Lusardi Construction Co. v. California Occupational Safety & Health Appeals Board

I disagree with the majority opinion because I conclude the California Occupational Safety and Health Appeals Board (the Board) properly determined that the decedent’s failure to wear a safety belt and lifeline while setting a wooden truss during construction of a multistory steel and wood structure is governed by section 1670, subdivision (a), of the California Code of Regulations rather than section 1710, subdivision (g), of that code. 1 At the time he fell, the decedent, a carpenter, was one of several employees who “were walking the wood-covered steel T beams in the interior of the structure, carrying wood trusses and placing [them] in previously prepared metal hangers.”

Section 1670, subdivision (a), is a general regulation governing employees whose work exposes them to falling from the perimeter of a structure, through shaftways and openings, or from certain sloped surfaces. At the time of decedent’s fall, this section required such employees to use approved safety belts and lanyards when exposed to falling in excess of 15 feet. It since has been amended to apply to exposure to a fall in excess of seven and one-half feet.

Section 1710, subdivision (g), is a more specific…

Lusardi Construction Company appeals from a judgment denying its petition for a writ of mandate to set aside the decision of the Occupational Safety and Health Appeals Board (the Board) affirming a citation for a serious violation of a safety order. The Board cross-appeals from the trial court’s memorandum and order, seeking to overturn the trial court’s interpretation of a safety order, section 1710 of title 8 of the California Administrative Code (all further references to this code are under its new designation adopted by the Legislature to be effective January 1, 1988, i.e., the California Code of Regulations). We affirm the judgment.

Factual and Procedural Background

The facts of this case are undisputed. On September 11, 1986, a carpenter working for Lusardi on a skeleton steel structure fell 24 feet to his death while setting wooden trusses (also called joists) on the second story. After setting a truss he had stood up to go get another truss, turned on a four-inch beam and fallen. He had not been wearing a safety belt. The Department of Industrial Relations, Division of Occupational Safety and Health investigated the accident, issued a citation to Lusardi for a…

Michael D. Mason for Real Party in Interest and Respondent.

OPINION

MARLER, J.

Lusardi Construction Company appeals from a judgment denying its petition for a writ of mandate to set aside the decision of the Occupational Safety and Health Appeals Board (the Board) affirming a citation for a serious violation of a safety order. The Board cross-appeals from the trial court's memorandum and order, seeking to overturn the trial court's interpretation of a safety order, section 1710 of title 8 of the California Administrative Code (all further references to this code are under its new designation adopted by the Legislature to be effective January 1, 1988, i.e., the California Code of Regulations). We affirm the judgment.

The facts of this case are undisputed. On September 11, 1986, a carpenter working for Lusardi on a skeleton steel structure fell 24 feet to his death while setting wooden trusses (also called joists) on the second story. After setting a truss he had stood up to go get another truss, turned on a four-inch beam and fallen. He had not been wearing a safety belt. The Department of Industrial Relations, Division of Occupational Safety and Health investigated the…