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Rogers v. Irving

March 24, 1997

JULIUS ROGERS, APPELLANT,
v.
DANIEL IRVING, RESPONDENT.



Appeal from Superior Court of Snohomish County. Docket No: 95-2-00945-8. Date filed: 08/29/95. Judge signing: Hon. Gerald L. Knight.

Authored by Mary K. Becker. Concurring: Ann L. Ellington, William W. Baker

The opinion of the court was delivered by: Becker

BECKER, J. -- Daniel Irving employed Righteous Roofers to put a roof on the house he was building for himself. Julius Rogers, an employee of Righteous Roofers, slipped and fell from the roof and broke his leg. Rogers sued Irving for failure to provide a fall arrest system. Upon Irving's motion for summary judgment dismissal, the trial court dismissed Rogers' claims. We affirm because Irving is not an employer under the Washington Industrial Safety and Health Act (WISHA), and because he owed Rogers no common law duty of care.

Because this is an appeal from summary judgment dismissal of plaintiff's claims, this court engages in de novo review. *fn1 We construe the facts in the light most favorable to Rogers. *fn2

Facts

Daniel Irving, a carpenter, bought property on which he intended to build his home. He drafted plans for the home, cleared the land, and framed the house and garage himself. When framing, he established the design that the roof would assume, and made a design decision that the roof would sit at a relatively steep eight-twelve pitch. For jobs outside his expertise, such as plumbing, heating and roofing, he hired independent contractors. To install the roof, Irving hired Righteous Roofing. He neither inspected the work of Righteous Roofing nor paid attention to what kind of safety equipment they used. Irving was on the job site often, but only to take care of details unrelated to construction of the roof.

Righteous Roofing employed Julius Rogers to construct the roof of Irving's house and garage. While working in the rain on the roof of the garage, Rogers slipped on wet plywood and slid down the roof. When he reached the edge of the roof, Rogers dropped 12 - 14 feet to the ground and suffered a compound fracture of his tibia. Neither Rogers nor any other person working on the roof used safety lines to prevent a fall.

Rogers sued Irving for negligently failing to ensure that safety equipment was used by the roofers. Rogers claimed that Irving owed him both a statutory and a common law duty of care. The court below found that Rogers failed to establish a duty under either theory, and dismissed Rogers' claims with prejudice.

Statutory Duty of Care

The Washington Industrial Safety and Health Act imposes duties on an "employer", as follows:

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:

PROVIDED, That no citation or order assessing a penalty shall be issued to any employer solely under the authority of this subsection except where no applicable rule or regulation has been adopted by the department covering the unsafe or unhealthful condition of employment at the work place; and

(2) Shall comply with the rules, regulations, and orders promulgated under this chapter. *fn3

Only subsection (2) is at issue in the present case. The Supreme Court held in Stute v. P.B.M.C., Inc., *fn4 that subsection (1) imposes a duty on employers only to protect their own direct employees. By contrast, subsection (2) imposes a specific duty on employers to comply with WISHA safety regulations. *fn5 "Employers must comply with the WISHA regulations to protect not only their direct employees but all employees on the jobsite." *fn6

Rogers claims, and Irving denies, that Irving is an "employer" under subsection (2). Employers, according to regulations promulgated under WISHA, must ensure that fall arrest systems are provided to employees who are exposed to falling more than 10 feet. *fn7 If Irving is an employer, his failure to see to the presence of a fall arrest system constitutes a violation of his statutory ...


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