Job Site Safety in Washington: Requiring Actual Control When Imposing Statutory Duties on Job Site Owners

• Publication year: 1993

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

COMMENTS

Job Site Safety in Washington: Requiring Actual Control When Imposing Statutory Duties on Job Site Owners

Gregory J. Duff(fn*)

I. Introduction

A typical construction project can bring together various actors, including the job site owner, general contractor, subcontractor, and the employees of each.(fn1) In addition to familiar common law duties, such as the duties owed to invitees, licensees, or trespassers,(fn2) federal and state agencies have enacted numerous complicated statutes and regulations that require safe and reasonable working conditions on the job site. The combination of the various job site actors and the numerous common law and statutory regulations provide an injured employee or employee's estate with several potential sources of compensation for the employee's injuries or death.

The situation in Washington State is no exception to the above scenario. Although workers' compensation statutes limit the amount of compensation that an injured employee may recover from his or her immediate employer,(fn3) Washington expressly permits an injured employee or employee's estate to bring an action against a third person.(fn4) Within the construction context, this third person may be a subcontractor, a general contractor, or even a job site owner.(fn5)

In Stute v. P.B.M.C., Inc.,(fn6) the Washington Supreme Court imposed liability for job site safety on general contractors on the presumption that general contractors possess "innate supervisory authority" over the job site.(fn7) The court found this innate supervisory authority to constitute per se control over the job site and to justify placing the duty to comply with statutory safety regulations on the general contractor as a matter of law.(fn8) The court did, however, limit the applicability of the presumption of innate supervisory authority. It held that defendants who fit within the statutory definition of employer but lack supervisory authority, must have actual control of the dangerous condition to be held liable.(fn9)

Following Stute, the Washington Court of Appeals, relying on unique factual circumstances where general contractors and developers were also the job site owners, extended liability for job site safety to job site owners.(fn10) Rather than employing a case-by-case actual control analysis, the court of appeals based their decisions on the mistaken presumption that job site owners, like general contractors, possess innate supervisory authority that constitutes per se control over the job site.(fn11)

In contrast to the appellate courts' reliance on the mistaken presumption that a job site owner has innate supervisory authority, the Washington Supreme Court in Hennig v. Crosby Group, Inc.(fn12) reaffirmed Stute's requirement that actual control over the job site be found before a court can impose liability for job site safety on a defendant other than a general contractor.(fn13) In Hennig, the court looked to the degree of control actually retained by the job site owner instead of presuming innate supervisory authority.(fn14) The injured employee in Hennig, however, relied exclusively on common law theories of liability and failed to assert a statutory violation. The subject of this Comment is whether the actual control requirement in Hennig should also be employed to find liability in cases involving asserted statutory violations.

This Comment argues that Washington courts should employ the same case-by-case control analysis used to impose the common law duty to provide a safe workplace to impose similar statutory duties on a job site owner. Part II of this Comment briefly identifies the possible sources of a job site owner's duties, including common law, contract, and statute. Part III explains the current status of job site owner liability in Washington. This Part carefully distinguishes between the Washington Supreme Court's consistent use of an actual control requirement for job site owners, and the Washington Court of Appeals' misconceived presumption of a job site owners' innate supervisory authority. Finally, Part IV explains why it is critical that a court find actual control before imposing statutory duties on job site owners.

II. Sources of Job Site Owners' Duties

In the construction context, the job site owner traditionally contracts with an independent general contractor or one or more independent subcontractors.(fn15) Under common law, an employer who contracts with an independent contractor is generally not liable for the injuries to the independent contractor or its employees.(fn16) Exceptions to this general rule of employer nonliability stem from common law, contract, and statute.(fn17)

A. Common Law Exceptions to Employer Nonliability

Under common law, there are several exceptions to employer nonliability under which an employer can be held liable for its own negligence.(fn18) For example, where there is a foreseeable risk of harm to others, an employer has a duty to exercise reasonable care in selecting a competent, experienced, and careful independent contractor with the proper equipment.(fn19) Similarly, where an employer gives directions for the work,(fn20) or furnishes equipment for the work,(fn21) the employer must exercise reasonable care to protect others. Finally, where the employer retains control over a part of the work of the independent contractor, the employer has a duty to provide a safe workplace within the scope of the employer's control.(fn22)

In Washington, the proper control inquiry is not whether the employer actually interfered with the independent contractor's work, but whether the employer retained control over or had the right to control the manner and means of doing the work.(fn23) However, retaining the right merely to inspect and supervise to ensure the proper completion of a contract does not constitute a sufficient degree of control to impose a duty to provide a safe workplace.(fn24)

The policies behind these common law exceptions focus on the employer's primary role in the enterprise. The independent contractor's work personally benefits the employer.(fn25) Also, the employer may contract with an independent contractor who is financially responsible and able to indemnify the employer.(fn26) Furthermore, the employer is in the best position to bear the cost of the insurance necessary to allocate risk.(fn27)

B. Contractual Exceptions to Employer Nonliability

Contractual provisions provide a second exception to the general rule of employer nonliability.(fn28) A contract may impose affirmative duties on the employer to provide a safe workplace.(fn29) For example, the employer's liability in Kelley v. Howard S. Wright Construction Co.,(fn30) was predicated in part on the employer's contract, wherein the employer (1) assumed responsibility for initiating, maintaining, and supervising all safety precautions and programs in connection with the work on the job site; (2) agreed to comply with all applicable safety regulations; and (3) agreed to maintain reasonable safeguards.(fn31)

C. Statutory Exceptions to Employer Nonliability

Statutorily imposed duties provide the final exception to the general rule of employer nonliability. In Washington, employers owe a duty to comply or to ensure compliance with applicable safety regulations to all employees on the job site, including an independent contractor's employees.(fn32) However, Washington courts have limited this exception of nonliability to employers who retain control over some portion of the job site.(fn33)

When the Occupational Safety and Health Act of 1970 (OSH Act)(fn34) was enacted, responsibility for the enforcement of occupational safety and health standards in private workplaces was generally removed from state jurisdiction.(fn35) Acting in response to a 1970 House Report,(fn36) Congress passed the OSH Act "to provide for the general welfare, to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources."(fn37)

Under the OSH Act, Congress placed the responsibility for employee safety directly on the employer.(fn38) Nearly every employer, with the exception of the federal government, must comply with safety and health standards promulgated under the Act.(fn39) Where no standards apply, an employer must provide its employees with a place of employment free from recognized hazards that are likely to cause death or serious injury.(fn40) An employer who fails to comply with the Act is subject to enforcement proceedings initiated by the Occupational Safety and Health Administration (OSHA).(fn41) Once an OSHA inspector has determined that a violation exists, the Secretary of Health and Human Services may issue a citation and proposed penalty.(fn42) The employer may accept the proposed penalty as a fine, or contest the citation.(fn43) If the employer chooses to accept the proposed fine, it must abate the hazard within the abatement period specified in the citation.(fn44)

Despite the OSH Act's intention to preempt state jurisdiction over occupational safety and health issues, the Act expressly allows states to submit plans to develop and enforce state health and safety standards.(fn45) Washington submitted such a plan, and on June 7, 1973, the State enacted the Washington Industrial Safety...