pointing to the power lines depicted in a diagram of the accident scene that was received into evidence.

The diagram was prepared promptly after the accident at the direction of Employer's president, Guy Black. The two persons directly responsible for its preparation were Randy Edwards, the president of Mr. Crane, and Verne Atwood, an experienced installer for Employer who was present at the time of the accident and later took over for the injured field superintendent. Black testified that the diagram was based on information gathered at the site and that, while he had no first hand knowledge of the facts, he believed the information provided by Atwood and Edwards to be accurate.

When the inspector asked Black to send him "whatever they had," Black told him that the information was being worked up. And when the diagram was completed, he voluntarily provided the Division with a copy. At no time did Black disclaim the diagram or any part of its contents.

The ALJ found that the description of the voltage as "161 kv," though hearsay, could support a finding of fact because it fell within the exception for "adoptive admissions" in Evidence Code section 1221.

That section provides that "[e]vidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth."

Here, the statement was prepared promptly after the accident, from information available at the site, by two qualified and experienced persons, at the direction of Employer’s president, who testified that he believed its contents to be accurate. When he voluntarily provided it to the Division, he had every reason to believe that it would be relied upon in determining whether a violation had occurred, yet he did so without disclaimer or qualification. Under those circumstances, the ALJ properly concluded that Employer had adopted the diagram and its contents as true.

Employer contends that the exception for party admissions does not apply because Black lacked personal knowledge of the voltage or the source of the information from which the voltage figure came.

That is not the law. In the case of admissions—regardless of whether they be personal, adoptive, or authorized—the normal testimonial qualification of personal knowledge is dispensed with. The underlying theory is that a party would not make, adopt or authorize a statement against his interest unless he was satisfied that it was reliable.

Employer is incorrect in its assertion that the language "with knowledge of the content" found in Evidence Code, section 1221, means "personal knowledge." The "knowledge" of the content of the statement need not be personal knowledge. That language exists to make it clear that a hearsay statement cannot be adopted unless the party against whom the statement is offered is shown to have been aware of the content of the statement he or she is alleged to have adopted. "If silence, for example, is to be considered conduct manifesting a belief in the truth of another’s accusatory statement, the statement must have been spoken loudly enough, and the party must have been close enough, for the inference to be drawn that the party heard the statement."

The ALJ noted that no conflicting evidence was presented. The ALJ further noted that Employer’s adoptive admission that the conductors were energized to 161 kv at the time of the accident was supplemented by hearsay testimony from the inspectors that an investigator employed by the owner of the high-voltage line told them the conductors were so energized and provided a declaration to that effect. On that basis, the ALJ found that the conductors were energized to 161 kv at the time of the accident.

The Board has consistently followed the holding of Lamb v. Workmen’s Compensation Appeals Bd. that an ALJ’s findings of fact supported by solid, credible evidence, are to be accorded great weight and should be rejected only on the basis of contrary evidence of considerable substantiality. The ALJ’s finding satisfies that criterion.

2. There Was Less Than 15 Feet of Clearance between the Jib Line and the Nearest Conductor.

Employer next argues that there is insufficient credible evidence to support a finding that the jib line of the crane was operated within the minimum clearance provided for in Table 2 of Section 2946—15 feet for an overhead high voltage line energized from 125 kv to 175 kv.

First, the diagram of the scene discussed above specifies the distance from the jib line to the nearest energized power line as "11 2 . As such, it has every bit as much evidentiary weight as the "161 kv" notation on the same diagram. Furthermore, a clearance of less than 15 feet is fully supported by trigonometric calculation from the known angles and measured distances specified in the diagram and the testimony of the inspectors.

In addition, Employer’s field superintendent testified that moments before the accident, he saw the jib line moving dangerously close to the power line and shouted his alarm.

Finally, the serious electrical burns he suffered indicate that the safe clearance distance established by the Standards Board, in the exercise of its electrical expertise, had been breached.

The unsupported and self-serving hearsay declaration of the crane operator that the crane was elevated to 64 , rather than 63 (thus increasing the distance from the jib line to the power line), is insufficient to overcome the more persuasive evidence presented by the Division. Indeed, the diagram prepared by the owner of the line puts the boom at an even more dangerous angle of 61.3690 .

3. Employer Exercised Sufficient Control over the Work Site to Be Held Responsible for the Manner in Which the Crane Was Operated.

Because the crane was leased from another company and operated by an employee of that company, Employer contends that it can not be held responsible for "operating" the crane closer than the minimum clearance provided for in the safety order.

The argument is rejected. The crane and operator were leased to Employer and were at its site, at its expense, for the sole purpose of helping Employer's employees install the tower. Employer’s field superintendent was the one who decided to adopt the picking procedure suggested by the crane operator. And, at the time of the accident, he had undertaken responsibility for signaling the operator.

The Board has confronted the issue of the responsibility of employers for acts involving leased cranes and their crews on a number of occasions. Those cases make it clear that when an employer has exercised the kind of direction and control which Employer exercised over the crane and its operator in this case, it is responsible for actions taken by him which jeopardize the safety of its employees. This case is distinguished form Petroleum Maintenance Company where the employer lacked the power to control the work site or to supervise the employee who created the hazardous condition.

Employer argues that it should not be held responsible because the field superintendent had not signaled or directed the crane operator to lower the jib line; the crane operator was acting on his own when he did so. In Spancrete of California, supra, as in this case, the employer had obtained a crane and crew from Hill, a crane leasing company, on a job Spancrete controlled. Spancrete contended that it was not responsible for the misconduct of the crane operator provided by Hill. Because Spancrete was in control of the operation, as Employer’s superintendent was here, the Board held that to establish a defense based on the crane operator’s misconduct, Spancrete had to prove that Hill met the elements of the independent employee action defense.

In this case, Employer failed to establish that Mr. Crane had a safety program which it enforced, that its enforcement included a policy of sanctions, or that the crane operator committed a violation which he knew was contrary to Hill’s safety program. In the absence of these required elements, Employer failed to establish the independent-employee-action defense.

DECISION AFTER RECONSIDERATION

The decision of the ALJ is affirmed. Employer’s appeal is denied, and a civil penalty of $225 is assessed.

BILL DUPLISSEA, Member MARCY V. SAUNDERS, Member

SIGNED AND DATED AT SACRAMENTO, CALIFORNIA - July 19, 2000