Labor Code §4553 identifies only specific persons whose conduct can subject an employer to penalties under Labor Code §4553.1. The lines of authority are often blurred making it difficult to determine exactly whose knowledge or reckless disregard of OSHA Safety Orders or work place hazards can potentially create liability for an employer in California. In the case of Bigge Crane & Rigging v. WCAB (Hunt) (October 4, 2010) A127136, The First District Court of Appeals in an October 4, 2010 published decision brought some clarity to the analysis. The Court of Appeals discussed the facts of an industrial injury in the context of who is “…an executive, managing officer, or general superintendent.”

Bigge Crane had been operating a two man truck mounted crane at the Chevron Oil Refinery in Richmond California. Mark Mom, the operator of the crane was responsible for the actual functioning of the crane. He would, for example, determine how to enter a job site to avoid obstacles and power lines, where to locate the crane and how loads would be hoisted and put in place. He would start and stop the crane as he believed necessary. When he was directed to disassemble a crane, he both performed that task (often by himself or with only an oiler) and gave directions to anyone who helped him. He was responsible for doing crane work as safely as possible.

Mom was both certified and licensed to operate the crane. He had progressed from an oiler to an operator during the 30 years he worked around cranes. He had disassembled hundreds of one man cranes and over 30 two man cranes.

On the day of the accident, Mom had been charged with the duty to disassemble his crane by Curtis Embry, the general foreman and supervisor of the overall operation. Embry had been trained in rigging safety and, as the general foreman, was responsible for seeing that rigging operations were conducted safely. Typically, after assigning operators and workers to their tasks, Embry would hold a safety meeting reviewing concerns and precautions in connection with the specific tasks.

Embry was at the job site as the crane was being disassembled. At some point Mom saw that the iron worker crew, including the applicant, Paul Hunt, was disassembling the crane out of the proscribed order. He called out to Embry who stopped the workers. The order of disassembly was reviewed and the operations continued. However Embry was then called away by the Chevron supervisor and was not actually present when the accident occurred.

The disassembly of the crane continued. When the ironworkers started hammering several pins out of the next boom section, Mom again exited the cab of the crane, walked over to where they were working and had them stop until blocks were placed. An assist crane that had been brought over lifted the boom, and Mom placed two blocks under the section. Instead of returning to the cab to tighten the bridle (for cantilever support), Mom walked over to where Hunt was standing, told the two ironworkers to stand back, called for everyone to have their feet out of the way and pounded a bottom pin. Mom thought his feet were sufficiently out of the way and did not look to see if Hunt’s feet were also clear. The boom section and the one adjoining it, each weighing approximately 4,000 pounds, dropped about eight inches, the adjoining section dropping onto Mom’s foot and Hunt’s lower leg and ankle.

The accident was caused by the failure to have appropriate blocks under the section of crane being disassembled. A “Petition for Serious and Willful Misconduct” was filed by Hunt. The WCJ found the injury was caused by “serious and willful misconduct of a managing representative” of Bigge Crane consisting of (1) “placing the applicant in a knowing and obvious position of danger without safety precaution” and (2) violating safety order, California Code of Regulations, title 8, section 4992, by failing to properly block a boom being disassembled. In the Opinion on Decision, the WCJ identified Embry as a “managing representative” of Bigge Crane because he “had authority to tell other foreman what particular jobs were to be performed and was responsible to ensure that rigging out was done safely.” Alternatively, the WCJ identified Mom as a “managing representative” because “it appears that general discretionary power of direction was delegated to [him].”

The Court of Appeals found that Mom, the crane operator was not an “executive, managing officer or general superintendent” but rather the operator of a single piece of equipment. Relying on a series of earlier decisions the Court held:

“An executive or managing officer is a person in the corporation’s employ, either elected or appointed, who is invested with the general conduct and control at a particular place of the business of a corporation. (E. Clemens Horst Co. v. Industrial Acc. Com. (1920) 184 Cal. 180, 190) A managing agent or a managing representative is one who has general discretionary powers of direction and control-one who may direct, control, conduct or carry on his employer’s business or any part or branch thereof. (Gordon v. Industrial Acc. Com. (1926) 199 Cal. 420,). While the terms of the . . . [statute] have been broadened with each amendment, the [L]egislature has refrained from making the employer liable for the misconduct of every person exercising authority on the employee’s behalf. On the contrary, the class of persons whose misconduct will result in the imposition of such liability still remains limited.”

The Court concluded that Mom was a minor supervisory employee who provided direction to a handful of employees as to one specific piece of equipment and one task. To base a Serious and Willful Misconduct finding on his limited role would potentially create unlimited punitive liability on employers who delegate similar duties to employees.

The Court did assume, without making a specific finding, that Embry was a “managing officer” of Bigge, but went on to conclude that his conduct did not meet the threshold of “Serious & Willful Misconduct.” In that regard the workers compensation judge was wrong in finding that Embry’s conduct amounted to “deliberate, intentional or wanton conduct” with knowledge or appreciation of the fact that “danger is likely to result therefrom.” While Embry knew the operation had been undertaken out of order initially, he also had addressed that problem and knew that Mom was experienced and vigilant and had the necessary equipment to safely perform the job.

Bigge Crane sets forth a clear and articulate standard on not only what it takes to prove “serious and willful misconduct,” but also exactly who can create liability for the employer.