- Posted by Ceslie Blass
- On October 4, 2018
Many general contractors and property management companies hand over project sites to subcontractors and have little, if anything, to do with the construction work that occurs. However, under RCW 49.17, the Washington Industrial Safety and Health Act (WISHA), general contractors and some property management companies/owners are still responsible for workplace safety for the employees of their subcontractors and independent contractors.
The Washington Supreme Court held in Stute v. PBMC that a general contractor could be held liable for injury to a subcontractor’s employee sustained as a result of a WISHA violation. The Stute decision changed the landscape of workplace safety, imposing an expansive, per se liability on general contractors for workplace injuries. Stated differently, general contractors have a specific, non-delegable duty to ensure compliance with WISHA regulations, which extends to all employees on the project site. Washington courts have held that such “expansive liability is justified because ‘a general contractor’s supervisory authority is per se control over the workplace.’” Thus, the non-delegable duty requires general contractors to ensure care is exercised by anyone, even an independent contractor to whom the performance of the duty is entrusted. 
Since the Stute decision, the Washington Court of Appeals has expanded this per se standard to property owners who retain control over the work site. Washington courts have held that owners who retain control of the worksite are in a position sufficiently comparable to that of the general contractor that the reason for imputing the expansive liability is justified. However, the per se liability for property owners is not as clear-cut as it is for general contractors. General contractors and owners who retain control of the project site should implement the following measures to ensure WISHA compliance and shield against L&I violations and may assist in defending personal injury claims by non-employees:
1. Contract clauses:
• Contractually require subcontractors to comply with all safety rules.
• Contractually require subcontractors to provide all safety equipment required to complete the work, or furnish the required safety equipment.
• Contractually require the subcontractor to reimburse the general contractor/owner for liability incurred as a result of safety violations committed by the subcontractor or its employees.
• To be effective, these contractual clauses must be communicated to the subcontractor and actually enforced.
2. Establish Workplace Rules:
• Accident prevention program: Establish a program that (a) identifies the general contractor/owner’s roles and responsibilities for workplace safety, (b) provides training and establishes corrective actions, and (c) is tailored to the particular safety and health concerns of the job site. The general contractor/owner must establish a plan designed to reasonably discover violations of the program, which may include audits, assessments, reviews, and training.
• Written Site Safety Plan: Develop or require the subcontractors to develop a written safety plan that addresses project-specific safety concerns and requirements. This plan should identify the specific safety hazards that might be encountered at that site and specify the safety measures that will be employed if such hazards are encountered. The general contractor should ensure the safety plan is compliant with the relevant RCW and WAC regulations.
• Management Plan: Establish a plan for the general contractor/owner to ensure the existence of the above plans and programs and to ensure compliance with the WAC regulations for the project. The Department of Health and Safety has created this template safety questionnaire that can be provided to subcontractors to evaluate and ensure compliance.
Comment: Whether a general contractor fulfilled its per se duty under WISHA will be determined on a case by case basis. However, employing the above measures will strongly support a finding that the appropriate steps were taken to fulfill the general contractor/owner’s duties under RCW 49.17. For more information, visit www.lni.wa.gov.
 Stute v. P.B.M.C., Inc., 114 Wn.2d 454, 788 P.2d 545, 548 (1990).
Kamla v. Space Needle Corp., 147 Wn. 29 114, 122, 52 P.3d. 472 (2002).
Millican v. N.A. Degerstrom, Inc., 177 Wn. App. 881, 896–97, 313 P.3d 1215, 1222 (2013).
The below information was obtained from the Department of Labor and Industries DOSH Directive 27.00