Tauscher v. Puget Sound Power and Light Co.

• Decision Date: 15 October 1981
• Docket Number: No. 46952-1,46952-1
• Citation: 635 P.2d 426,96 Wn.2d 274
• Parties: Alice Marie TAUSCHER as Personal Representative of the Estate of Steven Ronald Shaw, Appellant, v. PUGET SOUND POWER AND LIGHT COMPANY, a Washington corporation; and Potelco, Inc., a Washington corporation, Respondents.
• Court: Washington Supreme Court

Page 274

96 Wn.2d 274

635 P.2d 426

Alice Marie TAUSCHER as Personal Representative of the Estate of Steven Ronald Shaw, Appellant, v. PUGET SOUND POWER AND LIGHT COMPANY, a Washington corporation; and Potelco, Inc., a Washington corporation, Respondents.

No. 46952-1.

Supreme Court of Washington, En Banc.

Oct. 15, 1981.

Lucas, Glase & Chicoine, James D. Sherman, Bellevue, for appellant.

Perkins, Coie, Stone, Olsen & Williams, Charles C. Gordon, Jane Noland, Aiken, St. Louis & Siljeg, Charles E. Siljeg, Seattle, for respondents.

DIMMICK, Justice.

This case involves a wrongful death action brought by the estate of an employee of an independent contractor against an electric company. At issue is whether a public utility owes a nondelegable duty to employees of the utility's independent contractors to take reasonable precautions against work which is inherently dangerous or to ensure compliance with the safety mandates of statutes and administrative rules. The trial court found no such duty and granted summary judgment on the pleadings in favor of Puget Sound Power and Light Company (Puget Power). We affirm.

In July of 1978, Potelco, Inc. (Potelco) contracted with respondent Puget Power to perform certain work for Puget Power. The work was designated as the White River to Olympia 55 KV Rebuild (White River Rebuild). Potelco assigned apprentice lineman Steven Shaw to work on the White River Rebuild along with foreman Ray Matheson and fellow journeyman Rod Johnston as part of a 4-man crew.

On September 1, 1978, the date of the accident, Shaw had climbed a telephone pole using climbing apparatus, and was connecting copper wire between the energized high voltage lines above him and an apparatus attached to the pole known as a "cut out". He was alone on the pole, working within two feet of the energized high voltage line without any protective barriers to cover and insulate the line in violation of safety rules. In addition, although an apprentice, Shaw was performing a journeyman's task and was without adequate supervision. Johnston was working at the next pole north, but was in an insulated bucket rather than using climbing apparatus. Matheson and a fourth member of the crew were on the ground at or between the two poles. While alone on his pole, and within two feet of the energized high voltage lines, Shaw, while handling some copper wire sent up to him from the ground, came in contact with the high voltage line and was electrocuted.

Shaw's mother, plaintiff/appellant Alice M. Tauscher, acting in the capacity of personal representative of her son's estate, brought a wrongful death suit against respondent Puget Power, decedent's union, and Rod Johnston. Since the workers' compensation act limited the liability of Potelco, it was not made a defendant. However, by subrogation contract with defendant, Potelco was made a third party defendant. Only claims against Puget Power will be discussed as the summary judgment applied only to it.

Tauscher alleged that Puget Power violated statutory and common law duties owed by respondent to Shaw, which were the proximate cause of Shaw's death. Specifically, appellant alleged that Puget Power owed Shaw a nondelegable duty to insure that safety requirements were complied with on the basis of (1) the inherently dangerous nature of Shaw's work, (2) the provisions in RCW 19.29.010, RCW 80.28.010, and WAC 296-45, and (3) the fact that Puget Power was a public franchise. Appellant further contended that the safety provisions were violated and that the violations led to Shaw's death. Appellant made no allegations that Puget Power was negligent in hiring Potelco, that Puget Power maintained any control over the work site, or that there were any physical defects in Puget Power's equipment or the work site. In response, Puget Power claimed that appellant failed to state a cause of action on any theory against it, and that the proximate cause of the death of Shaw was through either his own negligence, or that of others not under Puget Power's control.

I

The common law rule is that one who engages an independent contractor is not liable for injuries to employees of the independent contractor resulting from the contractor's work. Fenimore v. Donald M. Drake Constr. Co., 87 Wash.2d 85, 94, 549 P.2d 483 (1976); Seattle Aerie No. 1 of the Fraternal Order of Eagles v. Commissioner of Unemployment Compensation and Placement, 23 Wash.2d 167, 171-72, 160 P.2d 614 (1945); Bowen v. Smyth, 68 Wash. 513, 123 P. 1016 (1912); Campbell v. Jones, 60 Wash. 265, 267, 110 P. 1083 (1910); W. Prosser, Handbook of the Law of Torts § 468 (4th ed. 1971). Courts have recognized exceptions 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). Appellant argues that Puget Power was liable for the death of Shaw based on the existence of several of these exceptions to the common law rule.

The decisions of this court have recognized the liability of the employer of an independent contractor to third persons injured by the negligence of the contractor in the performance of work of an inherently dangerous nature. See Epperly v. Seattle, 65 Wash.2d 777, 781, 399 P.2d 591 (1965); Kendall v. Johnson, 51 Wash. 477, 481, 99 P. 310 (1909). See also Engler v. Seattle, 40 Wash. 72, 82 P. 136 (1905). In the present case the issue is whether the liability in such cases extends to the employees of an independent contractor.

Appellant cites to Kelley as standing for that proposition. This reliance on Kelley is misplaced. In Kelley, an ironworker's guardian ad litem sued a construction site general contractor after the worker fell 29 feet from a beam on which he was working. Our decision, holding Howard S. Wright Construction Company liable was primarily based on the fact that Howard S. Wright, as the general contractor on a multi-employer project, retained control over the common work area and thus had the duty, within the scope of that control, to provide a safe place to work for all employees. Kelley, supra, 90 Wash.2d at 332-33, 582 P.2d 500. We did, however, recognize three other exceptions to the general rule of nonliability, including liability based upon the existence of inherently dangerous work. Without analyzing the inherently dangerous exception or Washington case law, we concluded:

Another ground for imposing a duty of care on Wright under the common law of tort is the inherently dangerous nature of the work respondent Kelley was doing. When work by its very nature creates some peculiar risk of injury, and the general contractor has reason to know of the inherent hazards of the work, the general contractor has a duty to take reasonable precautions against those hazards.

Kelley, supra at 332, 582 P.2d 500. Our landmark case of Epperly, supra, was not cited in the Kelley opinion. Appellant claims Epperly was overruled sub silentio, while respondent contends it controls in the instant case. We agree with respondent.

In Epperly v. Seattle, supra, a worker, Guy Epperly, died when struck by a falling cable while working on High Gorge Dam on the Skagit River. He was an employee of the contractor with whom the City had contracted to perform the work. Inspection rights were reserved to the City. The cable, which failed, was placed by the contractor, was solely under the contractor's control and not a part of the dam as it was to be completed. We held that the owner of land who hires an independent contractor to perform work thereon is not liable for injuries to an employee of the contractor resulting from the ultrahazardous activity of the contractor because the rule that an owner has a nondelegable duty to see that the work is performed with the requisite care is for the benefit of third parties not engaged in promoting the activity.

Other jurisdictions which have faced this issue are divided over whether employers of an independent contractor owe to the employees of the contractor a nondelegable duty of care based on the presence of an inherently dangerous activity. Several jurisdictions have held that such a nondelegable duty is owed to employees of independent contractors. ¹ The overwhelming number of jurisdictions which have resolved this issue have found, however, that no duty is owed by an owner to employees of an independent contractor. ² We adhere to the rule reaffirmed in the Epperly case that the employer's liability does not extend to employees of independent contractors merely because of the presence of inherently dangerous activities. Kelley merely recognizes a possible exception when the owner or general contractor knows of inherent hazards of the work, and is in a position to protect against them. We do not have such a factual situation before us.

Although electrical work is considered by most to be an inherently dangerous activity, it is not necessarily inherently dangerous to experienced linemen. In Humphreys v. Texas Power & Light Co., 427 S.W.2d 324, 330 (Tex.Civ.App.1968), involving an identical factual situation as the case at hand, the Texas Supreme Court wrote:

(U)nder the circumstances here presented where it is undisputed that appellant was an experienced electrical lineman and since he fully knew, realized and appreciated the danger incident to working around energized lines, it cannot be said that the work falls in the category of being inherently dangerous as that term is generally applied. It has been held that work performed on or near electrical lines is not inherently dangerous work.

(Citations omitted.) See also Epperly, supra, 65 Wash.2d at 782, 399 P.2d 591; Restatement (Second) of Torts §§ 519, 523 (1965). We follow the majority of jurisdictions that have reached this question. Support for the exception to the rule on nonliability is expressed in sections 413, ³ 414, ⁴ 416 ⁵ and 427 ⁶ of the Restatement (Second) of Torts. This exception appears to have as its basis the principle...