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Degroot v. Berkley Construction Inc.

August 15, 1996


Appeal from SUPERIOR COURT SPOKANE COUNTY. Superior Court No: 92-2-02467-0. Date filed in Superior Court: 4/12/94. Superior Court Judge signing: TARI EITZEN.

As Corrected.

Author: John A. Schultheis. Concurring: Ray E. Munson & Dennis J. Sweeney

The opinion of the court was delivered by: Schultheis

SCHULTHEIS, J. -- Gary Degroot was injured while working on a construction site and sued general contractors, Berkley Construction, Inc., and Sabey Corporation (Berkley/Sabey). *fn1 The jury found that Berkley/Sabey were not at fault. Mr. Degroot appeals, contending the court erred in admitting the contract between Sabey and subcontractor Eller Corporation, Mr. Degroot's employer. We affirm.

Mr. Degroot was a backhoe operator, one of a team working around-the-clock to expand the Northtown shopping mall in Spokane. Late one night in June 1989, Mr. Degroot fell and injured his back as he exited the cab of his backhoe. He sued Berkley/Sabey for negligence and violation of the Washington Industrial Safety and Health Act of 1973 (WISHA), RCW 49.17.

Before trial, Mr. Degroot moved to exclude a subcontract "health and safety" provision. This section provides that the subcontractor (Eller) must strictly comply with all safety regulations and must protect its own employees from risk of harm or death. It also requires indemnification by the subcontractor for any liability the general contractor suffers as a result of the subcontractor's violation of safety regulations. At the hearing on the motion in limine, the parties agreed that a general contractor has a nondelegable duty to furnish a reasonably safe working environment for its workers. Stute v. P.B.M.C., Inc., 114 Wash. 2d 454, 788 P.2d 545 (1990). Mr. Degroot asserted the safety provision gave the impression this duty was delegated to Eller. Berkley/Sabey argued the provision merely represented one of the steps used by the contractors to exercise reasonable care. The court ordered admission of the safety provision.

At trial, the court included the following limiting instruction proposed by Mr. Degroot:

Exhibit 103 [the safety provision] was received in evidence for a limited purpose relating to whether [Berkley/Sabey] exercised due care in carrying out its duties under WISHA administrative regulations. It was not received in evidence for the purpose of showing that those WISHA duties had been delegated to Eller Corporation.

The parties agreed to another instruction informing the jury that a general contractor must exercise ordinary care to provide for compliance with safety regulations on the job site. By special verdict, the jury found that the general contractors were not negligent. The court entered judgment on the verdict in April 1994 and this appeal followed.

Mr. Degroot contends the court erred in admitting into evidence the safety provision from the subcontract. The pertinent sections of this provision are as follows:

30. HEALTH AND SAFETY. Subcontractor shall, at its own cost and expense, protect its own employees, employees of Contractor, and all other persons from risk of death, injury or bodily harm arising out of or in any way connected with the work to be performed under this Subcontract.

Subcontractor shall strictly comply with all safety orders, rules, regulations or requirements of all federal, state and local government agencies, exercising safety jurisdiction over said work including, but not limited to, federal OSHA and state occupational safety and health regulations.

Mr. Degroot argues first, that the evidence was not relevant to the issue of Berkley/Sabey's negligence, and second, that even if relevant, the evidence should have been excluded as misleading.

In order to be admissible, evidence must be relevant, meaning it must tend to make the existence of any fact of consequence to the action more or less probable. ER 401, 402; State v. Luvene, 127 Wash. 2d 690, 706, 903 P.2d 960 (1995); Wallace Real Estate Inv., Inc. v. Groves, 72 Wash. App. 759, 771, 868 P.2d 149, aff'd, 124 Wash. 2d 881, 881 P.2d 1010 (1994). Even if relevant, evidence may be excluded if its probative value is substantially outweighed by the likelihood it will mislead the jury. Luvene, 127 Wash. 2d at 706; ER 403. The trial court's decision to admit or exclude evidence and the court's balancing of probative value against prejudicial effect are entitled to "a great deal ...

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