Recently, Division III of the Court of Appeals reversed a jury verdict in favor of a general contractor in a case where a subcontractor’s employee was killed on the job.[i]
The facts are tragic: While installing signs for a highway project, Daren Lafayette, a nineteen-year-old employee of N.A. Dagerstrom, Inc.’s (“Degerstrom”) subcontractor, Sharp-Line Industries, Inc., noticed that the company’s auger truck had begun to roll away from where he was working. He ran after the truck and jumped in the cab, but was apparently unable to stop it. It went over a cliff and he was killed.
Lafayette’s estate sued Degerstrom, the general contractor, for wrongful death, alleging that Degerstrom had failed to discharge its non-delegable duty to maintain a safe workplace. In addition to a great deal of other evidence showing the steps Degerstrom took to assure safety, Degerstrom also referred to a provision in the Sharp-Line subcontract-which Lafayette’s estate had offered into evidence-pursuant to which Sharp-Line agreed to be solely responsible for the safety of its employees. Lafayette’s estate moved to exclude that provision from the evidence and to prevent any argument that Degerstrom had delegated its duty for safety to Sharp-Line. The trial court denied the motion, stating that Degerstrom’s legal duty would be the subject of a jury instruction-which it was.
On review, the Court of Appeals found that the subcontract safety provision, coupled with Degerstrom’s arguments relating to it, had the potential to mislead the jury into thinking that it was possible for a general contractor to delegate its own duty for jobsite safety to a subcontractor, which is not the law in Washington. In doing so, the Court departed from prior cases holding such provisions are admissible as evidence of one of the steps a general contractor took to discharge its own safety obligations.
It is unclear whether the court would have come to the same conclusion if the subcontract provision in question had not stated that the subcontractor was “solely responsible” for the safety of its employees. It seems likely that a provision that omitted the word “solely” would be less objectionable to the Degerstrom court. It is also unclear if other Division I or II will follow Division III’s lead in this case, or whether they will continue to adhere to prior case law that allowed presentation of subcontract safety provisions to juries in cases in which a subcontractor’s employee was suing the general contractor.
[i] Millican v. N.A. Dagerstrom, Inc., 2013 WL 6045977, __ Wn. App. __, __ P.3d __ (Division III, Nov. 15, 2013).