Respondent in Citation Contest Proceeding Scores Rare Win Via Summary Judgment

Costas Cyprus


Citation contest proceedings before the OSH Review Commission, while subject to specialized procedural rules, for the most part are litigated under the Federal Rules of Civil Procedure, as govern civil lawsuits in the U.S. District Courts.

Thus, while the same is infrequently resorted to, contest proceedings are subject to the summary judgment procedures of the FRCP.  For you nonlawyers, summary judgment permits courts to better manage their dockets, curtail proceedings, and avoid trials, in the limited class of cases in which either side can show convincingly that there are no “material facts” (i.e., facts on which the outcome of the suit depends) as to which there exists a genuine dispute requiring a trial.

While summary judgment is to be employed sparingly, it is appropriate where all of the facts that will determine the outcome are admitted, or the evidence concerning them is so one-sided that it is obvious that the party moving for summary judgment must prevail as trial.

The party deeming itself entitled to summary judgment presents a motion to the court, annexing evidence (transcripts of pretrial deposition testimony, probative documents, etc.) and a legal memorandum explaining the basis for the motion. In assessing whether genuine fact issues exist, the court must resolve all ambiguities, and draw all reasonable inferences, in favor of the nonmoving party.

In my many .years of experience litigating in federal and New York state courts, I have observed that, while judges look with favor on opportunities to pare their trial dockets, they are aware that appellate rulings overturning orders granting summary judgment greatly outnumber those reversing denials of summary judgment.  Where the issue is doubtful, therefore, such a motion is unlikely to succeed.

In my extensive review of decisions in citation contest proceedings, I have seldom seen summary judgment attempted .by employers, no doubt in large part because preparing papers, and arguing such a motion, is labor-intensive on the part of the respondent’s counsel (which is to say, expensive).  In the usual case, the penalty amounts at issue are often far less than in federal civil lawsuits, and the legal costs to be saved by a successful motion are often not enormous (.as pretrial discovery procedures are less extensive than in regular lawsuits, and lengthy trials are uncommon).

However, as illustrated by Secretary v.  Harvestland Constructors, Inc,,  a garden-variety fall-protection case, it may be worth asking your attorney to ponder whether the Secretary’s case has an ”Achilles’ heel,” that could make it susceptible to a summary judgment motion.

Harvestland involved a single-item citation, alleging that the employer had violated the OSH Act, by exposing employees to falling through holes in elevated working/walking surfaces by the nonuse of personal fall arrest systems, covers, or guardrail systems erected around such holes.

Most of the relevant facts in this case were undisputed.  An experienced, 66-year-old carpenter, had a continuing assignment to identify and cover uncovered holes in the flooring on a project in Georgia.  Most of these “penetrations” had been created to allow equipment to be passed from one level of the floor to another.  When a hole was observed, this individual, named in the decision as “Carpenter NM,” would cover it with ¾” plywood, and secure the plywood sheeting with cleats, nailed in to prevent slippage.

On the afternoon of the day in question, Carpenter NM, who had been performing this work on the project for about 3 weeks, was working alone (as he usually did) on the second floor of the structure.  

All Harvestland employees were required to use fall protection when working 4’ or more above ground level, supervisors inspected the site several times daily for compliance, and an outside consulting firm performed monthly safety inspections. This employer had a site-specific safety plan, conducted weekly safety meetings, and sent home workers observed to be in violation of safety rules.

Carpenter NM was up-to-date in his training, had been supplied with a personal fall arrest system, and had often been observed utilizing fall protection.  In five years of employment with Harvestland, he had never been cited for safety violations.

On his last afternoon, Carpenter NM covered and nailed down the cleats on nine of thirteen openings existing on the second floor.  About ten to fifteen minutes after returning from a break, he fell through an  uncovered hole, and plunged 38 feet to his death.  For reasons unknown, he was not wearing fall protection at the time.

Of the four elements constituting the Secretary’s burden in order to prove the violation, three were open-and-shut in favor of the government.  Since Carpenter NM was working on a surface with openings far above the floor below, the necessity for fall protection was clear.  Two additional elements — namely, a failure to comply with the fall protection standard and employee exposure — were established beyond question by the fact that Carpenter NM was not using fall protection when he fell 38 feet.

However, three elements out of four will not do, and on the fourth element — actual or constructive knowledge of the violative condition on the employer’s part — Harvestland prevailed, winning summary judgment and the vacatur of the citation.

The Secretary, as the Court found, had to prove either that the employer (through a supervisor) had actual knowledge of the infraction, or that its inadequate safety program was such that a finding of constructive knowledge could be made, based on the conclusion that had the employer exercised due diligence, the violation would have come to a supervisor’s attention.

In a detailed analysis set forth in her decision, the ALJ ruled for Harvestland, because there was no triable issue that it had actual or constructive knowledge that the decedent had been working around openings in the floor without fall protection.  The judge cited facts (many of them corroborated by the testimony of the Compliance Officer) concerning (among other things) the employer’s work rules, and its generally praiseworthy safety training, surveillance of its workforce, and rule enforcement.  Since these factors disproved constructive knowledge, and no basis existed to find actual knowledge, the citation had to be vacated.

The ALJ rejected, as immaterial, the Secretary’s contention that the arguably defective condition of a nylon strap on the harness that Carpenter M was not wearing established the violation.

Not many contests will present a strong case for summary judgment, but given the unpredictably of trials generally, and what witnesses will testify to in particular, your case should be carefully analyzed to determine if summary judgment might offer prospects of success.

Geoffrey S. Pope, an attorney practicing construction law and commercial litigation, after many years with Welby, Brady & Greenblatt, LLP, is joining the firm of Cermele & Wood, LLP, in White Plains, New York.  .The articles in this series do not constitute legal advice, and are intended for general guidance only.

If you would like more information regarding this topic please contact Costas Cyprus at or Call (914) 607-6445
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