On November 21, the Washington State Supreme Court held that general contractors may be on the hook for the injuries of the workers on their jobsites (Vargas v. Inland Washington, LLC). And not just on the hook to provide a safe jobsite for all, but for the injuries of its subcontractor’s workers. And not on the hook in one way, but potentially four ways.
The plaintiff, Mr. Vargas, was an employee of a subcontractor who was struck in the head by a whipping concrete hose as he was pouring the concrete walls for a parking garage. The hose knocked off his hard hat, leaving him unconscious and ultimately with a traumatic brain injury.
The Vargas family sued the general contractor, the concrete supplier, and the concrete pumper subcontractor for negligence. The general contractor moved for summary judgment, which the trial court eventually granted, finding that general contractors are not generalized guarantors of jobsite safety, and that the general contractor could not be held vicariously liable for the negligence of its subcontractors. The Vargas family appealed, and eventually got Supreme Court review. The Supreme Court reversed the grant of summary judgment, holding that “[g]eneral contractors have expansive statutory and common law duties to provide a safe workspace” and that those duties may potentially have been breached here.
To justify its broad holding, the Court laid out two theories under direct liability (common law and the Washington Industrial Safety and Health Act (WISHA)) and two theories under vicarious liability (WISHA delegation and jobsite control).
First, under direct liability, the general contractor has a common law duty to maintain a safe workplace, period. Second, the general contractor has a statutory duty to comply with WISHA.
Under common law, when the general contractor engages a subcontractor and retains control over some or part of the work, the general contractor has a duty, within the scope of that control, to provide a safe place of work. The test of control is not the actual interference with the work of the subcontractor, but the right to exercise such control, including supervision.
The general contractor argued that it did not have a duty in “non-common work areas,” where an expert subcontractor is present and the general contractor is not. But the Court didn’t buy it. It confirmed that the general contractor must ensure that the area is safe regardless of whether the general contractor is present –it may not shirk its duties merely by vacating the premises. This duty extends to all employees, and subcontractors and their employees. It will be up to the trier of fact to determine if the general contractor breached a duty.
Under WISHA, the general contractor owes a specific duty of safety to all employees on the premises, even if they are not the general contractor’s employees. RCW 49.17.060(2). That duty does not depend on the general contractor’s control of the premises, as “a general contractor has per se control over the workplace for purposes of WISHA compliance.” The Court held that the general contractor is in the best position to coordinate work or provide expensive safety features to protect employees of subcontractors. With that said, the question for the trier of fact will be whether the general contractor breached its duty to abide by WISHA.
Under vicarious liability, the general contractor may not delegate its statutory duty to comply with WISHA, but if it does it will be vicariously liable for the negligence of the entity to whom it delegated that responsibility. Second, the general contractor will be vicariously liable for the negligence of any entity over which it exercises control. This means, the vicarious liability hook relies on the breach of the subcontractors. Since, the negligence claims on these parties were stayed pending this decision, the general contractor’s exposure won’t be determined until those cases are tried.
WISHA’s statutory duty is non-delegable and if the general contractor delegates it to a subcontractor it will be liable for the subcontractor’s breach. To the extent that the general contractor claims that it delegated its duties to subcontractors, it faces potential liability for any breach of those delegated duties found by the trier of fact.
The Court emphasized that general contractors should be treated differently from jobsite owners and that the test for control is not the actual interference with the work of the subcontractor, but the right to exercise such control and that includes supervisory functions. So it follows, that if the general contractor exercised control over the jobsite, and one of the subcontractors are found negligent, then the general contractor will be vicariously liable for the negligence of the subcontractor.
In response, the general contractor made two arguments. First, it warned that the reasoning regarding “control” is akin to strict liability and could make general contractors insurers of every worker on a project. But, the Court pointed out that strict liability is not vicarious liability because the former does not depend on proof of negligence or intent to do harm, and the latter is liability for the breach of another’s duty.
Second, it argued that general contractors would be forced to extract specific contractual concessions from subcontractors in the form of indemnity agreements and immunity waivers, which would result in the subcontractor having to pay for workplace injuries to its employees—the very situation that workers compensation statutes try to avoid. The Court, however, said that was exactly correct and the intended result—general contractors can demand indemnity from subcontractors for the subcontractor’s own negligence, and if the subcontractor’s negligence causes the injury, that subcontractor will be liable to the general contractor (which effectively means that that workers compensation shield does nothing if the subcontractor would otherwise be liable for the injury).
This holding is not all doom and gloom for general contractors—there is hope in the form of indemnity agreements and immunity waivers. RCW 4.24.115. It seemed like the Court was tossing general contractors a lifeline, a reminder, that there’s support in supplemental agreements. The Court also cared about jobsite safety and was clear that general contractors must take responsibility for their duty to provide safe workspaces—they can’t shirk it. General contractors should seek to create a “culture of safety” and have job specific tailored accident prevention plans with on the job review of the safety. WAC 296-155-100(1); WAC 296-155-110(2), (3)(g).
The State Court has spoken and now it’s up to the trier of fact to determine whether any of the four hooks will hold. In the meantime, if you want to update your contracts to include supplemental agreements or if you need a review of your safety procedures, let us know.