On November 21, 2019, the Washington Supreme Court handed down its decision in Vargas v. Inland Washington, LLC.[1]
At the time of the incident in May 2013, Mr. Vargas, the plaintiff, was helping pour the concrete walls for what would become a parking garage for an apartment building. He was employed by Hilltop Concrete Construction. Inland Washington was the general contractor, and subcontracted with Hilltop to pour concrete. Hilltop, in turn, entered into agreements with Ralph’s Concrete Pumping and Miles Sand & Gravel to provide a pump truck, certified pump operator, and supply concrete.
A rubber hose carrying concrete whipped Mr. Vargas in the head. It knocked him unconscious and caused a traumatic brain injury.
Vargas, through his guardian ad litem, along with his wife and children, sued Inland Washington, Ralph’s, and Miles.
The trial court initially dismissed on summary judgment Vargas’ claims that Inland Washington was vicariously liable for the acts of Hilltop, Ralph’s, and Miles. Later, the trial court also granted Inland Washington’s motion for summary judgment that it was not directly liable as a matter of law.
The case reached the Washington Supreme Court which reversed all of the trial court’s rulings.
As to Inland Washington’s direct liability, the Court found it was potentially liable under two theories. First, a general contractor has a common-law duty to maintain a safe workplace. Second, a general contractor has a statutory duty to comply with WISHA.
The Court found that Inland Washington was also potentially vicariously liable for the acts of others. First, a general contractor may not delegate its common law duty to maintain a safe workplace or its statutory duty to comply with WISHA. Second, a general contractor will be vicariously liable for the negligence of any entity over which it exercises control.
Common Law Liability
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. When a general contractor engages a subcontractor and retains control over some part of the work, the general contractor has a duty, within that scope of control, to provide a safe place of work. The test of control is not the actual interference with the work of the subcontractor, but the right to exercise such control. A general contractor’s general supervisory functions are sufficient to establish control. If a general contractor has the authority to supervise a given area, then it must ensure that that area is safe. This is true regardless of whether an expert, other than the general contractor, happens to be in charge of a specific job in the area. 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.
Direct WISHA Liability
A general contractor may also have a statutory duty to comply with the rules, regulations, and orders promulgated under WISHA. A general contractor always owes this duty under WISHA – no analysis of whether the general contractor retained control is necessary. WISHA regulations require:
management to establish, supervise, and enforce … (a) A safe and healthful working environment. (b) An accident prevention program as required by these standards. (c) Training programs to improve the skill and competency of all employees in the field of occupational safety and health.
WAC 296-155-100(1). The accident prevention program must be tailored to the needs of the particular operation and include an on-the-job review of the practices necessary to perform the initial job assignments in a safe manner. WAC 296-155-110(2), (3)(g).
Vicarious Liability – Delegation of Common Law Duty to Maintain a Safe Workplace or Statutory Duty to Comply With WISHA
A general contractor’s common law duty to provide a safe workplace or its statutory duty to comply with WISHA cannot be delegable to another entity. If a duty to provide a safe workplace is delegated, the general contractor is vicariously liable for the negligence of the entity subject to its delegation. Regardless of whether this form of liability is characterized as direct or vicarious, if a general contractor delegates its own duties to provide a safe workplace to subcontractor, the general contractor will be liable for the subcontractor’s breach of that delegated duty.
Vicarious Liability – A General Contractor’s Liability for the Negligence of an Entity Over Which It Exercises Control
A general contractor may face another form of vicarious liability – for another entity’s negligence. For such liability to exist, the general contractor must exercise sufficient control over the other entity to be vicariously liable. A general contractor’s general supervisory functions are sufficient to establish control.
The
Supreme Court reversed the trial court on all grounds, and returned the case to
the trial court for trial on the issues of Inland Washington’s direct liability
to Mr. Vargas and his family, and its vicarious liability to
Mr. Vargas and his family for the acts, omissions, and conduct of Hilltop,
Ralph’s, and Miles.
[1] 2019 WL 6205640