United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

Appearances:

Megan McGinnis, Laura O’Reilly, Jeffrey Mendoza, Department of Labor, Office of Solicitor, Kansas City, Missouri,

                                For Complainant

Anthony L. Gosserand, Van Osdol PC, Kansas City, Missouri,

                                For Respondent       

Before:  Judge Christopher D. Helms – U. S. Administrative Law Judge

DECISION AND ORDER

        This matter is before the United States Occupational Safety and Health Review Commission (Commission) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq.) (the Act).  On August 20 and 21, 2020, a Compliance Safety and Health Officer (CSHO) inspected a worksite after receiving a complaint that an excavation appeared unsafe. As a result, the Occupational Safety and Health Administration (OSHA) issued a Citation and Notification of Penalty to Respondent Arrow Plumbing, LLC (Arrow Plumbing). The Citation alleges two serious violations and two repeat-serious violations, with total proposed penalties of $299,590.00. Arrow Plumbing timely contested the Citation.

        The Chief Administrative Law Judge designated this matter for conventional proceedings, and a trial was held on July 19-21, 2022, in Kansas City, Missouri. The following individuals testified: (1) Compliance Safety and Health Officer (CSHO) Christina Gibbs; (2) Michael Hayslip, an expert witness for the Secretary; (3) Karena Lorek, Area Director of the Kansas City Area OSHA office; (4) Rick Smith, Owner of Arrow Plumbing; and (5) Joshua Brackenbury, Project Supervisor.

        After the trial concluded, both parties timely filed post-trial briefs, which were considered by the Court in reaching its decision. Pursuant to Commission Rule 90, after hearing and carefully considering all the evidence and the arguments of counsel, the Court issues this Decision and Order as its findings of fact and conclusions of law.

        For the reasons discussed, Citation 2, Item 1 is vacated. The remaining citation items are affirmed.

II.        Stipulations & Jurisdiction

        The parties stipulated to several matters, including the jurisdiction of this Court over this proceeding and the parties before it. See Joint Stipulation Statement (J. Stip.) 1. The parties submitted the Joint Stipulation Statement to the Court prior to trial and entered the stipulations into the record. (Tr. 11). The Court incorporates by reference the Joint Stipulations and refers to them as necessary in this decision.

III.        Background       

        When Mr. Smith and Mr. Brackenbury were working in the excavation, they focused their efforts on the portion of the sewer pipe that was fitted with the coupling. (Tr. 657). Mr. Brackenbury was standing along the vertical south wall assisting Mr. Smith, who was positioned alongside the coupling. (Tr. 577-78). The two men had installed 10 to 12 feet of pipe by the time the CSHO arrived. (Tr. 648). Notably, the testimony regarding the distance between where the men were working and the utility lines varies: the CSHO testified they were 3 to 4 feet away, while Mr. Brackenbury recalls working 10 feet away, and Mr. Smith believed they were 15 to 20 feet away. (Tr. 141, 540, 654-55).

        Work continued the next day, and the CSHO returned to conduct another inspection of the site. (Tr.141). OSHA cited Arrow Plumbing for violations observed on August 21, but the Secretary later amended the citation to exclude them. (Tr. 262-64).

1. b.Prior OSHA Violations 

        OSHA has previously cited Arrow Plumbing for violations similar to those present in this case. In December 2016, Arrow Plumbing was completing a job in Belton, Missouri, which involved digging a trench and connecting a sewer line stub for a residential property. (Tr. 598; Ex. C-23 at 2). The trench was 9 feet deep, approximately 2 feet wide, and 20 feet long. (Ex. C-23 at 2). The walls of the trench were not benched or sloped, and there was no trench box in use. (Id. at 5). Spoil piles were located adjacent to the edge of the trench and were not held back by any retaining device. (Id. at 2). While digging, the excavator hit a sewer main and caused a break. (Id.). The operator entered the trench and, while he was in the trench, the wall collapsed under the weight of the spoil piles, resulting in the death of the operator. (Id. at 5; Tr. 441). OSHA cited Arrow Plumbing with four serious violations and three willful violations. (Ex. C-22 at 5-12). Relevant to this case, Arrow Plumbing was cited with a serious violation of 29 C.F.R. § 1926.651(j)(2) (failure to keep excavated materials at least 2 feet from the edge of the excavation) and a willful violation of 29 C.F.R. § 1926.652(a)(1) (failure to protect employees from cave-ins). (Ex. C-22 at 6, 12). The proposed penalties totaled $294,059. (Ex. C-22 at 13).

        A month after the fatality at the Belton worksite, OSHA conducted an inspection of a worksite in Kansas City. (Ex. C-26 at 2; Tr. 446). Arrow Plumbing was hired to connect a sanitary sewer line from a residence to a main line. (Ex. C-26 at 2). OSHA noted that there was an excavation ranging in depth from 8 to 13 feet, and spoil piles were adjacent to the edge of the excavation. (Id.). No form of cave-in protection was in place, and utilities were unsupported. (Id.). OSHA cited Arrow Plumbing with four serious violations and three willful violations. (Ex. C-25 at 6-12). Relevant to this case, OSHA cited Arrow Plumbing with a willful violation of 29 C.F.R. § 1926.651(j)(2) (failure to keep excavated materials at least 2 feet from the edge of the excavation) and a willful violation of 29 C.F.R. § 1926.652(a)(1) (failure to protect employees from cave-ins). (Ex. C-25 at 10, 12).

1. c.The Instant OSHA Citation and Penalty 

        The CSHO ultimately concluded that Arrow Plumbing committed two serious violations and two repeat-serious violations. Ms. Lorek reviewed the file and approved the issuance of these citations. (Tr. 435). Citation 1, Item 1 alleges a violation of 29 C.F.R. § 1926.100(a) (failure to wear protective helmets while working in the excavation). (Ex. C-17 at 6). Citation 1, Item 2 alleges a violation of 29 C.F.R. § 1926.651(b)(4) (failure to support, protect, or remove underground utilities). (Ex. C-17 at 7). Citation 2, Item 1 alleges a repeat-serious violation of 29 C.F.R. § 1926.651(j)(2) (failure to keep excavated materials at least 2 feet from the edge of the excavation). (Id. at 8) Citation 2, Item 2 alleges a repeat-serious violation of 29 C.F.R. § 1926.652(a)(1) (failure to protect employees from cave-ins). (Ex. C-17. at 9).

        OSHA assessed the maximum penalty for the two repeat violations and one of the serious violations. (Tr. 458). OSHA considered mitigating factors when deciding the appropriate penalty, but ultimately concluded that none applied. (Tr. 471). For instance, Arrow Plumbing’s overall safety and health program—which consisted solely of a printed copy of the OSHA excavation standard that was not provided to new employees and never enforced—was not an adequate mitigating factor. (Tr. 470).

        OSHA also concluded the penalties for the serious citation items should not be reduced on the basis of gravity of the violation, good faith, history, or size. (Tr. 471-73). It determined that gravity did not reduce the penalties because although only one employee was exposed, and that exposure was seemingly of short duration, the risk and probability of injury or serious harm for several of the violations was high. (Tr. 112, 118, 125, 493). It also determined good faith and history did not reduce the penalty amount because Arrow Plumbing had a history of OSHA violations. (Tr. 460-61). Further, OSHA did not give Arrow Plumbing a reduction for size because it wanted the penalty amount to create a deterrent effect, which it claimed is permissible under the Field Operations Manual. (Tr. 471-72). In short, OSHA did not give Arrow Plumbing any reductions for mitigating factors because it wanted to create a deterrent effect. (Tr. 488).

IV.        Discussion

        To establish the violation of a safety standard under the Act, the Secretary must prove: (1) the cited standard applies; (2) the employer failed to comply with the terms of that standard; (3) employees had access to the hazardous condition covered by the standard; and (4) the employer knew, or with the exercise of reasonable diligence could have known, of the violative condition. Atl. Battery Co., No. 90-1747, 1994 WL 682922, at * 6 (OSHRC, Dec. 5, 1994). The Secretary has the burden of establishing each element by a preponderance of the evidence. The Hartford Roofing Co., No. 92-3855, 1995 WL 555498, at *3 (OSHRC, Sept. 15, 1995).

1. a)This was most recently documented on August 20, 2020, at the residential construction site located at 643 Gateway Court, Grain Valley, Missouri. Employees were not wearing protective helmets while working in a trench measured at 9’3” deep. Employees were exposed to struck-by hazards from tools, materials, and spoil piles. 

* * *

Citation at 6. Arrow Plumbing argues that the standard did not apply, there was no exposure to a hazard, and it had no knowledge of the violation.

        After careful consideration, the Court concludes that the standard applied. Mr. Brackenbury was working alongside excavation walls that exceeded his height while working on connecting the pipe. Tools and spoil piles were located overhead near the edge of the excavation, so they posed a potential threat of head injury from falling or kicked objects.

        Next, there is no dispute that the standard was violated. The record establishes—and Arrow Plumbing concedes—that neither Mr. Smith nor Mr. Brackenbury were wearing hard hats at the worksite on the day of the inspection. The fact that hard hats were seen as a nuisance and limited the wearer’s field of vision does not negate a finding by this Court that the standard was violated. (Tr. 100, 543); see Houran USA, Constr., No. 18-1261, 2020 WL 1316905, at *3 (OSHRC, Feb. 7, 2020) (employees disliking hard hats because they made them sweat was no defense).

        The Secretary also established exposure. Mr. Brackenbury was working next to a near-vertical wall below spoil piles and tools left along the edge. The record demonstrates that Mr. Brown was walking along and standing at the edge of the excavation above Mr. Brackenbury. It is reasonably foreseeable that an object from the surface would fall or get kicked into the excavation and strike Mr. Brackenbury. See, e.g., Rawlings Constr., Inc., No. 9980, 1975 WL 4845, at *3 (OSHRCALJ, May 5, 1975) (finding that two workers without hard hats in a trench were exposed to the hazard of falling objects where excavated soil was stored on the banks of the excavation and activity was taking place at the surface level). Although Arrow Plumbing argues the possibility of being struck is remote, exposure can nevertheless be established. See Altor, Inc., No. 99-0958, 2011 WL 1682629, at *7 (OSHRC, Apr. 26, 2011) (“[e]xposure can be shown even where ‘the hazard of being struck . . . was remote and [where] hardhats may not have offered much protection.’”) (citation omitted).

        Lastly, the Court concludes employer knowledge is established. Mr. Brackenbury admitted he did not wear a hard hat, and Mr. Smith observed Mr. Brackenbury in the excavation without a hard hat on, despite both men having access to hard hats in their vehicles. See CMC Elec., Inc., No. 96-169, 1999 WL 261189, at *5 (OSHRC, Apr. 26, 1999) (affirmed in pertinent part) (finding employer knowledge established where all three employees, who were also supervisors, failed to wear their hard hats on site). Accordingly, the Secretary met her burden on Citation 1, Item 1.

1. 2.Classification as Serious 

        A violation of this section is “serious” when “there is a possibility of an accident and a substantial probability that death or serious physical injury would result.” Brennan v. OSHRC (Interstate Glass), 487 F.2d 438, 439 (8th Cir. 1973) (citing 29 U.S.C. § 666(j)). The CSHO testified that based on her experience, tools or chunks of dirt could have caused a brain injury if they fell on Mr. Brackenbury’s head. (Tr. 103). Mr. Hayslip testified that wearing hard hats was a common practice at excavation sites given the risk of dirt or tools falling into them. (Tr. 339). The testimony regarding the serious nature of this violation is unrebutted. Accordingly, the Secretary has met her burden of proving that the violation alleged in Citation 1, Item 1 is properly classified as serious.

1. B.Citation 1, Item 2 

        The CSHO also cited Arrow Plumbing for a serious violation of 29 C.F.R. § 1926.651(b)(4), which provides: “While the excavation is open, underground installations shall be protected, supported or removed as necessary to safeguard employees.” The Secretary described the violation as follows:

The employer is failing to protect employees from electrical and asphyxiation hazards associated with trench work. This was most recently documented on August 20, 2020, at the residential construction site located at 643 Gateway Court, Grain Valley, Missouri. Employees working in a trench with active unsupported and unprotected utilities lines running across the trench. The employer did not support the gas line nor the electrical power lines located in the trench.

Citation at 7.

        Arrow Plumbing does not dispute the excavation had exposed utility lines running through it, so the standard applies. Instead, Arrow Plumbing contends it did not violate the standard.

        As noted by the Secretary, the OSHA technical manual provides guidance for means of compliance, such as underpinning, shoring, or bracing, to support underground installations. (Sec’y. Br. 14; Tr. 110-11). Mr. Smith testified that the utility lines were light and sufficiently supported by the walls of the excavation. (Tr. 540). Mr. Brackenbury also testified the lines were supported by the walls of the excavation, and the middle of the gas line was “sitting on dirt.” (Tr. 684). However, the CSHO testified that she did not observe anything supporting or protecting the lines. Mr. Hayslip’s expert report noted that accepted industry practice is to “support the utilities with lumber or other structural supports and post warnings.” (Ex. C-21 at 15). Photographs of the excavation do not assist the Court’s analysis because they do not conclusively show whether the utility lines were or were not supported by a pile of dirt.

        Based on the testimony of the CSHO and Mr. Smith, as well as the expert report that the industry standard requires structural supports, the Court concludes the utility lines were either unsupported or insufficiently supported, resulting in a violation of the cited standard.

        Next, the Court considers whether the Secretary established exposure. Arrow Plumbing argues there was no exposure because Mr. Brackenbury was working far away from the lines. Testimony at trial places the men between 5 and 20 feet away from the utility lines at the time of the inspection. This distance, by itself, does not negate exposure. See Phoenix Roofing, Inc., No. 90-1995, 1995 WL 82313, at *3 (OSHRC, Feb. 24, 1995) (holding it was reasonably predictable that a worker would go into an unprotected area when retrieving materials located 12 feet away) aff’d, 79 F.3d 1146 (5th Cir. 1996). Although Mr. Smith testified Mr. Brackenbury did not go near the lines, Mr. Brackenbury himself admitted he exposed the lines by digging around them with a shovel and he anticipated digging around the lines again as work progressed. (Tr. 683). It is undisputed that the utility lines were live, and the CSHO testified that if one of the lines were nicked or cut, it would create an electrocution or asphyxiation hazard. (Tr. 108-09). Thus, the Court concludes that it is reasonably foreseeable that a pipe, shovel, or other equipment would snag or nick the lines and, because those lines were live, could result in a serious injuries or death. Thus, based on this record, the Court concludes exposure was established. See D.R.B. Boring & Drilling Co., No. 05-0693, 2006 WL 305303, at *5 (OSHRC, Jan. 30, 2006) (operating a boring machine close to the gas line and a foot from the water line supports a finding the lines could have been ruptured or broken, resulting in serious injuries).  

        Lastly, the Court considers whether the Secretary established knowledge. See Phoenix Roofing, Inc., 1995 WL 82313, at *3 (“Employer knowledge is established by a showing of employer awareness of the physical conditions constituting the violation.”). To prove this element, the Secretary must show Arrow Plumbing knew or, with the exercise of reasonable diligence, could have known of the violation. Dun-Par Engineered Form Co., No. 82-928, 1986 WL 53522, at *4 (OSHRC, July 30, 1986). It is undisputed that Mr. Smith and Mr. Brackenbury were aware of the exposed lines, knew the lines were “live,” and knew or could have known that the lines were unsupported or insufficiently supported. Mr. Brackenbury testified that he did not take additional steps to support the lines but instead left them on the dirt from which they had been excavated. (Tr. 675). There was no attempt to ensure a support structure was in place, although Mr. Brackenbury could have known dirt provided insufficient support. Accordingly, the Secretary established knowledge. Moreover, as noted previously, it is apparent that if either line had been hit, serious injuries or death could have resulted. Interstate Glass, 487 F.2d at 439. This item is affirmed as a serious citation.

1. C.Citation 2, Item 1 

        The CSHO next cited Arrow Plumbing for a repeat-serious violation of 29 C.F.R. § 1926.651(j)(2), which provides:

1. 3.Infeasibility Defense5 

        “When a standard states a specific method of complying, an employer seeking to be excused from liability for its failure to comply with the standard has the burden of demonstrating that the action required by the standard is infeasible under the circumstances cited.” State Sheet Metal Co., No. 90-1620, 1993 WL 132972, at *7 (OSHRC, Apr. 27, 1993) (consolidated). “In order to carry this burden, an employer who raises the affirmative defense of infeasibility must prove that (1) literal compliance with the requirements of the standard was infeasible under the circumstances and (2) either an alternative method of protection was used or no alternative means of protection was feasible.” Id.; see also Dun-Par, 843 F.2d at 1136 (same).

        Here, Arrow Plumbing seems to argue that a combination of factors at the worksite made compliance with the standard infeasible. Arrow Plumbing explains that the old sewer line was in disturbed soil near the house, and the location of that disturbed soil made placement of a trench box by the excavator impossible. (Tr. 604). Arrow Plumbing also argues that sloping and benching were not options because the neighboring property line was too close to the excavation. (Tr. 603).

        The Court finds Arrow Plumbing’s arguments to be without merit. First, Arrow Plumbing’s position that the excavation did not require protection because it was wider than it was deep directly contradicts its affirmative defense of infeasibility. And, in any event, Mr. Hayslip testified that the width of an excavation does not negate the need for proper sloping or benching of the walls, (Tr. 311), and the Court agrees.

        Mr. Smith and Mr. Brackenbury testified they did not slope or bench the excavation because they were restricted by the neighboring property line. However, Arrow Plumbing does not identify any case law or other authority allowing an employer to assert the infeasibility defense under these circumstances. Lastly, Arrow Plumbing has not satisfied its burden to show that an alternative means of protection was used or there was no feasible alternative means of protection. It did not explain why it did not excavate in such a way that the excavation could be shored, and it did not present sufficient evidence to support its argument that an excavator was physically unable to place the trench box due to disturbed soil. Accordingly, Arrow Plumbing’s infeasibility defense fails because it did not satisfy its evidentiary burden. See Pitt-Des Moines, Inc., No. 90-1349, 1993 WL 393505, at *5 (OSHRC, Sept. 30, 2009) (employer’s burden to show infeasibility as an affirmative defense, not the Secretary’s burden to show feasibility).

1. E.Penalty 

        “Section 17(j) of the Act, 29 U.S.C. § 666(j), requires that in assessing penalties for violations, the Commission must give “due consideration” to four criteria: “the size of the employer’s business, gravity of the violation, good faith, and prior history of violations.” J. A. Jones Constr. Co., No. 87-2059, 1993 WL 61950, at *15 (OSHRC, Feb. 19, 1993). “These factors are not necessarily accorded equal weight; generally speaking, the gravity of a violation is the primary element in the penalty assessment.” Id. (citations omitted). “The gravity of a particular violation, moreover, depends upon such matters as the number of employees exposed, the duration of the exposure, the precautions taken against injury, and the likelihood that any injury would result.” Id. (citation omitted). Although the Commission takes gravity, good faith, and prior history into consideration for repeated violations, under OHSA’s policy, the penalty for repeated violations may only be reduced for the employer’s size. Field Operations Manual (FOM) Ch. 6‑V‑B-1-b. Moreover, the penalty for a repeated violation may be multiplied by 10 if necessary to achieve a deterrent effect. FOM Ch. 6-V-B-1. Here, the Court vacated Citation 2, Item 1, so it will only consider the assessment of penalties for the two serious citation items (Citation 1, Item 1 and Citation 1, Item 2) and the remaining repeat-serious citation item (Citation 2, Item 2).

        The Court agrees with OSHA’s assessment of gravity. Mr. Brackenbury had been working in the excavation throughout the day on August 20. He had lowered the pipe into the excavation and was working on connecting the line. No safety precautions, like a hard hat, trench box, or proper sloping, were used or implemented, and the likelihood of injury was high. (Tr. 124-25). Thus, a reduction for gravity is not appropriate.

        Similarly, OSHA properly concluded Arrow Plumbing did not demonstrate good faith and was not eligible for a reduction based on prior history. Arrow Plumbing is a repeat offender that continues to put its employees’ lives at risk. See Quality Stamping Prods Co., No. 91-414, 1994 WL 382494, at *3 (OSHRC, July 21, 1994) (prior history may include violations of a different degree or nature that could not support a repeat characterization). It has not implemented the enhanced abatement measures set forth in the Belton and Kansas City settlement. (Tr. 464-65). It remains on the severe violator enforcement program, and it has failed to pay the penalties for prior citations. (Tr. 470). Thus, Arrow Plumbing is not eligible for reduction in the penalty for the serious citation items for good faith or prior history.

        Lastly, the Court turns to whether Arrow Plumbing should receive a reduction of up to 70% for size for all three citation items, which total $163,058. The Commission has viewed the size factor as “an attempt to avoid destructive penalties” that would unjustly ruin a small business. A‑1 Sewer and Water Contractors, Inc., No. 21-0562, 2022 WL 2102909, at *12 (OSHRC, June 1, 2022). However, this concern for small businesses must be tempered with the need to achieve compliance with applicable safety standards. Atlas Roofing Co. v. OSHRC, 518 F. 2d 990, 1001 (5th Cir. 1975) (OSHA penalties are meant to “inflict pocket-book deterrence”).

        In 2020, Arrow Plumbing had 11 employees (J. Stip. 4), which could weigh in favor of reducing the penalty amount. However, Arrow Plumbing has offered no evidence to support a reduction of penalty for size based on something like financial hardship. See, e.g., J.C. Stucco and Stone, Inc., No. 14-1558, 2016 WL 7363932, at *8 (OSHRC ALJ, Nov. 7, 2016) (consolidated) (holding that “before the Court can decide whether an employer’s poor financial condition can properly weigh towards a penalty reduction, [the employer] must actually prove its precarious financial condition and establish that it deserves to have its poor finances affect the penalty.”). Likewise, Arrow Plumbing has not demonstrated that the penalty would somehow be destructive. C.f. Secretary of Labor v. Colonial Craft Reproductions, Inc., No. 881, 1972 WL 4135, at *2 (OSHRC, Oct. 27, 1972) (holding “[a]djustment of the penalty for the employer’s size is primarily an attempt to avoid destructive penalties” and finding non-assessment of penalties appropriate for employer presenting evidence that it was operating on a deficit with only 10 part-time employees).

        Moreover, size cannot be considered by this Court in a vacuum. Arrow Plumbing’s lack of safety procedures, history of related OSHA violations, and failure to comply with OSHA settlements suggests that no reduction in the penalty amount is appropriate. See Dakota Underground, Inc. v. Secretary of Labor, 200 F.3d 564, 569 (8th Cir. 2000) (reduction in amount for employer’s size (25 employees) was not warranted in light of the company’s history with OSHA citations and failure to pay prior penalties); see also J.C. Stucco and Stone, Inc., 2016 WL 7363932, at *8 (holding the employer had not acted in good faith, has a detrimental history, and does not deserve to have its financial condition used to justify a penalty reduction). Accordingly, the Court will impose the recommended penalty amounts for each of the remaining citation items, totaling $163,058.

ORDER

        The foregoing Decision constitutes the Findings of Fact and Conclusions of Law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure. Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:

1. 1.Citation 1, Item 1, alleging a serious violation of 29 C.F.R. § 1926.100(a) is AFFIRMED, and a penalty of $12,873.00 is ASSESSED. 

2. 2.Citation 1, Item 2, alleging a serious violation of 29 C.F.R. § 1926.651(b)(4), is AFFIRMED, and a penalty of $13,653.00 is ASSESSED. 

3. 3.Citation 2, Item 1, alleging a repeat-serious violation of 29 C.F.R. § 1926.651(j)(2) is VACATED. 

4. 4.Citation 2, Item 2, alleging a repeat-serious violation of 29 CFR § 1926.652(a)(1) is AFFIRMED, and a penalty of $136,532.00 is ASSESSED.  

SO ORDERED.       

1 The fall line refers to the degree of decline to ensure the sewer line drains properly. (Tr. 527). The sewer line in this case relied on gravity to flush the contents of the sewer to the main line. (Tr. 629).

2  SVEP is OSHA’s publicly available list of employers that were issued a willful violation directly related to a fatality. (Tr. 469).

3 The Citation originally cited Arrow Plumbing for events occurring on August 20 and 21, 2020. At trial, the Secretary amended the Citation to include only events occurring on August 20, 2020. (Tr. 262-63). Thus, the Court has only included those portions of the Citation relating to August 20, 2020.

4 During trial, the Secretary requested—and the Court granted—leave to amend the Citation to replace the word “trench” with “excavation.” (Tr. 678-81).

5 Arrow Plumbing did not raise the greater hazard defense in its Answer or argue it in its post-trial brief. Accordingly, it has been waived.