Opinion
No. 60109-1-I.
June 9, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-2-04637-4, Nicole MacInnes, J., entered May 29, 2007.
Reversed by unpublished opinion per Lau, J., concurred in by Schindler, C.J., and Ellington, J.
Marketwest Investments, LLC (Marketwest) purchased timber cutting rights and then contracted with Clayton Kienholz Sons, Inc. (Kienholz) to harvest the timber. While preparing the load, Melvin Madche, Kienholz's subcontractor, suffered severe injuries on the jobsite when a log loader grapple operated by Kienholz struck him in the head. His estate sued Marketwest for negligence. At a summary judgment hearing, Marketwest successfully argued that it owed Madche no common law or statutory duty to provide a safe jobsite. Because the issue of whether Marketwest owed Madche a duty depends upon proof of disputed material facts, we reverse.
FACTS
Marketwest is a timber brokerage company that was formed as a joint venture between Western Timber, Inc. (Western Timber) and Forest Marketing Enterprises, Inc. (Formark). David Berry owned Western Timber and served as manager of Marketwest. Robert Hagerman was the president of Formark, and Joseph Dickhut was its employee.
Marketwest entered into a timber cutting rights contract with landowner Cugini Land and Timber Company (Cugini) to purchase standing timber on a tract of land near Baring, Washington. Marketwest then contracted with Kienholz to harvest the timber. The Marketwest-Kienholz contract provided, "Logger hereby agrees to perform the job described herein upon the terms and conditions set forth [in the Marketwest-Cugini contract]." The Marketwest-Kienholz contract also expressly stated that Kienholz was an independent contractor.
Kienholz retained subcontractor Melvin Madche to haul logs from the site. On September 27, 2004, Kienholz was using a log loading grapple hook to adjust the reach of Madche's truck trailer. When Kienholz released the grapple, it swung forward and struck Madche in the head, causing a severe brain injury. He died approximately two years later. At the time of the accident, no Marketwest representative was on site.
This negligence lawsuit ensued. Marketwest moved for summary judgment, arguing that (1) it had no common law duty to provide a safe jobsite for Madche because it did not retain the right to control the timber harvest, and (2) it did not owe a statutory duty to Madche as an employer under the Washington Industrial Safety and Health Act of 1973 (WISHA), chapter 49.17 RCW. The trial court dismissed the estate's claims on summary judgment. The estate appealed.
Analysis
When reviewing a motion for summary judgment, we engage in the same inquiry as the trial court. Marks v. Wash. Guar. Ass'n, 123 Wn. App. 274, 277, 94 P.3d 352 (2004). Summary judgment is appropriate "if the pleadings, depositions, . . . [and] affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." CR 56(c). A material fact is one upon which the outcome of the litigation depends. Cochran v. Great W. Cas. Co., 116 Wn. App. 636, 641, 67 P.3d 1123 (2003). "Like the trial court, we consider facts submitted and all reasonable inferences from those facts in the light most favorable to the nonmoving party." Marks, 123 Wn.2d at 277. Summary judgment is appropriate only if, from all the evidence, reasonable persons could reach but one conclusion. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982).
Additionally, the existence of a legal duty is generally a question of law. Degel v. Majestic Mobile Manor, Inc., 129 Wn.2d 43, 48, 914 P.2d 728 (1996). But where duty depends on proof of certain facts that may be disputed, summary judgment is inappropriate. Sjogren v. Props. of Pacific Nw., LLC, 118 Wn. App. 144, 148, 75 P.3d 592 (2003).
Common Law Duty of Care
The estate argues that there are material questions of fact regarding whether Marketwest owed Madche a common law duty to comply with safety regulations as a jobsite owner with retained control. Marketwest contends that summary judgment was proper because its actions were strictly limited to ensuring contract compliance.
The general rule is that one who employs an independent contractor is not liable for injuries sustained by the independent contractor's employees. Restatement (Second) of Torts § 409 (1965); Kelley v. Howard S. Wright Constr. Co., 90 Wn.2d 323, 330, 582 P.2d 500 (1978). But where the employer of an 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. Kennedy v. Sea-Land Serv., Inc., 62 Wn. App. 839, 851, 816 P.2d 75 (1991); Restatement 2d Torts § 414. In Kamla v. Space Needle Corp., 147 Wn.2d 114, 119, 52 P.3d 472 (2002), the court explained,
Restatement (Second) of Torts § 414 states, "One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care."
Employers are not liable for injuries incurred by independent contractors because employers cannot control the manner in which the independent contractor works. Conversely, employers are liable for injuries incurred by employees precisely because the employer retains control over the manner in which the employee works.
Kamla, 147 Wn.2d at 119.
The test of control is whether the owner employing the independent contractor retains the right to direct the manner in which the work is performed, not simply whether there is an actual exercise of control. Kamla, 147 Wn.2d at 121. A right to control can exist even where the employer does not actually interfere with the independent contractor's work. Phillips v. Kaiser Aluminum Chem. Corp., 74 Wn. App. 741, 750, 875 P.2d 1228 (1994). "Whether a right to control has been retained depends on the parties' contract, the parties' conduct, and other relevant factors." Id.
Courts recognize a significant difference between overseeing contract compliance and becoming involved in the manner in which the contractual obligations are performed. "'The retention of the right to inspect and supervise to insure the proper completion of the contract does not vitiate the independent contractor relationship.'" Hennig v. Crosby Group, Inc., 116 Wn.2d 131, 134, 802 P.2d 790 (1991) (quoting Epperly v. Seattle, 65 Wn.2d 777, 785, 399 P.2d 591 (1965)). Rather, the employer must have retained a right "to so involve oneself in the performance of the work as to undertake responsibility for the safety of the independent contractor's employees." Id. Restatement (Second) Torts § 414 cmt. c explains,
It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.
For example, in Kamla, Space Needle hired an independent contractor to install a fireworks display on the Space Needle. Kamla, an employee of the independent contractor, was injured when his safety line snagged on a moving elevator and dragged him through the shaft. He argued that Space Needle was liable as a jobsite owner under the retained control exception. The court rejected this claim, noting that Space Needle did not affirmatively assume responsibility for worker safety or retain the right to control or interfere with the manner in which the independent contractor and its employees set up the fireworks. Instead, it merely agreed to provide a suitable display site, access, crowd control, fire fighters, permit fees, technical assistance and support, security, and public relations. Kamla, 147 Wn.2d at 121-22.
Similarly, in Hennig, the court held that a contract authorizing the Port of Seattle to inspect an independent contractor's work to ensure contract compliance did not impose liability on the Port. "It is one thing to retain a right to oversee compliance with contract provisions and a different matter to so involve oneself in the performance of the work as to undertake responsibility for the safety of the independent contractor's employees." Hennig, 116 Wn.2d at 134.
Additionally, in Fardig v. Reynolds, 55 Wn.2d 540, 348 P.2d 661 (1960), a log trucker was injured when assisting another trucker in loading logs. There were two contracts connected with the project — an underlying contract between the timber owner (Mountain Tree Farm) and the project operators and a contract between the project operators and the negligent subcontractor. The operator-subcontractor contract provided that "Subcontractor agrees to comply with all directive and orders of the Contractor in order that said contract between the Contractor and Mountain Tree Farm Company shall be performed to the full satisfaction of the contractor." Id. at 544. The court held that because the italicized language expressly limited the right of control to contract compliance, there was insufficient contractual retention of control to create liability on the part of the contractor. Id. at 544-45.
In contrast, Kelley, 90 Wn.2d at 327 held that the exception applied where the general contractor expressly assumed general supervisory and coordinating authority, including "initiating, maintaining, and supervising all safety precautions and programs in connection with the work" through its contract with the owner. The Kelley court held that the general contractor's contractual duty of care to the employees of its subcontractors was nondelegable. Id. at 333-34.
Here, the estate alleges that Marketwest retained control over the jobsite by contract and through its actions at the jobsite. It first points to the timber sales contract between Marketwest and Cugini, which provided that "Buyer shall comply with the state logging safety and general safety codes" and that "Buyer shall comply with all applicable federal, state, and local laws, rules, and regulations, including without limitation . . . the Harvest Permit, and all laws, rules, and regulations relating to worker safety. . . ." These provisions were also expressly incorporated into the logging contract between Marketwest and Kienholz. Marketwest argues that even if the Marketwest-Cugini contract obligated it to comply with all safety regulations, that duty was entirely delegated to Kienholz. But Marketwest cannot delegate its affirmative contractual duty of care regarding safety measures. Kelley, 90 Wn.2d at 333-34. And unlike the contract at issue in Fardig, here there is no contractual language expressly limiting Marketwest's control to contract compliance.
Although a provision in the contract states that "[l]ogger shall at all times maintain close communication with Marketwest Investments, LLC's, contract administrator to ensure contract compliance," this provision merely obligates Marketwest and Kienholz to maintain close communications to ensure contract compliance.
The estate next contends that nothing in the logging contract relieved Marketwest from its contractual duty to provide a safe workplace. Rather, the contract vested Marketwest with extensive authority to control the manner in which the work was done. According to the estate, but disputed by Marketwest, the following specific contract provisions demonstrate Marketwest's broad right to control the manner in which the logging operation was to be performed.
[6. B] Logger shall conduct operations . . . in accordance with directions of [Marketwest]. . . .
. . . .
[4.] Logger shall, at all times, strictly follow a written logging plan submitted to [Marketwest] by the Logger.
. . . .
[2. D] Log sorting is to be to the specifications of [Marketwest].
[2. E]. . . . [A] daily load destination report is required to be called or faxed in to the office of [Marketwest]. . . .
. . . .
[2. H] Any reductions to [Marketwest] in scale volume or product price directly associated to poor cutting, manufacturing, and/or sorting will be directly deducted from logger pay.
. . . .
[6. A] Logger shall produce logs in accordance with the underlying contract and shall conform with the specifications for manufacture and sorting of logs set forth in Addendum "D."
. . . .
[6. E] Logger shall pile landing slash in dirt free piles on the landing. Logger will construct a 10 foot wide fire trail around landing slash piles. All slash on slopes with a grade of thirty percent (30%) or less shall be piled in either wind rows no more than 70 feet long and 10 feet wide. . . .
. . . .
[11.] [Marketwest] shall be responsible for designating boundaries and clearly marking said boundaries. . . .
As additional evidence that Marketwest retained control, the estate points to evidence that Marketwest representatives were often on site at the logging project, directing the work as it was being done, even to the extent of directing the subcontractor-cutters who were not party to the logging contract. Marketwest employee Joe Dickhut testified about his role.
Q: And what was your role on the project?
A: Quality control, log quality control compliance, to make sure the cutters were cutting the logs right and that once the loggers showed up that all the logs were sorted to the right specifications and everything was bucked up clean; you know, make sure all the customers' quality was taken care of, and making sure they got to the right destinations.
Q: So specifically what did that require of you?
A: Initially I had a meeting with the cutters on the first day and determined what specifications needed to be cut. And then I monitored the cutters over the period of the harvesting and made sure they were cutting to that specification. . . . I made sure that all the logs got sorted . . . I would make sure that those sorts were proper . . . [a]nd make sure they got the right logs and that there weren't any missorts. . . .
. . . .
. . . . And if there was some mistakes, a lot of times I'd call [Kienholz] up on the phone and say, Clayton, I have a little problem, do this, do that; or maybe we would decide to take our logs to another customer, and I would call him up and say, hey, change that sort to this sort and take it to this mill.
Dep. of Joe Dickhut (May 2, 2007) at 12, 16. Moreover, according to the estate, the testimony of Marketwest manager David Berry further demonstrates that the logging crew was not free to cut the logs in any way they pleased, but had to follow Marketwest's directions as specified in Marketwest's log cutting specification sheet.
Q. What is the purpose of the log cutting specification sheet?
A. So the timber fallers and the buckers know how to try and maximize the tree as you cut it into logs.
. . . .
Q. Did Mr. Kienholz have any say in setting the log cutting specifications?
A. Well, the man with the chain saw has the final say in it. But, no, he didn't come up with the sort sheet.
Q. And these specifications were set at the time the contract was signed, correct?
A. Uh-huh.
. . . .
A. . . . Yes.
And Formark president Robert Hagerman testified that Marketwest manager David Berry was "the executive decision maker on the project" and that he was "in charge of the project."
Finally, the estate provided a declaration from logging operations and safety consultant Thomas A. Sturza. Sturza reviewed the contracts and the testimony of Dickhut and Berry and concluded that the evidence shows Marketwest, in its role as timber owner and general contractor, retained and exercised "ultimate and absolute control" and that Kienholz "was not free to perform the work in its own way, but had to follow the directions of Marketwest." Sturza also testified,
It is standard in the logging industry that the owner of the timber is considered to be the general contractor of the operation. This is because the owner has ultimate control over the operation, as Marketwest did in this case. Marketwest was the "captain of the ship."
Marketwest challenges the estate's evidence, arguing that it fails to raise any material issues of fact sufficient to overcome summary judgment. Marketwest first argues that the Marketwest-Kienholz contract demonstrates only that Marketwest retained the right to ensure contract compliance. Marketwest explains that the contract clause stating, "Logger shall conduct operations . . . in accordance with directions of [the] Company" is embedded in a comprehensive provision that merely requires Kienholz to follow all applicable laws. Marketwest also points to other provisions in the Marketwest-Kienholz contract stating that Kienholz (1) was an independent contractor, (2) was responsible for "furnishing all equipment, materials, supplies, and labor necessary in connection therewith, for the production and/or delivery of all logs, "(3) was required to produce a logging plan, (4) was responsible for hiring and paying for truckers such as Madche, (5) and was required to follow all laws, including safety.
Marketwest also directs us to Kienholz's testimony stating that he was the general contractor, that he directed and supervised all of the logging and associated activity, that Marketwest did not supervise or control any of Kienholz's subcontractors or employees, and that he conducted safety meetings with the subcontractors. And Marketwest manager David Berry testified that Marketwest did not have the right to control, supervise, or direct the work of Kienholz except to ensure contract compliance and quality control.
We conclude that the conflicting evidence creates genuine issues of material fact regarding whether Marketwest retained control over the logging project. Notably, the expert testimony of Sturza directly contradicts that of Kienholz and Berry. In addition, the logging contract states that Kienholz had to submit and follow a logging plan, but because that plan is not in our record, the details of what Kienholz agreed to perform and under what circumstances are unknown.
Statutory Duty of Care
The estate next argues that Marketwest owed Madche a statutory duty of care under RCW 49.17.060(2). This subsection imposes a nondelegable specific duty on all general contractors to ensure compliance with WISHA regulations. Kamla, 147 Wn.2d at 122 (citing Stute v. P.B.M.C., Inc., 114 Wn.2d 454, 460, 788 P.2d 545 (1990)). The Stute court imposed primary responsibility for compliance with WISHA regulations on the general contractor because its "innate supervisory authority constitutes sufficient control over the workplace." Stute, 114 Wn.2d at 464.
RCW 49.17.060(2) provides that each employer "[s]hall comply with the rules, regulations, and orders promulgated under this chapter." An "employer" is defined as "any person . . . or other business entity which engages in any business . . . in this state and employs one or more employees." RCW 49.17.020(4).
The Stute rule has been extended beyond general contractors to other parties who are sufficiently analogous to justify imposing statutory liability. In Weinert v. Bronco Nat'l Co., 58 Wn. App. 692, 795 P.2d 1167 (1990), the court held that Bronco, the owner/developer of an apartment complex, was liable for injuries sustained by Weinert, an employee of a construction company hired by a siding subcontractor. The court acknowledged that Bronco was not a general contractor, but reasoned the Stute rule applied because the owner/developer's position was sufficiently comparable to that of a general contractor. Weinert, 58 Wn. App. at 696.
Doss v. ITT Rayonier, Inc., 60 Wn. App. 125, 803 P.2d 4 (1991) extended the Stute rule to a jobsite owner with innate supervisory authority. In Doss, an employee of an independent contractor hired by ITT Rayonier was killed in an accident at the jobsite. The estate alleged that ITT Rayonier violated a specific WISHA provision. The court noted ITT Rayonier was a jobsite owner and not a general contractor, but found "no significant difference . . . between an owner-independent contractor relationship and a general contractor-subcontractor relationship." Doss, 60 Wn. App. at 127 n. 2.
But in Kamla, 147 Wn.2d at 123-24, the court held that jobsite owners are not sufficiently analogous to general contractors to justify imposing a nondelegable duty to ensure WISHA compliance when there is no general contractor. The court reasoned that even though jobsite owners may have the authority to control jobsite work conditions, they may not have knowledge or expertise about WISHA regulations. Because such jobsite owners cannot instruct contractors on how to work safely, they may rely on their contractors to ensure WISHA compliance. Id. at 124-25. Accordingly, "[i]f a jobsite owner does not retain control over the manner in which an independent contractor completes its work, the jobsite owner does not have a duty under WISHA to 'comply with the rules, regulations, and orders promulgated under [chapter 49.17 RCW].'" Id. at 125. Applying this rule, the court held that Space Needle was not liable to Pyro's employee because it did not retain the right to control the manner in which Pyro and its employees completed their work.
The estate argues that Marketwest is liable as a general contractor that violated its nondelegable statutory duty of care under RCW 49.17.060(2). The estate maintains that Marketwest qualifies as a "general contractor" under RCW 18.27.010(4). The estate further contends that even if this statutory definition does not apply in the logging context, Marketwest's role was sufficiently analogous to that of a general contractor to justify application of the Stute rule. Marketwest asserts that the definition of "general contractor" found in chapter 18.27 RCW applies solely to the construction industry, and that the Stute rule does not apply because Marketwest did not exercise control over the manner in which Kienholz performed his work.
The estate argues that Marketwest violated two specific safety regulations: WAC 296-54-513(1), which requires that "[e]mployee work areas must be spaced and employee duties organized so the actions of one employee do not create a hazard for any other employee," and WAC 296-54-601(6), which requires standard hand and whistle signals to be posted at the logging site.
RCW 18.27.010(5) defines a general contractor as "a contractor whose business operations require the use of more than one building trade or craft upon a single job or project or under a single building permit. A general contractor also includes one who superintends, or consults on, in whole or in part, work falling within the definition of a contractor." See also Shingledecker v. Roofmaster Prods. Co., 93 Wn. App. 867, 872 n. 11, 971 P.2d 523 (1999) (noting that the WISHA regional directive defining a "general contractor" incorporates the policy of innate supervisory authority).
No Washington statutes or cases specifically define the term "general contractor" in the context of a logging project. But because the Stute rule applies to employers that are sufficiently analogous to general contractors, the key question is whether Marketwest is sufficiently analogous to a general contractor. If so, Marketwest has a nondelegable duty to ensure WISHA compliance. This determination is fact based and turns on factors such as whether it retained control over the manner in which Kienholz did its work, Kamla, 147 Wn.2d at 125; whether it had "the greater practical opportunity and ability to insure compliance with safety standards," Stute, 114 Wn.2d at 462; and whether it had "innate supervisory authority," Doss, 60 Wn. App. at 128.
We conclude that the disputed evidence creates material issues of fact related to whether Marketwest is a general contractor. In response to Marketwest's evidence, the estate presented opposing evidence that Marketwest retained control over the logging work and jobsite safety, including an expert opinion that according to logging industry standards, the timber owner is the general contractor for the logging operation.
In sum, because there are material disputed facts and competing reasonable inferences related to whether Marketwest owed Madche a common law and statutory duty to provide a safe workplace, we reverse.
WE CONCUR: