Phillips v. Kaiser Aluminum & Chemical Corp.

• Decision Date: 05 July 1994
• Docket Number: No. 15567-2-II,15567-2-II
• Citation: 875 P.2d 1228,74 Wn.App. 741
• Court: Washington Court of Appeals
• Parties: John PHILLIPS and Karen Phillips, husband and wife, Appellants, v. KAISER ALUMINUM & CHEMICAL CORPORATION, a Washington corporation; John Doe Insurance Company and Richard Roe, an unknown defendant, Respondents.

Page 741

74 Wn.App. 741

875 P.2d 1228

John PHILLIPS and Karen Phillips, husband and wife, Appellants, v. KAISER ALUMINUM & CHEMICAL CORPORATION, a Washington corporation; John Doe Insurance Company and Richard Roe, an unknown defendant, Respondents.

No. 15567-2-II.

Court of Appeals of Washington Division 2.

July 5, 1994.

Philip H. DeTurk, Puyallup, for appellants.

Joanne Henry, Vandeberg & Johnson, Tacoma, for respondents.

MORGAN, Chief Judge.

John Phillips sued Kaiser Aluminum & Chemical Corporation, alleging that Kaiser failed to provide a safe work place. Part of his claim was dismissed by an order granting partial summary judgment, and part was dismissed following a jury verdict for the defense. Because the appeal deals primarily with the order granting partial summary judgment, we view the facts in the light most favorable to the plaintiff.

At the times material here, Kaiser owned and operated an aluminum reduction plant in Tacoma. The plant included an unused production building outfitted with several hundred thousand pounds of aluminum "bus". Formerly, the bus had been used to transmit electricity to the plant's smelting pots. The bus was forged in the shape of planks 22 inches across and 3 1/2 inches thick. A 10-foot segment of a plank weighed about 1000 pounds.

Kaiser wanted to remove and sell the bus. Thus, it entered into a contract with D.L. Anderson Concrete Co., Inc. (Anderson). The contract called for Anderson to cut the bus into 10-foot lengths, remove it from the building, band it, and load it onto pallets for shipping. It also called for Anderson to provide "labor, tools, equipment and supervision". ¹

Kaiser rather than Anderson determined that the bus would be cut with chain saws. According to Kaiser, "it is common and usual practice to cut aluminum bus with chain saws, and it has been done at the Kaiser plant for ... about 30 years." ²

Kaiser rather than Anderson purchased three new chain saws and supplied them to Anderson's workers. Kaiser also furnished dust masks for the workers and a large fan for ventilation.

Kaiser hired Al Wilhelm, temporarily but full-time, to oversee the job. His duties "were to oversee the progress of the work, to assist Anderson and his men in planning and accomplishing the best method to remove the aluminum, and to watch out for safety." ³ He was at the job site "full-time each working day, and usually met with the Anderson crew at the start of each work day to confirm where work was to begin ... and to talk about any safety issues that came up or changes in plans for the work." ⁴

Kaiser assigned Richard Cable, one of its permanent full-time employees, to act as contract administrator. Cable "had overall responsibility on behalf of Kaiser in administering this contract". ⁵ He "visited the work at least once a day to make sure that the job was progressing satisfactorily and that the aluminum was cut into the proper sizes and weights." ⁶ If he saw a safety problem during a visit, he "would bring it to the attention of the worker, the foreman or Mr. Wilhelm, as seemed appropriate under the circumstances." ⁷

Anderson's crew "consisted of Keith Roberts, the foreman who also ran a forklift, Dave Wilbur, a laborer who also ran the crane, and two other laborers, one of whom was John Phillips...." ⁸ Dave Anderson, the owner, "put in approximately two hours per day on the job, coming in early in the morning, ... and late in the afternoon, primarily to see to the tools." ⁹

Generally, Wilhelm dealt with Roberts on job-related matters. ¹⁰ However, "Roberts became ill on about February 10, 1989, and was not there at all during the week of the accident." ¹¹ Cable and Wilhelm were not concerned about the lack of a foreman because, according to Wilhelm, "this was mainly routine work and not particularly dangerous if the workers were careful." ¹²

Phillips began work on January 25, 1989. His job was to cut the bus with a chain saw, a process he described as "[j]ust like cutting logs". ¹³ He had never cut aluminum before. He attended one safety meeting, but "there was no discussion regarding how to operate a chain saw in order to cut aluminum or whether or not the bus lines might become unstable under certain conditions." ¹⁴ In Wilhelm's opinion, Phillips was "a hard and apparently responsible worker" who was "very good in using his chain saw." ¹⁵

Phillips was "under the impression that the guys from Kaiser ... were our overseers." ¹⁶ Wilhelm was at the job site all day, and he told Anderson's employees to stop if they were cutting in the wrong spot. Both Cable and Wilhelm marked how the bus was to be cut, and from time to time one of them would intervene when he thought unsafe methods were being used.

The process of cutting the bus with chain saws produced smoke and fumes. On one occasion, ventilation was so poor that the entire crew had to leave the building. Roberts testified that he was affected even though he wore a respirator and was not doing the actual cutting. Phillips complained to both Anderson and Cable, and the workers sought better ventilation by removing the plywood that had been used to board up the building's windows.

The parties differ over what occurred during the morning of February 17, 1989. Wilhelm states:

On the morning of February 17, 1989, I do not recall seeing Mr. Anderson. Work was to start at 7:00 a.m., and the three workmen, Phillips, Wilbur and Dan Davies, were there with their tools when I arrived. We had a short meeting regarding the fact that the work was progressing to the far south end of the basement, where we could have a problem with the last piece of bus on the concrete pillars being cut off from its support and becoming unstable. I told them that if we cut past the "radius" by the last long piece, the bus might fall down, and that we would have to do something else with that last free-standing piece. Wilbur, who usually ran the crane, suggested that it be pulled out with the crane, and we decided to do that.

After the meeting, Phillips went to the basement area and began to cut. The other two workers were in the upper part of the building.... I went down to where plaintiff was working two or three times during the morning. He was having no problems, and there was no undue amount of smoke or fumes present....

I went down to where plaintiff was working immediately before lunch on the day of the accident. He was cutting very near the radius, where we had decided to stop, and as he cut, I saw the bus move. At that point, Phillips stopped cutting, perhaps because his chain broke or perhaps because he saw the bus move also. I told him then: "I saw that bus move. Don't cut here anymore. We'll have to do something else with it after lunch." ... Phillips did not respond to what I told him, and right at that time, one of the other workmen called down that it was time for lunch, and Phillips left.

Supp. Clerk's Papers, at 3-4.

Phillips does not deny there was a meeting in the morning, or that Wilhelm came into the basement just before lunch. He does deny that he was told not to saw all the way through the bus; that the bus might fall down; or that the bus would be moved with the crane.

When Phillips finished lunch, he resumed cutting the piece of bus that he had been cutting before lunch. According to his testimony, he had an inch or so yet to cut when he became dizzy and faint from the fumes. He "just let go of the saw, turned, took a big step," ¹⁷ and fell unconscious. While he was unconscious, apparently, the bus dropped on his ankle and severely injured it. The next thing he remembers is waking up on the floor and yelling for help.

Phillips sued Kaiser in June 1990. In his complaint, he alleged Kaiser was negligent in (1) "[f]ailing to provide a safe place within which to work"; (2) "[f]ailing to provide the proper ventilation in the area where the accident took place"; (3) "[f]ailing to provide the proper equipment for the employee of an independent contractor to use"; (4) "[c]onducting an inherently dangerous condition in an improper manner"; (5) "[a]llowing a non delegable duty to be assumed by the plaintiff"; (6) "[f]ailing to provide the necessary supervision regarding the type of work to be performed at a given time"; and (7) "[f]ailing to provide the necessary assistance to enable the workman, once injured, to extricate himself from the present condition". ¹⁸

Kaiser moved for summary judgment on grounds that it owed no duty that had been breached. Phillips argued

that the Kaiser Aluminum Company did not supply him a safe place in which to work and that it violated the standard duty that this company had to him as an employee of a subcontractor and furthermore, specifically violated certain WISHA requirements as set forth in the WAC. In particular, Phillips maintains that he was improperly instructed regarding safety, that he was inadequately supervised especially at the time he was injured, that there was a failure of proper ventilation, that he was not supplied with an adequate mask for protection against fumes, that the equipment he was given with which to do the cutting was inadequate in that the defendant Kaiser could have used a more sophisticated and not much more expensive type of saw or used scarfing which is a type of cutting without any saw whatsoever. Furthermore, it is the plaintiff's contention that had a very inexpensive type of scaffolding been placed under the busing, it would not have crashed to the floor.... ¹⁹

The trial court made several rulings. First, it held that Kaiser owed Phillips a duty in its role as landowner, but that there was no evidence Kaiser had breached that duty. Second, it held that Kaiser owed Phillips a common law duty of care, but that this duty required no more than compliance with specific Washington Industrial Safety and Health Act (WISHA) regulations ²⁰; based on a lack of specific WISHA regulations, it precluded trial on Phillips's allegations "that defe...