Farias v. Port Blakely Company

• Decision Date: 21 June 2022
• Docket Number: 82789-8-I
• Citation: 512 P.3d 574
• Parties: Maria FARIAS, as personal representative of the Estate of Ruben Farias on behalf of beneficiaries Maria Farias, Miriam Farias Pardo, Mireya Farias Pardo, a minor, and Joselyn Farias Pardo, a minor, Appellants, v. The PORT BLAKELY COMPANY, a Washington corporation; and Port Blakely Tree Farms (Limited Partnership), a Washington limited partnership, Respondents.
• Court: Washington Court of Appeals

512 P.3d 574

Maria FARIAS, as personal representative of the Estate of Ruben Farias on behalf of beneficiaries Maria Farias, Miriam Farias Pardo, Mireya Farias Pardo, a minor, and Joselyn Farias Pardo, a minor, Appellants,

v.The PORT BLAKELY COMPANY, a Washington corporation; and Port Blakely Tree Farms (Limited Partnership), a Washington limited partnership, Respondents.

No. 82789-8-I

Court of Appeals of Washington, Division 1.

FILED June 21, 2022

James Walter Beck, Eric Daniel Gilman, Janelle Ellen Chase Fazio, Beck Chase Gilman PPLC, 705 S 9th St. Ste. 305, Tacoma, WA, 98405-4600, for Appellants.

Steven Wayne Rich, Bryan D. Scholnick, Tyson & Mendes, LLP, 701 5th Ave. Ste. 4200, Seattle, WA, 98104, Bertha Baranko Fitzer, Tyson & Mendes LLP, 950 Pacific Ave. Ste. 720, Tacoma, WA, 98402-4494, for Respondents.

PUBLISHED OPINION

Dwyer, J.

¶1 Maria Farias appeals from the trial court's orders denying her motion for partial summary judgment and granting the motion for summary judgment of Port Blakely Company and Port Blakely Tree Farms (collectively Port Blakely). Farias asserts that the trial court erred by denying her motion for partial summary judgment because, according to Farias, undisputed facts established that Port Blakely was a general contractor rather than a mere jobsite owner. Additionally, Farias contends that the trial court erred by granting Port Blakely's motion for summary judgment because genuine issues of material fact exist as to whether Port Blakely owed both a common law duty to provide a safe workplace and a statutory duty to comply with the Washington Industrial Safety and Health Act of 1973 (WISHA).¹ Because Farias fails to establish an entitlement to relief on any of her claims, we affirm.

I

¶2 Port Blakely was the owner of a parcel of land in Lewis County known as "Lost Mower." Port Blakely contracted with numerous contractors, including Buck's Logging, Inc. (BLI), to harvest timber located on this land. Under its contract with Port Blakely, BLI was to, among other things, "cut, fall, [and] buck ... the Timber" located on the land. Ruben Farias was an employee of BLI.

¶3 In January 2020, BLI commenced work at Lost Mower. On the day in question, an employee of BLI, Bryce Lyons, instructed Ruben² to buck³ logs that were stacked on a landing.⁴ When Ruben was bucking the logs, he was not consistently in visual or audible range of the other workers at the jobsite. Between 20 and 30 minutes after Bryce Lyons had instructed Ruben to buck logs, Bryce Lyons discovered Ruben's body pinned between two logs. Thereafter, Bryce Lyons and the owner of BLI, Brad Lyons, "pulled the logs apart" and "pulled Ruben out of there." Bryce Lyons then attempted to perform cardiopulmonary resuscitation, but Ruben was already dead.

¶4 An accident report describing the incident provided:

While bucking the last tree it is possible [Ruben] got his saw hung up. Saw marks in the cut show that the saw was being pinched. ... Tops of the trees being bucked were touching each other. We believe when the cut broke apart, the top of the tree being bucked hit the top of the tree behind [Ruben] causing that tree to slide or roll toward him, pinning him.

¶5 On July 24, 2020, Ruben's widow, Maria Farias, filed a complaint against Port Blakely in King County Superior Court. The complaint alleged that Port Blakely was "[a]cting as the general contractor" for the Lost Mower project and also "retained control over the manner in which work was performed." Farias asserted that Port Blakely breached both its common law duty to provide a safe workplace and its statutory duty to comply with WISHA regulations.

¶6 On April 23, 2021, Port Blakely filed a motion for summary judgment. In this motion, Port Blakely sought a summary judgment determination that it owed Ruben neither a common law duty to provide a safe workplace nor a statutory duty to comply with WISHA regulations.

¶7 Also on April 23, Farias filed a motion for partial summary judgment in which she requested a summary judgment determination that Port Blakely was a general contractor.

¶8 On May 21, 2021, the trial court heard both motions for summary judgment. On May 25, the trial court entered an order granting Port Blakely's motion. That same day, the trial court entered an order denying Farias's motion.

¶9 Farias appeals

II

A

¶10 We begin by clarifying the common law duty to provide a safe workplace. To establish direct liability in negligence, a plaintiff must establish " ‘the existence of a duty ..., breach of the duty, and injury to plaintiff proximately caused by the breach.’ " Crisostomo Vargas v. Inland Wash., LLC, 194 Wash.2d 720, 730, 452 P.3d 1205 (2019) (alteration in original) (internal quotation marks omitted) (quoting Harper v. Dep't of Corr., 192 Wash.2d 328, 340, 429 P.3d 1071 (2018) ). " ‘Existence of a duty is a question of law.’ " Crisostomo Vargas, 194 Wash.2d at 730, 452 P.3d 1205 (quoting Hertog, ex rel. S.A.H. v. City of Seattle, 138 Wash.2d 265, 275, 979 P.2d 400 (1999) ).

¶11 "At common law, a principal who hires an independent contractor is not liable for harm resulting from the contractor's work. In particular, the principal has no duty to maintain a safe workplace for a contractor's employees and is not liable for their injuries." Afoa v. Port of Seattle, 176 Wash.2d 460, 476, 296 P.3d 800 (2013) ( Afoa I ) (citation omitted). "An ‘independent contractor is a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other's right to control with respect to his physical conduct in the performance of the undertaking.’ " Kamla v. Space Needle Corp., 147 Wash.2d 114, 119, 52 P.3d 472 (2002) (quoting RESTATEMENT (SECOND) OF AGENCY § 2(3) (1958) ).⁵

¶12 Our Supreme Court has clarified that, "[u]nder our common law safe workplace doctrine, landowners and general contractors that retain control over a work site have a duty to maintain safe common work areas."

Afoa I, 176 Wash.2d at 475, 296 P.3d 800 (emphasis added) (citing Kelley v. Howard S. Wright Constr. Co., 90 Wash.2d 323, 331-32, 582 P.2d 500 (1978) ; Kamla, 147 Wash.2d at 121-22, 52 P.3d 472 ). In other words, "where a principal retains control over ‘some part of the work,’ we disregard the ‘independent contractor’ designation and require the principal ... to maintain safe common workplaces for all workers on the site." Afoa I, 176 Wash.2d at 477, 296 P.3d 800 (quoting Kelley, 90 Wash.2d at 330, 582 P.2d 500 ). Thus, "the relevant inquiry is whether the principal retained control over the work site, not whether there was a direct employment relationship between the parties." Afoa I, 176 Wash.2d at 477, 296 P.3d 800.

¶13 Notably, "[c]ommon law liability for injuries to independent contractors and their employees exists where control is retained over the manner in which the work is completed." Kamla, 147 Wash.2d at 127, 52 P.3d 472 (emphasis added). Furthermore, the principal "has a duty, within the scope of that control , to provide a safe place of work." Kelley, 90 Wash.2d at 330, 582 P.2d 500 (emphasis added); accord Crisostomo Vargas, 194 Wash.2d at 731, 452 P.3d 1205.

¶14 In Crisostomo Vargas, our Supreme Court explained that a "general contractor's ‘general supervisory functions [are] sufficient to establish control.’ " 194 Wash.2d at 733, 452 P.3d 1205 (quoting Kelley, 90 Wash.2d at 331, 582 P.2d 500 ). "If a general contractor has the authority to supervise a given area, then it must ensure that the area is safe." Crisostomo Vargas, 194 Wash.2d at 733, 452 P.3d 1205. Additionally, "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." Crisostomo Vargas, 194 Wash.2d at 733, 452 P.3d 1205.

¶15 Two decades ago, our Supreme Court clarified the degree of control that must be exerted in order for a principal—in that case, a jobsite owner—to owe a common law duty to provide a safe workplace:

"[T]he employer must have retained at least some degree of control over the manner in which the work is done. 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."

Kamla, 147 Wash.2d at 121, 52 P.3d 472 (alteration in original) (quoting RESTATEMENT (SECOND) OF TORTS § 414 cmt. c (1965)).

¶16 When a general contractor or jobsite owner owes a common law duty of care to provide a safe workplace, that duty is nondelegable. Crisostomo Vargas, 194 Wash.2d at 738, 452 P.3d 1205 (general contractor's common law duty of care to provide a safe workplace is nondelegable); Afoa v. Port of Seattle, 191 Wash.2d 110, 121, 421 P.3d 903 (2018) ( Afoa II ) (jobsite owner's common law duty of care to provide a safe workplace is nondelegable). "An entity 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, 421 P.3d 903.

¶17 In sum, under the common law, a general contractor or a jobsite owner who retains control over some part of a work site has a duty, within the scope of that retained control, to provide a safe place of work.

¶18 A general contractor or a jobsite owner may also owe a duty of care under WISHA to comply with WISHA regulations. However, the analysis for determining whether such a duty of care is owed under WISHA differs with respect to general contractors and jobsite owners. See Crisostomo Vargas, 194 Wash.2d at...