Washington’s Court of Appeals held an owner of land who did not exercise control over the manner of work on a worksite was not vicariously liable for the death of an employee of one of its general contractors. The decision handed down on June 21, 2022, in Farris, et al. v. The Port Blakely Company, et al. is instructive on common law and regulatory scheme establishing the line dividing responsibility between landowners and contractors performing works of improvement.
Background Facts
Port Blakely owned a parcel of land in Lewis County that was referred to as "Lost Mower." Port Blakely contracted with several vendors, including Buck's Logging, Inc. (BLI) to harvest the timber on the land. Ruben Farias was an employee of BLI. On the day that is the subject of this lawsuit, Ruben was asked by his supervisor to buck logs that were stacked on a landing. After 20-30 minutes from the time Ruben was asked to buck logs, his supervisor when to check on him and found him pinned between two logs. Despite the supervisor's efforts to revive him through CPR, Ruben was already deceased.
Maria Farias, the decedent's widow, filed a lawsuit against Port Blakely in King Superior Court. It alleged that Port Blakely was "acting as the general contractor" on the Lost Mower job site and that it "retained control over the manner in which the work was performed." In her complaint Farias alleged that Port Blakely breached its common law duty to provide a safe workplace as well as its statutory duty as defined by the Washington Industrial Safety and Health Act (WISHA) regulations.
Port Blakely moved for summary judgment stating that it owed Ruben neither a common law nor a statuary duty in this case. Farias filed a partial motion for summary judgment in which she asked the court to make a determination that Port Blakely was the general contractor at Lost Mower. The trial court granted Port Blakely's motion and denied Farias.
Common Law Duty to Provide a Safe Workplace
Common law generally does not impose a duty on a principal who hires an independent contractor, and they will not be liable for any injury suffered by that independent contractor. Afoa v. Port of Seattle, 176 Wn.2d 460, 296 P.3d 800(2013). In Afoa, the Supreme Court of Washington further explained under what exception a duty may be found, "Under the common law safe workplace doctrine, landowners and general contractors that retain control over a work site have a duty to maintain safe common work areas." Afoa at 475. Thus, even if a party is hired as an "independent contractor" if the principal retains control over the workplace and has the authority to supervise the work, then the law will impose a duty to keep the workplace safe as well as liability for any injuries that occur as a result of a breach of that duty.
The degree of control a principal retains is the critical inquiry- as an employer or principal must have some degree of control over the manner in which the work is performed for a common law duty or a duty under WISHA to arise. The power to request that work be commenced or paused is not sufficient to find control Rather the principal's control must involve the ability to make recommendations or request changes, receive reports, etc. The contractor is not free to perform the work purely as they see fit. Kamla v. the Space Needle Corporation, 147 Wn.2d 114, 52 P.3d 472 (2002).
If an employer is found to have control over the workplace, the duty to maintain a safe environment is nondelegable. "An entity that delegates its nondelegable duty will be vicariously liable for the negligence of the entity subject to its delegation." Afoa II, 191 Wn.2d at 124. Therefore, a principal or employer who retains a sufficient degree of control over a worksite does have a duty to provide a safe workplace under the common law.
Duty of Care Under WISHA
According to WISHA, the duty of care differs between job site owners and general contractors. Two general duties arise under RCW 49.17.060 which provides the basis for liability for WISHA:
- "Subsection (1) creates a general duty to maintain a workplace free from recognized hazards; this duty runs only from an employer to its own employees.
- Subsection (2), on the other hand, creates a specific duty for employers to comply with WISHA regulations. Unlike the general duty, the specific duty runs to any employee who may be harmed by the employer's violation of the statute." Goucher v. J.R. Simplot Co., 104 Wn.2d 662, 671, 709 P.2d774 (1985).
In other words, a general contractor will always owe a specific duty under WISHA. The legislative reasoning behind this is that a general contractor is the party in the best position to ensure workplace safety for all workers present at a site. A general contractor can also be vicariously liable if:
- "If it delegates its statutory duty to comply with WISHA it will be vicariously liable for the negligence of the entity subject to its delegation.
- A general contractor is vicariously liable for the negligence of any entity over which it exercises control." Afoa II at 122-124.
WISHA does not impose this same specific duty to jobsite owners, however. Jobsite owners do not have the same specific duty to ensure that the workplace is safe when there is a general contractor at the site. The prime responsibility to provide a safe work environment falls to the general contractor. The only time a jobsite owner will continue to possess this duty is if it retains a sufficient degree of control over the work being performed at the site. "Although jobsite owners may have a similar degree of authority to control jobsite work conditions, they do not necessarily have a similar degree of knowledge or expertise about WISHA compliant work conditions….. some jobsite owners may reasonably rely on the contractors they hire to ensure WISHA compliance because those jobsite owners cannot practically instruct contractors on how to complete the work safely and properly." Id.
If a jobsite owner does retain control over the work done at the site, it may also be held vicariously liable under WISHA for the negligence of the entity over which it maintains control. It will be liable for any negligence that occurs even though it has delegated its duty to another if and when it maintains control.
Was Port Blakely a General Contractor or Jobsite Owner?
A general contractor is defined in the dictionary as "someone who contracts for the completion of an entire project, including purchasing all materials, hiring and paying subcontractors, and coordinating all the work." Black's Law Dictionary 413 (11th ed. 2019) In the case at hand, Port Blakely did not award any primary contract to BLI. The court found that Port Blakely did not qualify as a general contractor under the statute because it did not exercise the control over the worksite to reach that threshold. The court also found that Port Blakely did not owe a common law duty to Ruben as an employee of BLI because it did not exercise a sufficient degree of control over his work to trigger such a duty.
In the best practices manual published by Port Blakely it stated that Port Blakely had some control over the portion of the work involving "felling" of the trees, which involves cutting down the trees. There is no allegation that Port Blakely failed in its duty to keep workers safe as to the felling function. Instead, the accident occurred while Ruben was engaged in bucking, or cutting already fallen trees into pieces. Bucking did not fall within Port Blakely's scope of control and for that reason Port Blakely did not fail in its duty to keep Ruben safe. Although Port Blakely retained BLI to buck trees, it did not exercise any control over how this task was completed.
Did Port Blakely Retain Control to the Degree that it Owed Ruben a Common Law Duty to Maintain a Safe Worksite?
A jobsite owner does not owe a common law duty to keep a worksite safe. If, however, the jobsite owner retains a significant degree of control over the work. then a common law duty may be triggered. "The relevant inquiry is whether the principal retained control over the work site, not whether there was a direct employment relationship between the parties." Afoa at 477. Control is shown by exhibiting that the jobsite owner exercised authority over the manner in which the work was performed. "The employer must have retained at least some degree of control over the manner in which the work was done. It is not enough that he merely has a general right to order the work stopped or resumed, to inspect its progress, or receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved for employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such retention of a right that the contractor is not entirely free to do the work in his won way." Kamla, 147 Wn.2d at 121 (quoting RESTATEMENT (SECOND) OF TORTS §414 cmt. c (1965)). When a principal or jobsite owner retains control in the way described, then a common law duty to keep the workplace safe will apply.
Farias argues that Port Blakely retained control over the manner in which BLI performed work on the site evidenced by the contract between the parties as well as the best practice manual. Although the court found that the best practices manual did provide specific direction as to how to fell a tree, it did not specify how the work should be done as to bucking trees, which is the activity in question in this case. Farias also points to several other sections in the best practices manual that the court found irrelevant as well as a document entitled, "Developing a Safety First Culture." Farias did not explain to the court's satisfaction how the safety initiatives outlined in this document raised a fact issue as to whether or not Port Blakely exercised sufficient control over the work to trigger a common law duty to maintain a safe workplace.
Farias also points to deposition testimony that revealed that Port Blakely flagged the buffers and critical sites on the land so that the contractors knew where the boundaries of the site were drawn. Farias argued that this flagging by Port Blakely constituted control over the worksite, but the court disagreed and found that this action did not rise to the level of control necessary to trigger a common law duty. In addition, the fact that Port Blakely hosted safety meetings that dealt with bucking trees was also insufficient to show control over the manner of work as claimed by Farias. Finally, Farias contended that the economic reliance of BLI on Port Blakely established control. The court answered this contention once again by pointing out that regardless of the amount of work BLI performed for Port Blakely or the compensation received, these factors do not establish that Port Blakely controlled the manner of BLI's work.
The WISHA claims also fail because Farias did not successfully name any particular WISHA rule, regulation, or order that was violated as it related to the demise of Ruben in this case. Without evidence of control, Port Blakely as a jobsite owner did not owe any statutory duty to BLI employees to keep the worksite safe and it was not vicariously liable for BLI's failure to do so.
The lower court's decision is affirmed in its finding that there was neither a common law duty to keep the workplace safe nor statutory duty under WISHA.