Shimmick Construction Co., Inc. v. Wa State Dept. of L&I No. 79619-4-I (March 23, 2020)

Issues: (1) Whether tow trucks are considered cranes for purposes of the Department of Labor &
Industries’ (L&I) regulations when they are used to hoist, lower, or horizontally move a suspended
load. YES. (2) Whether L&I’s regulations prohibit crane operation in the entire area below an
energized power line, not just crane operation within a certain distance from a line, when the crane
is capable of reaching the power line. YES.

Facts: Shimmick Construction Company (“Shimmick”) installed an underground electrical panel
vault as part of a large construction project. Directly above the area where Shimmick was working,
about forty feet above street level, were three high-voltage power lines. The power lines were live
and energized when Shimmick was installing the underground panel vault.

Shimmick was told that using a typical vertical crane for installing the panel vault would not be
feasible given the energized power lines overhead. Instead, Shimmick decided to outfit two tow
trucks with special equipment to lower the sections of the panel vault into the excavation pit. The
special equipment included an extendible boom that, when fully extended and in the vertical
position, could reach over forty feet above the ground. Shimmick employed dedicated spotters and
other safety policies to ensure that the booms did not contact the power lines. On the day of the
lifting, each tow truck was almost directly below the power lines. Neither operator of the tow truck
were certified to operate a crane. The lifts did not encounter any issues and the panel sections were
lowered successfully into place.

The next day, L&I received an anonymous photograph of the two tow trucks hoisting a panel
section near the power lines. L&I determined that the tow trucks were subject to L&I’s crane
regulations and were dangerously close to the power lines, exposing the workers to the risk of
electrocution. L&I issued a monetary penalty to Shimmick for $4,800. Shimmick appealed the
Department’s decision several times, eventually bringing the appeal to the Washington State
Appellate Court.

Holding: Citing the language of applicable statutes and L&I regulations, the Court found that (1)
tow trucks, when used to hoist, lower, or horizontally move a suspended load, are considered
cranes, and (2) crane operation in the entire area below an energized power line is prohibited if the
crane is capable of reaching the power line.

Discussion: The legislature broadly defined a “crane” to mean any “power-operated equipment
used in construction that can hoist, lower, and horizontally move a suspended load.” RCW
49.17.400(5). This provision of such equipment included, but not limited to, “service/mechanic
trucks with a hoisting device,” “boom truck cranes,” and “multipurpose machines when configured
to hoist and lower by means of a winch or hook and horizontally move a suspended load.” L&I
adopted this definition to determine which equipment is subject to its crane regulations. Here, the
tow trucks were being used to hoist, lower and horizontally move the panel sections into the
excavation pit and were therefore functioning as cranes. The Court stated that substantial evidence
supports L&I’s finding that the tow trucks served as cranes and affirmed the finding.

The Court also determined that the safety regulations for operating cranes prohibit crane activities
anywhere below a power line when a crane’s design allows it to reach within the minimum
clearance distance. The violation existed as soon as Shimmick began using the cranes underneath
the power lines; it did not matter if the cranes came within a certain distance of the power
lines. Furthermore, it was not relevant that Shimmick enacted safety measures like spotters to
decrease the likelihood of harm. A lessened likelihood of harm does not negate the fact that
Shimmick exposed its employees to a violative condition.

Briefing by Joshua Campbell, an Associate Attorney in HWS Law Group LLP’s Seattle
Of ice. Joshua is licensed to practice in Washington and Oregon.