Opinion
No. 60916-5-I consolidated with No. 61415-1-I.
March 16, 2009.
Appeals from a judgment of the Superior Court for Snohomish County, No. 05-2-07081-0, James H. Allendoerfer, J., entered November 1, 2007.
Affirmed by unpublished opinion per Ellington, J., concurred in by Schindler, C.J., and Lau, J.
UNPUBLISHED OPINION
Michael Wallace, an employee of Oso Lumber Inc. (Oso), was injured while delivering large beams for use in a housing development owned by Legend Homes, LLC (Legend). The superior court dismissed his lawsuit against Legend on summary judgment, and he appeals. Because Legend owed no duty to Wallace, we affirm.
BACKGROUND
In March 2002, Michael Wallace was employed as a lumber delivery driver for Oso Lumber, Inc. After two weeks of on the job training, he had been delivering on his own for a few days when Legend ordered four "Glu-lam" beams to be delivered to its Kingsridge jobsite. Oso employees stacked the Legend beams atop other materials destined for other customers. Wallace then drove to the jobsite and parked the truck on the street.
Wallace testified he asked the person in charge of the jobsite if it was okay to push the beams off the side of the truck, as he had been trained. That person directed him instead to dump the beams off the back of the truck in the driveway of the jobsite. He wanted Wallace to use the lift to slide the beams onto the ground, and then drive out from under them. The person Wallace spoke to did not stay to assist Wallace or to supervise the task.
In order to unload only the Legend beams, Wallace had to restrap his load. He laced the strap underneath the beams and over the rest of the materials. When he winched the straps taut, they created a slope under the beams, which tumbled down onto Wallace. His legs were crushed, and were eventually amputated below the knee.
Wallace's employer attributed the accident to "inexperience" and "improper judgment." The Department of Labor and Industries did not investigate, but later sued Legend on Wallace's behalf, alleging that Legend had violated several WISHA regulations and breached its statutory and common law duties to provide a safe workplace.
Clerk's Papers at 993.
A major issue during discovery was whether a Legend representative had indeed instructed Wallace to dump the beams off the back of the truck. At his deposition, Wallace was unable to name or describe the person he talked to at the jobsite. Ken Campbell appeared briefly during Wallace's deposition. Wallace could not say whether he was the person who told him how to unload the beams or whether he was one of the people who assisted him after the accident.
Campbell testified he was the only Legend employee at the jobsite that afternoon and that he did not encounter Wallace until after the accident, when he tended to Wallace until paramedics arrived.
Another issue during discovery was whether any contract existed between Legend and Oso at the time of the accident. Wallace obtained a copy of a contract from Oso, which was not signed by an Oso representative until several months after the accident, not signed by a Legend representative at all, and concerned a different Legend project. Representatives of Legend and Oso both testified there was no written contract in force between Oso and Legend for the Kingsridge project at any time before the accident. Instead, Legend ordered materials as needed and Oso provided monthly cost sheets.
Legend contended it owed no statutory or common law duty to Wallace as the employee of a material supplier over whom Legend had no supervisory authority or control. Legend moved for summary judgment.
In response to the motion, Wallace submitted a declaration stating he was now certain that Campbell was the person who told him to dump the beams off the back of the truck. Wallace also submitted the declaration of his expert, Rick Gleason. Under the mistaken belief that Wallace's accident occurred in March 2003, Gleason relied in part on the contract signed by Oso in August 2002. Gleason concluded that Oso was a subcontractor, that Legend controlled the means of methods of delivery to the jobsite, and that Legend therefore owed Wallace a duty to provide a safe work environment.
The court granted Legend's motion for summary judgment.
After the case was dismissed, Wallace obtained from Oso copies of eight contracts between Legend and various Oso companies. Only one of the contracts predated the accident, and it applied not to Oso Lumber but to Oso Lumber Siding, a separate entity. None of the contracts had been signed by a Legend representative.
Based primarily on the newly obtained contracts, Wallace filed a motion for reconsideration. Wallace also sought sanctions for discovery violations, arguing that Legend should have disclosed the contracts and that many more might exist.
After requested briefing on the theory of inferred contract, the court denied the motions:
Although it is troubling that Plaintiffs were met with difficulty in obtaining discovery relating to contracts between Oso Lumber and Legend Homes, it ultimately turns out that no such contracts existed prior to, or contemporaneously with, the relationship of the parties which is the subject matter of this litigation. Nor was there an "ordinary course of dealing between the parties at said time which arguably created an inferred contractor/subcontractor relationship.
Clerk's Papers at 7.
Clerk's Papers at 7.
Wallace appeals the court's summary judgment of dismissal and its refusal to impose sanctions for discovery abuse. Legend cross-appeals the court's failure to strike more of Gleason's declaration and its consideration of the eight contracts as newly discovered evidence.
DISCUSSION
We apply the usual standard of review for summary judgment. We review the denial of Wallace's motion for reconsideration for abuse of discretion.
This court reviews summary judgment de novo, viewing the facts and all inferences in the light most favorable to the nonmoving party. Anderson v. State Farm Ins. Co., 101 Wn. App. 323, 329, 2 P.3d 1029 (2000). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Id.; CR 56(c). 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).
Sjogren, 118 Wn. App. at 148; Wilcox v. Lexington Eye Institute, 130 Wn. App. 234, 241, 122 P.3d 729 (2005) (trial court abuses its discretion "when its decision is based on untenable grounds or reasons").
As a general rule, an employer is not liable for injuries to employees of an independent contractor. An exception is where the employer retains control over some part of the independent contractor's work. In that case, the employer owes a duty within the scope of that control to provide a safe workplace.
Stute v. P.B.M.C., Inc., 114 Wn.2d 454, 460, 788 P.2d 545 (1990).
Id.; Kennedy v. Sea-Land Serv., Inc., 62 Wn. App. 839, 851, 816 P.2d 75 (1991).
Kennedy, 62 Wn. App. at 851; Restatement (Second) of Torts § 414 (1965) ("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.").
"The test of control is not actual interference with the work of the independent contractor, but the right to exercise such control." Whether a right to control has been retained depends on the parties' contract, their conduct, and other relevant factors.
Kennedy, 62 Wn. App. at 851.
Phillips v. Kaiser Aluminum Chem. Corp., 74 Wn. App. 741, 750, 875 P.2d 1228 (1994).
For example, in Phillips v. Kaiser Aluminum Chemical Corp., the employer's conduct established sufficient control to create a duty to its contractor's employees. There, Kaiser hired an independent contractor to remove an aluminum "bus" from a warehouse. Kaiser provided the chain saws and dust masks for use on the job. It also hired a full time supervisor to oversee the job. The supervisor conducted daily meetings to discuss work and safety issues, and along with the contract administrator, routinely gave directions to the workers on safety and appeared to be in charge of the job. Because Kaiser retained a right to control safety related matters, it owed a duty of care to the independent contractor's employees.
Id. at 752-53.
Id. at 743.
Id.
Id. at 752-53.
Id.
In contrast, the employer's level of control was insufficient to establish a duty in Kamla v. Space Needle Corp. There, the Space Needle hired an independent contractor to install a fireworks display. The Space Needle agreed to provide access to and use of the display site, a suitable fallout zone, crowd control, fire fighters, security, public broadcast, and public relations. But it "did not retain control over the manner in which [the contractor] installed the fireworks display or completed its work," or "affirmatively assume responsibility for workers' safety." Accordingly, the Space Needle did not owe a common law duty of care based on retained control.
147 Wn.2d 114, 52 P.3d 472 (2002).
Id. at 122.
A duty can also arise by contract. In Kelley v. Howard S. Wright Const. Co., for example, the employer assumed a nondelegable duty to the employees of its subcontractors by entering into a contract with the owners in which it assumed responsibility for "all safety precautions and programs in connection with" the construction work. And in Kennedy v. Sea-Land Service, Inc., the plaintiff established a question of material fact whether a contract providing that the contractor's employees were "subject always to direction and supervision" of the employer conferred the requisite control to place it within the common law exception to nonliability.
Phillips, 74 Wn.2d at 750.
90 Wn.2d 323, 333, 582 P.2d 500 (1978).
But the contractual right to inspect and supervise to insure the proper completion of the contract is not enough to confer a duty to the contractor's employees.
Hennig v. Crosby Group, Inc., 116 Wn.2d 131, 134, 802 P.2d 790 (1991).
Wallace contends Legend exercised actual control over his work because Campbell told him how to unload the beams. Assuming the person at the scene was Campbell, his instructions fell short of the level of control necessary to create a duty. Campbell told Wallace to slide the beams down onto the jobsite driveway rather than kick them to the ground from the top of the load where he was parked on the side of the road. This demonstrates only the minimal supervision necessary to ensure the materials were delivered to the correct location. Legend did not actively supervise Wallace's work or provide Wallace the tools to do it. It did not require Oso employees to attend meetings or discuss safety issues and did not give Oso employees directions on safety. Legend had no control over how Oso loaded the truck, and had no superior knowledge that the configuration of the load made using the truck lift dangerous. Finally, Legend did not tell Wallace whether or how to restrap the load, the task that precipitated his injury. In short, Legend did not "so involve [it]self in the performance of the work as to undertake responsibility for" Wallace's safety. As such, Legend owed Wallace no duty under the common law.
Id. (emphasis omitted).
The several contracts between Legend and various Oso entities also do not demonstrate that Legend retained control over Wallace's work. These contracts either did not apply to Wallace's employer or were created only after Wallace's accident; it is not reasonable to infer that these contracts describe Legend's relationship to Oso Lumber at the time of Wallace's accident.
For the same reasons, Legend did not owe Wallace a statutory duty. Subsection (2) of RCW 49.17.060 imposes a duty on employers to comply with specific WISHA regulations. This duty extends to all employees on the job site because the general contractor's supervisory authority provides control over the workplace and "places the general in the best position to ensure compliance with safety regulations." The duty reflects the general contractor's superior financial and structural ability to ensure WISHA compliance and provide safety equipment to workers.
RCW 49.17.060 is the general safety standard and provides: "Each employer: (1) Shall furnish to each of his employees a place of employment free from recognized hazards that are causing or likely to cause serious injury or death to his employees: PROVIDED, That no citation or order assessing a penalty shall be issued to any employer solely under the authority of this subsection except where no applicable rule or regulation has been adopted by the department covering the unsafe or unhealthful condition of employment at the work place; and (2) Shall comply with the rules, regulations, and orders promulgated under this chapter."
Stute, 114 Wn.2d at 460, 464.
Kamla, 147 Wn.2d at 124.
But where, as here, an employer lacks the requisite supervisory authority, it has no WISHA-based duty to third parties. If Legend owed Wallace a WISHA-based duty, it was only to comply with "pertinent" and "particular" or "specific" WISHA regulations. Because none of the WISHA regulations Wallace claims Legend violated are specific to unloading lumber, Wallace cannot demonstrate liability based on a statutory duty. Furthermore, Wallace produced no admissible evidence to show Legend violated any WISHA regulations. Summary judgment was appropriate.
Shingledecker v. Roofmaster Products Co., 93 Wn. App. 867, 871-72, 971 P.2d 523 (1999); Phillips, 74 Wn. App. at 755. In Shingledecker, this court found no duty to a material supplier whose employee was injured during a delivery. 93 Wn. App. at 869. The parties disagree about whether Shingledecker holds that an employer may never have a statutory duty to the employee of a "mere[] supplier of goods and materials." Id. at 872. We need not decide that in this case. Whether or not Shingledecker establishes such a rule, the existence of a statutory duty depends on the employer's control or supervisory authority. As explained above, that is lacking in this case.
Stute, 114 Wn.3d at 456, 460; Shingledecker, 93 Wn. App. at 871.
Wallace relies on his expert's conclusions that Legend violated WISHA regulations. These conclusions were stricken by the court. Gleason did not present any facts, which if proven, would establish a violation, and Wallace provides none in his appeal.
Given our disposition, we need not address Legend's arguments on estoppel.
Affirmed.