On November 21, 2019, the Washington State Supreme Court, in a unanimous decision, reaffirmed that general contractors on construction job sites have a statutory and a common law duty to maintain a safe work site. Vargas v. Inland Washington, LLC, 96527-7, 11/21/19. Additionally, the Court stated that a general contractor may also face vicarious liability for the failures of others on the job site to provide a safe workplace under two separate theories. Citing, Stute v. P.B.M.C., Inc., 114 Wn.2d 454, 788 P.2d 545 (1990); Kelley v. Howard S. Wright Constr. Co., 90 Wn.2d 323, 582 P.2d 500 (1978), the Washington Supreme Court upheld prior decisions which found that general contractors have expansive duties to ensure worker safety.
The plaintiff in Vargas, a concrete subcontractor’s employee, was working on a construction project when a concrete-carrying hose hit him in the head causing a severe traumatic brain injury. The plaintiff sued the general contractor, the concrete supplier, and the concrete pumper for negligence. The trial court granted summary judgment in favor of the general contractor. The trial court found that it did “not see much in the way of substance” as to which nondelegable duty was violated and explained that a general contractor is not “a generalized guarantor of safety across the board.” The trial court also found that the general contractor was not vicariously liable for its subcontractor’s actions or inactions to maintain job site safety.
After lengthy appellate practice, the Washington Supreme Court took up review of the summary judgment findings by the trial court. The Court reviewed the motions de novo, thus considering all disputed facts in the light most favorable to the non-moving party.
The Court first addressed whether there was a genuine issue of material fact that the general contractor was directly liable to plaintiff under either a common law or statutory duty to maintain a safe workplace. The Court reiterated the Washington law, stating: “Under the common law, a general contractor owes a duty to all employees on a jobsite to provide a safe place to work in all areas under its supervision. Kelley, 90 Wn.2d at 332. A general contractor also owes a duty to all employees to ‘comply with the rules, regulations, and orders promulgated under [WISHA].’ Stute, 114 Wn.2d at 457-58 (quoting Wash. Rev. Code §49.17.060(2) (2010)).”
Next, it discussed the rule established in Kelley, which is the exception to the general rule that one who engages an independent contractor is not liable for the injuries to the independent contractor’s employees as a result of the work. The Kelley Court determined that a general contractor’s supervisory function were sufficient to establish control over the independent contractor’s employee – thus retaining control over part of the work and maintaining a duty to provide a safe workplace. Kelley, 90 Wn.2d at 330-31. The general contractor sought to distinguish Kelley by arguing that the common law duty does not extend to “non-common work areas” as compared to common areas. A non-common work area would be an area in which a specific job is being completed that requires specific expertise. The Court did not agree with this distinction. It wrote: “a general contractor with supervisory authority over an area must ensure that the area is safe regardless of whether the general contractor is present—a general contractor cannot shirk its duties merely by vacating the premises.” Vargas v. Inland Washington, LLC, 96527-7 at 16.
Per Stute, the Court found that the general contractor may have a statutory duty to provide a safe place to work. Washington Industrial Safety and Health Act (WISHA) creates this duty. The Court cited Stute and wrote, “We agreed, holding that a general contractor owes a ‘specific duty’ to ‘all employees working on the premises,’ id. at 457 (citing Adkins v. Alum. Co. of Am., 110 Wn.2d 128, 153, 750 P.2d 1257, 756 P.2d 142 (1988)), to ‘’comply with the rules, regulations, and orders promulgated under [WISHA].’ Id. (quoting RCW 49.17.060(2)).” This analysis does not require analyzing whether the general contractor maintained control. It is always owed under WISHA. The Washington Supreme Court held: “Stute remains good law: a general contractor has per se control over the workplace for purposes of WISHA compliance.” Despite that WISHA found no violations, the Court would not rely on that to uphold the trial court’s dismissal.
Per the court’s holding in Afoa v. Port of Seattle, 191 Wn.2d 110, 421 P.3d 903 (2018) (Afoa II), a general contractor that delegates its statutory duty to comply with WISHA is “vicariously liable for the negligence of the entity subject to its delegation.” As such, a general contractor will remain vicariously liable for the negligence of the entity to which it tried to delegate safety maintenance. So, where a general contractor delegates its own duties to a subcontractor, the general contractor will be liable for the subcontractor’s breach of that delegated duty.
A general contractor may also be vicariously liable for the negligence of any entity over which it exercises control. Afoa II at 122-24. The Court has held that entities other than general contractors, such as subcontractors and jobsite owners, may owe the same workplace-safety duties as general contractors. Afoa I, 176 Wn.2d at 473; Gilbert H Moen Co. v. Island Steel Erectors, Inc., 128 Wn.2d 745, 756-58, 912 P.2d 472 (1996). Thus, multiple entities—jobsite owners, general contractors and subcontractors—may concurrently owe independent yet overlapping duties to maintain a safe workplace. But, the facts must show that the general contractor maintained the right to control the subcontractors in order to face vicarious liability for the subcontractors’ negligence.
All in all, the Vargas case confirms the long-held understanding that the general contractor of a construction job site will always face potential claims for failing to maintain a safe work site. Despite this gloom and doom finding, the Washington Supreme Court affirmed that a general contractor may contractually obtain indemnification from a subcontractor for the subcontractor’s negligence. In Moen, the Court held that the indemnity provision in a contract addendum requiring the subcontractor waive its immunity and agree to indemnify the general contractor to the extent of its own negligence was valid. Gilbert H Moen Co. v. Island Steel Erectors, Inc., 128 Wn.2d 745, 756-58, 912 P.2d 472 (1996).