From the Desk of Brian Schiewe:
In premises liability claims, a landowner has the duty to exercise reasonable care in making their premises safe for invitees, which include independent contractors that are on the premises to perform a job. A land possessor can also delegate that duty to other parties in certain circumstances.
In this case, the Washington Court of Appeals had to determine whether a landowner exercised reasonable care in satisfying its duty to ensure its roof was safe for an invitee by delegating that duty to the invitee. In the end, the Court held that the landowner exercised reasonable care in choosing to delegate the duty to the invitee, as the invitee was a professional roofer that the land possessor had worked with for the last two years.
Eylander v. Prologis Targeted U.S. Logistics Fund., 82834-7-I, 2022 WL 2799077 (Wash. Ct. App. July 18, 2022).
In May of 2017, Prologis Management LLC hired Commercial Industrial Roofing, Inc. (CIR), an independent contractor to clean the roof of a cold-storage warehouse. On June 6, a crew of CIR employees, including Jeffry Eylander, were sweeping the warehouse roof. The roof had almost 100 skylights, and most, if not all, of the skylights were neither fall-resistant nor guarded against falls. Both CIR and Eylander knew of the risk of severe injury from falling on a skylight.
No one in the crew was wearing safety harnesses. Instead, CIR chose to use a “safety monitor system” whereby a coworker would watch the others work and warn them of hazards. Eylander tripped and fell onto a skylight, breaking it and falling 30 feet to his death.
Eylander’s estate filed a premises liability claim against Prologis, arguing that Eylander was an invitee and Prologis breached its duty by failing to ensure that the risks posed by the skylights were minimized as much as possible. Prologis moved for summary judgment motion arguing that it owed no duty to Eylander as an invitee. The trial court granted summary judgment for Prologis.
Generally, employees of independent contractors are invitees on a land possessor’s premises. Additionally, a land possessor owes a duty to exercise reasonable care to make its premises safe for invitees.
Washington has adopted Sections 343 and 343A of the Restatement (Second) of Torts to guide the evaluation of whether a possessor can be liable for injury to an invitee due to danger on its premises. Section 343 pertains to hidden or latent danger, and section 343A pertains to a condition on the premises that is known or is an obvious danger. When a condition is known or obviously dangerous, the possessor has a duty to act when it should have anticipated the harm despite such knowledge or obviousness.
Once a possessor has a duty to act, it must remediate the risk of harm by taking reasonably necessary steps to protect the invitee under the circumstances. A possessor can fulfill its duty to exercise reasonable care by selecting a competent independent contractor with the proper experience and capacity to work in the presence of a known and obvious danger created by the possessor.
Prologis conceded that it had a duty to Eylander to remediate risks from a known or obvious danger under section 343A. Prologis knew that Eylander would be presented with the known and obvious danger of the unguarded skylights and knew that death from falling through a skylight was foreseeable and should have been anticipated. The critical question that faced the Washington Court of Appeals was not whether a duty existed, but whether Prologis exercised reasonable care in satisfying its duty.
The Court noted that Prologis exercised care in its selection of CIR, a competent and experienced contractor. Notable, in the 2015 master service agreement, CIR agreed to be “solely responsible for the health and safety of all persons providing the [s]ervices.” It also required that CIR abide by all laws, codes, and ordinances of applicable federal, state, county, or municipal governments. In the 2017 contract, CIR agreed to account for all possible dangers on the roof by preparing and posting a safety plan. The Court took these two contracts together to mean that Prologis required CIR to anticipate unsafe conditions on the roof and take the necessary steps to remediate the risk to its employees. CIR accepted those terms. The Court held that this agreement showed the delegation of Prologis’ duty to maintain safe premises. Prologis also reasonably concluded that CIR would fulfill this duty as CIR was a professional roofing company that had been a Prologis contractor for two years before this job.
The Court held that because Prologis exercised reasonable care by selecting CIR and reasonably concluding that CIR would fulfill the duty delegated to it, the estate failed to establish the negligence element of breach of duty.
A landowner can delegate its duty to an independent contractor if they exercise reasonable care to ensure that the independent contractor will protect their own employees against known or obvious danger. To do so the possessor must also have a reasonable belief that the party it is delegating the duty to can fulfill the duty.