Supreme Court Confirms General Contractors Have Duties to Provide a Safe Workplace for All

Posted Friday, January 10, 2020 by Kim Sandher

This past November, the Washington State Supreme Court held, in a unanimous decision, that general contractors have a duty to maintain a safe work site (Vargas v. Inland Washington, LLC). This includes facing vicarious liability for the failure of others like subcontractors on the job site to provide a safe worksite for all. General contractors could be on the hook in four potential ways.

Background

Mr. Vargas was an employee of Hilltop Concrete Construction (the subcontractor). He was working on a construction project when he was hit in the head by a concrete-carrying hose as he was pouring concrete for a parking garage. The hose knocked off his hard hat and left him unconscious with a severe traumatic brain injury. His family sued the general contractor (Inland Washington), among others, for negligence. The trial court found that general contractors are not generalized guarantors of safety and that the general contractor could not be held vicariously liable for the negligence of its subcontractors. The Vargas family appealed, and got Supreme Court review. The Supreme Court reversed, holding that general contractors have expansive statutory and common law duties to provide a safe workspace and that those duties may potentially have been breached. The Court relied on two theories under direct liability and two theories under vicarious liability.

Four Theories Relied on by the Court

Direct Liability - the general contractor has 1) a common law duty to maintain a safe workplace and 2) a statutory duty to comply with Washington Industrial Safety and Health Act (WISHA).

Common Law

When a general contractor engages a subcontractor and retains control over the work, the general contractor has a duty, within the scope of that control, to provide a safe work place. The general contractor must ensure 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 is up to the judge or jury to determine if the general contractor breached a duty.

WISHA

Under WISHA, a general contractor owes a duty of safety to all employees on the premises, even if they are not the general contractor’s employees. RCW 49.17.060(2). The duty does not depend on the general contractor’s control of the premises. The question for the judge or jury will be whether the general contractor breached its duty to abide by WISHA.

Vicarious Liability - the general contractor may be vicariously liable for negligence if 1) it delegates its duty to comply with WISHA and 2) if exercises control over any entity.

WISHA Delegation

WISHA’s duty cannot be delegated. If the general contractor delegates it to a subcontractor, it will be liable for the subcontractor’s breach.

Control

The test for control is not the actual interference with the work of the subcontractor, but the right to exercise such control, like supervisory functions. So it follows, that if the general contractor exercised control over the jobsite, and one of the subcontractors is found negligent, then the general contractor will be vicariously liable for the negligence of the subcontractor. The Court said 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.

What does this mean for General Contractors?

The Court’s big concern was jobsite safety and compliance with safety regulations. However, general contractors can still find a way out of liability by signing indemnity agreements and immunity waivers with subcontractors. RCW 4.24.115. If you want to update your contracts to include supplemental agreements or if you need a review of your safety procedures, please let us know.

If you want to update your contracts to include supplemental agreements or if you need a review of your safety procedures, please contact Kim Sandher at (206) 804-1490 or KSandher@PivotalLawGroup.com.