Washington's Industrial Safety Regulations: the Trend Towards Greater Protection for Workers

JurisdictionWashington,United States
CitationVol. 17 No. 02
Publication year1993

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 17, No. 2WINTER 1994

Washington's Industrial Safety Regulations: The Trend Towards Greater Protection for Workers

Stephen L. Bulzomi(fn*)

and John L. Messina, Jr.(fn**)

I. Introduction

The passage of the Washington Industrial Safety and Health Act of 1973 (WISHA)(fn1) heralded a new era in the state's employment law history. The Act reflected the state's growing concern for the safety of its workers, a trend that has slowly developed in both the Washington State Legislature and the Washington Supreme Court.

At common law, employees of independent contractors were unable to obtain compensation from the employer of the independent contractor when they were injured on the job.(fn2) Over time, the state legislature and courts whittled away at this rule. A common law exception to the rule of nonliability developed whereby the employer of the independent contractor could be held liable if the employer retained control over some part of the work.(fn3) Washington courts later recognized an exception based on contract, where the employer of the independent contractor could create liability for itself by assuming an affirmative duty regarding safety measures on the job site.(fn4) Meanwhile, the state legislature created a statutory exception under which all employers on a job site had a duty to provide a safe workplace and to comply with all applicable safety regulations.(fn5) The Washington Supreme Court held that this duty extended to all workers lawfully on the premises, including the employees of other contractors.(fn6)

The passage of WISHA seemed to be another step in the evolution of Washington employment law towards greater concern for the safety of workers. Worker safety was the stated purpose of the Act,(fn7) and the Act expressly provided(fn8) that all safety standards enacted thereunder must equal or exceed those prescribed by the federal Occupational Safety and Health Act of 1970 (OSH Act).(fn9)

However, all three divisions of the Washington Court of Appeals construed WISHA as placing new limits on the liability of employers for job site injuries.(fn10) Their rulings contradicted each other, the stated purpose of WISHA, and previous case law. Adding to this confusion were Washington Supreme Court rulings that construed the same provisions of WISHA but were limited by their facts.(fn11)

The confusion was ended, and the progress in providing greater protection for workers was restored, by the Washington Supreme Court in Stute v. P.B.M.C., Inc.(fn12) There, the court held that general contractors on construction sites, because of their innate supervisory authority, as a matter of law owe a duty to all job site workers to comply with WISHA standards.(fn13) Subsequently, the appellate divisions extended this rule to owner/general contractors,(fn14) owner/developers,(fn15) and ultimately, all job site owners.(fn16)

Although Stute appeared to resolve the issue of liability for injuries resulting from WISHA violations, there are those who question this reading of Stute and the extension of the Stute rule by the courts of appeals. A recent Division Two case(fn17) and an article in this issue(fn18) have expressed concern that uncertainty has been created by the Washington Supreme Court ruling in Hennig v. Crosby Group, Inc.,(fn19) and by the Division One ruling in Kennedy v. Sea-Land Service, Inc.(fn20) However, these rulings, as they address only the general duty created by WISHA, do not conflict with Stute and its progeny, which deal with WISHA's specific duty clause.

This Article argues in support of the trend towards greater protection for workers through the deterrent factor of certain civil liability for WISHA violations resulting in injury. The Article begins by charting the evolution of Washington law on this issue. It then describes the current state of the law on this subject. Finally, it explains how Stute and its progeny are in line with the state's overall trend towards greater worker protection, consistent with the legislative intent of WISHA, and beneficial to not only employees, but employers as well.

II. Evolution of the Law of Job Site Liability

A. Rule of Nonliability

The common law rule is that one who engages an independent contractor is not liable for injuries resulting from the contractor's work.(fn21) The reasoning behind this rule was that because of the independence of the relationship between the original contractor and the independent contractor, there was no privity between the original contractor and injured persons.(fn22) In the case of injured employees, the relation of master and servant does not exist between the original contractor and the employee.(fn23) The independence of the independent contractor, then, is the key to the rule of nonliability.

B. Exceptions to the Rule of Nonliability

1. Common Law

Over time, Washington courts have recognized exceptions to the rule of nonliability based on common law, statute, and contractual assumption of duty.(fn24) A common law exception exists where the employer of the independent contractor retains control over some part of the work. The employer has a duty, within the scope of that control, to provide a safe place to work.(fn25)

The test of control is not the actual interference with the work of the contractor, but the right to exercise such control.(fn26) The employer may, however, retain some control, so long as it is less than that which is necessary to subject it to liability as a master. A reservation of the right to supervise work to determine whether it is being done in accordance with the contract is not enough to subject the employer to liability.(fn27) For the control exception to apply, the employer must retain at least some degree of control over the manner in which the work is done.(fn28)

As independence is the key to the general rule of nonliability, it is also the key to the control exception. When the employer retains the right to control the work method, it vitiates the independence of the contractor, creating privity between itself and the employees of the contractor.(fn29)

The control exception remained constant in this state for many years.(fn30) In 1978, however, the Washington Supreme Court heard Kelley v. Howard S. Wright Construction, Co.(fn31) In Kelley, a worker employed by a subcontractor was injured on a construction project and sought to recover damages from the general contractor.(fn32) The worker argued that the general contractor was under a duty to comply with Occupational Safety and Health Administration (OSHA) regulations (the worker's injuries occurred prior to the passage of WISHA), and that its negligent failure to comply resulted in his injury.(fn33) The defendant argued that it owed no such duty to the worker, because he was an employee of an independent contractor.(fn34)

The trial court instructed the jury in line with the plaintiffs theories of liability.(fn35) The jury found the defendant negligent and the worker ten percent contributorily negligent.(fn36) The defendant appealed.

On appeal, the worker argued that the defendant's duty to comply with OSHA regulations arose from any one of several exceptions to the general rule of nonliability.(fn37) These exceptions were based in common law, statute, and contract.(fn38)

In determining whether the common law exception of control applied, the Washington Supreme Court expanded the long-constant doctrine, holding that a general contractor's "general supervisory functions" were per se control.(fn39) In so holding, the court relied on the reasoning used by the Michigan Supreme Court in the seminal case of Funk v. General Motors Corp.(fn40) Both courts noted the real threat of injury on construction sites and reasoned that the best way to ensure that safety precautions are taken is to make the general contractor ultimately responsible because the general contractor has the authority to require such precautions.(fn41) This was, essentially, the first change in Washington job site liability common.law in over seventy years.

2. Contract

Another change in Washington law was made in Kelley. This change concerned contract law, but its practical effect was in the area of job site liability. One of the worker's arguments on appeal was that the defendant, by assuming responsibility for job site safety in its contract with the job site owner, contractually assumed a duty to comply with OSHA regulations.(fn42) The defendant argued that liability could not be based on the contract because the worker was not a party to it.(fn43) The court disagreed, ruling that an affirmative duty assumed by contract may create a liability to persons not party to the contract, where failure to properly perform the duty results in injury to them.(fn44)

The practical effect of this ruling in the job site context is that any party who assumes responsibility for job site safety in its work contract thereby assumes a duty to all workers to provide a safe workplace. Thus, the Kelley court recognized an exception to the general rule of nonliability based on contract. This was a change in the law-a change which ensured greater safety for workers.

3. Statute

A third change aimed at protecting workers from job site injuries was addressed in Kelley. This change dealt with a statutory exception to the general...

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