Appellate counsel asks court to remand citation so board can decide if Stute applies to subcontractor exposure

Aaron Owada, counsel, told the court he was asking judges to affirm the superior court’s decision vacating a workplace‑safety citation and remanding the matter to the board so it can decide whether the Stute line of cases applies to subcontractor exposure. “We’re asking this court to affirm the superior court’s decision that vacated the citation and remanded it back to the board to address whether Stute … had any application to this current case,” Owada said.

Owada outlined the department’s allegation: a single serious violation stemming from two stairwells in Building A that lacked a handrail, which the proposed decision tied to exposure of 11 employees. He told the bench his client did not believe the record showed the employer had adequate notice that the department was pursuing a Stute‑based claim directed at subcontractor employees and that, had they known, they would have called different witnesses, including subcontractor employees, to support infeasibility and supervision evidence.

“Had the department alleged a Stute citation, we would have called different witnesses,” Owada said, arguing that the board judge’s treatment of a temporary handrail installed after the inspection undercut the infeasibility defense the employer would have developed.

In response, Helen Eastwood, Assistant Attorney General representing the Department of Labor and Industries, said Washington law places prime responsibility on general contractors for worker safety and that the department’s own evidence — including admissions during the hearing — showed subcontractor employees used the stairwell without handrails. “The general contractor can’t note that our own employees are safe, but that subcontractors aren’t,” Eastwood said, and she told the court the board has authority to amend citations to conform to the evidence, citing the statutory reference read in the hearing as “RCW 49 17 1.”

Eastwood disputed that the employer suffered prejudice from amendment, saying the hearing record reflected opportunities to present feasibility arguments and witnesses and that the department had testified a temporary handrail could have been installed without preventing finishing work. She asked the court to affirm the board’s decision to uphold worker‑safety protections in light of the evidence that subcontractor employees were exposed.

Bench questioning focused on whether the citation’s language had to identify CDK employees specifically to give fair notice, what additional testimony would materially differ, and whether existing case law applying Stute and Vargas directly to L&I workplace citations exists. Eastwood acknowledged reliance on Stute and Vargas but said she was not aware of a statute or reported L&I case that explicitly tracked those injury‑case decisions to L&I enforcement fact patterns.

Owada reiterated his procedural request near the close of argument: because he contends the employer did not have notice to defend a Stute claim, the superior court’s vacatur and remand should be affirmed so the board can address Stute applicability with a new hearing. The court recessed after concluding the limited calendar.