Kelley v. Howard S. Wright Const. Co.

Decision Date27 July 1978
Docket NumberNo. 44838,44838
Citation90 Wn.2d 323,582 P.2d 500
Parties, 6 O.S.H. Cas. (BNA) 1934, 1978 O.S.H.D. (CCH) P 22,966 Evelyn N. KELLEY, guardian ad litem for Edward Kelley, Respondent, v. HOWARD S. WRIGHT CONSTRUCTION CO., Appellant.
CourtWashington Supreme Court

Williams, Lanza, Kastner & Gibbs, Joseph J. Lanza, Seattle, for appellant.

Lembhard G. Howell, Seattle, for respondent.

HOROWITZ, Justice.

This case raises the issue of the duty of a general contractor on a multi-employer job site to take safety precautions for the benefit of employees of subcontractors working on the site.

Edward Kelley, an employee of a subcontractor hired by defendant Wright Construction Co., brought this action for damages for personal injuries he sustained due to the alleged negligence of Wright, the general contractor. The trial judge gave the jury instructions regarding Wright's duty of care, including an instruction that Wright was under a duty to comply with an Occupational Safety and Health Act (OSHA) safety regulation which required specific safeguards for workmen on Kelley's crew. The evidence showed Wright did not comply with the regulation. The jury found Wright negligent, plaintiff Kelley 10 percent contributorily negligent, and damages in the amount of $800,000. The judge reduced the damages by 10 percent for plaintiff's negligence and entered judgment for the plaintiff in the amount of $720,000.

Defendant Wright appeals, claiming: (1) it had no duty to comply with safety regulations for Kelley's benefit; (2) that certain exhibits were improperly admitted into evidence; and (3) the award of damages should have been reduced by a percentage equal to the percentage of negligence attributable to the injured man's employer. Plaintiff cross appeals, claiming his award should not be reduced for his own contributory negligence. We affirm the judgment of the trial court and dismiss the cross appeal for the reasons stated herein.

Defendant Wright Construction Company (Wright) was the general contractor for the construction of the Bank of California Center Building in Seattle. Wright contracted with H. H. Robertson, Kelley's employer, for the metal decking on the project. Robertson's crews laid panels of decking over the bare structural beams. Therefore the workers often had to walk over bare beams in order to begin their work. After reaching a bundle of decking panels, the men laid a temporary platform from which to work. It was from such a temporary platform, measuring 6 feet by 36 feet, on the fourth floor level of the bank building, that plaintiff, Edward Kelley fell.

Kelley was a special apprentice assigned to the crew laying metal decking. He had begun work without proper shoes, wearing street shoes with rather high heels. Some time prior to the accident he had been seen slipping, and was told to get shoes with lower heels for work. There is no standard footwear established for iron workers. On the day of the accident he was wearing regular engineer boots with one-half inch rubber heels and leather soles.

The day of the accident, December 19, 1972, was windy, cold and rainy. Robertson's crew was unable to work in the tower because of the weather, but chose to work on the fourth floor level of the bank building rather than go home. The conditions there were worsened by a residue of fireproofing material on the beams which was slippery when wet. In order to get out to the bundles of decking panels the workers had to walk over bare beams. They wore no safety belts or lifelines; there was no safety net in place. Kelley was working with another member of the crew, laying decking. He was walking "on his heels," perhaps to avoid putting his leather soles on the slick surface of the temporary platform. As he walked toward the stack to get another panel, his feet slipped out from under him and he pitched off the end of the platform head first. He fell over 29 feet to the concrete floor below, striking his head on a piece of electrical conduit and sustaining severe injuries. He was unable to testify at the trial because of brain damage and has been represented in these proceedings by his sister, who is acting as guardian ad litem.

Kelley's employer, H. H. Robertson, is covered by the State Industrial Insurance Act and is immune from liability in any action for Kelley's injuries. Kelley's medical bills and monthly compensation benefits are being paid by the Department of Labor and Industries pursuant to the Insurance Act, pending the outcome of this case. The suit is brought under RCW 51.24.010, which provides a right of action for an injured workman against a third party "not in the same employ" for injuries due to the negligence or wrong of that third party. The Department is subrogated to Kelley's rights to the extent of payments it has made. Kelley alleges Wright was negligent in not providing a safety net for Robertson's workmen a safety device which would have prevented Kelley's injuries and which he claims was required by an OSHA safety regulation.

In its contract with the owners of the project, Wright assumed sole responsibility for supervising and coordinating all aspects of the work. Wright agreed to be responsible for "initiating, maintaining and supervising all safety precautions and programs in connection with the work," and to "erect and maintain as required by existing conditions and progress of the work, all reasonable safeguards for safety and protection." Wright was obligated under this contract to appoint a safety director "whose duty shall be the prevention of accidents." Although Wright held weekly safety meetings attended by representatives of all the subcontractors on the job, it did not appoint a safety director.

H. H. Robertson also had responsibilities for safety under its contract with Wright. It agreed that "(a)dequate precautions must be taken at all times to insure safe conditions," and promised to "be responsible" for any violations of the Construction Safety Act and/or the Occupational Safety and Health Act (OSHA). Robertson conducted its own safety meetings and maintained lifelines and safety belts for its employees.

There was testimony at trial that Robertson's workers did not find lifelines practical when they were laying decking because the lines made movement difficult and had to be so long that a worker could fall 39 feet before reaching the end of a line. A safety net, on the other hand, would have been both practical and effective, according to the testimony. The use of safety nets is customary in the construction industry when workers are more than 20 or 25 feet above the ground and other effective devices are impractical or otherwise not used. Plaintiff Kelley introduced into evidence an OSHA regulation applicable to all employers in the construction industry:

§ 1926.105 Safety nets.

(a) Safety nets shall be provided when work places are more than 25 feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical.

29 CFR § 1926.105(a). Plaintiff also introduced the Manual of Accident Prevention in Construction of the Associated General Contractors, of which Wright is a member. That manual provides:

Where it is not feasible to use safety belts and lifelines, lines, guarded platform and scaffolds or temporary floors, safety nets should be suspended below the area where men are working more than twenty-five feet above a floor, ground or water.

The trial judge allowed Wright to show H. H. Robertson's negligence in failing to provide safeguards for its employees, but instructed the jury that Wright had a duty to comply with the OSHA regulation. The judge also refused to give Wright's proposed instruction intended to reduce any damages awarded against Wright by a percentage equal to the percentage of negligence attributable to Robertson. Wright cites as error the trial court's failure to grant Wright's motion to dismiss, and the submission of the issue of liability to the jury. Wright also assigns error to the court's failure to grant its motion for judgment n. o. v. or, in the alternative, a new trial. These assignments raise the general issue of Wright's duty of care to the employee of a subcontractor. Related to this is Wright's assignment of error to the court's failure to give Wright's proposed alternative instruction regarding the OSHA regulation, placing the duty of compliance solely on Robertson. A separate issue is raised by Wright's assignment of error to the admission into evidence of the manual of regulations containing the OSHA regulation in question, and the accident prevention manual of the Associated General Contractors. Finally, Wright assigns error to the court's refusal to give its proposed instruction reducing the damages by Robertson's negligence.

In a cross-appeal, plaintiff Kelley cites as error the reduction in his damage award because of the percentage of negligence attributed to him by the jury. We will discuss the issues in the above order.

I. WRIGHT'S DUTY OF CARE

Appellant's assignments of error to the trial court's failure to grant its motion to dismiss, motion for judgment n. o. v., and motion for a new trial all raise the general issue of whether it had a duty of care as general contractor to respondent Kelley, an employee of a subcontractor. Appellant disclaims any liability to respondent under common law or contract. The trial court instructed the jury that Wright had a duty of care to provide a safe place of work for employees of subcontractors, and also responsibility for safety precautions and programs. We hold that those instructions were proper. It is true the formal assignments of error and associated issues are not specifically directed to the instructions mentioned. RAP 10.3(a)(3) and (g). However, we prefer to reach the merits of the issues raised and in so doing recognize that Wright had a duty of care to re...

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