From the Desk of Partner Gordon C. Klug:
Developing your land or contracting for someone to work your land can often be a large undertaking. When you hire a general contractor, and they begin hiring subcontractors it can quickly become a complex operation. Despite this complexity, it is important to stop and ask yourself as the jobsite owner or general contractor whether you can be held liable for injuries that result from the negligence of the independent contractors working on the jobsite.
Claims Pointer: In this Washington Court of Appeals opinion, the Court dove into what it means to be a general contractor or a jobsite owner and what duty each role owes its workers. The Court held that for the jobsite owner to be held liable for the injuries to an employee of an independent contractor, the Plaintiff must show two things: 1) that the jobsite owner retained control over the manner in which the job was performed and 2) the injury suffered was within the scope of that control. Without a showing of both, the Court held that the jobsite owner did not owe a duty to maintain a safe workplace to Plaintiff’s deceased husband.
Farias v. Port Blakely Co., 82789-8-I, 2022 WL 2206536 (Wash. Ct. App. June 21, 2022)
Port Blakely owned a parcel of land and had contracted with Buck’s Logging, Inc. (BLI) to harvest timber on the land. Ruben Farias worked for BLI. One day, Ruben Farias was instructed by another BLI employee to buck logs that were stacked on a landing. About 20 to 30 minutes after Ruben was sent to buck logs, a BLI employee discovered Ruben’s body pinned between two logs.
Ruben’s widow, Maria Farias filed a complaint against Port Blakely alleging that Port Blakely was acting as the general contractor. Port Blakely filed a motion for summary judgment alleging that it did not owe Ruben a common law duty to provide a safe workplace or a statutory duty to comply with WISHA. Farias filed a motion for a summary judgment determination that Port Blakely was a general contractor. The trial court granted Port Blakely’s motion and denied Farias’ motion. Farias appealed.
To establish liability in negligence a plaintiff must establish a duty, a breach of that duty, and injury to the plaintiff proximately caused by the breach. At common law, a principal who hires an independent contractor is not liable for any harm caused by the contractor.
Under Washington common law, “landowners and general contractors that retain control over a work site have a duty to maintain safe common work areas.” Afoa v. Port of Seattle, 176 Wn.2d 460, 475, 296 P.3d 800 (2013). In other words, when a principal retains some control of the work the principal is required to maintain a safe workplace for all workers on the site. Id. at 477.
Liability exists for injuries to independent contractors when control is retained over the manner in which the work is completed. Kamla v. Space Needle Corp., 147 Wn.2d 114, 127, 52 P.3d 472 (2002) (emphasis added). Further, the principal has a duty within the scope of that control, to provide a safe workplace. Kelley v. Howard S. Wright Constr. Co., 90 Wn.2d 323, 330, 582 P.2d 500 (1978) (emphasis added).
The Washington Court of Appeals first had to address whether Port Blakely was a general contractor or a jobsite owner. Farias, in attempting to argue that Port Blakely was a general contractor, noted the Black’s Law Dictionary definition of “general contractor” which defines a general contractor as “[s]omeone 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). The Court held that Port Blakely did not fit the definition of a general contractor.
After deciding that Port Blakely was not a general contractor but rather the jobsite owner, the Court turned to the question of whether Port Blakely retained a sufficient amount of control to trigger the common law duty to provide Ruben a safe workplace. Farias raised many arguments in an attempt to establish that Port Blakely owed Ruben a common law duty to provide a safe workplace. Farias pointed out various portions of the contract between Port Blakely and BLI and the best management practices manual to try and establish that Port Blakely had sufficient control over the manner in which BLI employees worked.
The Court rejected each and every portion of the contract and manual that Farias pointed out, holding that they did not show that Port Blakely failed to provide a safe workplace within the scope of their control or that Port Blakely controlled the manner in which BLI employees should work. For example, Farias cited to a portion of Port Blakely’s best management practices manual that gave specifications of how to maximize timber value and harvest efficiency when felling timber. While the Court found that this section indicates that Port Blakely retained some control over the manner in which timber was felled, it did not indicate that Port Blakely failed to maintain a safe workplace within the scope of that control. Ruben had died while he was bucking trees that had already been felled, not while felling trees.
Another section of the best management practices manual that Farias cited contained specifications for bucking that stated Port Blakely would provide “information regarding quality, acceptable defects, lengths and diameter specification that maximize the value of the logs produced.” The Court held that this section did not indicate that Port Blakely maintained control over the manner in which BLI chose to perform bucking, rather it broadly requires any particular method adopted by BLI to also comply with certain specifications to maximize the value of the logs.
The Court emphasized that nothing in the contract or the manual dictated the manner in which BLI was to perform its work and in any instance where Port Blakely retained some control, Ruben’s injury was not within the scope of that control. Thus, the Court held that Farias failed to establish a genuine material fact as to whether Port Blakely failed to provide a safe workplace within the scope of any control it retained, and that Port Blakely did not owe Ruben a common law duty to provide a safe workplace.
The Big Picture
Jobsite owners and general contractors do not have a common law duty to provide a safe workplace unless they have some control of the manner in which the independent contractor works and the failure to provide a safe workplace is within the scope of that control. Without a showing of both, they cannot be held liable for an injury to the independent contractor.