People suffer injuries on other people's property all the time, but the responsibility to keep them safe may be legally delegated to an independent contractor. In this influential Washington court decision, Eylander v. Prologis Targeted U.S. Logistics Fund, No. 82834-7-I (Wash. Ct. App. Jul. 18, 2022), the court ruled that a landowner must take reasonable steps to ensure the safety of an independent contractor's employees on their property, but may delegate that duty if they exercise reasonable care to ensure that the independent contractor will protect their own employees against known or obvious dangers.
Prologis is in the business of managing storage facilities in the Western section of Washington State. Prologis hires independent contractors to inspect, clean and maintain its storage facilities. One such independent contractor was CIR, who was retained to clean the roof of a cold storage warehouse. On the date of the incident in question, CIR employees were sweeping the roof of the warehouse which had almost 100 skylights as part of a 126,000 square foot roof. Both CIR and their employee Eylander were aware of the risk of falling through a skylight as most were neither fall-resistant nor outfitted with any type of guard to prevent falls. Due to the fact that a rather involved temporary system of roof anchors would be required to fit the employees with safety harnesses, CIR chose to employ a different system. The system used required co-workers to watch one another and warn of potential hazards.
Eylander was working on the warehouse roof when he tripped and fell through a skylight and dropped 30 feet to his death. CRI admits that it did not use roof anchors or other guards to prevent falls through the skylight. It also admits that it chose a safety system that was inappropriate for the work being done.
Eylander's estate brought a premises liability claim against Prologis. The estate argued that Prologis breached its duty to Eylander as its invitee by failing to ensure that the risks posed by the skylights were minimized as much as feasibly possible.
Prologis moved for summary judgment asserting that it had no duty to Eylander as an invitee. The trial court granted Prologis' motion and dismissed the claim with prejudice. The estate then filed a motion for reconsideration. which the trial court also denied. The estate appealed that decision.
Did Prologis Owe a Duty to Eylander?
To establish a cause of action for negligence a plaintiff must prove the following elements:
- The defendant owed a duty to the plaintiff
- Defendant breached that duty
- The breach resulted in injury to the plaintiff, and
- Breach of the duty proximately caused the injury
Eylander's estate concedes that Prologis did not owe the employees of CRI a common law duty to keep them safe as Prologis did not retain control over the method or the manner of work completed by CRI. Instead, Eylander attempts to impose liability on the theory that Prologis should be liable as the possessor of the land.
Generally, employees of independent contractors are considered invitees of the landowner. Tincani v. Inland Empire Zoological Soc., 124 Wn.2d 121, 127-28, 875 P.2d 621 (1994)). (quoting Restatement (Second) of Torts § 343 cmt. b (1965)). In Tincani the court stated, "an invitee is entitled to expect the possessor will exercise reasonable care to make its premises safe." The parties agree that Eylander was an invitee at the warehouse because he was hired by CRI to work at the warehouse owned by Prologis.
To determine whether an owner of land is liable for an injury to an invitee due to a known danger on its premises, the court looked to sections 343 and 343A of the Restatement (Second) of Torts, which was adopted by Washington. Section 343 provides the general rule for hidden or latent danger, and section 343A applies when a condition on the premises is a known or obvious danger. In this case, the skylights posed a known danger. The Restatement provides that the owner has a duty "to act when it should anticipate the harm despite such knowledge or obviousness." In Kinney v. Space Needle Corp., 121 Wn. App. 242, 250, 85 P.3d 918 (2004) (quoting Restatement (Second) of Torts, § 343A(1)) the court explained that a condition is known or obvious when both the landowner and the invitee are aware of the dangerous condition and appreciate the possible threat of harm. Both parties agree that the skylights were a dangerous condition that required reasonable safety measures to be in place while cleaning the roof. Prologis also conceded that it had a duty to remediate risks from that known danger.
The fact that the skylights presented a known and obvious danger and that Prologis could have anticipated that an employee of CRI could fall through the skylights given the lack of safety measures in place around the skylights established that Prologis had a duty to make the property safe. The issue before the court is not whether this duty existed, but rather if Prologis satisfied its duty by exercising reasonable care to invitees of the property. Once a duty is established, the court will examine if the owner took actions "reasonably necessary to protect the invitee under the circumstances." Ticani at 139.
Is an Owner of Property Liable for a Known Danger to an Employee Hired by an Independent Contractor?
The general rule is that the landowner will not face liability when an independent contractor's negligence on the job causes an injury to one of its employees. Epperly v. Seattle, 65 Wn.2d 777, 786 (1965). The possessor will be liable, however, if its own negligent acts cause injury to the independent contractor's employee. In order for liability to attach, the landowner must have failed to take reasonable steps to make the known danger safe. Paramount to establishing reasonable care in this situation is that the landowner successfully retains a competent independent contractor to perform work on the land. Tauscher v. Puget Sound Power & Light Co., 96 Wn.2d 274, 281-82, 287, 635 P.2d 426 (1981). In selecting a competent independent contractor, the owner may delegate its duty to exercise reasonable care to that contractor. If the owner retains control over the method and manner of the work employed by the independent contractor, this duty to exercise reasonable care becomes non-delegable.
In the case at hand, Prologis did not retain any control over how CIR performed the cleaning of the roof. The evidence presented supports the fact that Prologis took reasonable care in selecting CIR as an independent contractor to perform work on its storage warehouses. Every indication showed that CIR was a competent and experienced roofing contractor. The court looked to two factors to determine whether the hiring of CIR was reasonable:
- "Whether the delegation anticipated the harm and required the independent contractor's exercise of reasonable care, and
- The identity of the delegate- whether it was reasonable for the landowner to conclude that the independent contractor would perform the duty." See PROSSER AND KEETON ON TORTS § 71, at 510
In this case, the record reflects that two contracts were entered into between the parties. The first was a master service agreement in which CIR agreed to be "solely responsible for the health and safety of all persons providing the services." The contract also required CIR to follow all applicable laws, ordinances, rules and regulations of federal, state, county, or municipal governments that had jurisdiction. The second contract was a roof cleaning contract. In that document, CIR agreed to "account for all possible dangers on the roof by preparing and posting a safety plan before its employees accessed the roof." The court here interpreted these documents to mean that the parties agreed that CIR would take reasonable measures to minimize risks and ensure the safety of its employees. It is clear that Prologis delegated its duty to keep the work area on the roof and around the skylights safe to CIR. The court found that it was reasonable for Prologis to conclude that CIR was capable and accepting of this duty as it held itself out as a professional roofing company with years of experience.
In addition, Prologis' warehouse site manager met with CIR to ensure that it had its own safety protocols for the work site that were in compliance with all safety laws and regulations. CIR stated to Prologis that it had sufficient experience to maintain a safe work environment for its employees and had in fact worked on even more complex and dangerous jobs than the one presented by the Prologis roof. In concert all of these facts tend to show that Prologis exercised reasonable care in the employment of CIR to complete the roof cleaning project. Prologis reasonably relied on CIR's ability to make the known danger of the skylights safe for its employees. Therefore, the court concluded that Prologis did not breach its duty of care to Eylander and the trial court did not err in granting summary judgment in favor of Prologis.