Smith v. Myers, 20374-0-II

• Decision Date: 13 February 1998
• Docket Number: No. 20374-0-II,20374-0-II
• Citation: 90 Wn.App. 89,950 P.2d 1018
• Court: Washington Court of Appeals
• Parties: Carmel M. SMITH, as Personal Representative of the Estate of Robert E. Judson, deceased, Appellant, v. Dennis MYERS and Jane Myers, husband and wife and the marital community thereof, Respondents, "unknown business entities" I through V, Defendants.

Page 89

90 Wn.App. 89

950 P.2d 1018

Carmel M. SMITH, as Personal Representative of the Estate of Robert E. Judson, deceased, Appellant, v. Dennis MYERS and Jane Myers, husband and wife and the

marital community thereof, Respondents,

"unknown business entities" I through V, Defendants.

No. 20374-0-II.

Court of Appeals of Washington,

Division 2.

Feb. 13, 1998.

Robert Neil Gellatly, Helsell Fetterman, Seattle, for respondents

Cydney Campbell, Llundberg & Peschel Ps, Inc., Seattle, for appellants.

SEINFELD, Judge.

Carmel Smith appeals a summary judgment dismissing her wrongful death action against Dennis and Jane Myers. She claims that the decedent, an employee of a contractor retained by Myers to construct their home, sustained an on-the-job injury that later caused his death. Finding that the homeowner, under the circumstances here, did not have a statutory duty to comply with WISHA regulations and further finding inapplicable the "retained

control" exception to the common law rule of nonliability, we affirm.

FACTS

Dennis and Jane Myers (Myers) purchased the drawings and lumber for a prefabricated home from Linwood Homes, Ltd., in 1991. Because Myers had no experience in the construction industry and no knowledge of construction safety measures, they retained professional contractors to assemble and finish the house. Myers assumed responsibility for obtaining the building permit, arranging for inspections, and hiring and coordinating the contractors.

Based on Linwood's recommendation, Myers contracted with Anthony's Custom Construction (ACC) to do the foundation, the framing, and the roofing. The contract was silent as to responsibility for safety measures. Myers, assuming that ACC would supervise its own employees, gave ACC's workers no instructions about building techniques or workplace safety procedures. Myers merely instructed them to follow the building plans.

Myers also hired at least nine other contractors or individuals to complete various phases of the construction project. During construction, Dennis Myers went to the site at least once per week, sometimes on weekdays but usually on weekends. He met personally with some of the contractors at the worksite.

In January 1992, a window that the workers were hoisting into place fell and hit Robert Judson's leg. Judson, who was not wearing a safety harness, lost his balance, fell, and injured his back. Although he began experiencing pain, he continued working for ACC for about one more month and later obtained work as a carpenter for another company.

But the back pain increased and in September a physical therapist told him that he might not be able to work again as a carpenter. Vocational testers told him that he would need to retrain for another profession. According to Smith, the personal representative of Judson's estate, Judson Almost two years later, in January 1995, Smith, as personal representative of Judson's estate, filed this wrongful death action against Myers. That spring, Smith deposed Dennis Myers and obtained ACC's quarterly tax records. This allowed her to identify Christopher Hutchins, Alexander Fellenz, and Thomas Lynch as potential witnesses to the accident.

became so frustrated and depressed over his inability to continue working as a carpenter that he committed suicide the following February.

Smith mailed a questionnaire to Fellenz, which he did not return. Hutchins, however, advised her in a telephone conversation about the location and height from where Judson fell; the fact that Judson was not wearing any safety device; and the degree of control that Myers retained over the construction site. Smith then mailed Hutchins a questionnaire for use in preparing an affidavit but Hutchins did not return the questionnaire or voice mail messages that Smith left him in August, September, and October.

On November 16, 1995, Myers moved for summary judgment, claiming a lack of evidence of negligence, and arguing that, as a matter of law, they had no duty to prevent the accident. In response, Smith argued that Myers acted as general contractors and, thus, had a statutory duty to comply with applicable safety regulations. Relying on the "retained control" doctrine, she also contended that Myers had a common law duty to provide a safe workplace. Finally, Smith sought a continuance to obtain affidavits from and depose Hutchins, Fellenz, and Lynch.

The trial court denied the continuance request and granted Myers's motion for summary judgment.

DISCUSSION

I. Summary Judgment

Appellate courts review an order of summary judgment by engaging in the same inquiry as the trial court. Bozung v. Condominium Builders, Inc., 42 Wash.App. 442, 445, 711 P.2d 1090 (1985). Summary judgment is proper where no genuine issue of material facts exists and the moving party is entitled to judgment as a matter of law. CR 56(c). We consider all the evidence and the reasonable inferences therefrom in the light most favorable to the nonmoving party and determine whether reasonable persons could reach but one conclusion. Bozung, 42 Wash.App. at 445, 711 P.2d 1090.

A. WISHA Regulations

Smith contends that Myers had a statutory duty under RCW 49.17.060(2) and Stute v. P.B.M.C., Inc., 114 Wash.2d 454, 788 P.2d 545 (1990), to comply with the Washington Industrial Safety and Health Act (WISHA).

WISHA defines "employer" as

any person, firm, corporation, partnership, business trust, legal representative, or other business entity which engages in any business, industry, profession, or activity in this state and employs one or more employees or who contracts with one or more persons, the essence of which is the personal labor of such person or persons....

Former RCW 49.17.020(3) (1973) (emphasis added). The statute imposes the following duties upon an employer:

(1) ... [F]urnish to each of his employees a place of employment free from recognized hazards that are causing or likely to cause serious injury or death to his employees: ...

(2) Shall comply with the rules, regulations, and orders promulgated under this chapter.

RCW 49.17.060.

The WISHA definition of employer does not include a residential property owner who engages an independent contractor to do work on his personal residence. Rogers v. Irving, 85 Wash.App. 455, 463, 933 P.2d 1060 (1997). The Rogers court inferred from the words "or other business entity" in former RCW 49.17.020(3) that "the Legislature intended 'employer' to be synonymous with 'business entity,' whatever form that entity might take--person, firm, corporation, partnership, business trust, or legal representative." 85 Wash.App. at 462-63, 933 P.2d 1060. Thus, a carpenter building his own home would not be an "employer" because "he [is] not engaging in an activity for gain or livelihood." Rogers, 85 Wash.App. at 463, 933 P.2d 1060. Further, homeowners, not being business enterprises, are typically ill-equipped to assume the duties that WISHA places upon employers. Rogers, 85 Wash.App. at 463, 933 P.2d 1060.

Here, Myers, like the carpenter in Rogers, are residential property owners who hired independent contractors to do work on their personal residence. They were not engaging in a business activity and were not "employers" within the meaning of WISHA. Therefore, they were not subject to WISHA regulations regarding workplace safety. Rogers, 85 Wash.App. at 463, 933 P.2d 1060.

Further, the cases that Smith relies upon, Stute, 114 Wash.2d 454, 788 P.2d 545, and Husfloen v. MTA Constr. Inc., 58 Wash.App. 686, 794 P.2d 859 (1990), are distinguishable. The Stute case and its progeny establish that with respect to multi-employer worksites, the general contractor or an owner/developer has the responsibility to comply with WISHA regulations as to all employees on the job site, not just its own. 114 Wash.2d at 457-60, 788 P.2d 545. See also Doss v. ITT Rayonier, Inc., 60 Wash.App. 125, 803 P.2d 4 (1991); Weinert v. Bronco Nat'l Co., 58 Wash.App. 692, 795 P.2d 1167 (1990); Husfloen, 58 Wash.App. at 689, 794 P.2d 859. The general contractor appropriately bears the primary responsibility for workplace safety because it has the "innate supervisory authority" and means to either furnish safety equipment or to contractually require subcontractors to furnish such equipment. Stute, 114 Wash.2d at 463-64, 788 P.2d 545.

But here, in contrast to Stute, Myers are not a statutory "employer" under WISHA. 114 Wash.2d at 462, 788 P.2d 545. Further, unlike general contractors and owner/developers, they lack the knowledge, experience, ability, and means to "provide expensive safety features" or effectively enforce safety standards. Stute, 114 Wash.2d at 462, 788 P.2d 545.

Nor are Myers general contractors who also happen to own a residential construction site, as was the situation in Husfloen. The Husfloen court held that the general contractor/owner had a duty to comply, or ensure that employees of subcontractors complied, with safety regulations. Husfloen, 58 Wash.App. at 689, 794 P.2d 859. The court's description of the general contractor in Husfloen indicated that it was a business entity; the decision does not indicate that the "owner" was building his personal residence.

Finally, Smith asserts that because Myers did not hire a general contractor and because the contract with ACC did not expressly require ACC to bear responsibility for workplace safety, Myers were responsible for compliance with safety regulations. But ACC, as an employer, had a direct statutory duty to provides its employees with a safe workplace and comply with WISHA regulations regardless of the contract terms with Myers. RCW 49.17.060.

B. The "Retained Control" Exception

Smith claims that Myers had per se control over the workplace and, thus, came within the "retained control" exception to the common law rule of nonliability.

The general rule at common law is that one who engages an independent contractor is not liable for injuries to the independent contractor's...