Vargas v. Inland Washington, LLC ( 2019 )

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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
GILDARDO CRISOSTOMO VARGAS,
NO. 96527-7
an incapacitated person, by and through
WILLIAM DUSSAULT,his Litigation
Guardian ad Litem; LUCINA FLORES, an EN BANC
individual; ROSARIO CRISOSTOMO
FLORES, an individual; and PATRICIA
CRISOSTOMO FLORES, a minor child Filed 2 ^ 2019
by and through LUCINA FLORES, her
natural mother and default guardian.
Petitioners,
V.
INLAND WASHINGTON,LLC, a
Washington limited liability company.
Respondent,
and
INLAND GROUP P.S., LLC, a
Washington limited liability company,
RALPH'S CONCRETE PUMPING,INC.,
a Washington corporation, and MILES
SAND & GRAVEL COMPANY d/b/a
CONCRETE NOR'WEST,a Washington
corporation.
Defendants.
Vargas v. Inland Washington, LLC, No. 96527-7
GORDON McCLOUD,J.—Gildardo Crisostomo Vargas was working on a
construction project when a concrete-carrying hose whipped around, hit him in the
head, and caused a severe traumatic brain injury. Vargas and his family sued the
general contractor, the concrete supplier, and the concrete pumper for negligence.
The trial court granted summary judgment in favor of the general contractor.
We reverse. General contractors have expansive statutory and common law
duties to provide a safe workplace. See Stute v. P.B.M.C., Inc., 114 Wash. 2d 454, 788
P.2d 545 (1990); Kelley v. HowardS. Wright Constr. Co., 90 Wash. 2d 323, 582 P.2d
500 (1978). Here, genuine issues of material fact remain as to whether the general
contractor is directly liable—^that is, whether it breached its duties to provide a safe
workplace and whether any breach proximately caused Vargas's injury. In addition
to this potential direct liability, the general contractor is also potentially vicariously
liable for the negligence, if any, of the other entities on the jobsite. We therefore
remand for further proceedings consistent with this opinion.
Factual and Procedural Background
In May 2013, a rubber hose carrying concrete whipped Vargas in the head. It
knocked him unconscious and caused a traumatic brain injury. Clerk's Papers(CP)
at 1716-17, 1743-45. At the time of the incident, Vargas was helping pour the
concrete walls of what would become a parking garage for an apartment building.
Vargas v. Inland Washington, LLC, No. 96527-7
CP at 1716-17. Vargas was employed by Hilltop Concrete Construction LLC. CP
at 2457.
Inland Washington LLC was the general contractor on the construction
project. Id. Inland Washington subcontracted with Hilltop, Vargas's employer, to
install concrete. CP at 1669-93, 2457. Hilltop, in turn, entered into agreements with
Ralph's Concrete Pumping Inc. and Miles Sand & Gravel Company (also referred
to as Concrete Nor'West). CP at 34-36, 71-72; Verbatim Report of Proceedings
(VRP)(Apr. 10, 2015) at 170-71. Under the agreements, Ralph's would provide
both a pump truck and a certified pump operator, and Miles would supply the
concrete. Id.
On the morning of the incident, Anthony Howell, a certified pump operator
employed by Ralph's, arrived with a pump truck. CP at 263-65. The truck was
equipped with a 47-meter-long adjustable boom, a long mechanical arm that allows
the operator to pump concrete over a distance and into hard-to-reach areas. CP at
35-36, 71, 77, 1798, 3074. Upon arrival, Howell checked in with Matt Skoog,
Hilltop's foreman, who told Howell "where to set up the pump and showed [him]
the walls [they] were pumping that day." CP at 263; see also CP at 1716. Matt
Skoog claims that Steve Miller, Inland Washington's superintendent, helped make
the decision of where to park the pump truck. CP at 418-21, 1291-92. Howell then
parked the pump truck, prepared the pump, adjusted the boom, and attached a rubber
Vargas v. Inland Washington, LLC, No. 96527-7
hose to the end of the boom. CP at 263-64, 1716. The boom extended from the
street, where the truck was parked, to a scaffold, where three Hilltop employees,
including Vargas, stood ready to guide the pumped concrete into place. CP at 35,
270,1707,1716. Around the time that Howell was setting up,Derek Mansur, a truck
driver employed by Miles, arrived with the concrete. CP at 265, 752-53.
At this point, the stage was set. Mansur,the concrete company's truck driver,
would load the concrete into the pump truck's hopper and make sure the hopper
remained sufficiently full throughout the pumping. CP at 68, 272-74; VRP(Oct. 28,
2016) at 347-48. Howell, the pump operator, would use a remote control to pump
the concrete mix up the boom and out the hose. CP at 271. Vargas and the other
Hilltop employees would guide the concrete into place. CP at 1716. Matt Skoog,
Hilltop's foreman, would observe the pour from a distance of about 10 to 20 feet.
Id.
The pour did not proceed as planned. Not long after Howell turned on the
pump, his remote lost signal with the truck, causing the pump to automatically shut
down. CP at 271. Howell moved closer to the truck to reestablish connection and
turned the pump back on. CP at 274-75. Shortly after restarting, the hose emitted a
loud, shotgun-like bang and began to whip around. CP at 279-80, 1716-17. Within
seconds, the hose struck Vargas, who had been standing approximately 12 feet from
the end of the hose, in the side of the head, knocking off his hard hat and leaving
Vargas v. Inland Washington, LLC, No. 96527-7
him unconscious. CP at 280, 287-88, 1717. It is unclear why the hose whipped;
apparently, either concrete clogged the hose or air somehow entered the system.
Compare CP at 1716-17 (testimony that the hose was clogged), with CP at 282-83
(testimony that air entered the system).
Vargas(through his guardian ad litem), along with his wife and children, sued
Inland Washington,^ Ralph's, and Miles. CP at 1739. The Vargas family could not
sue Hilltop, Vargas's direct employer, because Hilltop is immune from liability
under Title 51 RCW. CP at 2457. The trial court has stayed proceedings against
Ralph's and Miles pending this appeal, which is limited to the family's claims
against Inland Washington, the general contractor on the project.^ The Vargas
family claims that Inland Washington is directly liable because it breached its
common law duty to provide a safe workplace and violated the Washington
Industrial Safety and Health Act of 1973 (WISHA), ch. 49.17 RCW. The Vargas
4"1
family also claims that Inland Washington is vicariously liable for any negligence
of Hilltop, Ralph's, and Miles.
'The Vargas family also sued Inland Group PS LLC. The Vargas family has alleged
that Inland Group is Inland Washington's parent company.
^ The trial court denied Ralph's motion for summary judgment, and we denied
Ralph's motion for discretionary review of that decision. Order, Vargas v. Ralph's
Concrete Pumping, Inc., No. 96564-1 (Wash. Mar. 6, 2019).
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Vargas v. Inland Washington, LLC, No. 96527-7
In February 2015, Inland Washington filed its first motion for summary
judgment. CP at 1. It argued that "there is no admissible evidence that [it] violated
a specific WISHA safety standard leading to Mr. Vargas' injury" and that it "did not
otherwise breach a duty of care." CP at 4. The court denied that motion in part,
ruling that Inland Washington "owes non-delegable duties \mdQV StuteC CP at 1218;
see also VRP (June 26, 2017) at 475-76. The trial court ruled that the jury is in the
best position to determine whether Inland Washington was at all responsible for the
injury. VRP (June 26, 2017) at 477-78. The trial court explained that the Vargas
family's expert. Rick Gleason, presented sufficient evidence that Inland Washington
breached its duty. Id. at 476-78. However, the court also ruled that Inland
Washington "is not vicariously liable." CP at 1218; see also VRP (June 26, 2017)
at 475-79. Neither party sought discretionary review of the trial court's ruling.
Two years later. Inland Washington filed its second motion for summary
judgment. CP at 1639. (At this point, the case had been reassigned to a different
trial judge.) In opposition, the Vargas family asked the court to vacate its previous
ruling on vicarious liability and to instead rule that Inland Washington is vicariously
liable as a matter oflaw. CP at 1860, 1864. The court granted Inland Washington's
motion and dismissed the general contractor from the case with prejudice. CP at
2509. The court reasoned that it did "not see[] much in the way of substance" as to
which nondelegable duty was violated and explained that a general contractor is not
Vargas v. Inland Washington, LLC, No. 96527-7
"a generalized guarantor of safety across the board." VRP (Mar. 31, 2017) at 93.
The court also "confirm[ed]" the previous ruling on vicarious liability, finding "no
sea change in the law" that would "warrant going back to . . . revisit [the] earlier
ruling" and noting that Afoa v. Port ofSeattle had not yet finished working its way
through the appellate courts. Id. at 55, 92. However,the court certified its decision,
including its "affirmation of its finding that Inland [Washington] is not vicariously
liable," to the Court of Appeals. CP at 2579.
A commissioner of the Court of Appeals granted the Vargas family's motion
for discretionary review. Ruling Granting Discr. Review in Part(Ruling), Vargas v.
Inland Wash., LLC, No. 76717-8-1 (Wash. Ct. App. July 21, 2017). The
commissioner was particularly concerned that the trial court "reaffirmed its prior
ruling that Inland is not vicariously liable for the breaches of WISHA or common
law duties by the other defendants." Id. at 9. The commissioner explained that
"there is a substantial ground for difference of opinion"as to the scope ofInland's
WISHA and common law duties and liability as the general contractor" and
determined that"immediate review may materially advance the ultimate termination
of the litigation." Id. at 9-10 (referencing RAP 2.3(b)(4)).
3 Afoa V. Port ofSeattle, 191 Wn.2d 110,421 P.3d 903(2018){Afoa II).
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Vargas v. Inland Washington, LLC, No. 96527-7
A year later, before the Court of Appeals heard oral argument, this court
issued its decision in Afoa II. The Court of Appeals then dismissed review of the
Vargas case with the following unpublished order:
In light of the Supreme Court's decision in [Afoa II], which reversed
this court's decision mAfoa v. Port ofSeattle, 198 Wash. App. 206, 393
P.3d 802(2017),the standards for discretionary review set forth in RAP
2.3(b)(4) are not met. Accordingly, we deem review improvidentiy
granted.
This matter is remanded to the superior court for further
proceedings, as if review had never been granted by this court in the
first instance.
Vargas v. Inland Wash., LLC, No. 76717-8-1 (Wash. Ct. App. Sept. 17, 2018)
(unpublished), https://www.courts.wa.gov/opinions/pdf/767178.pdf.
The Vargas family sought discretionary review in our court. After we granted
review. Inland Washington asked us to clarify the scope ofreview, arguing that "the
Court of Appeais[ ] ruling dismissing review is the sole issue before it." Mot. to
Clarify Scope of Review at 3. We rejected Inland Washington's attempt to narrow
the issues, clarifying that we "granted review of both the Court of Appeals decision
that review was improvidentiy granted and the issues regarding the underlying
merits of the case as raised in the motion for discretionary review filed at the
Supreme Court by the Petitioners." Order Clarifying Scope of Review at 1
The following groups filed amicus briefs: the Building Industry Association of
Washington,the Washington State Labor Council,the Department ofLabor and Industries,
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Vargas v. Inland Washington, LLC, No. 96527-7
Standard of Review
"We review summary judgment motions de novo, engaging in the same
inquiry as the trial court." Afoa v. Port ofSeattle, 176 Wash. 2d 460, 466, 478, 296
P.3d 800(2013){Afoa I)(citing City ofSequim v. Malkasian, 157 Wash. 2d 251, 261,
138 P.3d 943 (2006)). When reviewing summary judgment motions, we "consider
all disputed facts in the light most favorable to the nonmoving party." Id. (citing
Dowler v. Clover Park Sch. Dist. No. 400, 172 Wash. 2d 471, 484, 258 P.3d 676
(2011)). The nonmoving party in this case is the Vargas family. "Summary
judgment is appropriate if there are no genuine issues of material fact and . . .
reasonable minds could reach but one conclusion." Id. (citing Malkasian, 157
Wn.2d at 261-, Dowler, 172 Wash. 2d at 484); see also CR 56(c).
Analysis
At the outset, we must deal with a procedural issue. After initially granting
the Vargas family's motion for discretionary review,the Court of Appeals dismissed
this case as improvidently granted in light of Afoa II. Vargas, No. 76717-8-1, slip
op. at 1-2. We determined that the standards for discretionary review in our court
were met and granted review. Order, No. 96527-7(Wash. Mar. 6, 2019); see RAP
13.5(b)(standards for discretionary review in our court). Inland Washington now
the Pacific Northwest Regional Council of Carpenters, and the Washington State
Association for Justice Foundation.
Vargas v. Inland Washington, LLC, No. 96527-7
asks us to dismiss this case as improvidently granted. Suppl. Br. of Resp't at 4. We
reject this request.
Inland Washington first argues that the issue of direct liability is not properly
before us. Id. It claims that the Vargas family failed to preserve the argument in its
notice of discretionary review. Id. It also claims that the appellate court did not
accept review of the issue. Id. Both claims are incorrect. In its notice of
discretionary review, the Vargas family explicitly noted that it was appealing the
trial court's 2017 ruling, CP at 2576-77, in which the trial court dismissed all claims
against Inland Washington—including claims of direct liability, VRP (Mar. 31,
2017) at 93. The commissioner of the Court of Appeals then granted discretionary
review of the 2017 ruling without limitation. Ruling, No. 76717-8-1, at 12. The
direct liability issue is properly before us.
Inland Washington next argues that the issue of vicarious liability is not
properly before us. Suppl. Br. of Resp't at 3-4. Inland Washington claims that the
Vargas family failed to timely appeal that issue, which the trial court first addressed
back in 2015. Id. But 2017, not 2015, is the relevant date. In 2017, the trial court
considered and then "confirm[ed]" the 2015 ruling, VRP (Mar. 31, 2017) at 55, 92,
and certified its "affirmation" to the appellate court shortly thereafter, CP at 2579.
The trial court reasoned that it would "rather only do this trial once" and that "if[it
is] wrong,[it would] rather be told beforehand rather than two years after the fact."
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Vargas v. Inland Washington, LLC, No. 96527-7
VRP (Apr. 5, 2017) at 128-29; see also id. at 135-36 (reasoning that a single trial is
"in everybody's best interest"). The trial court understood that it could have
revisited the 2015 decision if it thought it was incorrect under the current state ofthe
law. VRP (Mar. 31, 2017) at 92-93. Inland Washington does not argue that the
Vargas family's notice of discretionary review of the 2017 ruling is untimely. The
vicarious liability issue is properly before us, too.
As to the merits of this case. Inland Washington is potentially directly liable
under two theories. First, a general contractor has a common law duty to maintain
a safe workplace. Kelley, 90 Wash. 2d at 332. Second, a general contractor has a
statutory duty to comply with WISHA. Stute, 114 Wash. 2d at 457-58 (citing RCW
49.17.060). Breach of either of these two duties may lead to direct liability.
Inland Washington is potentially vicariously liable under two theories, too.
First, a general contractor may not delegate its statutory duty to comply with
WISHA; if it delegates anyway, it will be "vicariously liable for the negligence of
the entity subject to its delegation." Afoa II, 191 Wash. 2d at 124. Second, a general
contractor will be vicariously liable for the negligence of any entity over which it
exercises control. Id. at 122-24; Millican v. N.A. Degerstrom, Inc., Ill Wn. App.
881, 893, 313 P.3d 1215 (2013).
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Vargas v. Inland Washington, LLC, No. 96527-7
I. Direct Liability
Genuine issues of material fact exist as to whether Inland Washington is
directly liable—that is, whether it breached either its common law or statutory duty
to maintain a safe workplace. To prove negligence, the Vargas family must show
'"the existence of a duty . . . , breach of the duty, and injury to plaintiff proximately
caused by the breach.'" Harper v. Dep't of Corr., 192 Wash. 2d 328, 340, 429 P.3d
1071 (2018)(alteration in original)(quoting Hertog v. City ofSeattle, 138 Wash. 2d
265, 275,979 P.2d 400(1999)). "Existence of a duty is a question oflaw." Hertog,
138 Wash. 2d at 275 (citing Schooley v. Pinch's Deli Mkt., Inc., 134 Wash. 2d 468, 474,
951 P.2d 749 (1998)). Breach and proximate cause are generally issues for the trier
of fact, but the court may resolve them as a matter oflaw "if reasonable minds could
not differ." Id. {CWmg Sherman v. State, 128 Wash. 2d 164, 183,905 P.2d 355(1995)).
At issue are two duties owed by general contractors to the employees of
subcontractors. Under the common law, a general contractor owes a duty to all
employees on a jobsite to provide a safe place to work in all areas under its
supervision. Kelley, 90 Wash. 2d at 332. A general contractor also owes a duty to all
employees to '"comply with the rules, regulations, and orders promulgated under
[WISHA].'" Stute, 114 Wn.2d at457-58(quotingRCW 49.17.060(2)). Ifageneral
contractor breaches one ofthese two duties, then it may be directly liable. 16 David
K. DeWolf & Keller W. Allen, Washington Practice: Tort Law and
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Vargas v. Inland Washington, LLC, No. 96527-7
Practice § 4:1, at 178-79 (4th ed. 2013) (explaining that "direct liability" "is
liability for breach of one's own duty of care"). Because genuine issues of material
fact exist as to whether Inland Washington breached these two duties and whether
any breach proximateiy caused the injury, summary judgment is inappropriate.
A. Common Law
"The general rule at common law is that one who engages an independent
contractor . . . is not liable for injuries to employees of the independent contractor
resulting from their work." Kelley, 90 Wash. 2d at 330 (citing Fenimore v. DonaldM.
Drake Constr. Co., 87 Wash. 2d 85, 549 P.2d 483 (1976); Larson v. Am. Bridge Co. of
N.Y., 40 Wash. 224, 82 P. 294 (1905)). But when a general contractor engages a
subcontractor and "retains control over some part of the work," the general
contractor "has a duty, within the scope of that control, to provide a safe place of
work." Id. (citing Fenimore, 87 Wash. 2d 85). "The test of control is not the actual
interference with the work of the subcontractor, but the right to exercise such
control." Id. at 330-31 (citing Fardig v. Reynolds, 55 Wash. 2d 540, 348 P.2d 661
(I960)). A general contractor's "general supervisory functions are sufficient to
establish control." Id. at 331.
Kelley illustrates the exception to the general rule. In that case, Edward
Kelley, an employee of a subcontractor, fell nearly 30 feet while working on a
construction project, suffering severe injuries. Id. at 326-27. Kelley sued Wright
13
Vargas v. Inland Washington, LLC, No. 96527-7
Construction Company, the general contractor on the project, alleging that "Wright
was negligent in not providing a safety net." Id. at 327. Despite the general common
law rule of nonliability for general contractors, this court explained that Wright
exercised sufficient control over the work to be found directly liable:
Respondent maintains, and we agree, that Wright's general supervisory
functions are sufficient to establish control over the work conditions of
[the subcontractor]'s employee Kelley. Wright had the right to require
use ofsafety precautions such as lines or nets, or to halt dangerous work
in adverse weather conditions. This authority alone was sufficient to
establish [the general contractor]'s duty to see that proper safety
precautions were taken.
Id. at 331. The court further explained that the area in which Kelley was injured was
clearly under Wright's supervision, as four different contractors, all of whom were
under Wright's control, had recently worked in that area. Id. at 332. Thus, the rule
from Kelley is that a general contractor owes a common law duty to all employees,
including employees of subcontractors, to provide a safe place to work in all areas
under its supervision. Id.
In reaching this conclusion, this court found persuasive the following
reasoning from the Michigan Supreme Court:
"Placing ultimate responsibility on the general contractor for job
safety in common work areas will, from a practical, economic
standpoint, render it more likely that the various subcontractors being
supervised by the general contractor will implement or that the general
contractor himselfimplement the necessary precautions and provide the
necessary safety equipment in those areas.
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Vargas v. Inland Washington, LLC, No. 96527-7
"We regard it to be part of the business of a general contractor to
assure that reasonable steps within its supervisory and coordinating
authority are taken to guard against readily observable, avoidable
dangers in common work areas which create a high degree of risk to a
significant number of workmen."
Id. at 331-32 (quoting FwwA: v. Gen. Motors Corp., 392 Mich. 91, 104, 220 N.W.2d
641 (1974), overruled in part on other grounds as recognized by Stute, 114 Wash. 2d
at 462).
Inland Washington grabs on to the "common work areas" language from
Funk,the Michigan Supreme Court case quoted in Kelley, and argues that the general
contractor's duty does not extend to "non-common work areas." Suppl. Br. ofResp't
at 8. Inland Washington defines "non-common work areas" as areas in which "an
expert in a specific job is in charge," "no other subcontractors are engaged in
different work," and the general contractor is not present. Id.
But this argument mischaracterizes Kelley. The court in Kelley referenced
"common work areas" only when discussing and quoting Funk. Kelley, 90 Wash. 2d
at 331-32. It did not attempt to define the phrase at all, let alone in the narrow fashion
advocated by Inland Washington. Instead, the court broadly held that the general
contractor's "general supervisory functions [were] sufficient to establish control."
/d at 331. If a general contractor has the authority to supervise a given area, then it
must ensure that the area is safe. Id. at 332. This is true regardless of whether an
expert other than the general contractor happens to be in charge of a specific job in
15
Vargas v. Inland Washington, LLC, No. 96527-7
the area. It is true regardless of whether multiple subcontractors happen to be
working in the area at the same time. The court in Kelley noted that four different
contractors had recently worked in the area of the incident, not that they were all
present at the time ofthe incident. Id. In any event, the court referenced these four
contractors only to emphasize that the general contractor had general supervisory
functions. Id. Finally, a general contractor with supervisory authority over an area
must ensure that the area is safe regardless of whether the general contractor is
present—a general contractor cannot shirk its duties merely by vacating the
premises.
Inland Washington essentially asks us to redefine Kelley out of existence (or
at least to limit it severely). It notes that "since the early 1980s an overwhelming
majority of state high courts have held that employers are not liable to
subcontractors' employees" for a variety of policy reasons. Suppl. Br. of Resp't at
8-9. Assuming that is true, we are clearly not part of that majority, as Kelley itself
demonstrates. We therefore reject Inland Washington's cramped reading of Kelley
and instead reiterate that a general contractor owes a common law duty to all
employees, including employees of subcontractors, to provide a safe place to work
in all areas under its control and supervision.
Inland Washington failed to prove as a matter of law that it had no common
law duty to provide a safe workplace here. Considering these facts in the light most
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Vargas v. Inland Washington, LLC, No. 96527-7
favorable to the Vargas family, Inland Washington supervised the jobsite and had a
right to exercise control over the work of the various entities on the jobsite. Kelley,
90 Wash. 2d at 330-31. Inland Washington hired Hilltop to install concrete. CP at
1669-93, 2457. Inland Washington's superintendent. Miller, explained that he was
responsible for coordinating the job, "'play[ing] babysitter when somebody cries,
[and]solv[ing] problems that arise.'" CP at 423. Gordon Skoog ofHilltop explained
that Miller answers questions about the plans, "organizes the job site," ensures
everything is "all done right," and "just manages the job site." CP at 361. And Matt
Skoog, Hilltop's foreman, claims that Miller helped make the decision of where to
park the pump truck on the day of the incident. CP at 1291-92.
As to the other elements of this negligence action—breach and causation—
genuine issues of material fact remain. Rick Gleason, a certified safety professional
and the Vargas family's expert, states that Inland Washington "should have
identified in their site safety plan the hazards of concrete pumping" and made "sure
there was an overall culture of safety that was developed for the entire site." CP at
2354-55; see also CP at 2369-71. Although the general contractor "cannot be
everywhere on site at all times," Gleason argues that a good safety plan "identifies
hazards prior to the star[t] of work." CP at 2164. Miller, Inland Washington's own
supervisor, testified that he was unaware of any site-specific plans or training that
addressed the risks of concrete pours. CP at 427-28.
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Vargas v. Inland Washington, LLC, No. 96527-7
As the trial court explained on the first motion for summary judgment, the
jury is in the best position to evaluate Inland Washington's conduct and to determine
whether it agrees with Gleason's position. VRP(June 26,2017)at 477-78. Viewing
the facts in the light most favorable to the Vargas family, a reasonable juror could
evaluate the evidence and determine that Inland Washington failed to provide a safe
workplace. This is particularly true given all the genuine issues of material fact that
remain pending before the trial court (and that are not at issue here) related to the
potential negligence of Ralph's and Miles. If a jury finds that Ralph's, Miles, or
both were negligent, which at this point remains a possibility, then it could be more
difficult for Inland Washington to successfully argue that it maintained a safe
workplace.
Because genuine issues of material fact remain, we reverse the trial court's
grant of summary judgment against the Vargas family on this issue. Inland
Washington could be directly liable for breaching its common law duty to maintain
a safe workplace.
B. WISHA
In addition to its common law duty to provide a safe workplace, a general
contractor may also have a statutory duty to provide a safe place to work. Stute, 114
Wash. 2d at 463-64. In Stute, we recognized that WISHA creates such a duty. Id. at
457-58, 460. In that case, Andre Stute, an employee of a subcontractor, fell three
18
Vargas v. Inland Washington, LLC, No. 96521-1
stories while working on a construction project, suffering severe injuries. Id. at 456.
Stute sued P.B.M.C. Inc., the general contractor on the project, "alleging it owed
him a duty to provide necessary safety devices at the jobsite." Id. We agreed,
holding that a general contractor owes a "specific duty" to "all employees working
on the premises," id. at 457 {cWmgAdkins v. Alum. Co. ofAm., 110 Wash. 2d 128, 153,
750 P.2d 1257, 756 P.2d 142 (1988)), to '"comply with the rules, regulations, and
orders promulgated under [WISHA],'" id. (quoting RCW 49.17.060(2)).^
A general contractor always owes this duty under WISHA—no analysis of
whether the general contractor retained control is necessary. As the court in Stute
explained, a general contractor has "innate supervisory authority" and therefore also
has "per se control over the workplace." Id. at 464; see also id. at 462("Since as a
practical matter, the general contractor must have control over the property and
working conditions,the general contractor will have the duty to provide for safety.").
This per se control "justifie[s]" the "expansive liability" that a general contractor
faces. Kamla v. Space Needle Corp., 147 Wash. 2d 114, 122, 52 P.3d 472(2002). Our
precedent therefore places "prime responsibility for safety of all workers ... on the
^ Under WISHA,a general contractor also owes a "general duty" to protect its "own
employees from recognized hazards not covered by specific safety regulations." Stute, 114
Wash. 2d at 457 (citing RCW 49.17.060(1)). This general duty, unlike the specific duty to
comply with WISHA, does not extend to all employees working on the premises—just to
a general contractor's own employees. Because Vargas was employed by Hilltop, Inland
Washington did not owe him a general duty under WISHA.
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Vargas v. Inland Washington, LLC, No. 96527-7
general contractor," Stute, 114 Wash. 2d at 463, because "the general contractor is in
the best position to coordinate work or provide expensive safety features to protect
employees of subcontractors," id. at 462 {citing Alber v. Owens,66 Cal. 2d 790,427
P.2d 781, 59 Cal. Rptr. 117 (1967)).
Several amici have expressed concern that this court in Afoa II unsettled this
rule of per se control. In that case, this court stated that "[a]jobsite owner or general
contractor will have this duty only if it maintains a sufficient degree of control over
the work." Afoa II, 191 Wash. 2d at 121 (emphasis added){citing Kamla, 147 Wash. 2d
at 123). That case involved a jobsite owner, not a general contractor. Id. at 115.
We therefore had no reason to discuss Stute—and in fact, did not discuss Stute, much
less overrule it. Indeed, even Inland Washington states that ''Afoa II plainly does
not overrule any prior decisions establishing the duty of a general contractor,"
incinCing Stute and Kelley. Suppl. Br. ofResp't at 5 & n.2(boldface omitted). Stute
remains good law: a general contractor has per se control over the workplace for
purposes of WISHA compliance.
As with the common law duty, genuine issues of material fact remain about
whether Inland Washington breached its duty to comply with WISHA and whether
this breach was a proximate cause of the injury. WISHA regulations require
"management to establish, supervise, and enforce"
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Vargas v. Inland Washington, LLC, No. 96527-7
(a) A safe and healthful working environment.
(b) An accident prevention program as required by these
standards.
(c) Training programs to improve the skill and competency of
all employees in the field of occupational safety and health.
WAC 296-155-100(1). The accident prevention program must be "tailored to the
needs of the particular . . . operation" and include "[a]n on-the-job review of the
practices necessary to perform the initial job assignments in a safe manner." WAC
296-155-110(2), (3)(g). For many of the same reasons described in the preceding
section, Gleason,the Vargas family's expert, claims that Inland Washington violated
these regulations. CP at 2163-64.
In defense. Inland Washington notes that the Department of Labor and
Industries inspected the incident and found that Inland Washington committed no
WISHA violations. CP at 99-112, 1722. But as the Department of Labor and
Industries explains in its amicus brief, "facts may develop throughout tort litigation
that support the existence of a WISHA violation" that the department was unable to
uncover during its "relatively short" six-month investigation period. Br. of Amicus
Curiae Dep't of Labor & Indus. At 5 n.4.
We reverse the trial court's grant of summary judgment against the Vargas
family on this direct liability issue, too. Inland Washington is potentially directly
liable for breaching its statutory duty to comply with WISHA. As the trial court
explained on the first motion for summary judgment, the jury should evaluate Inland
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Washington's conduct to determine whether it was at all responsible for the injury.
VRP (June 26, 2017) at 477-78.
II. Vicarious Liability
In addition to its potential direct liability, Inland Washington is potentially
vicariously liable, based on two separate theories, for the failure of others on the
jobsite to provide a safe workplace. First, a general contractor that delegates its
statutory duty to comply with WISHA is "vicariously liable for the negligence ofthe
entity subject to its delegation." Afoa II, 191 Wash. 2d at 124. Second, a general
contractor is vicariously liable for the negligence of any entity over which it
exercises control. Id. at 122-24; Millican, 111 Wash. App. at 893.
A. Delegation
We have referred to a general contractor's common law and statutory duties
as "nondelegable." Afoa II, 191 Wash. 2d at 121 (citing Kelley, 90 Wash. 2d at 334);
Kamla, 147 Wash. 2d at 122. A "nondelegable duty" is "[a] duty for which the
principal retains primary (as opposed to vicarious) responsibility for due
performance even if the principal has delegated performance to an independent
contractor." Black's Law Dictionary 638(11th ed. 2019). Although Black's Law
Dictionary refers to this responsibility as primary rather than vicarious, Washington
courts have explained that "a nondelegable duty may result in vicarious liability."
Afoa II, 191 Wash. 2d at 123; see also Millican, 111 Wash. App. at 890-91. "An entity
22
Vargas v. Inland Washington, LLC, No. 96527-7
that delegates its nondelegable duty will be vicariously liable for the negligence of
the entity subject to its delegation." Afoa II, 191 Wash. 2d at 124; see also Millican,
111 Wash. App. at 896-97. Regardless of whether we label this form of liability as
direct or vicarious, if a general contractor delegates its own duties to a subcontractor,
the general contractor will be liable for the subcontractor's breach of that delegated
duty.
As discussed above, genuine issues of material fact remain as to whether
Inland Washington breached its common law and statutory duties. To the extent
Inland Washington claims that it delegated its duties to Hilltop, Ralph's, orMiles, it
faces potential liability for any breach of those delegated duties found by the fact
finder below.
B. Control
A general contractor may also face another form of vicarious liability: for
another entity's negligence. We have held that entities other than general
contractors, such as subcontractors and jobsite owners, may owe the same
workplace-safety duties as general contractors. Afoa I, 176 Wash. 2d at 473; Gilbert
H Moen Co. v. Island Steel Erectors, Inc., 128 Wash. 2d 745, 756-58, 912 P.2d 472
(1996). In Moen, for example, we explained that "nothing in the relevant statutes,
regulations or Stute indicates the subcontractor is relieved of its duty to comply with
safety regulations and provide a safe workplace." 128 Wash. 2d at 757. "The
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Vargas v. Inland Washington, LLC, No. 96527-7
subcontractor, despite the general contractor's workplace safety duty, retains
concurrent responsibility to meet workplace safety standards in the areas under its
control." Id. Thus, multiple entities—jobsite owners, general contractors,
subcontractors—may concurrently owe independent yet overlapping duties to
maintain a safe workplace. And one entity, such as a general contractor, may be
vicariously liable for another entity's, such as a subcontractor's, negligence. This is
distinguishable from the version of vicarious liability, discussed above, that arises
when a general contractor delegates its own nondelegable duty.
In Afoa II, this court described the circumstances in which a jobsite owner
(not a general contractor) may be vicariously liable for another entity's breach of its
independent duty to provide a safe workplace. Afoa, who was severely injured while
working for a cargo company at the Port of Seattle, sued the port, alleging that it
"retained control over [his employer] and was responsible for his injuries because
the Port violated its nondelegable duties under [WISHA] and the common law."
Afoa II, 191 Wash. 2d at 117. The port defended by arguing that four airlines, which
were not party to the suit, shared fault. Id. The jury found that the port retained
sufficient control over Afoa's employer to give "rise to a duty of care to Afoa," and
that the port breached that duty. Id. at 117-18. But the jury found that the four
airlines were at fault, too. Id. at 118. And since the airlines were not party to the
24
Vargas v. Inland Washington, LLC, No. 96527-7
suit, Afoa could not recover the approximately $30 million in damages apportioned
to them. Id.
On appeal,"[t]he Court of Appeals held that the Port had a nondelegable duty
and was therefore vicariously liable for the airlines' fault." Id. This court reversed,
holding that an entity is not automatically vicariously liable simply because it
breaches its own nondelegable duty. Id. at 122-24. The port might be vicariously
liable for an airline's breach of its own concurrent duties, but only "ifthe jury makes
the necessary finding of control." Id. at 124. Although the jury found that the port
retained control over Afoa's employer, it was not asked to determine whether the
port retained control over the airlines, too. Id.
In light of Afoa II, the question here is whether a genuine issue of material
fact exists as to whether Inland Washington exercised sufficient control over Hilltop,
Ralph's, and Miles to face vicarious liability. The court in Afoa II explained that
"control exists where 'there is a retention of the right to direct the manner in which
the work is performed.'" Id. at 126 (quoting Kamla, 147 Wash. 2d at 121). But both
Afoa II and Kamla, on which Afoa II relies, involved jobsite owners, not general
contractors. Id. at 117; Kamla, 147 Wash. 2d at 118. And we have always treated
jobsite owners differently than general contractors. E.g., Kamla, 147 Wash. 2d at 120-
25 (reaffirming Kelley and Stute but distinguishing jobsite owners from general
contractors); Afoa I, 176 Wn.2d at 472(same).
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Vargas v. Inland Washington, LLC, No. 96527-7
In the context of general contractors, the control analysis is different. We
have explained that "[t]he test of control is not the actual interference with the work
of the subcontractor, but the right to exercise such control." Kelley, 90 Wash. 2d at
330-31 (citing Fardig, 55 Wash. 2d 540). In Kelley, we held that the general
contractor's "general supervisory functions [were] sufficient to establish control."
Id. at 331. As discussed above, considering the facts of this case in the light most
favorable to the Vargas family. Inland Washington supervised the jobsite and had a
right to exercise control over the work of the various entities on the jobsite. Inland
Washington is thus potentially vicariously liable for the negligence, if any, of those
other entities. Of course, a general contractor who retains a right to exercise control
will not be vicariously liable unless the plaintiff proves that some entity on the
jobsite was negligent. But if the plaintiff can do that, then the general contractor
will be vicariously liable for that negligence. See Black's,supra, at 1099(defining
"vicarious liability" as "[Ijiability that a supervisory party... bears for the actionable
conduct of a subordinate . . .").
Inland Washington, along with amicus Building Industry Association of
Washington, claims that this understanding of control effectively subjects general
contractors to strict liability. Suppl. Br. of Resp't at 16; Br. of Amicus Curiae Bldg.
Indus. Ass'n of Wash, at 15-19. Inland Washington claims that this would make
general contractors "insurers of every worker on a project," and this "sort ofliability
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Vargas v. Inland Washington, LLC, No. 96527-7
. . . could . . . wip[e] out construction across Washington." Suppl. Br. of Resp't at
16-17. Inland Washington argues that general contractors will be forced "to extract
specific contractual concessions from independent contractors in the form of an
indemnity and waiver of immunity." Id. at 17 (citing RCW 4.24.115). Such
contractual concessions, according to Inland Washington, would "undermine[]" the
"compromise" of workers' compensation because "the supposedly immune
employer [here, the subcontractor Hilltop] would be saddled with a double loss:
payment of L&I premiums to the State, and payment of indemnity to the general
contractor." Id.
All ofInland Washington's arguments fall short. First,"vicarious liability for
the negligence of a contractor is not strict liability." Knutson v. Macy's W. Stores,
Inc., 1 Wash. App. 2d 543,547,406 P.3d 683 (2017). "[VJicarious liability is liability
for the breach ofsomeone else's duty of care." 16 DeWolf & Allen,supra, §4:1;
see also BLACK'S,supra, at 1099. Here,Inland Washington will be vicariously liable
only if the Vargas family proves that one of the other entities on the jobsite was
negligent. Strict liability, on the other hand,"does not depend on proofof negligence
or intent to do harm." Black's,supra, at 1099.^
® The Vargas family notes that strict liability may be appropriate under Floeting v.
Group Health Cooperative, 192 Wash. 2d 848, 434 P.3d 39 (2019), a case involving the
Washington Law Against Discrimination, ch. 49.60 RCW. Resp. of Appellants Vargas to
Br. of Amicus Curiae Bldg. Indus. Ass'n of Wash, at 8-12. But in Floeting, we made clear
that our analysis of liability was informed by the statute at issue. 192 Wash. 2d at 856-57.
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Vargas v. Inland Washington, LLC, No. 96527-7
Second, Inland Washington's argument conflicts with this court's precedent.
In Moen, this court endorsed the contractual concessions that Inland Washington
claims would undermine workers' compensation. In that case, Moen, a general
contractor, subcontracted with Island Steel Erectors. Moen, 128 Wash. 2d at 748. In
an addendum to the subcontract, the subcontractor waived its immunity and agreed
to indemnify the general contractor to the extent of its own negligence. Id. at 748-
49. After an on-the-job injury, an employee of the subcontractor sued the general
contractor for negligence but "could not sue [the subcontractor] because of its
employer immunity." Id. at 749-50 (citing RCW 51.04.010). After the general
contractor settled with the employee, it sued the subcontractor for indemnity
pursuant to the addendum. Id. at 751. We held that the indemnity provision in the
addendum was valid, explaining that a subcontractor can agree to indemnify a
general contractor to the extent ofthe subcontractor's negligence. Id. at 752-55; see
also RCW 4.24.115(l)(b). We explained that if such provisions were invalid,
a general contractor's exposure for injuries to the employees of a
subcontractor would be increased substantially. The general contractor
would be fully liable for the losses suffered by an employee of a
subcontractor injured at a construction site under the nondelegable duty
of Kelley. Given its employer immunity under RCW Title 51, a
subcontractor could never be sued by its employee. . . . If a general
contractor could no longer shift liability to a subcontractor using an
Here, for the reasons discussed above. Inland Washington is potentially vicariously liable
for the negligence of other entities on the jobsite. Because this liability depends on an
underlying finding of negligence. Inland Washington does not face strict liability, which
does not depend on proof of negligence. BLACK'S,supra, at 1099.
28
Vargas v. Inland Washington, LLC, No. 96527-7
indemnification agreement pursuant to RCW 4.24.115, the general
contractor would pay for any fault ofthe subcontractor, a result wholly
inconsistent with our prior case law.
Moen, 128 Wash. 2d at 761. Thus, we have clearly approved of the contractual
concessions that Inland Washington fears would undermine workers' compensation.
Inland Washington does not argue that Moen is incorrect or harmful.
In sum, we reverse the trial court and hold that Inland Washington faces
potential vicarious liability for the negligence, if any, ofHilltop, Ralph's, and Miles.
The trial court previously denied both Ralph's and Miles's motion for summary
judgment and stayed proceedings pending this appeal. Since the Vargas family has
live claims against Ralph's and Miles, we remand for further proceedings consistent
with this opinion.
Conclusion
Our prior decisions have clearly held that general contractors have expansive
duties to ensure worker safety. In this case, genuine issues of material fact remain
as to whether Inland Washington is directly liable for Vargas's injury—that is,
whether Inland Washington breached its common law and statutory duties to provide
a safe workplace and whether any breach proximately caused the injury. Inland
Washington is also potentially vicariously liable for the negligence, if any, of
Hilltop, Ralph's, and Miles. We therefore reverse and remand this case to the trial
29
Vargas v. Inland Washington, LLC, No. 96527-7
court, where the currently stayed proceedings may resume with Inland Washington
as a party.
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Vargas v. Inland Washington, LLC, No. 96527-7
WE CONCUR:
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31