Straw v. Esteem Const. Co., Inc.
| Decision Date | 27 August 1986 |
| Docket Number | No. 15521-1-I,15521-1-I |
| Court | Washington Court of Appeals |
| Parties | , 1986-1987 O.S.H.D. (CCH) P 27,804 Chester L. STRAW, Appellant, v. ESTEEM CONSTRUCTION COMPANY, INC., a Washington corporation, Respondent, |
Laura M. Murphy, Carney, Stephenson Badley Smith, Mueller & Spellman, Seattle, for respondent Esteem Const. Co.
David W. Gossard, J. Richard Crockett, Detels, Madden Crockett & McGee, Seattle, for appellant Chester L. Straw.
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Mr. Straw sustained injuries while working on a construction site in March 1980. Subsequently he brought this personal injury action against Esteem Construction. Esteem moved for summary judgment and Mr. Straw moved for partial summary judgment on the issue of liability. Esteem's motion was granted and Mr. Straw's motion was denied. Mr. Straw appeals. The sole issue is whether Esteem Construction, as general contractor, had a statutory or common law duty to provide Mr. Straw, as an employee of a subcontractor, a safe place to work.
Esteem contracted to construct a home for Mr. Donoghue on Mercer Island. It subcontracted the drywall work to A & M Drywall. Without Esteem's knowledge, A & M Drywall subcontracted a portion of the work to Apollo Drywall. According to Mr. Straw's deposition, on March 24, 1980, he and two other employees of Apollo went to the site to prepare it for spray texturizing. There was no one at the site that day, other than the owner who dropped by to check the progress of the work. Mr. Straw noticed an uncovered spiral staircase opening on the second floor and placed a wood plank over it to insure none of the crew would fall into it. When Mr. Straw and his men left, the plank was in place. The following day Mr. Straw and his fellow employees arrived at the site to do the spraying. He and his men were the only people at the construction site. In the process of spraying, Mr. Straw stepped into the spiral staircase opening, which was at that time uncovered, and injured himself resulting in this action.
Mr. Donoghue, the owner, in his affidavit stated that he had been on the site the morning of the accident and the plywood plank was in place. In his opinion, the plank was large enough that, in order to expose the opening, it would have to be intentionally removed. The affidavit of the owner of Esteem stated that as general contractor its role was limited to coordinating the timing of the construction. To that end, the owner of Esteem made it a regular practice to check progress at the site. The affidavit further stated the plank had been provided by Esteem because of the need to work in that corner; anything which would have obstructed that corner would have been unworkable. Additionally, the plank served the purpose of preventing someone from falling through the hole. When the owner of Esteem had occasion to check the site, he had always found it covered. On this job, Esteem followed the usual industry custom that only the drywallers would be on the site while doing their work.
Mr. Straw contends Esteem, as general contractor, had a statutory and common law duty to provide him a safe place to work.
We start with the general rule that one who engages an independent contractor is not liable for injuries to the contractor's employees resulting from the contractor's work. Epperly v. Seattle, 65 Wash.2d 777, 399 P.2d 591 (1965); Tauscher v. Puget Sound Power & Light Co., 96 Wash.2d 274, 635 P.2d 426 (1981); Restatement (Second) of Torts § 409 (1965). Several exceptions have been carved out of this rule based on common law, statute, and contractual assumption of duty. Kelley v. Howard S. Wright Constr. Co., 90 Wash.2d 323, 582 P.2d 500 (1978).
First, Mr. Straw argues Esteem owes a duty to him based on its responsibility to implement the safety measures of WAC 296-155-505:
(2) Guarding a floor opening and floor holes.
(a) Floor opening shall be guarded by a standard railing and toe boards or cover, as specified in subsection (6) of this section....
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(6) Standard specifications.
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(ii) The floor opening cover shall be capable of supporting the maximum intended load and so installed as to prevent accidental displacement.
Mr. Straw argues the plank was not installed in such a way as to prevent accidental displacement, the violation of which results in negligence per se.
Before we reach the issue of whether the Legislature intended to impose strict liability for violation of the regulation at issue, we must determine whether the regulation imposed a nondelegable duty on Esteem to insure the safety of all employees on the work site. We first turn to WAC 296-155-040 which provides:
Safe place standards. (1) Each employer shall furnish 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.
(Italics ours.) The language of this section clearly places the responsibility on both Esteem and Apollo Drywall, as employers, for furnishing a place of employment free from recognized hazards for their respective employees. However, the language of this section cannot be construed to create a nondelegable duty in Esteem for the safety of another independent contractor's employee. Ward v. Ceco Corp., 40 Wash.App. 619, 699 P.2d 814, review denied, 104 Wash.2d 1004 (1985).
The court in Ward, however, construed subsection (2) of the same regulation to impose a nondelegable duty on a subcontractor to comply with safety regulations for the benefit of an employee of a general contractor who was injured on the work site. WAC 296-155-040(2) states:
Every employer shall require safety devices, furnish safeguards, and shall adopt and use practices, methods, operations, and processes which are reasonably adequate to render such employment and place of employment safe. Every employer shall do every thing reasonably necessary to protect the life and safety of employees.
(Italics ours.) The court in Ward, section (2), held that the subcontractor, Ceco, as an "employer", had a duty to comply with the safety regulations for temporary or emergency conditions creating a danger to employees generally, including employees of other contractors. WAC 296-155-505(1).
We decline to adopt this analysis. Statutory language must be interpreted with reference to the general object and purpose of the legislation and the statutory text read as a whole. Eastlake Comm'ty Council v. Roanoke Assoc., Inc., 82 Wash.2d 475, 513 P.2d 36, 76 A.L.R.3d 360 (1973). We believe subsection (1) and (2) of WAC 296-155-040 must be construed together. Subsection (1) applies only to the contractor's own employees. Subsection (2) enunciates more specifically what that employer's duties are to such employees in order to carry out the purpose of subsection (1). The language of subsection (2) requires the employer to use such safety devices, safeguards, and practices which will render "such employment" and "place of employment" safe. Since there is no express language in the regulation creating a nondelegable duty, we will not construe one. Tauscher, 96 Wash.2d at 285-86, 635 P.2d 426. We find that WAC 296-155 does not create a nondelegable...
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