Craig v. Washington Trust Bank

• Decision Date: 04 February 1999
• Docket Number: No. 17028-4-III,17028-4-III
• Citation: 976 P.2d 126,94 Wn.App. 820
• Court: Washington Court of Appeals
• Parties: Jennifer CRAIG, Appellant, v. WASHINGTON TRUST BANK, Respondent.

Page 126

94 Wn.App. 820

976 P.2d 126

Jennifer CRAIG, Appellant, v. WASHINGTON TRUST BANK, Respondent.

No. 17028-4-III.

Court of Appeals of Washington,

Division 3,

Panel Five.

Feb. 4, 1999.

Publication Ordered March 23, 1999.

Charles T. Conrad, Spokane, Charles E. Rohr Jr., Spokane, for Appellant.

Michael A. Maurer, Michael A. Roozekrans, Spokane, for Respondent.

Sherrie Wright, Spokane, Pro Se.

BROWN, J.

Jennifer Craig, a janitor working for an independent contractor, sued Washington Trust Bank (Bank) for negligence arising from a third person criminal assault occurring one night as she left the Bank to empty trash. The trial court granted summary judgment against her. Generally, no duty exists to protect others from the criminal acts of third persons. However, some special relationships may give rise to exceptions to this general rule. We agree with the trial court that a special relation did not exist in Ms. Craig's case and affirm.

FACTS

Ms. Craig, a janitor employee of American Building Maintenance Company (ABM), worked nights at a downtown Spokane Bank branch. ABM's contract with the Bank for janitorial services specified "[ABM] is an independent contractor and all persons employed to furnish services hereunder are employees of [ABM] and not [Bank]...."

Ms. Craig reported feeling afraid to take out the garbage some nights because transients were loitering around the main garbage receptacle. Generally, the Bank encouraged all employees in its branches to be safety conscious and recommended walking in pairs to their cars and carrying mace. No Bank employee ever reported an attack outside Ms. Craig's workplace.

Ms. Craig would occasionally refuse to take the Bank's trash out because she was afraid. ABM reprimanded her for refusing to dump the trash after receiving complaints from the Bank. One night subsequent to the earlier complaints to ABM, Ms. Craig injured her leg when she tripped running away from two persons she encountered as she was taking out the Bank trash.

Ms. Craig sued the Bank for negligence for her personal injuries. The court granted the Bank summary judgment and dismissed her suit because she failed to show the Bank breached any duty to her. Ms. Craig filed this appeal.

ANALYSIS

A. Contentions. Ms. Craig contends the trial court erred in four ways. (1) Ms. Craig was an employee thereby requiring an elevated B. Standard of Review. The standards of review for a grant of summary judgment are summarized in Schaaf v. Highfield, 127 Wash.2d 17, 21, 896 P.2d 665 (1995) and Chen v. State, 86 Wash.App. 183, 187, 937 P.2d 612, review denied, 133 Wash.2d 1020, 948 P.2d 387 (1997). CR 56(c) provides for summary judgment only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact, and that the moving party is entitled to judgment as a matter of law. To defeat summary judgment in a negligence case, the plaintiff must show an issue of material fact as to each element--duty, breach of duty, causation, and damages. Kennedy v. Sea-Land Serv., Inc., 62 Wash.App. 839, 856, 816 P.2d 75 (1991). All facts and reasonable inferences are considered most favorably to the nonmoving party. Schaaf, 127 Wash.2d at 21, 896 P.2d 665. The nonmoving party may not rely on speculation or argumentative assertions. Pelton v. Tri-State Memorial Hosp., 66 Wash.App. 350, 355, 831 P.2d 1147 (1992); Kirk v. Moe, 114 Wash.2d 550, 557, 789 P.2d 84 (1990). When reasonable minds could reach but one conclusion regarding claims of disputed facts, such questions may be determined as a matter of law. Ruffer v. St. Frances Cabrini Hosp., 56 Wash.App. 625, 628, 784 P.2d 1288, review denied, 114 Wash.2d 1023, 792 P.2d 535 (1990).

duty of care. (2)The Bank had notice of potential criminal conduct. (3) The Bank affirmatively brought about the opportunity for criminal misconduct. (4) Ms. Craig was a business invitee thereby requiring an elevated duty of care.

C. Employee or Independent Contractor. Ms. Craig first contends the trial court incorrectly concluded she was not an employee of the Bank and thus subject to certain workplace regulations. However, the language of the contract between the Bank and ABM indicates she is an employee of ABM, not the Bank. No material facts indicate otherwise, thus, the trial court was in a position to rule as a matter of law on the related legal issues. First we examine what, if any, duty the Bank owed Ms. Craig as an employee of an independent contractor.

Generally, the Bank as an owner is not liable for injuries sustained by employees of its independent contractor, ABM. Smith v. Myers, 90 Wash.App. 89, 95, 950 P.2d 1018 (1998). Nevertheless, Ms. Craig contends a duty arose under the Washington Industrial Safety and Health Act (WISHA), which sets forth two duties for an "employer." The first is a general duty imposed on an employer to protect its direct employees from hazards that are likely to cause death or serious bodily injury. RCW 49.17.060(1). The second is a specific duty imposed on employers for the benefit of all workers on a job site, not just the employer's direct employees. RCW 49.17.060(2). The specific duty, which Ms. Craig relies on here, requires the employer to "comply with the rules, regulations, and orders promulgated under this chapter." Id. Since all employers are charged with the duty to comply with the WISHA regulations, the threshold question is whether the Bank is an "employer" within the meaning of RCW 49.17.060(2). Stute v. P.B.M.C., Inc., 114 Wash.2d 454, 462-63, 788 P.2d 545 (1990).

If more than one entity may qualify as an "employer" at a job site, the primary duty to comply with the regulations falls on the employer with "innate supervisory authority ... over the workplace." Id. at 462-64, 788 P.2d 545. The Bank employed ABM and ABM employed Ms. Craig. While the Bank was free to complain to ABM about its service, ABM had supervisory authority over its employees. Ms. Craig argues the Bank should have instilled a two-person policy for female janitors cleaning at night. However, it is ABM's responsibility to initiate such policy for its employees, not the Bank's. The Bank has control over the quality of the cleaning service provided by ABM because it can terminate their contract if service is not acceptable, however, it is ABM's responsibility to establish employee policy. As the trial court correctly noted, ABM hired Ms. Craig, kept her on the company books, controlled her duties and directly paid her wages. For WISHA purposes, the Bank was not Ms. Craig's employer, and therefore, owed her no duty of care.

Even assuming the Bank was an "employer" under the statutory definition with "supervisory authority" giving rise to primary duty to comply with the WISHA regulations, no violation of the regulations is present. The regulations cited by Ms. Craig generally require safe workplaces and operational practices "free from recognized hazards." WAC 296-24-073(1), (3). Here, Ms. Craig was a janitor. She was not required to perform inherently dangerous duties. She was injured while taking the garbage out, neither the task itself nor the area where the dumpster was located was inherently dangerous. Adopting Ms. Craig's argument would place a burden on employers and owners not contemplated by the regulations she cites. Accordingly, we conclude the trial court did not err.

D. Bank Liability for Third Person Criminal Conduct. The issue is whether the trial court erred concluding the Bank breached no duty of care to protect Ms. Craig from the criminal acts of third persons on the Bank's premises. Generally, no person has a duty to come to the aid of a stranger or protect others from the criminal acts of third persons. Folsom v. Burger King, 135 Wash.2d 658, 958 P.2d 301 (1998). Recognizing the general rule excludes her claim, Ms. Craig seeks to fit her facts into one of the exceptions.

She first cites Hutchins v. 1001 Fourth Avenue Assocs., 116...