Stute v. P.B.M.C., Inc.

• Decision Date: 29 March 1990
• Docket Number: No. 56267-9,56267-9
• Citation: 788 P.2d 545,114 Wn.2d 454
• Parties: Andre STUTE, Petitioner, v. P.B.M.C., INC., a Washington corporation, Respondent.
• Court: Washington Supreme Court

Page 454

114 Wn.2d 454

788 P.2d 545

Andre STUTE, Petitioner, v. P.B.M.C., INC., a Washington corporation, Respondent.

No. 56267-9.

Supreme Court of Washington En Banc.

March 29, 1990.

Brown, Crosta & Brown, Bradley K. Crosta, Sinsheimer & Meltzer, P.S., Ronald J. Meltzer, Seattle, for petitioner.

Lee, Smart, Cook, Martin & Patterson, P.S., Ronald C. Gardner, Seattle, for respondent.

UTTER, Justice.

Petitioner seeks review of a Court of Appeals decision denying his motion to modify the Commissioner's ruling. The Commissioner of the Court of Appeals ruled that, as general contractor, respondent did not owe thepetitioner, an employee of a subcontractor, a duty to comply with regulations promulgated under the Washington Industrial Safety and Health Act of 1973 (WISHA). We reverse the Commissioner's ruling, and hold the general contractor has a duty to comply with all pertinent safety regulations with respect to every employee on the job site.

P.B.M.C., Inc., a general contractor, contracted with Lincoln Highland Village Associates to construct a condominium complex. P.B.M.C. orally subcontracted with S & S Gutters to install gutters and downspouts. On March 13, 1984, Mr. Stute, an employee of S & S Gutters, was installing gutters and slipped off the roof, falling three stories. The roof was slippery from recent rain. There was no scaffolding or other safety equipment to break the fall. Mr. Stute fractured three vertebrae and a bone in one foot. P.B.M.C. knew that employees of the subcontractor were working on the roof without safety devices.

Stute sued P.B.M.C. alleging it owed him a duty to provide necessary safety devices at the job site. P.B.M.C. moved for summary judgment, which was granted. The trial court found the general contractor did not owe Stute, an employee of a subcontractor, a duty to provide safety equipment because the general contractor had not voluntarily assumed the duty in its contract with the owner or subcontractor. It also found P.B.M.C. had not retained authority to control the safety practices of the subcontractor. Stute moved for reconsideration, which was denied. Stute appealed to the Court of Appeals. P.B.M.C., meanwhile, moved for dismissal on the merits. The Commissioner of the Court of Appeals granted P.B.M.C.'s motion and summarily affirmed the trial court's decision. He found that P.B.M.C. owed Stute no duty because Stute was not an employee of P.B.M.C., relying on Straw v. Esteem Constr. Co., 45 Wash.App. 869, 728 P.2d 1052 (1986). Mr. Stute moved to modify the Commissioner's ruling claiming that Straw conflicts with two of this court's decisions as well as a Court of Appeals decision. The Court of Appeals denied his motion. Mr. Stute then petitioned this court for review. We granted the petition for review on September 5, 1989.

I

The Commissioner erred in ruling that the statutory directive to employers to comply with safety regulations applies only to direct employees and not to employees of subcontractors.

The Washington Industrial Safety and Health Act of 1973 is codified at chapter 49.17 of the Revised Code of Washington. RCW 49.17.060 provides:

Each employer:

(1) 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 ... and

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

WAC 296-155-040 provides in part:

(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.

(2) 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.

RCW 49.17.060 creates a two-fold duty. Adkins v. Aluminum Co. of Am., 110 Wash.2d 128, 153, 750 P.2d 1257, 756 P.2d 142 (1988). Subsection (1) imposes a general duty on employers to protect only the employer's own employees from recognized hazards not covered by specific safety regulations. Subsection (2) imposes a specific duty to comply with WISHA regulations. Adkins, 110 Wash.2d at 153, 750 P.2d 1257, 756 P.2d 142. Thus, the employer's liability depends upon which section is being invoked. The employer's duty only extends to employees of independent contractors when a party asserts that the employer did not follow particular WISHA regulations. In such a case, all employees working on the premises are members of the protected class. Adkins, 110 Wash.2d at 153, 750 P.2d 1257, 756 P.2d 142.

The court in Adkins followed Goucher v. J.R. Simplot Co., 104 Wash.2d 662, 709 P.2d 774 (1985). The court described the two-fold duty under RCW 49.17.060, and then determined that the specific duty clause is not confined to just the employer's own employees but applies to all employees who may be harmed by an employer's violation of the WISHA regulations. Goucher, 104 Wash.2d at 672, 709 P.2d 774. This furthers the purpose of WISHA to assure safe and healthy working conditions for every person working in Washington. Goucher, 104 Wash.2d at 673, 709 P.2d 774, citing RCW 49.17.010. ¹ Thus, the specific duty clause of RCW 49.17.060(2), requiring employers to comply with applicable WISHA regulations, applies to employees of subcontractors.

The language of the statute supports this difference in the beneficiaries of the duty. Subsection (1) uses the term "his employees," while subsection (2) refers only to employees. WAC 296-155-040 subsections (1) and (2) contain the same distinction.

Petitioner contends that the interpretation of the statutory duty made by the Commissioner in reliance on Straw v. Esteem Constr. Co., 45 Wash.App. 869, 728 P.2d 1052 (1986), conflicts with this Court's holdings in Adkins v. Aluminum Co. of Am., supra, and Goucher v. J.R. Simplot Co., supra, and another Court of Appeals decision, Ward v. Ceco Corp., 40 Wash.App. 619, 699 P.2d 814, review denied, 104 Wash.2d 1004 (1985).

In Ward v. Ceco Corp., supra, Division One of the Court of Appeals interpreted WAC 296-155-040(1) as a duty to provide a safe place of employment only with respect to the employees of each employer, and WAC 296-155-040(2) as a duty to install safety devices required by the regulations for the safety of employees generally. Ward, 40 Wash.App. at 624, 699 P.2d 814. In this case, the employer had created the situation that caused the injury. Therefore, it had a nondelegable duty to install safety equipment.

The Ward interpretation of WAC 296-155-040 was rejected by Division Three of the Court of Appeals. Straw, 45 Wash.App. at 873, 728 P.2d 1052. The court felt that when construed as a whole, the two subsections both apply only to an employer's own employees. Straw, 45 Wash.App. at 874, 728 P.2d 1052. Division Three concluded, therefore, that the general contractor had no nondelegable duty to furnish safety devices to employees of subcontractors.

In deciding P.B.M.C.'s motion, the Commissioner determined that P.B.M.C. owed Mr. Stute no duty. Stute argued that P.B.M.C. violated a statutory duty by failing to comply with regulations promulgated under WISHA which require scaffolding or other safety equipment. The Commissioner recognized that RCW 49.17.060 creates a general duty running only to the employers' own employees and a specific duty that runs to all employees on the job site. He then ignored the specific duty and found that WAC 296-155-040 imposes a duty on employers only with respect to the employer's own employees. The Commissioner based this finding on Straw v. Esteem Constr. Co., supra at 873-74, 728 P.2d 1052. Accordingly, he held that P.B.M.C. had no statutory duty to Stute because Stute was not an employee of P.B.M.C. Although decided after Goucher, the Court of Appeals in Straw did not mention the Supreme Court case.

Adkins and Goucher discuss only RCW 49.17.060. Ward and Straw interpret WAC 296-155-040. The statute and regulation, however, mirror one another. Subsections (1) of both provisions are identical and the mandate of RCW 49.17.060(2) is put into effect by WAC 296-155-040(2). It is incongruous to say that WISHA imposes both a general and a specific duty, but that the regulations effectuate only the general duty. The most logical reading of the statute and the regulation is that subsection (1) of each contains the general duty and subsection (2) of each contains the specific duty.

Goucher makes this clear when it stated, "WISHA regulations should be construed to protect not only an employer's own employees, but all employees who may be harmed by the employer's violation of the regulations." 104 Wash.2d at 672, 709 P.2d 774. Thus, Straw and the Commissioner conflict with this court's holdings that the WISHA regulations apply to employees of independent contractors as well as direct employees of an employer. Employers must comply with the WISHA regulations to protect not only their direct employees but all employees on the job site.

II

Even if Stute is within the class of persons protected by the statute, P.B.M.C. argues that before an employer has a duty to take particular safety measures under WISHA, it must control the work of the subcontractor.

The concept of control comes from the common law exception to nonliability of an employer to independent contractors. At common law, one who hires an independent contractor is not generally liable for injuries to employees of the independent contractor. Kelley v. Howard S. Wright Constr. Co., 90 Wash.2d 323, 330, 582 P.2d 500 (1978). An exception is where the employer retains control over some part of the work. Kelley, 90 Wash.2d at 330, 582 P.2d 500. In such a case, a duty of care arises. The question is the amount of control necessary to...