This is the last blog in a series of posts concerning the topic of implied duties in construction contracts. See previous articles: Implied Obligations in Construction Contracts; Implied Duty Not To Hinder Or Delay; Implied Duty of Good Faith and Fair Dealing.
The question of who owes the duty to ensure a safe workplace often arises in the construction industry. As often is the case, it depends on the facts of each project. Sometimes the duty to ensure a safe workplace belongs to the general contractor, sometimes the subcontractor, and sometimes the owner or developer. Sometimes it belongs to more than one party.
Under the common law, an employer who contracts with an independent contractor is not liable for injuries sustained by the independent contractor’s employees. As with most general rules, there is an exception when the employer retains control over the independent contractor’s work. Whether an employer has retained control over an independent contractor’s work depends on the parties’ contract and other conduct. Thus, all contractors have a common law duty to provide a safe workplace for all of their own employees, and sometimes for the employees of independent contractors (subcontractors) that they retain control over.
In addition to the common law duty, RCW 49.17.060 imposes a statutory duty on every employer: (1) to protect its own employees from recognized hazards not covered by specific safety regulations, and (2) to comply with WISHA regulations. The duty of an employer to protect its own employees is well established and mirrors the common law duty mentioned above. The duty to comply with WISHA regulations is less clear, and a number of Washington courts have considered who owes that duty.
- A. Contractor’s Duties
In Washington, general contractors have a nondelegable duty to comply with WISHA regulations for every employee on the jobsite – both their own employees and the employees of independent subcontractors. In Stute v. P.B.M.C.,[i] the Washington Supreme Court held that RCW 49.17.060(2) creates the general contractor’s duty to comply with WISHA regulations as to all employees at the jobsite – including all subcontractors. The Stute case involved a subcontractor’s employee that fell three stories when installing a roof. The general contractor failed to provide scaffolding or other safety equipment for the roofing work. The general contractor (P.B.M.C.) argued that the subcontractor owed the duty to ensure compliance with WISHA safety regulations.
The court held that the general contractor, as the primary employer, has the primary responsibility for safety and a duty to comply with WISHA regulations because “[a] general contractor’s supervisory authority places the general in the best position to ensure compliance with safety regulations.”[ii] The court reasoned that the general contractor should bear the prime responsibility for compliance with WISHA regulations because the general contractor’s “innate supervisory authority constitutes sufficient control over the workplace.”[iii]
Mere months after Stute, the Court of Appeals in Weinert v. Bronco Nat. Co.,[iv] extended the duty to comply with WISHA regulations to both a second-tier subcontractor and an owner/developer. In Weinert, the second-tier subcontractor erected scaffolding for installation of siding. The court found that there was no evidence that the general contractor helped erect the scaffolding, and the general contractor had no knowledge of any defects in the erection of the scaffolding. The court reasoned that the second-tier subcontractor owed the same duty as the general contractor because Stute did not exclude imposing “a similar but more limited duty on a subcontractor”[v] and because the subcontractor had the “innate supervisory authority”[vi] over the siding installation.[vii] The second-tier subcontractor had the duty to comply with WISHA regulations under its control because it was in a better position to inspect and supervise work done on the scaffolding than the general contractor, whose responsibilities were broader. The court noted that the second-tier subcontractor’s duty to comply with WISHA regulations extended only to employees under its control and supervision and that the general contractor’s duty covered the rest of the project that was under its control and supervision.
In Husfloen v. MTA Const., Inc.,[viii] a general contractor hired a subcontractor to build a foundation for a residential construction project. The subcontractor hired a lower-tier subcontractor to pump concrete into forms. An employee of the lower-tier subcontractor was injured when the boom of his concrete pump truck contacted a power line. The pump truck was within 10 feet of the power line, which violated a WISHA regulation. The Court of Appeals held that the second-tier subcontractor owed a duty to comply with WISHA regulations because it was in a better position than the general contractor to ensure compliance with safety regulations because the general contractor did not supervise the site and did not supervise the subcontractor’s work.
In Gilbert H. Moen Co. v. Island Steel Erectors, Inc.,[ix] the Supreme Court stated that both general contractors and subcontractors are responsible to ensure compliance with WISHA safety regulations within their areas of control. The court explained that under RCW 49.17.060, and the Stute court’s reasoning, a “subcontractor, despite the general contractor’s workplace safety duty, retains concurrent responsibility to meet workplace safety standards in the areas under its control.”[x]
- B. Owner/Developer’s Duties
After Stute, there have been a number of cases in which courts have considered whether an owner or developer also owes a duty to comply with WISHA regulations. In Weinert, the Supreme Court extended the duty to comply with WISHA regulations to an owner/developer because its position was so comparable to that of a general contractor that the policy behind enforcing the duty to comply with WISHA regulations regarding a general contractor was the same regarding an owner/developer because the owner/developer in Weinert had the same innate supervisory authority and was in the best position to enforce compliance with WISHA.
Similarly, in Doss v. ITT Rayonier, Inc.,[xi] the Court of Appeals held that an owner had a duty to comply with WISHA regulations after an employee was injured on the job because there was no significant distinction between the owner-independent contractor relationship and the general contractor-subcontractor relationship because the owner had “innate supervisory authority” that gave it control over the independent contractor.
In contrast, in Kamla v. Space Needle Corp.,[xii] the Supreme Court held that owners are not per se liable under RCW 49.17.060. In that case, the owner (Space Needle Corp.) did not owe a duty to an employee of a contractor when the employee was injured on the job because the owner did not have any knowledge regarding WISHA compliance for the work, and because the owner did not control any of the work.
In Afoa v. Port of Seattle,[xiii] a 2011 Court of Appeals case, the court reversed a summary judgment ruling that dismissed the Port of Seattle, as the owner of a project, because there were questions of fact regarding whether the Port retained control over the manner in which a contractor completed its work, whether the Port had the better opportunity and ability to insure compliance with safety standards than the general contractor, and whether the Port had “innate supervisory authority.”
- C. Conclusion
Washington courts assume that general contractors have control over the worksite, and therefore have a nondelegable duty to comply with WISHA regulations. However, if someone alleges that any other party (i.e., owners, developers, subcontractors, or sub-tier subcontractors) has control of the worksite, then the courts will examine whether that party had an “innate supervisory authority” over a portion of the worksite to determine whether they also owed a duty to comply with WISHA regulations. This determination is fact specific to each case and project.
It is clear that the more supervisory authority that any party has over a worksite, the more likely they will be responsible for complying with WISHA regulations. In Cano-Garcia v. King County,[xiv] a 2012 case, the Court of Appeals stated that “liability flows to those who are in a position to control the actual implementation of safety standards in the workplace.” Thus, whoever has control – general contractor, subcontractor, sub-tier contractor, owner/developer, etc. – has a duty to comply with WISHA regulations.
[i] 114 Wn.2d 454, 788 P.2d 545 (1990).
[ii] 114 Wn.2d at 463.
[iii] Id. at 464.
[iv] 58 Wash. App. 692, 795 P.2d 1167 (1990).
[v] 58 Wash. App. at 697.
[vi] Id. at 697.
[vii] The Weinert court used the same “innate supervisory authority” reasoning to hold that the owner/developer also owed the duty to comply with WISHA regulations, which is discussed later in this article. Weinert v. Bronco Nat. Co., 58 Wash. App. 692, 795 P.2d 1167 (1990).
[viii] 58 Wash. App. 686, 794 P.2d 859 (1990).
[ix] 128 Wn.2d 745, 912 P.2d 472 (1996).
[x] 128 Wn.2d at 757.
[xi] 60 Wash. App. 125, 803 P.2d 4 (1991).
[xii] 147 Wn.2d 114, 52 P.2d 472 (2002).
[xiii] 160 Wash. App. 234, 247 P.2d 482 (2011).
[xiv] 168 Wash. App. 223, 277 P.3d 34 (2012).