Cano–Garcia v. King Cnty.

• Decision Date: 08 May 2012
• Docket Number: No. 41765–1–II.,41765–1–II.
• Citation: 277 P.3d 34,168 Wash.App. 223
• Parties: Ignacio Cano–Garcia and Maribel Cano, husband and wife, and the marital community comprised thereof, Appellant, v. KING COUNTY, Washington, a local government entity in the state of Washington, and Jacobs Civil Incorporated, a Missouri Corporation, Respondents.
• Court: Washington Court of Appeals

168 Wash.App. 223

277 P.3d 34

Ignacio Cano–Garcia and Maribel Cano, husband and wife, and the marital community comprised thereof, Appellant,

v.KING COUNTY, Washington, a local government entity in the state of Washington, and Jacobs Civil Incorporated, a Missouri Corporation, Respondents.

No. 41765–1–II.

Court of Appeals of Washington,

Division 2.

May 8, 2012.

Derek K. Moore, Bishop Law Offices PS, Raymond Everett Sean Bishop, Bishop Law Offices PS, Normandy Park, WA, for Appellant.

Geoffrey M. Grindeland, Mills Meyers Swartling, Stanton Phillip Beck, Ryan P. McBride, Andrew J. Gabel, Attorney at Law, Lane Powell PC, Seattle, WA, for Respondents.

PENOYAR, C.J.

- Ignacio Cano–Garcia and Maribel Cano appeal the summary judgment order dismissing their claims based on Cano–Garcia's ¹ workplace injury against King County and Jacobs Civil, Inc. (Jacobs). Cano–Garcia was injured while working for the general contractor on a project King County owned and Jacobs monitored. Cano–Garcia argues that he could establish facts at trial showing that King County and Jacobs each had a duty to protect him from injury. Considering the relevant contracts, the jobsite activities, and King County's ownership of the land, we conclude that neither King County nor Jacobs is liable to Cano–Garcia for his injuries. We affirm.

FACTS

¶ 2 King County retained Kenny/Shea/Traylor (“KST”) to be the general contractor on one phase of a multi-billion dollar regional wastewater treatment facility construction project called “Brightwater.” Because KST was one of approximately eight general contractors working on different aspects of the project, King County hired Jacobs, an engineering and construction management firm, to monitor several of the general contractors and to make sure each one complied with the terms of their contracts with King County.

¶ 3 On December 5, 2008, Cano–Garcia suffered injuries while working for KST on the Brightwater project. That day, KST transferred Cano–Garcia from another activity to the task of working on the concrete pour, which required wading in a mixture of concrete and water. KST equipped Cano–Garcia with 15–inch–high boots and rain pants. KST employee Joe Romo supervised Cano–Garcia at the concrete pour and gave him instructions. Cano–Garcia, along with his coworker Mark Pointer, asked Romo for hip waders. Romo told Cano–Garcia and Pointer that he did not have a key to the room where the waders were stored. Cano–Garcia then used duct tape to tape his pants to his boots. Romo assured Cano–Garcia that the height of the concrete would be between 3 inches to a little less than 15 inches. Romo then left the area.

¶ 4 Cano–Garcia began working on the concrete pour around noon. He worked until approximately 5:30 P.M. The depth of the concrete mixture unexpectedly exceeded the height of his boots. At some point, the duct tape system failed and the concrete mixture entered his boots, although he did not realize it until the end of his shift when he removed his clothes. When Cano–Garcia arrived at home, he called KST's safety manager. The next day, when Cano–Garcia arrived at the jobsite, a KST employee took Cano–Garcia to seek medical attention. Cano–Garcia eventually required skin graft surgery.

¶ 5 Cano–Garcia's employer, KST, is immune from suit under Washington's Industrial Insurance Act, RCW 51.04.010 et seq.^2,3 Cano–Garcia sued both King County and Jacobs, alleging that King County and Jacobs performed the functions of a general contractor and retained the right to control the manner in which KST's employees completed their work and, therefore, King County and/or Jacobs were liable for violating the Washington Industrial Safety and Health Act of 1973, chapter 49.17 RCW (WISHA), regulations and for common law negligence. Cano–Garcia sought past and future medical expenses, wage loss, general damages, and other expenses. Maribel Cano alleged loss of spousal consortium, emotional distress, general damages, and other expenses.

¶ 6 King County and Jacobs each moved for summary judgment. The trial court entered orders granting King County's and Jacobs's summary judgment and dismissing all claims. Cano–Garcia appeals.

ANALYSIS

I. Standard of Review

¶ 7 In an action for negligence, a plaintiff must prove the existence of a duty, breach of that duty, resulting injury, and proximate causation. Alhadeff v. Meridian on Bainbridge Island, LLC, 167 Wash.2d 601, 618, 220 P.3d 1214 (2009). Whether a duty exists in the negligence context is a question of law that we review de novo. Aba Sheikh v. Choe, 156 Wash.2d 441, 448, 128 P.3d 574 (2006).

¶ 8 On appeal of a summary judgment order, we review the decision de novo, performing the same inquiry as the trial court. Bostain v. Food Express, Inc., 159 Wash.2d 700, 708, 153 P.3d 846 (2007); Jones v. Allstate Ins. Co., 146 Wash.2d 291, 300, 45 P.3d 1068 (2002). Summary judgment is proper if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” CR 56(c). We consider all facts in the light most favorable to the nonmoving party. Jones, 146 Wash.2d at 300, 45 P.3d 1068. Summary judgment is proper only if reasonable persons could reach but one conclusion from the evidence presented. Bostain, 159 Wash.2d at 708, 153 P.3d 846. The moving party bears the initial burden of showing the absence of an issue of material fact. Young v. Key Pharm., Inc., 112 Wash.2d 216, 225, 770 P.2d 182 (1989). The nonmoving party cannot merely claim contrary facts and may not rely on speculation, argumentative assertions that unresolved factual issues remain, or on affidavits considered at face value. Meyer v. Univ. of Wash., 105 Wash.2d 847, 852, 719 P.2d 98 (1986).

II. Statutory Duty

¶ 9 Cano–Garcia argues that King County and Jacobs owed him a statutory duty of care under WISHA. Appellant's Br. at 26. We disagree.

A. Cano–Garcia Must Show that King County and/or Jacobs Retained Sufficient Control to Show Liability for Statutory Violations

¶ 10 RCW 49.17.060(2)⁴ imposes a nondelegable duty on all general contractors to ensure compliance with WISHA regulations. Kamla v. Space Needle Corp., 147 Wash.2d 114, 122, 52 P.3d 472 (2002) (citing Stute v. P.B.M.C., Inc., 114 Wash.2d 454, 464, 788 P.2d 545 (1990)). The Supreme Court in Stute imposed primary responsibility for compliance with WISHA regulations on the general contractor because it is an “employer” under WISHA and because its “innate supervisory authority constitutes sufficient control over the workplace.” Stute, 114 Wash.2d at 457–58, 464, 788 P.2d 545.

¶ 11 Courts have extended the rule in Stute to jobsite owners who maintain sufficient control over the workplace or the work to justify imposing statutory liability. See, e.g., Kamla, 147 Wash.2d 114, 52 P.3d 472;Afoa v. Port of Seattle, 160 Wash.App. 234, 247 P.3d 482,review granted,171 Wash.2d 1031, 257 P.3d 664 (2011); Neil v. NWCC Inves., LLC, 155 Wash.App. 119, 128, 229 P.3d 837,review denied,169 Wash.2d 1018, 238 P.3d 502 (2010); Doss v. ITT Rayonier, Inc., 60 Wash.App. 125, 803 P.2d 4 (1991); Weinert v. Bronco Nat'l Co., 58 Wash.App. 692, 795 P.2d 1167 (1990). Our review of this case law shows that liability flows to those who are in a position to control the actual implementation of safety standards in the workplace.

¶ 12 In Weinert,⁵ the court held that the duty announced in Stute applied not only to general contractors, but also to jobsite owners who retain control or supervisory authority over the performance of a subcontractor's work. 58 Wash.App. at 696, 795 P.2d 1167. Similarly, in Doss, an employee of an independent contractor hired by ITT Rayonier was killed in an accident at the jobsite. 60 Wash.App. at 126, 803 P.2d 4. The estate alleged that ITT Rayonier violated a specific WISHA provision. Doss, 60 Wash.App. at 126–27, 803 P.2d 4. The court noted ITT Rayonier was a jobsite owner and not a general contractor but, under the facts there, found “no significant difference ... between an owner-independent contractor relationship and a general contractor-subcontractor relationship.” Doss, 60 Wash.App. at 127 n. 2, 803 P.2d 4.

¶ 13 Most recently, in Afoa, another division of this court held that genuine material factual issues existed as to whether the Port of Seattle retained liability-creating control over an independent contractor that provided aircraft ground handling services. 160 Wash.App. at 236–37, 247 P.3d 482. Afoa was injured when a vehicle he was operating failed and he collided with a broken piece of equipment on the tarmac at Seattle–Tacoma International Airport. Afoa, 160 Wash.App. at 237, 247 P.3d 482. The Afoa court was presented with evidence showing that the Port retained sufficient control to create a duty on the Port to make the work area safe. Afoa, 160 Wash.App. at 244, 247 P.3d 482. The Port's contrary evidence, at best, created a material factual dispute and did not entitle it to summary judgment. Afoa, 160 Wash.App. at 244, 247 P.3d 482.

¶ 14 In contrast, the Supreme Court in Kamla held that under the facts of that case, the Space Needle's relationship with an independent contractor who installed a fireworks display did not justify imposing a nondelegable duty to ensure WISHA compliance. Kamla, 147 Wash.2d at 122–24, 52 P.3d 472. Kamla, an employee of the independent contractor, was injured when his safety line snagged on a moving elevator and dragged him through the elevator shaft. Kamla, 147 Wash.2d at 118, 52 P.3d 472. 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. Kamla, 147 Wash.2d at 124, 52 P.3d 472. Because such jobsite owners cannot instruct contractors on how to work safely, they may rely on their contractors to ensure...