Hymas v. UAP Distrib., Inc.

• Decision Date: 08 March 2012
• Docket Number: No. 29906–6–III.,29906–6–III.
• Citation: 272 P.3d 889,167 Wash.App. 136
• Court: Washington Court of Appeals
• Parties: John HYMAS, a single man, Appellant, v. UAP DISTRIBUTION, INC., a foreign corporation, Crop Product Services, Inc., a foreign corporation, and Agrium US, Inc., a foreign corporation, Respondents,Agreserves, Inc., a foreign corporation, Defendant.

167 Wash.App. 136

272 P.3d 889

John HYMAS, a single man, Appellant,

v.UAP DISTRIBUTION, INC., a foreign corporation, Crop Product Services, Inc., a foreign corporation, and Agrium US, Inc., a foreign corporation, Respondents,Agreserves, Inc., a foreign corporation, Defendant.

No. 29906–6–III.

Court of Appeals of Washington, Division 3.

March 8, 2012.

Stanley Jay Rumbaugh, John E. Wallace, Rumbaugh Rideout Adkins & Wallace PLLC, Tacoma, WA, for Appellant.

Benjamin A. Schwartzman, Banducci Woodard Schwartzman PLLC, Brent S. Bastian, Boise, ID, for Respondents.

SIDDOWAY, J.

[167 Wash.App. 140] ¶ 1 We are called upon to decide whether UAP Distribution Inc., the owner of a jobsite at which John Hymas was seriously injured while working construction, was entitled to summary judgment that it had no statutory or common law duty that could give rise to liability for Mr. Hymas's fall into an unguarded trench. Mr. Hymas, whose employer was UAP's cement contractor, argues that UAP owed him a duty of care under WISHA,¹ as a jobsite owner, because it retained control over his employer's work. He argues that UAP owed him a duty under common law, as a landowner, because it should have anticipated that Mr. Hymas could be injured despite his knowledge of the open trench. We find no issues requiring trial and agree with the trial court that on the evidence presented UAP owed no duty as a matter of law. We affirm the dismissal of Mr. Hymas's claims.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 UAP Distribution Inc.² is a chemical and fertilizer manufacturer that does a nationwide business. In 2006, it contracted with Ranco Fertiservice Inc., a manufacturer of fertilizer-handling equipment, to develop plans for constructing a fertilizer mixing plant on land that UAP owned in Plymouth, Washington. UAP did not hire a general contractor to manage the construction work. Instead, armed with Ranco's plans, it contracted directly with an engineering firm and specialty contractors. UAP had opted to forgo the services of a general contractor on earlier construction projects.

¶ 3 Ranco's plans called for the excavation of a 5–foot–deep, 240–foot–long, 10–foot–wide trench framed with concrete within one of three buildings proposed for the plant, in which a below-grade conveyor belt would eventually be installed. UAP hired Narum Concrete Construction Inc. to perform the excavation and concrete work.

¶ 4 UAP and Narum entered into a written contract prepared using an American Institute of Architects (AIA) standard form agreement.³ Subsection 8.2.1 of the contract, under article 8, “CONTRACTOR” and section 8.2, “SUPERVISION AND CONSTRUCTION PROCEDURES,” provides:

The Contractor [Narum] shall cooperate fully with the Owner [UAP] and Architect and supervise and direct the Work, using the Contractor's best skill and attention. The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures, and for coordinating all portions of the Work under the Contract, unless the Contract Documents give other specific instructions concerning these matters.Clerk's Papers (CP) at 96 (redlining ⁴ omitted). Sections 15.1 and 15.3 of the contract, under article 15, “PROTECTION OF PERSONS AND PROPERTY,” provide in part:

15.1 SAFETY PRECAUTIONS AND PROGRAMS The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the Contract. The Contractor shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to:

.1 employees on the Work and other persons who may be affected thereby;

.2 the Work and materials and equipment to be incorporated therein; and

.3 other property at the site or adjacent thereto.

The Contractor shall give notices and comply with applicable laws, ordinances, rules, regulations and lawful orders of public authorities bearing on safety of persons and property and their protection from damage, injury or loss....

....

15.3 The Contractor shall comply with all applicable safety laws and regulations. Notwithstanding any language to the contrary, the Owner and the Architect shall not have any responsibility for job site inspections or safety accommodations. Any inspections or observations by the Owner or the Architect are solely for the benefit of the Owner and shall not create any duties or obligations to anyone else.

CP at 104 (redlining omitted). The contract gave UAP the right to terminate the contract for any reason, approve subtier contractors, perform the construction work with its own forces, inspect the work, stop or delay the work, order changes to the work, and reject the work.

¶ 5 On February 9, 2007, Narum employees were at the jobsite performing concrete work. Mr. Hymas, a concrete pump operator, was operating the pumper truck remotely. His work required that he follow along as a co-worker, who was holding a discharge hose supported by a crane, poured concrete into forms at an elevation 15 feet above them. While watching the pour, Mr. Hymas regulated the pressure and flow of the concrete using a wireless remote box that he wore as a backpack, the controls resting on his chest. At the time of the accident resulting in this action, Mr. Hymas was following his co-worker alongside the trench, which had by then been framed with concrete. While operating the pump, Mr. Hymas stepped over the edge, which was unguarded by safety rails, and fell into the trench. He seriously injured his leg.

¶ 6 Mr. Hymas brought this action against UAP, asserting that UAP failed to maintain the trench in compliance with WISHA regulations and negligently failed to protect or warn him of a hazardous condition. His complaint implicated issues of whether and to what extent UAP had retained or exercised control over Narum's work. The parties engaged in deposition and other discovery into their representatives' understandings of the contract and UAP's actual working relationship with Narum and other specialty contractors.

¶ 7 Evidence as to the parties' background, beliefs, and actions was essentially undisputed. It established that before building the Plymouth plant, UAP had entered into contracts with specialty contractors on 24 occasions. In connection with construction of the Plymouth plant it contracted not only with Ranco, but with an engineering firm, an electrical contractor, a construction company engaged to pipe water to the site, a shed manufacturer engaged to erect a control room, and a material testing and inspection firm to perform site inspections and quality control. UAP exercised its contractual right to perform a portion of Ranco's work, painting pieces of the steel frame for the building that had been scratched in transit and having two idle employees from its Moses Lake facility assist Ranco employees with other painting and welding. In the second phase of the plant, it terminated a pipefitting contractor whose pace was slowing the project and took over the work with its own employees. UAP paid the specialty contractors directly, for a total project cost of over $4 million.

¶ 8 UAP area manager Brian Jones visited the work site frequently at first and “every couple weeks” as the project progressed. CP at 251. While Narum was onsite, Mr. Jones would meet with Wayne Narum, a Narum principal, “just to find out where we're at on our status and on our process just to see how work was going.” Id. He never met with a Narum representative other than Mr. Narum, did not discuss safety issues, and did not instruct Narum employees on how to perform the work. UAP plant manager Harold Priest testified that different specialty contractors worked on the jobsite at the same time and that UAP coordinated their work, although it did not coordinate site safety.

¶ 9 UAP managers Mr. Priest and Larry Talmage testified that their contact with Narum never involved discussions about the performance of the work and was generally limited to observing progress on the project. Mr. Priest testified that Narum had sole control over the methods employed to do the work, that UAP could not instruct Narum to perform in a particular manner, and that UAP relied on Narum to ensure a safe working environment. Mr. Talmage stated that he understood UAP's contracts made each contractor responsible for observing safety requirements.

¶ 10 Mr. Narum testified to a similar view of his relationship with UAP, stating that his conversations with Mr. Jones were limited to “how the project was progressing, when we thought we'd have this completed or that.” CP at 307. He testified that they did not generally discuss safety issues, other than one occasion when he and a UAP representative discussed a safety concern regarding what he described as a deep “leg pit.” CP at 58. Mr. Narum viewed safety as his company's responsibility and did not expect UAP to involve itself in safety matters. He also stated that Narum had control over the way the work was to be performed under subsection 8.2.1 of the contract, and that UAP did not and could not instruct Narum on the methods it was to employ during the course of performance. He did acknowledge that UAP instructed him on the order in which Narum was to construct the three buildings called for by Ranco.

[167 Wash.App. 145] ¶ 11 In proceedings below and on appeal, Mr. Hymas attached importance to certain testimony of Mr. Jones and Mr. Narum. Because UAP argues from the same testimony, although placing a different construction and emphasis upon it, we reproduce what Mr. Hymas and UAP urge as material portions of the testimony verbatim.

¶ 12 Mr. Jones, who again, was UAP's area manager, testified in deposition:

Q —had you observed—had you—like if you observed an unsafe condition on the construction project, would you have brought it to Narum Concrete Construction's attention?

A I probably would, but unless it's something really...