It is well known on construction sites that the party primarily responsible for the enforcement of a subcontractor’s compliance with WISHA, OSHA, and/or the WACs is the supervising general contractor. It is probably less known that under Washington’s Stute v. P.B.M.C., Inc. case and, more recently, Kamla v. Space Needle Corp., if a property owner/developer retains the right to control the manner in which an independent contractor completes his work, the owner/developer has the same duty to enforce compliance with WISHA, OSHA, or the WACs that typically is assigned to a supervising general contractor.
The court in Kamla, however, clarified that an owner does not retain sufficient control simply because it retains the general right to inspect and supervise to insure proper completion of the contract, to order the work stopped or resumed, to make suggestions or recommendations that need not necessarily be followed, or to prescribe alterations and deviations.
To be liable, the owner/developer must have the authority to control the means and methods of the contractor’s work so as to ensure the contractor fully complies with the contract provisions to a point where the contractor is not permitted to do the work his own way. Thus, after Kamla, contractors that were injured on a worksite could no longer sue owners/developers for statutory negligence, unless the owner/developer had the authority to exercise sufficient control.
This has of course led to creative attorneys for contractors injured on a worksite to file claims against owners/developers under common law torts. Specifically, injured contractors filed claims as “invitees” against owners/developers. Under common law, a property owner can be held liable to an invitee when the owner knows or by the exercise of reasonable care would discover a dangerous condition that involves an unreasonable risk of harm to invitees and fails to exercise reasonable care to protect them against the danger.
Essentially, the contractor lawyers argued that, if injured contractors could ultimately prove that the property owner knew of a dangerous condition that ultimately caused the accident but did nothing to protect the contractor-invitee or, at the very least, inform the contractor-invitee of the danger, then the property owner should be held liable for the contractor’s injuries.
Just last month, however, the Washington Court of Appeals (Division III) held in Hymas v. UAP Distribution, Inc., et al that property owners cannot be held liable under common law torts for the injury of independent contractors caused by a hazardous condition on the property even when the hazard is known by the owner and the owner does not warn the contractor of the hazardous condition.
In Hymas, a contractor fell into an unguarded trench. The owner knew the trench was unguarded before handing the property over to the contractor, but did nothing to protect it and did not warn the contractor. The Court stated that “nowhere [under common law] suggest[s] that a landowner who has prepared its premises for entry by an invitee and protected the invitee from existing hazards has a duty to superintend the activities of the contractor following its arrival and commencement of work.”
Thus, in a case of an contractor-invitee (and not a public-invitee), the property owner does not have an obligation to prepare its land and warn or otherwise protect the contractor. The Hymas decision limits a contractors’ claims against a property owners for injuries on a worksite, to only allow those claims where the contractor proves that the owner/developer had sufficient control over the means and methods of the contractor’s work (per Kamla).
Interestingly, however, the Hymas decision is silent regarding those cases where the hazardous condition is known by the owner but, by the exercise of reasonable care, could not be discovered by a contractor (i.e. concealed hole). Presumably, that would present a different set of facts that would be distinguished by the Court.