{ "id": 8526701, "name": "JOHN C. BROOKS, COMMISSIONER OF LABOR OF NORTH CAROLINA v. DOVER ELEVATOR COMPANY", "name_abbreviation": "Brooks v. Dover Elevator Co.", "decision_date": "1989-06-06", "docket_number": "No. 8810SC734", "first_page": "139", "last_page": "144", "citations": [ { "type": "official", "cite": "94 N.C. App. 139" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "372 S.E. 2d 342", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "345" } ], "opinion_index": 0 }, { "cite": "91 N.C. App. 459", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525947 ], "year": 1988, "pin_cites": [ { "page": "464" } ], "opinion_index": 0, "case_paths": [ "/nc-app/91/0459-01" ] }, { "cite": "685 F. 2d 664", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 3634472, 525636 ], "year": 1982, "pin_cites": [ { "page": "669" } ], "opinion_index": 0, "case_paths": [ "/us-app-dc/222/0214-01", "/f2d/685/0664-01" ] }, { "cite": "698 F. 2d 507", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 3639529, 1506267 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "511" }, { "page": "512", "parenthetical": "specific regulation relating to hazards of falls by employees from thirty feet or more did not preclude secretary's citation under general duty clause for hazards to employees working at less than thirty feet" } ], "opinion_index": 0, "case_paths": [ "/us-app-dc/225/0341-01", "/f2d/698/0507-01" ] }, { "cite": "329 S.E. 2d 385", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 327", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4719235, 4724236, 4726804, 4722549, 4725112 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0327-05", "/nc/313/0327-04", "/nc/313/0327-03", "/nc/313/0327-01", "/nc/313/0327-02" ] }, { "cite": "321 S.E. 2d 440", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "442" } ], "opinion_index": 0 }, { "cite": "70 N.C. App. 681", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524450 ], "year": 1984, "pin_cites": [ { "page": "684" } ], "opinion_index": 0, "case_paths": [ "/nc-app/70/0681-01" ] }, { "cite": "281 S.E. 2d 24", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "28", "parenthetical": "review from final decisions in contested cases made under OSHANC shall be in accordance with Chapter 150A" }, { "page": "29" } ], "opinion_index": 0 }, { "cite": "303 N.C. 573", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574954 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "579", "parenthetical": "review from final decisions in contested cases made under OSHANC shall be in accordance with Chapter 150A" }, { "page": "580" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0573-01" ] } ], "analysis": { "cardinality": 546, "char_count": 11375, "ocr_confidence": 0.746, "pagerank": { "raw": 4.60167783687625e-08, "percentile": 0.2888241746912658 }, "sha256": "c73fbb03d0c907d34e1bbeb72d67d225535f83e00012a57a7a5632360751f3f7", "simhash": "1:69c59cff0f32246c", "word_count": 1823 }, "last_updated": "2023-07-14T20:07:12.068465+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Phillips and Cozort concur." ], "parties": [ "JOHN C. BROOKS, COMMISSIONER OF LABOR OF NORTH CAROLINA v. DOVER ELEVATOR COMPANY" ], "opinions": [ { "text": "GREENE, Judge.\nOn 12 August 1985, the North Carolina Department of Labor Occupational Safety and Health Division (Commissioner) issued a citation to Dover Elevator Company (Dover). After the hearing examiner first dismissed the citation, the Review Board vacated that dismissal and remanded to the hearing examiner. On remand, the hearing examiner found a violation of N.C.G.S. Sec. 95-129(1) (1985) (general duty clause) and on appeal the Review Board reversed. The Commissioner appealed, pursuant to N.C.G.S. Sec. 95-141 (1985), to the superior court which affirmed the decision of the Review Board. The Commissioner then appealed, pursuant to N.C.G.S. Sec. 150A-52 (1978) (Chapter 150A recodified as Chapter 150B effective 1 January 1986), to this court.\nThe citation issued by the Commissioner reads as follows:\nNorth Carolina General Statutes Section 95-129(1): Condition(s) of employment and a place of employment free from recognized hazard(s) likely to cause death, serious injury or serious physical harm were not furnished for each employee, in that:\nthe electrical switching device known as a temporary run station had been modified in that the back cover of the device was missing exposing the electrical contacts to physical damage where this device was being used in lieu of regular switches on state elevator #1762 located in Moses Cone Hospital, Greensboro, N.C. and where malfunction of device could cause death or serious physical harm.\nThe undisputed facts reveal that on 12 June 1985 while Dover was in the process of remodeling elevators at Moses Cone Hospital in Greensboro, North Carolina, it used \u201ctemporary run stations\u201d to move various elevators \u201cup and down.\u201d A \u201ctemporary run station\u201d is an electically controlled switch which operates on less than fifty (50) volts of electricity. One of the \u201ctemporary run stations\u201d had been supplied by one of Dover\u2019s employees and was not of the type ordinarily used by Dover, in that it did not have a metal cover on the back of the switch. Instead, this particular \u201ctemporary run station\u201d was wrapped with six hundred volt electrical tape. On 12 June 1985, one of Dover\u2019s employees was killed when his body was pinned between the top of one of the elevator cabs and the doorway header of the elevator shaft. Just prior to his death, the employee had been instructed to raise the elevator cab, which required the use of the \u201ctemporary run station\u201d which had no metal cover. An investigation after the incident revealed that when this \u201ctemporary run station\u201d was turned on, the elevator moved up without the necessity of engaging the \u201cup\u201d switch.\nDover\u2019s defense to the citation was that the \u201ctemporary run station\u201d was in compliance with the National Electric Code and therefore the Commissioner was precluded from citing Dover with a violation of the general duty clause.\nThis appeal is governed by the Administrative Procedure Act and specifically Chapter 150A as the citation was filed prior to 1 January 1986. See Brooks v. McWhirter Grading Co., Inc., 303 N.C. 573, 579, 281 S.E. 2d 24, 28 (1981) (review from final decisions in contested cases made under OSHANC shall be in accordance with Chapter 150A). Accordingly, this court \u201cmay reverse or modify\u201d the Review Board only if\nthe substantial rights of the petitioners may have been prejudiced because the agency findings, inferences, conclusions, or decisions are:\n(1) In violation of constitutional provisions; or\n(2) in excess of statutory authority or jurisdiction of the agency; or\n(3) made upon unlawful procedures; or\n(4) affected by other error of law; or\n(5) unsupported by substantial evidence admissible under G.S. 150A-29(a) or G.S. 150A-B0 in view of the entire record as submitted; or\n(6) arbitrary or capricious.\nN.C.G.S. Sec. 150A-51 (1978). The proper scope of review is further determined by the \u201cnature of the contended error.\u201d McWhirter Grading Co., 303 N.C. at 580, 281 S.E. 2d at 29. The Commissioner contends the decision of the Review Board is \u201caffected by . . . error of law\u201d and must be reversed.\nThe Commissioner\u2019s contention raises the issue of whether Dover\u2019s compliance with the National Electric Code, a specific standard, preempts the Commissioner\u2019s enforcement of the general duty clause.\nThe general duty clause provides:\nEach employer shall furnish to each of his employees conditions of employment and a place of employment free from recognized hazards that are causing or are likely to cause death or serious injury or serious physical harm to his employees.\nN.C.G.S. Sec. 95-129(1) (1985).\nThe National Electric Code provides in pertinent part:\n. . . live parts of electric equipment operating at 50 volts or more shall be guarded against accidental contact by approved cabinets or other forms of approved enclosures . . .\n29 C.F.R. Sec. 1910.303(g)(2) (1988).\nPursuant to N.C.G.S. Sec. 95-131, all federal occupational safety or health standards, rules or regulations, unless alternate State rules, regulations or standards, are set as permitted in Section 131(a), promulgated under the Federal Occupational Health and Safety Act, \u201cshall in all respects be the rules and regulations of the Commissioner of [North Carolina].\u201d N.C.G.S. Sec. 95-131 (1985). Furthermore, federal court decisions interpreting these federal rules and regulations \u201chave been followed by North Carolina courts when interpreting [the Occupational Safety and Health Act of North Carolina].\u201d Brooks v. Butler, 70 N.C. App. 681, 684, 321 S.E. 2d 440, 442 (1984), disc. rev. denied, 313 N.C. 327, 329 S.E. 2d 385 (1985). Accordingly, the National Electric Code which has been made a part of the National Occupational Safety and Health Act, 29 C.F.R. 1926.400 (1988), is by virtue of N.C.G.S. Sec. 95-131(a), a North Carolina standard. Furthermore, Section 1910.5 of the federal regulations, treated as a state regulation by virtue of N.C.G.S. Sec. 95-131(a), provides in pertinent part:\n(c)(1) If a particular standard is specifically applicable to a condition, practice, means, method, operation, or process, it shall prevail over any different general standard which might otherwise be applicable to the same condition, practice, means, method, operation, or process. . . .\n(c)(2) On the other hand, any standard shall apply according to its terms to any employment and place of employment in any industry, even though particular standards are also prescribed for the industry ... to the extent that none of such particular standards applies. . . .\n(f) An employer who is in compliance with any standard in this part shall be deemed to be in compliance with the requirements of [the general duty clause], but only to the extent of the condition, practice, means, method, operation, or process covered by the standard.\n29 C.F.R. 1910.5 (1988).\nThe federal courts have consistently interpreted Section 1910.5 to mean that the mere presence of a specific safety regulation does not itself render inapplicable the general duty clause. E.g., L. R. Willson and Sons, Inc. v. O.S.H.R.C., 698 F. 2d 507, 511 (D.C. Cir. 1983). The plain language of 29 C.F.R. 1910.5 makes it clear that a specific standard preempts the general duty clause only if \u201c \u2018a condition, practice, means, method, operation, or process\u2019 is already dealt with by a specific standard.\u201d L. R. Willson and Sons, Inc. v. Donovan, 685 F. 2d 664, 669 (D.C. Cir. 1982). In other words, does the specific standard guard against the particular hazard for which the employer is cited under the general duty clause.\nThe question presented in this case is whether Section 1910.303(g)(2) of the National Electric Code, a specific regulation, comprehensively covers all hazards that could be associated with the exposure of live parts of electrical equipment. We conclude it does not. The regulation itself sets a specific standard only for the operation of electric equipment operating at fifty (50) volts or more. As to the operation of electric equipment of less than fifty (50) volts, the hazard presented in this case, the regulation is silent and therefore presents no standard.\nThe failure of the Commissioner to establish a specific safety regulation for hazards does not relieve the employer from its general obligation to provide employees \u201cconditions of employment . . . free from recognized hazards that are causing or are likely to cause death or serious injury or serious physical harm.\u201d See Willson, 698 F. 2d at 512 (specific regulation relating to hazards of falls by employees from thirty feet or more did not preclude secretary\u2019s citation under general duty clause for hazards to employees working at less than thirty feet). Accordingly, the Commissioner was not precluded by Section 1910.303(g)(2) of the National Electric Code from citing Dover for violation of the general duty clause based on allegations that Dover exposed its workers to hazards resulting from the use of a \u201ctemporary run station\u201d having live parts unguarded by approved enclosures and operating on less than fifty (50) volts.\nIn conclusion, the Review Board order dismissing the citation is reversed and the case is remanded to the Review Board with instructions to address the merits of the general duty clause violation. On remand, the Commissioner has the burden of proving: (1) the employer failed to render its workplace free of a hazard; (2) the hazard was recognized; (3) the hazard was causing or likely to cause death or serious physical harm; and (4) there were feasible means by which the employer could have eliminated or materially reduced the hazard. See Brooks v. Rebarco, Inc., 91 N.C. App. 459, 464, 372 S.E. 2d 342, 345 (1988). Whether or not a hazard exists or is recognized must be determined by \u201cthe standard of a reasonable prudent person. Industry custom and practice are relevant and helpful but are not dispositive.\u201d Id.\nReversed and remanded.\nJudges Phillips and Cozort concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Associate Attorney General Melissa L. Trippe, for the State.", "Smith Helms Mull\u00eds & Moore, by Jon Berkelhammer, for respondent-appellee." ], "corrections": "", "head_matter": "JOHN C. BROOKS, COMMISSIONER OF LABOR OF NORTH CAROLINA v. DOVER ELEVATOR COMPANY\nNo. 8810SC734\n(Filed 6 June 1989)\nMaster and Servant \u00a7 23.1 \u2014 employer\u2019s violation of \u201cgeneral duty\u201d clause \u2014 workers exposed to electrical hazard \u2014 burden of proof on Commissioner of Labor\nBecause \u00a7 1910.303(g)(2) of the National Electric Code, a specific regulation, did not comprehensively cover all hazards which could be associated with the exposure of live parts of electrical equipment, the Commissioner was not precluded by that section from citing defendant for violation of N.C.G.S. \u00a7 95-129(1), the general duty clause, based on allegations that defendant exposed its workers to hazards resulting from the use of a \u201ctemporary run station\u201d having live parts unguarded by approved enclosures and operating on less than 50 volts; however, the Commissioner had the burden of proving that the employer failed to render its workplace free of a hazard, that the hazard was recognized and was causing or was likely to cause death or serious physical harm, and there were feasible means by which the employer could have eliminated or materially reduced the hazard.\nAppeal by Commissioner of Labor from Stephens (Donald WJ, Judge. Order entered 11 April 1988 in Superior Court, WAKE County. Heard in the Court of Appeals 26 January 1989.\nAttorney General Lacy H. Thornburg, by Associate Attorney General Melissa L. Trippe, for the State.\nSmith Helms Mull\u00eds & Moore, by Jon Berkelhammer, for respondent-appellee." }, "file_name": "0139-01", "first_page_order": 169, "last_page_order": 174 }