Kamla v. Space Needle Corp.

• Decision Date: 15 August 2002
• Docket Number: No. 70966-1.,70966-1.
• Citation: 147 Wash.2d 114,52 P.3d 472
• Court: Washington Supreme Court
• Parties: Jeff KAMLA and Lois Kamla, husband and wife, Petitioners, v. The SPACE NEEDLE CORPORATION, a Washington corporation, Respondent.

52 P.3d 472

147 Wash.2d 114

Jeff KAMLA and Lois Kamla, husband and wife, Petitioners, v. The SPACE NEEDLE CORPORATION, a Washington corporation, Respondent.

No. 70966-1.

Supreme Court of Washington, En Banc.

Argued November 27, 2001.

Decided August 15, 2002.

Messina Law Firm, Stephen Bulzomi, David A. Bufalini, Tacoma, for Petitioners.

Johnson & Martens P.S., Robert L. Christie, Seattle, for Respondent.

Debra Stephens, Bryan Harteniaux, Spokane, Amicus Curiae on Behalf of Washington State Trial Lawyers Association.

JOHNSON, J.

This case involves a personal injury action brought against a jobsite owner by an injured employee of a contractor. The injured employee argued the jobsite owner owed him a common law duty of care based on the jobsite owner's alleged retained control over the manner in which the contractor completed the job. The injured employee further argued the jobsite owner owed him a statutory duty of care under the Washington Industrial Safety and Health Act (WISHA), chapter 49.17 RCW. Finally, the injured employee argued the jobsite owner owed him a common law duty of care based on the jobsite owner's status as landowner and the injured employee's status as invitee. The trial court dismissed the claims on summary judgment.

The Court of Appeals affirmed the trial court's dismissal of the statutory and common law retained control claims but reversed the trial court's determination on the common law landowner/invitee claim. We granted the injured employee's petition for review and the jobsite owner's cross-petition for review. We affirm in part and reverse in part. We affirm the Court of Appeals on the statutory and common law retained control claims and reverse the Court of Appeals on the common law landowner/invitee claim.

FACTS

The Space Needle Corporation (Space Needle), the jobsite and landowner,¹ hired Pyro-Spectaculars (Pyro), the contractor, to install a New Year's Eve fireworks display at the Space Needle. On December 30, 1997, Jeff Kamla was installing fireworks on the 200-foot level of the Space Needle. The 200-foot level is an open-core hexagonal platform through which three elevators pass. After arriving on the 200-foot level, Kamla attached his safety line and began moving around the platform. As he did, he dragged his safety line across an open elevator shaft. The elevator traveled down the shaft through the 200 foot level and snagged Kamla's safety line, dragging him through the elevator shaft and injuring him.

Kamla filed suit against Space Needle, alleging it breached common law and statutory duties. Space Needle moved for summary judgment, arguing Pyro was an independent contractor, Space Needle did not retain control or supervision over the job, and the danger posed by the moving elevators was open and obvious. The trial court granted Space Needle's summary judgment motion. On appeal, the Court of Appeals affirmed in part and reversed in part, holding Space Needle did not owe Kamla a common law duty of care based on retained control or a duty of care under RCW 49.17.060, and holding a genuine issue of fact remained as to whether Space Needle owed Kamla a common law duty of care based on Kamla's status as an invitee. Kamla v. Space Needle Corp., 105 Wash.App. 123, 19 P.3d 461 (2001).

ANALYSIS

Common Law Duty of Care Based on Retained Control

We first address whether the Court of Appeals correctly determined Space Needle did not retain the right to direct Kamla's work sufficient to bring it within Washington's "retained control" exception to the general rule of nonliability for the injuries of independent contractors. The common law has long distinguished between an employer's liability for work-related injuries suffered by independent contractors and an employer's liability for work-related injuries suffered by its employees. The scope of an employer's liability depends on whether the worker is an independent contractor or an employee.

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." Restatement (Second) of Agency § 2(3). On the other hand, employees are "agent[s] employed by [an employer] to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the [employer]." Restatement (Second) of Agency § 2(2). The difference between an independent contractor and an employee is whether the employer can tell the worker how to do his or her job. Employers are not liable for injuries incurred by independent contractors because employers cannot control the manner in which the independent contractor works. Conversely, employers are liable for injuries incurred by employees precisely because the employer retains control over the manner in which the employee works. Kamla contends Space Needle retained control over the manner in which he worked and is liable for his injuries under the common law "retained control" exception.

In the past, we have stated, "[t]he test of control is not the actual interference with the work of the subcontractor, but the right to exercise such control." Kelley v. Howard S. Wright Constr. Co., 90 Wash.2d 323, 330-31, 582 P.2d 500 (1978). Kamla argues Space Needle's common law liability under the "retained control" exception is controlled by this statement. Space Needle argues that Washington courts have modified Kelley such that the bare right to control is no longer enough to strip away the common law liability insulation. We must determine whether we have abandoned, or should now abandon, Kelley's "retained control" analysis in favor of an "actual control" analysis.

Space Needle cites Smith v. Myers, 90 Wash.App. 89, 95, 950 P.2d 1018 (1998), and argues Kelley's "right to control rule" no longer controls. In Smith, the court held, "[t]he `retained control' exception applies ... only when one who engages an independent contractor retains actual control over the workplace and affirmatively assumes responsibility for project safety." Smith, 90 Wash. App. at 95, 950 P.2d 1018 (citing Hennig v. Crosby Group, Inc., 116 Wash.2d 131, 134, 802 P.2d 790 (1991); Straw v. Esteem Constr. Co., 45 Wash.App. 869, 874, 728 P.2d 1052 (1986); Bozung v. Condo. Builders, Inc., 42 Wash.App. 442, 445-46, 711 P.2d 1090 (1985)). Hennig, Straw, and Bozung, however, do not support Space Needle's argument or the holding in Smith.

In Hennig, the plaintiff was injured when a three pound screw fell 60 feet onto his head. Hennig, 116 Wash.2d at 132, 802 P.2d 790. The plaintiff sued his employer (the independent contractor), the pin manufacturer, and the Port of Seattle. The contract under which the Port of Seattle hired the independent contractor authorized the Port of Seattle "to inspect [the independent contractor's] work to ensure that it fully complied with the contract provisions." Hennig, 116 Wash.2d at 134, 802 P.2d 790. We held the authority to merely inspect the work and demand contract compliance was not "retained control" sufficient to strip away the common law liability insulation:

It is one thing to retain a right to oversee compliance with contract provisions and a different matter to so involve oneself in the performance of the work as to undertake responsibility for the safety of the independent contractor's employees. "The retention of the right to inspect and supervise to insure the proper completion of the contract does not vitiate the independent contractor relationship."

Hennig, 116 Wash.2d at 134, 802 P.2d 790 (quoting Epperly v. City of Seattle, 65 Wash.2d 777, 785, 399 P.2d 591 (1965)).

Neither Straw nor Bozung, two Court of Appeals opinions also cited by Smith, alter our common law liability exception. The Straw court merely held that controlling the timing of construction did not amount to controlling the performance of the work. Straw, 45 Wash.App. at 875, 728 P.2d 1052. The Bozung court simply held that such "general contractual rights as the right to order the work stopped or to control the order of the work or the right to inspect the progress of the work do not mean that the general contractor controls the method of the contractor's work." Bozung, 42 Wash.App. at 447, 711 P.2d 1090.

These decisions represent a straightforward application of the Restatement Second of Torts § 414 cmt. c (1965):

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

We cannot accept Space Needle's implicit invitation to abandon the "retained control" inquiry. When we distill the principles evident in our case law, the proper inquiry becomes whether there is a retention of the right to direct the manner in which the work is performed, not simply whether there is an actual exercise of control over the manner in which the work is performed.

Space Needle did not retain the right to interfere with the manner in which Pyro completed its work, nor did Space Needle affirmatively assume responsibility for workers' safety. Space Needle simply agreed to provide Pyro a suitable display site and fallout zone, access to the display site to set up the display, adequate crowd control, firefighters, and permit fees. Space Needle also agreed to provide "Access to the site; Technical assistance and...