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Millican v. N.A. Degerstrom, Inc.

Court of Appeals of Washington, Division 3

November 15, 2013

Dorothy A. MILLICAN, as Personal Representative of the Estate of Daren M. Lafayette, and on her own behalf as statutory beneficiary, Appellant,
v.
N.A. DEGERSTROM, INC., a Washington corporation, Respondent, MICO, Incorporated, a Minnesota corporation; James R. Bonner and Jane Doe Bonner, husband and wife and the marital community comprised thereof, d/b/a Industrial Power Brake Company; John Doe Manufacturer, 1 through 10; John Doe Corporations, 1 through 10, Defendants.

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[Copyrighted Material Omitted]

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Roger A. Felice, Michael vs Felice, Felice Law Offices PS, Spokane, WA, Jason Wayne Anderson, Carney Badley Spellman PS, Seattle, WA, for Appellant.

Steven Robert Stocker, Stocker, Smith, Luciani & Staub PLLC, Spokane, WA, Edward G. Johnson, Law Offices of Raymond Schutts, Liberty Lake, WA, for Defendants.

Lori Kay O'tool, Megan Maria Coluccio, Earl Maier Sutherland, Preg O'Donnell & Gillett, Seattle, WA, for Respondent.

Douglas R. Roach Ahlers & Cressman PLLC Seattle, WA, Amicus Curiae on behalf of Associated General Contractors of Washington.

SIDDOWAY, A.C.J.

[177 Wn.App. 885] ¶ 1 Dorothy Millican's 19-year-old son, Daren Lafayette, was killed in a job related accident while working construction on the Flowery Trail Road, located in Stevens and Pend Oreille counties. As personal representative of her son's estate and claiming rights as a statutory beneficiary, she brought a wrongful death action against the general contractor, N.A. Degerstrom Inc., and others. The jury returned a defense verdict from which Ms. Millican appeals.

¶ 2 Ms. Millican contends on behalf of her son's estate that the trial court erred in (1) admitting evidence that Degerstrom contractually delegated sole responsibility for the safety of employees to its subcontractors, (2) denying the estate's motion for a new trial, and (3) refusing to instruct the jury that Degerstrom owed a duty to the public traveling through the construction site. She argues individually that the court erred in dismissing her claims on the basis that she did not qualify as a statutory beneficiary.

¶ 3 We conclude that it was an abuse of discretion for the trial court to deny the estate's motion seeking to limit Degerstrom's evidence and argument that it required Mr. Lafayette's employer to assume sole responsibility for the protection and safety of its own employees. [177 Wn.App. 886] Degerstrom's mischaracterization to this effect pervaded its presentation and could not be cured by the concluding instructions to the jury. The estate and Ms. Millican fail to demonstrate any other error, however.

¶ 4 We affirm the trial court's dismissal of Ms. Millican's individual claim but reverse the judgment on the jury's verdict and remand for a retrial of the estate's claims.

FACTS AND PROCEDURAL BACKGROUND

¶ 5 In April 2005, the United States Department of Transportation Federal Highway Administration awarded N.A. Degerstrom Inc. a contract to improve a five-mile stretch of Flowery Trail Road. Degerstrom subcontracted with Sharp-Line Industries Inc. to install signs and paint road stripes. The subcontract agreement required Sharp-Line to indemnify Degerstrom from any liability it suffered as a result of Sharp-Line's negligence. The subcontract also contained the following provision imposing responsibility on Sharp-Line for work site safety:

Subcontractor accepts responsibility to prevent accidents to any person who may be close enough to its operation to be exposed to Subcontractor's work-related hazards. Subcontractor shall be solely responsible for the protection and safety of its employees, for final selection of additional safety methods and means, and for daily inspection of its work area and safety equipment. Failure on the part of Contractor to stop unsafe Subcontractor practices shall in no way relieve Subcontractor of its responsibility hereunder. Subcontractor shall conform to Contractor's site-specific safety plan(s) and policies as directed

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by Contractor in writing or by Contractor's project supervisor.

Clerk's Papers (CP) at 3227.

¶ 6 One of Sharp-Line's vehicles used on the Flowery Road project was a 1978 Chevrolet auger truck used to drill holes in the ground for sign posts. The truck was equipped with outriggers, which were extended to stabilize it while the auger was being used, and a hydraulic tamper that [177 Wn.App. 887] compacted soil around the sign posts. The auger and tamper were powered by a device that used the truck's transmission to transmit power from the engine. To engage the device, the truck's engine had to be running and the transmission had to be in neutral.

¶ 7 On the day Mr. Lafayette was killed, he and Sharp-Line's crew foreman, William Wright, were installing highway signs. Toward the end of the day, Mr. Wright parked the auger truck facing downhill and Mr. Lafayette and Mr. Wright began installing the last sign. Another subcontractor had set up traffic control with pilot cars because the auger truck encroached on the roadway. Mr. Wright put the truck in the parking gear, left the engine on, and engaged a supplemental brake device called a lever lock, which locks hydraulic fluid in the braking system. He did not, however, set the emergency brake or chock the tires. The men walked around behind the truck and Mr. Wright deployed the outriggers as he drilled a hole for the sign post. Mr. Wright then retracted the outriggers while the two men installed the sign post and began compacting soil around the post with the hydraulic tamper.

¶ 8 As he worked, Mr. Wright saw Mr. Lafayette suddenly drop the tamper and begin running after the truck, which was rolling across the road. Mr. Lafayette managed to pull himself into the cab and steer the truck away from a line of vehicles following a pilot car in the opposite lane. One of the drivers of the vehicles later testified that a collision seemed inevitable until Mr. Lafayette turned the wheels. Apparently the brakes had failed, because Mr. Lafayette was unable to slow or stop the truck. The truck continued to accelerate as Mr. Lafayette steered it down the hill where it unavoidably crashed, causing his death.

¶ 9 Dorothy Millican was appointed the personal representative of her son's estate and, on behalf of the estate, sued Degerstrom, Mico Inc. (the manufacturer of the lever lock), and James and Jane Doe Bonner d/b/a Industrial Power Brake (who had done maintenance and repair of the [177 Wn.App. 888] auger truck) for damages for wrongful death. She asserted an individual cause of action as well, " as a statutory beneficiary defined in RCW 4.20.020," a provision of the wrongful death statute. CP at 8.

¶ 10 In suing Degerstrom, she alleged that it had a nondelegable duty as general contractor to ensure Sharp-Line's compliance with health and safety regulations and contractual safety duties, had allowed " illegal, unsafe, ultra-hazardous practices resulting in an unsafe work place," CP at 20, and had thereby proximately caused her son's death.

¶ 11 Before trial, the court granted the defendants' joint motion for partial summary judgment dismissing Ms. Millican's individual wrongful death claim. It found no evidence creating a genuine issue of fact that she was dependent on her son for support qualifying her as a beneficiary under RCW 4.20.020. It denied the estate's motion in limine to exclude evidence or argument by Degerstrom that it did not exercise or retain supervisory control or authority over Sharp-Line during construction operations. At the conclusion of a three-week trial, the jury found none of the defendants liable. The trial court denied the estate's motion for a new trial against Degerstrom and Mr. Bonner. The estate and Ms. Millican appealed.

ANALYSIS

¶ 12 Ms. Millican, on behalf of the estate and individually, makes four assignments of error. In the published portion of this opinion, we address the estate's assignment of error to the trial court's refusal to exclude evidence that Degerstrom delegated sole responsibility for the safety of Sharp-Line's employees to Sharp-Line.

¶ 13 In the unpublished portion, we address the estate's assignment of error to the

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trial court's denial of its motion for judgment as a matter of law, its refusal to instruct the jury that Degerstrom owed a duty to the public traveling through the construction site, and Ms. Millican's assignment of error to dismissal of her individual claim.

[177 Wn.App. 889] Refusal to limit evidence and argument of delegated responsibility for safety.

¶ 14 Early in the proceedings below, Degerstrom moved for summary judgment, arguing that Sharp-Line had assumed the contractual obligation to comply with all safety laws and plans. The trial court denied the motion on the basis of Degerstrom's nondelegable duty to ensure a safe work environment. In its motions in limine, the estate reminded the trial court of Degerstrom's legal position, which it characterized as " factually inaccurate, legally misleading ..., and inconsistent with [the] court's prior denials of its motions for summary judgment." CP at 1549. It asked the court to exclude evidence or argument by Degerstrom that it did not exercise or retain supervisory control or authority over Sharp-Line during construction operations.

¶ 15 In orally ruling on the motion, the trial court observed that " the factual issues ... are all going to get in front of the jury" and that it viewed the parties' disagreement over Degerstrom's legal duty as an instructional matter. Report of Proceedings (RP) at 2. Critically, when the estate then sought to clarify whether, in light of that reasoning, its motion to exclude evidence and argument about duty was granted, denied, or reserved for later rulings, the trial court responded that the motion was denied. RP at 6. The estate's motion in limine was sufficient to raise and preserve its objection. State v. McDaniel, 155 Wash.App. 829, 853 n. 18, 230 P.3d 245 (2010) (because the purpose of a motion in limine is to resolve legal issues outside the presence of the jury, a trial court's ruling denying a motion in limine is final and the moving party has a standing objection).[1]

[177 Wn.App. 890] ¶ 16 At trial, Degerstrom presented extensive evidence and argument on duty, informing the jury in opening statement, through evidence, and in closing argument that it is " typical," " reasonable," " industry standard," and most important, " appropriate" and " allowable under Washington law" for a general contractor like Degerstrom to delegate its responsibilities, and for subcontractors like Sharp-Line to agree, by contract, to assume sole responsibility for the protection and safety of its own employees. RP at 40-54, 845-47.[2]

¶ 17 The general rule in Washington is that a principal is not liable for injuries caused by an independent contractor whose services are engaged by the principal. Stout v. Warren, 176 Wash.2d 263, 269, 290 P.3d 972 (2012); RESTATEMENT (SECOND) OF TORTS § 409 (1965). Two categories of exceptions to this rule exist at common law, the first being exceptions that subject the principal to liability for its own negligence and the second being exceptions that subject the principal to liability for its contractor's tortious conduct even if the principal has itself exercised reasonable care. Compare RESTATEMENT (SECOND) §§ 410-415 (direct liability) with §§ 416-429 (vicarious liability). The latter category of exceptions giving rise to vicarious liability comprise duties said to be nondelegable, as explained by the Restatement:

The rales ... do not rest upon any personal negligence of the employer. They are rules of vicarious liability, making the employer liable for the negligence of the independent contractor, irrespective of whether the employer has himself been at fault. They arise in situations in which, for reasons of policy, the employer is not permitted to shift the responsibility for the proper conduct of the work to the contractor. The liability imposed is closely analogous

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to that of a master for the negligence of his servant.
[177 Wn.App. 891] The statement commonly made in such cases is that the employer is under a duty which he is not free to delegate to the contractor. Such a " non-delegable duty" requires the person upon whom it is imposed to answer for it that care is exercised by anyone, even though he be an independent contractor, to whom the performance of the duty is entrusted.

RESTATEMENT (SECOND) ch. 15, topic 2 introductory note. Circumstances that give rise to a principal's nondelegable duty include precautions required by statute or regulation. Tauscher v. Puget Sound Power & Light Co., 96 Wash.2d 274, 283, 635 P.2d 426 (1981) (citing Kelley v. Howards. Wright Constr. Co., 90 Wash.2d 323, 582 P.2d 500 (1978)); RESTATEMENT (SECOND) § 424; Pettit v. Dwoskin, 116 Wash.App. 466, 472 n. 17, 68 P.3d 1088 (2003) (observing that while § 424 has not been formally adopted in Washington, " [i]t has, however, been frequently discussed and relied upon" ). [3]

¶ 18 Even where an exception to the general rule of nonliability applies, a principal ordinarily owes its duty to only third parties other than the employees of its independent contractors. Stout, 176 Wash.2d at 276, 290 P.3d 972 (quoting Epperly v. City of Seattle, 65 Wash.2d 777, 783, 399 P.2d 591 (1965) for its recognition of " ‘ the distinction between the level of duty to members of the public and the duty of the owner to one engaged to work upon the project as the employee of an independent contractor’ " ); Tauscher, 96 Wash.2d at 281, 635 P.2d 426. The policy considerations that are said to support excluding an independent contractor's employees from the protected class are found in the workers' compensation systems in place in most states. The reasoning is that by making contract payments to an independent contractor that presumably include workers' compensation premiums as overhead, the principal has already assumed some financial [177 Wn.App. 892] responsibility for the safety of its employees. Id. at 281-82, 635 P.2d 426; Stout, 176 Wash.2d at 276-77, 290 P.3d 972.

¶ 19 The prevailing common law on these matters notwithstanding, Washington has long refused to exclude a subcontractor's employees from a general contractor's duty of care on either a " no duty" or " no duty to independent contractor employees" rationale. It has instead found nondelegable duties on the part of the general contractor, meaning that the general contractor is " [held] liable ... although he has himself done everything that could reasonably be required of him." W. Page Keeton et al., Prosser and Keeton ON THE Law OF TORTS 511 (5th ed.1984). Prosser observes that it is difficult to suggest the criterion by which the nondelegable character of a duty may be determined, " other than the conclusion of the courts that the responsibility is so important to the community that the employer [here, the general contractor] should not be permitted to transfer it to another." Id. at 512.

¶ 20 Before the enactment and effectiveness of the Washington Industrial Safety and Health Act of 1973 (WISHA), chapter 49.17 RCW, our Supreme Court held that a general contractor had a duty to provide adequate safety precautions for its subcontractors' employees under exceptions from the general rule of liability based in common law, statute, and contractual assumption of duty. Kelley, 90 Wash.2d at 330, 582 P.2d 500.[4] The common law basis of the duty cited by Kelley is the duty, within the scope of a principal's retained control, to provide a safe place of work. The test of control is not actual interference with the work of the subcontractor, but the right to exercise such control. Id. at 330-31, 582 P.2d 500 (citing, among other authority, Restatement (Second) § 414). The statutory basis of the duty cited in Kelley was former RCW 49.16.030 (1919), which imposed a duty on all employers to furnish a

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reasonably safe place of work, with reasonable safety devices, and to comply with state safety regulations. [177 Wn.App. 893] Id. at 333, 582 P.2d 500. Kelley held that the statute created a " nondelegable duty" on the part of the general contractor. Id.

¶ 21 With WISHA, the legislature revised the statutory duty, providing that " [e]ach employer ... shall comply with the rules, regulations, and orders promulgated under [chapter 49.17 RCW]." RCW 49.17.060(2). This specific duty to comply with WISHA regulations is owed to all of the employees at work on the job site as members of the protected class. Goucher v. J.R. Simplot Co., 104 Wash.2d 662, 673, 709 P.2d 774 (1985). In Stute v. P.B.M.C., Inc., 114 Wash.2d 454, 463-64, 788 P.2d 545 (1990), the Supreme Court noted that WISHA's predecessor statute created a nondelegable duty on general contractors to provide a safe place to work for employees of subcontractors and that " [t]he policy reasons behind the court's holdings have not changed and give added force to the language of WISHA." It characterized the general contractor's responsibility, being concurrent with that of its subcontractors but primary, as a duty to " ensure compliance with WISHA and its regulations." Id. at 463, 788 P.2d 545.

¶ 22 In Washington, then, a general contractor not only has direct liability for a breach of its common law duties arising from retained control, but when it comes to violations of WISHA, vicarious liability for breach of a duty that is nondelegable. A violation of WISHA by a subcontractor's employee is therefore not only chargeable to the subcontractor, it is also chargeable to a general contractor— " the primary employer," whose supervisory authority " places the general in the best position to ensure compliance with safety regulations." Id.

¶ 23 The specific duty clause of RCW 49.17.060 is not the only statute reflecting the legislature's intent that a general contractor's duty for WISHA compliance runs to its subcontractors' employees. The legislature has also authorized contractual risk-sharing of damages and defense costs by general contractors who face such workplace injury [177 Wn.App. 894] claims. RCW 4.24.115 declares certain indemnification agreements to be valid and enforceable including, in the construction context, an agreement by a subcontractor to indemnify a general contractor against liability for damages caused by the negligence of the subcontractor or its agents or employees. Gilbert H. Moen Co. v. Island Steel Erectors, Inc., 128 Wash.2d 745, 759-60, 912 P.2d 472 (1996). The subcontractor is only permitted to indemnify the general contractor to the extent of the subcontractor's negligence. The statute thereby implicitly recognizes that a general contractor may be concurrently liable for its subcontractor's act or omission. And the statute anticipates claims against a general contractor for workplace injury to a subcontractor's employee: it provides that an indemnitor may waive its immunity under industrial insurance, something that would be unnecessary except in the case of a claim by an indemnitor's employee. RCW 4.24.115(1)(b).

¶ 24 Given this statutory authorization of indemnification agreements, the Degerstrom/Sharp-Line contract may well have been " typical" and " industry standard," as Degerstrom drove home during the trial, but not with the legal effect that Degerstrom then suggested to the jury. Indemnification provisions enable the general contractor, if liable to the employee, to recover its defense costs and judgment liability from the culpable subcontractor. They do not enable the general contractor to disavow its primary responsibility for WISHA compliance. See Moen, 128 Wash.2d at 753, 912 P.2d 472 (enforcing indemnification " allows contractors to allocate ‘ responsibility to purchase insurance’ according to their negotiated allocation of risk and potential liabilities," and set their fees " ‘ founded on their expected liability exposure as bargained and provided for in the contract’ " (quoting McDowell v. Austin Co., 105 Wash.2d 48, 54, 710 P.2d 192 (1985); Berschauer/Phillips Constr. Co. v. Seattle Sch. Dist. No. 1, 124 Wash.2d 816, 826-27, 881 P.2d 986 (1994))).

¶ 25 The facts of Moen illustrate the proper role and relevance of delegation and indemnification agreements. [177 Wn.App. 895] The plaintiff in that case was an ironworker, severely injured

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when he fell from a beam. The Department of Labor and Industries attributed the accident to a lack of safety equipment. It cited the plaintiff's employer, Island Steel Erectors, which it concluded was responsible for providing fall protection equipment. Given Island's immunity from suit for the workplace injury, the plaintiff sued the general contractor— Moen— and others.

¶ 26 Moen had entered into an agreement with Island that required Island to comply with laws, regulations, and the provisions of Moen's contract with the owner, including to comply with safety regulations. The Moen/Island agreement also included an indemnification addendum under which Island agreed to indemnify Moen for damages resulting from any concurrent negligence of Moen and Island resulting from the negligence of Island and its employees.

¶ 27 Moen did not rely on its agreement with Island to argue (as Degerstrom does) that it fulfilled its duty for WISHA compliance by delegating responsibility to Island. Instead, it settled with the plaintiff and sued Island for indemnification. The court held that the indemnification contract was valid and enforceable to the extent of Moen's and Island's concurrent liability for the negligence of Island. In remanding, it pointed out that what remained to be determined were (1) whether Moen and Island were concurrently negligent and (2) the extent of Island's negligence for which Moen had been required to pay, but as to which it was entitled to be indemnified by Island.

¶ 28 Sharp-Line's agreement to assume sole responsibility and indemnify Degerstrom has no more and no less significance here. If it complies with statute, then as between Sharp-Line and Degerstrom the agreement is controlling. As between Mr. Lafayette and Degerstrom, for any WISHA violation established by the evidence, it is irrelevant.

¶ 29 Degerstrom nonetheless argues that our decision should turn on the statement in the penultimate paragraph [177 Wn.App. 896] of Stute that " [i]t is the general contractor's responsibility to furnish safety equipment or to contractually require subcontractors to furnish adequate safety equipment relevant to their responsibilities. " 114 Wash.2d at 464, 788 P.2d 545 (emphasis added). From this, it argues that the general contractor's duty for WISHA compliance characterized as nondelegable elsewhere in Stute can, in fact, be delegated. In proceedings below, the trial court found the quoted statement from Stute to be contradictory.[5] The same statement was the basis for the conclusion of the majority in Degroot that a subcontractor's contractual undertaking for safety " appears designed to meet the duty of care outlined in Stute. " Degroot v. Berkley Constr., Inc., 83 Wash.App. 125, 129, 920 P.2d 619 (1996).

¶ 30 The statement from Stute relied upon by Degerstrom cannot reasonably be read to negate State 's otherwise clear holding that the general contractor's " primary" " nondelegable" duty is to " ensure compliance" with WISHA, however. Read in the context of the entire opinion, the statement conveys only that a general contractor's efforts to ensure compliance with WISHA may include, and in many cases will necessarily include, requiring subcontractors to comply with WISHA. " The label ‘ nondelegable duty’ does not mean that an actor is not permitted to delegate the activity to an independent contractor. Rather, the term signals that the actor will be vicariously liable for the contractor's tortious conduct in the course of carrying out the activity." RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM § 57 cmt. b (2012). Stated differently, " a ‘ non-delegable duty’ requires the person upon whom it is imposed to answer for it that care is exercised by anyone, even though he be an independent contractor, to [177 Wn.App. 897] whom the performance of the duty is entrusted." RESTATEMENT (SECOND) eh. 15, topic 2 introductory note. Here, the quotation from Stute supports the fact that Degerstrom could enter into its agreement with

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Sharp-Line and rely on Sharp-Line's compliance with WISHA regulations as satisfying its own duty— not that it could discharge its primary responsibility for WISHA compliance by the mere act of entering into the agreement.

¶ 31 We review a trial court's evidentiary rulings for an abuse of discretion. A trial court abuses its discretion if its evidentiary ruling is manifestly unreasonable or is exercised on untenable grounds or for untenable reasons. Here, the trial court recognized that Degerstrom had previously advanced a legal position as to the duty of a general contractor that was questionable and it recognized that legal duty should be a matter of instruction. It nonetheless denied the motion in limine. The evidence on duty that Degerstrom chose to offer after the motion was denied did not tend to " make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." ER 401 (emphasis added). More importantly, Degerstrom's evidence and argument that the contract effectively shifted the duty it owed Mr. Lafayette from it, to Sharp-Line, was legally wrong and likely misled and confused the jury. See Degroot, 83 Wash.App. at 133, 920 P.2d 619 (Sweeney, C.J., concurring). The mischaracterization pervaded Degerstrom's presentation and could not be cured by the concluding instructions to the jury.

¶ 32 The denial of the motion in limine was therefore an abuse of discretion and requires reversal of the judgment and remand for a new trial of the estate's claims.

¶ 33 For this reason and the reasons set forth in the unpublished portion of this opinion, we affirm the trial court's dismissal of Ms. Millican's individual claim, reverse the dismissal of the estate's claim, and remand for a new trial consistent with this opinion.

APPENDIX

¶ 34 Degerstrom's opening statement included the following preview of the evidence it would thereafter present:

Now, NA Degerstrom's specialty is earth work. They don't carry specialties in other things like ... signage and striping on the road. So what did they do? They hired specialty subcontractors who have the equipment and the knowledge to do this installation....
....
There's also gonna be a lot of discussion in this case about NA Degerstrom's contract with Sharp-Line. And as I talked to you earlier, there were several subcontractors on this job, and these subcontractors were was [sic] known as specialty subcontractors. They did work that Sharp— excuse me, that NA Degerstrom did not have the expertise to perform. So what they do, typically any sort of job like, this you subcontract it out to those people that are experts in their field....
....
Part of their subcontract agreement, Sharp-Line agreed to comply with all laws and regulations that are applicable to their work with regard to what was being performed at the Flowery Trail Road project. And then I'm gonna show you several safety provisions.

RP at 40-46. Degerstrom's lawyer then made a brief reference to jury instructions that would be given at the end of the case addressing what was allowable under Washington law with regard to delegating duties and regard to safety on the work site. She continued:

[W]hat I'm going to be providing you today are the several contract provisions that discuss safety between Sharp-Line [177 Wn.App. 899] and NA Degerstrom. And I will again, like Mr. Stocker says, I will be showing you that all these provisions are appropriate and allowable under Washington law, and that safety is allowed to be with regard to a specialty subcontractor, NA Degerstrom could delegate those responsibilities.
And the reason that you're able— the reason it makes sense as far as delegating these responsibilities, again NA Degerstrom is not all knowing and not knowledgeable about everything that's done on this project. It's appropriate, it's standard in the industry that you hire specialty subcontractors who have expertise in their field. So they have expertise with regard

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to preventing accidents regarding their work, and that's what the contract requested.
They also have— we requested that Sharp-Line be solely responsible for providing protection and safety of its employees, again because it knows what the hazards are with regard to its job. They had the responsibility for final selection of the safety methods and means. That means how to— how that safety would be conducted on the project. And then finally they had the responsibility for doing daily inspections on their own work area and safety equipment because Degerstrom doesn't know what their equipment is, how it's specialized. There's been plenty of testimony today about this auger truck and how it was a very specialized piece of equipment. But NA Degerstrom certainly doesn't know, have the expertise to run, or would even be responsible if they ran it.
Another safety provision talked about the site specific safety plans the accident prevention plan that NA Degerstrom had, in fact, for that project, and how Sharp-Line had to comply with those safety requirements. And finally Sharp-Line agreed that they would have a written safety plan for this project, an accident prevention plan, and any other documents with regard to safety that were required for this project.
You're gonna be hearing testimony from a gentleman by the name of Mike Craig. Now, Mike Craig is the president of Sharp-Line, and he's been the president of Sharp-Line since its inception in 1987. Mr. Craig will be testifying that he signed this contract, and that he understood these contract provisions, and that he understood that Sharp-Line was required to furnish their own safety equipment and perform their work [177 Wn.App. 900] under this contract, and that type of safety equipment also included chocks. You'll also be provided testimony that the provisions with regard to safety that were in the [Degerstrom] contract with Sharp-Line, they are typical and they are standard in the industry because, again, if you're a specialty subcontractor, you're the one who's gonna know your equipment and know how to safely operate it.

RP at 46-48. Later in opening statement, Degerstrom's lawyer told the jury:

You'll hear how Coit Wright was the employee responsible for the truck that day for Sharp-Line.... You'll hear how Mr. Wright was a laborer, that he did not have training on this equipment, that he was not the employee responsible in the operation of this truck. You'll hear how Mr. Wright made several poor choices that were in contradiction to the training that he received from Sharp-Line, and that at the end of this workday that caused that truck to start rolling.
So what did Mr. Wright fail to do? Mr. Wright provided a statement to the Department of Labor & Industries, and then he also was interviewed by the Department of Labor & Industries. That information he provided to the Department of Labor & Industries, you'll hear testimony about. You'll hear testimony that Mr. Wright failed to set the truck's parking brake. You'll hear testimony that Mr. Wright failed to turn those wheels into the downward slope or the shoulder of the road. You'll hear how Mr. Wright deployed the outriggers, but then for whatever reason brought them back in.
You'll also hear that, although it was not required because the truck was attended— both Mr. Wright and Mr. Lafayette were there and the engine was running— that Coit Wright could have used readily available chocks.

RP at 52-53.

¶ 35 In closing and summarizing the evidence that it had presented, Degerstrom's lawyer argued:

Now, general contractors, as you know, owe a duty to provide all workers a safe worksite and to ensure safety regulations are complied with. Now Degerstrom, in no way, disputes this....
[177 Wn.App. 901] ... [O]ne of the ways that Degerstrom and all general contractors ensure a safe worksite is they have their subcontractors— they have their subcontractors, under contract, furnish the safety equipment.

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And why is that? There's been a lot of discussion. Because subcontractors are the experts in their field, not Degerstrom. They're the ones who know what the hazards are. They're using their equipment, they know what is hazardous and how to protect their employees. Degerstrom's duty is analogous to a forest. Think of the project as being a forest and think of the subcontractors being the trees in that forest. And the subcontractors being responsible for the leaves on those trees, their equipment, their workers, all the things in order to do their job safely as it's contractually required that they do. Now, a general contractor is not able to see all those trees in the forest at one time. Nor can it see any of the leaves at any given moment. But it's the subcontractors that have agreed to take care of those leaves.
Recall the testimony of Mark Lawless, that was plaintiff's site safety expert. Both he and Mr. Stranne stated it's not reasonable, or industry standard, to expect a general contractor to follow each subcontractor each and every moment to ensure that subcontractors are performing this [sic] jobs safely and correctly. Therefore general contractors are allowed, under the law, to contractually require their subcontractors furnish safety equipment related to their work.
Ladies and gentlemen of the jury, I'm gonna ask that you look at Exhibit D103 and that safety provision that's cited in that contract. And I want you to look, instead of at the second paragraph, look at that first paragraph on that page, because that talks about the safety requirements and that Sharp-Line was solely responsible for the protection and safety of its employees, for the final selection of additional safety means and methods, and for daily inspection of its work area and safety equipment. It specifically says safety equipment. And as you know from the testimony of Mr. Craig, they agreed to be solely responsible for these items. And all witnesses in this case, from Mr. Craig to Mr. Stranne to Mr. Lawless, all testified this is a typical provision in a subcontract agreement.

RP at 845-47.

¶ 36 [177 Wn.App. 898] The remainder of this opinion has no precedential value. Therefore, it will be filed for public record in accordance with the rules governing unpublished opinions. RCW 2.06.040.

I CONCUR: KULIK, J.

BROWN, J., (concurring in part, dissenting in part).

¶ 66 [177 Wn.App. 902] I agree the trial court correctly dismissed Dorothy Millican's individual claim. But in my view under existing law, the trial court did not abuse its discretion and err in admitting the subcontract between N.A. Degerstrom (NAD) and Sharp-Line Industries, Inc. Pretrial, the Estate of Daren Lafayette (Estate) unsuccessfully moved to exclude any " [a]rgument or inference that Degerstrom did not retain control or exercise supervision over [Sharp-Line's] work," citing ER 401, 402, and 403 and Stute v. P.B.M.C, Inc., 114 Wash.2d 454, 788 P.2d 545 (1990). Clerk's Papers (CP) at 1549. Attached to the motion was the subcontract between NAD and Sharp-Line, which specified in one provision that Sharp-Line

accepts responsibility to prevent accidents to any person who may be close enough to its operations to be exposed to Subcontractor's work-related hazards. Subcontractor shall be solely responsible for the protection and safety of its employees, for final selection of additional safety methods and means, and for daily inspection of its work area and safety equipment.

CP at 3227. The Estate mistakenly contends this provision impermissibly delegated NAD's responsibility to ensure compliance with the safety regulations of the Washington Industrial Safety and Health Act of 1973 (WISHA), chapter 49.17 RCW.

¶ 67 Evidence must be relevant to be admissible, meaning " it must tend to make the existence of any fact of consequence to the action more or less probable." Degroot v. Berkley Constr., Inc., 83 Wash.App., 125, 128, 920 P.2d 619 (1996). Even relevant evidence may be excluded if its probative value is

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outweighed by the likelihood that it will mislead the jury. Id. The trial court's balancing of probative value versus prejudicial effect is entitled to great deference. Id.

¶ 68 The subcontract's safety provision was relevant to NAD's defense that it took all reasonable steps to comply [177 Wn.App. 903] with WISHA regulations. Under RCW 49.17.060, each employer

(1) Shall furnish to each of his or her employees a place of employment free from recognized hazards that are causing or likely to cause serious injury or death to his or her employees ...; and
(2) Shall comply with the rules, regulations, and orders promulgated under this chapter.

This statute is mirrored in WAC 296-155-040, which states in part:

(1) Each employer shall furnish to each employee a place of employment free from recognized hazards that are causing or likely to cause serious injury or death to employees.
(2) Every employer shall require safety devices, furnish safeguards, and shall adopt and use practices, methods, operations, and processes which are reasonably adequate to render such employment and place of employment safe. Every employer shall do everything reasonably necessary to protect the life and safety of employees.

See Stute, 114 Wash.2d at 457, 459-60, 788 P.2d 545. Stute held RCW 49.17.060 and WAC 291-155-040 create a two-fold duty for general contractors. Id. at 457, 788 P.2d 545. Subsection (1) of the statute and regulation imposes a general duty on employers to protect solely their own employees from " recognized hazards not covered by specific safety regulations." Id. Subsection (2) of the statute and regulation, however, " imposes a specific duty to comply with WISHA regulations." Id. This specific duty extends to the employees of subcontractors. Id. at 458, 788 P.2d 545. Thus, a general contractor has a nondelegable duty to ensure compliance with safety regulations for the safety of a subcontractor's employees. Id. at 463-64, 788 P.2d 545,

¶ 69 In Stute, P.B.M.C., Inc., a general contractor, subcontracted with S & S Gutters to install gutters on a condominium complex. Mr. Stute, an employee of S & S Gutters, fell while installing gutters and was injured. The record showed P.B.M.C. knew the employees of S & S Gutters were [177 Wn.App. 904] working on the roof without safety devices. Id. at 456, 788 P.2d 545. Mr. Stute sued P.B.M.C, alleging the general contractor owed a duty to provide necessary safety devices on the work site. Citing RCW 49.17.060, WAC 296-155-040, and the general contractor's " innate supervisory authority," Stute, 114 Wash.2d at 464, 788 P.2d 545, the Supreme Court held a general contractor had a specific duty as a matter of law to supply safety equipment for all employees on a work site or to contractually require subcontractors to provide adequate safety equipment relevant to their responsibilities. Stute, 114 Wash.2d at 464, 788 P.2d 545.

¶ 70 Here, the trial court correctly reasoned Stute allowed a general contractor to contractually require subcontractors to furnish adequate safety equipment. Id. Thus, in my view, the trial court correctly admitted the subcontract with the understanding it would deal with the legal issues in the jury instructions.

¶ 71 In Degroot, a subcontractor's employee was injured while working on a job site and sued the general contractors for negligence and WISHA violations. Before trial, the employee moved to exclude a subcontract safety provision that arguably gave the subcontractor sole responsibility for the safety of its employees:

" 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 [Occupational Safety and Health Act of 1970,

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29 U.S.C. §§ 651-678] and state occupational safety and health regulations."

Degroot, 83 Wash.App. at 128, 920 P.2d 619. The employee contended that because the safety provision gave the impression that the general contractors had delegated to the subcontractor the [177 Wn.App. 905] duty to furnish a relatively safe working environment, the safety provision was irrelevant and misleading. Id. at 127, 920 P.2d 619.

¶ 72 In affirming the trial court's admission of the evidence, the Degroot court found the boilerplate language in the safety provision appeared to be designed to meet the duty of care outlined in Stute, particularly the general contractor's duty to " ‘ furnish safety equipment or to contractually require subcontractors to furnish adequate safety equipment.’ " Id. at 129, 920 P.2d 619 (quoting Stute, 114 Wash.2d at 464, 788 P.2d 545). Consequently, the safety provision was " at least relevant to whether [the general contractors] fulfilled their WISHA responsibility for the safety of all employees on the work site." Id. The Degroot court concluded the safety provision was not misleading, because the general contractors agreed at trial they had a nondelegable duty to comply with WISHA safety regulations, never argued the subcontract delegated this duty to the subcontractor, and submitted the safety provision solely as " evidence of their attempt to exercise reasonable care to enforce safety regulations on the work site." Id. at 131, 920 P.2d 619. The trial court in Degroot instructed the jury that the provision was not evidence that the general contractors had delegated their WISHA duties to the subcontractor and that the general contractors were required to exercise ordinary care to ensure compliance with safety regulations on the work site. Id.

¶ 73 Under Degroot, subcontract safety provisions may be admissible as evidence of the steps the general contractor took to comply with WISHA safety regulations, but the provisions are not admissible to show the general contractor delegated its responsibility for compliance with the safety regulations to the subcontractor. Id. at 129, 920 P.2d 619. As in Degroot, the subcontract safety provision here is relevant to whether NAD met its duty to ensure compliance with WISHA safety regulations at the work site. Id.; Stute, 114 Wash.2d at 464, 788 P.2d 545; WAC 296-155-040(2).

¶ 74 The trial court found the relevance of the subcontract safety provision here outweighed the possibility that it [177 Wn.App. 906] might mislead the jury regarding the general contractor's nondelegable duty to comply with WISHA safety regulations. Although the subcontract states Sharp-Line is " solely responsible for the protection and safety of its employees," CP at 3227, NAD acknowledged in its opening and closing statements that general contractors have a legal duty to provide a safe work site for all employees. No objection was noted to NAD's arguments in the briefing.

¶ 75 In terms of a fair trial, NAD employees testified that the general contractor retained the ultimate responsibility for work site safety. Additionally, NAD provided evidence it had a site specific accident prevention plan, it had a foreman and superintendent performing oversight at the job site daily, as well as a safety director who checked in on occasion, and it ran weekly safety meetings that were required for all workers on the site. NAD's closing statement explained that as the general contractor, it was required to take reasonable steps to ensure the safety of the work site, including contractually requiring its subcontractors to furnish any safety equipment related to their work. The trial court was in the best position to rule on any objections, if they had been made.

¶ 76 Importantly, the jury was instructed that a general contractor has a nondelegable responsibility to ensure the safety of all employees on the work site:

Under Washington law, a general contractor on a construction project owes a duty to every employee at the job site, including employees of subcontractors, to ensure that it and its subcontractors comply with all applicable safety regulations. The general contractor is the party with innate supervisory authority and per se control over the job site, so it bears the primary, non-delegable duty to provide a

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safe workplace for subcontractor employees.
In Washington, all general contractors have a non-delegable specific duty to ensure compliance with all Washington state construction safety regulations.

[177 Wn.App. 907] CP at 3182. We assume juries follow the instructions. Degroot, 83 Wash.App. at 131, 920 P.2d 619.

¶ 77 Accordingly, I concur in affirming the trial court's dismissal of Ms. Millican's individual claim, but because I would affirm the trial court's judgment on the jury's verdict, I respectfully dissent.


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