GILDARDO CRISOSTOMO VARGAS, an incapacitated person, by and through WILLIAM DUSSAULT, his Litigation Guardian ad Litem; LUCINA FLORES, an individual; ROSARIO CRISOSTOMO FLORES, an individual; and PATRICIA CRISOSTOMO FLORES, a minor child by and through LUCINA FLORES, her natural mother and default guardian, Petitioners,
INLAND WASHINGTON, LLC, a Washington limited liability company, Respondent, and INLAND GROUP P.S., LLC, a Washington limited liability company, RALPH'S CONCRETE PUMPING, INC., a Washington corporation, and MILES SAND & GRAVEL COMPANY d/b/a CONCRETE NOR'WEST, a Washington corporation, Defendants.
Crisostomo Vargas was working on a construction project when
a concrete-carrying hose whipped around, hit him in the head,
and caused a severe traumatic brain injury. Vargas and his
family sued the general contractor, the concrete supplier,
and the concrete pumper for negligence. The trial court
granted summary judgment in favor of the general contractor.
reverse. General contractors have expansive statutory and
common law duties to provide a safe workplace. See Stute
v. P.B.M.C., Inc., 114 Wn.2d 454, 788 P.2d 545 (1990);
Kelley v. Howard S. Wright Constr. Co., 90 Wn.2d
323, 582 P.2d 500 (1978). Here, genuine issues of material
fact remain as to whether the general contractor is directly
liable-that is, whether it breached its duties to provide a
safe workplace and whether any breach proximately caused
Vargas's injury. In addition to this potential direct
liability, the general contractor is also potentially
vicariously liable for the negligence, if any, of the other
entities on the jobsite. We therefore remand for further
proceedings consistent with this opinion.
and Procedural Background
2013, a rubber hose carrying concrete whipped Vargas in the
head. It knocked him unconscious and caused a traumatic brain
injury. Clerk's Papers (CP) at 1716-17, 1743-45. At the
time of the incident, Vargas was helping pour the concrete
walls of what would become a parking garage for an apartment
building. CP at 1716-17. Vargas was employed by Hilltop
Concrete Construction LLC. CP at 2457.
Washington LLC was the general contractor on the construction
project. Id. Inland Washington subcontracted with
Hilltop, Vargas's employer, to install concrete. CP at
1669-93, 2457. Hilltop, in turn, entered into agreements with
Ralph's Concrete Pumping Inc. and Miles Sand & Gravel
Company (also referred to as Concrete Nor'West). CP at
34-36, 71-72; Verbatim Report of Proceedings (VRP) (Apr. 10,
2015) at 170-71. Under the agreements, Ralph's would
provide both a pump truck and a certified pump operator, and
Miles would supply the concrete. Id.
morning of the incident, Anthony Howell, a certified pump
operator employed by Ralph's, arrived with a pump truck.
CP at 263-65. The truck was equipped with a 47-meter-long
adjustable boom, a long mechanical arm that allows the
operator to pump concrete over a distance and into
hard-to-reach areas. CP at 35-36, 71, 77, 1798, 3074. Upon
arrival, Howell checked in with Matt Skoog, Hilltop's
foreman, who told Howell "where to set up the pump and
showed [him] the walls [they] were pumping that day." CP
at 263; see also CP at 1716. Matt Skoog claims that
Steve Miller, Inland Washington's superintendent, helped
make the decision of where to park the pump truck. CP at
418-21, 1291-92. Howell then parked the pump truck, prepared
the pump, adjusted the boom, and attached a rubber hose to
the end of the boom. CP at 263-64, 1716. The boom extended
from the street, where the truck was parked, to a scaffold,
where three Hilltop employees, including Vargas, stood ready
to guide the pumped concrete into place. CP at 35, 270, 1707,
1716. Around the time that Howell was setting up, Derek
Mansur, a truck driver employed by Miles, arrived with the
concrete. CP at 265, 752-53.
point, the stage was set. Mansur, the concrete company's
truck driver, would load the concrete into the pump
truck's hopper and make sure the hopper remained
sufficiently full throughout the pumping. CP at 68, 272-74;
VRP (Oct. 28, 2016) at 347-48. Howell, the pump operator,
would use a remote control to pump the concrete mix up the
boom and out the hose. CP at 271. Vargas and the other
Hilltop employees would guide the concrete into place. CP at
1716. Matt Skoog, Hilltop's foreman, would observe the
pour from a distance of about 10 to 20 feet. Id.
pour did not proceed as planned. Not long after Howell turned
on the pump, his remote lost signal with the truck, causing
the pump to automatically shut down. CP at 271. Howell moved
closer to the truck to reestablish connection and turned the
pump back on. CP at 274-75. Shortly after restarting, the
hose emitted a loud, shotgun-like bang and began to whip
around. CP at 279-80, 1716-17. Within seconds, the hose
struck Vargas, who had been standing approximately 12 feet
from the end of the hose, in the side of the head, knocking
off his hard hat and leaving him unconscious. CP at 280,
287-88, 1717. It is unclear why the hose whipped; apparently,
either concrete clogged the hose or air somehow entered the
system. Compare CP at 1716-17 (testimony that the
hose was clogged), with CP at 282-83 (testimony that
air entered the system).
(through his guardian ad litem), along with his wife and
children, sued Inland Washington,  Ralph's, and Miles. CP
at 1739. The Vargas family could not sue Hilltop,
Vargas's direct employer, because Hilltop is immune from
liability under Title 51 RCW. CP at 2457. The trial court has
stayed proceedings against Ralph's and Miles pending this
appeal, which is limited to the family's claims against
Inland Washington, the general contractor on the
project. The Vargas family claims that Inland
Washington is directly liable because it breached its common
law duty to provide a safe workplace and violated the
Washington Industrial Safety and Health Act of 1973 (WISHA),
ch. 49.17 RCW. The Vargas family also claims that Inland
Washington is vicariously liable for any negligence of
Hilltop, Ralph's, and Miles.
February 2015, Inland Washington filed its first motion for
summary judgment. CP at 1. It argued that "there is no
admissible evidence that [it] violated a specific WISHA
safety standard leading to Mr. Vargas' injury" and
that it "did not otherwise breach a duty of care."
CP at 4. The court denied that motion in part, ruling that
Inland Washington "owes non-delegable duties
understate." CP at 1218; see also VRP (June 26,
2017) at 475-76. The trial court ruled that the jury is in
the best position to determine whether Inland Washington was
at all responsible for the injury. VRP (June 26, 2017) at
477-78. The trial court explained that the Vargas
family's expert, Rick Gleason, presented sufficient
evidence that Inland Washington breached its duty.
Id. at 476-78. However, the court also ruled that
Inland Washington "is not vicariously liable." CP
at 1218; see also VRP (June 26, 2017) at 475-79.
Neither party sought discretionary review of the trial
years later, Inland Washington filed its second motion for
summary judgment. CP at 1639. (At this point, the case had
been reassigned to a different trial judge.) In opposition,
the Vargas family asked the court to vacate its previous
ruling on vicarious liability and to instead rule that Inland
Washington is vicariously liable as a matter of law. CP at
1860, 1864. The court granted Inland Washington's motion
and dismissed the general contractor from the case with
prejudice. CP at 2509. The court reasoned that it did
"not see much in the way of substance" as to
which nondelegable duty was violated and explained that a
general contractor is not "a generalized guarantor of
safety across the board." VRP (Mar. 31, 2017) at 93. The
court also "confirm[ed]" the previous ruling on
vicarious liability, finding "no sea change in the
law" that would "warrant going back to . . .
revisit [the] earlier ruling" and noting that Afoa
v. Port of Seattle had not yet finished working its way
through the appellate courts. Id. at 55, 92.
However, the court certified its decision, including its
"affirmation of its finding that Inland [Washington] is
not vicariously liable," to the Court of Appeals. CP at
commissioner of the Court of Appeals granted the Vargas
family's motion for discretionary review. Ruling Granting
Discr. Review in Part (Ruling), Vargas v. Inland Wash.,
LLC, No. 76717-8-1 (Wash.Ct.App. July 21, 2017). The
commissioner was particularly concerned that the trial court
"reaffirmed its prior ruling that Inland is not
vicariously liable for the breaches of WISHA or common law
duties by the other defendants." Id. at 9. The
commissioner explained that "there is a substantial
ground for difference of opinion" "as to the scope
of Inland's WISHA and common law duties and liability as
the general contractor" and determined that
"immediate review may materially advance the ultimate
termination of the litigation." Id. at 9-10
(referencing RAP 2.3(b)(4)).
later, before the Court of Appeals heard oral argument, this
court issued its decision in Afoa II. The Court of
Appeals then dismissed review of the Vargas case
with the following unpublished order:
In light of the Supreme Court's decision in
[Afoa II], which reversed this court's decision
in Afoa v. Port of Seattle, 198 Wn.App. 206, 393
P.3d 802 (2017), the standards for discretionary review set
forth in RAP 2.3(b)(4) are not met. Accordingly, we deem
review improvidently granted.
This matter is remanded to the superior court for further
proceedings, as if review had never been granted by this
court in the first instance.
Vargas v. Inland Wash, LLC, No. 76717-8-1
(Wash.Ct.App. Sept. 17, 2018) (unpublished),
Vargas family sought discretionary review in our court. After
we granted review, Inland Washington asked us to clarify the
scope of review, arguing that "the Court of Appeals[ ]
ruling dismissing review is the sole issue before it."
Mot. to Clarify Scope of Review at 3. We rejected Inland
Washington's attempt to narrow the issues, clarifying
that we "granted review of both the Court of Appeals
decision that review was improvidently granted and the issues
regarding the underlying merits of the case as raised in the
motion for discretionary review filed at the Supreme Court by
the Petitioners." Order Clarifying Scope of Review at
review summary judgment motions de novo, engaging in the same
inquiry as the trial court." Afoa v. Port of
Seattle, 176 Wn.2d 460, 466, 478, 296 P.3d 800 (2013)
(Afoa I) (citing City of Sequim v.
Malkasian, 157 Wn.2d 251, 261, 138 P.3d 943 (2006)).
When reviewing summary judgment motions, we "consider
all disputed facts in the light most favorable to the
nonmoving party." Id. (citing Dowler v.
Clover Park Sch. Dist. No. 400, 172 Wn.2d 471, 484, 258
P.3d 676 (2011)). The nonmoving party in this case is the
Vargas family. "Summary judgment is appropriate if there
are no genuine issues of material fact and . . . reasonable
minds could reach but one conclusion." Id.
(citing Malkasian, 157 Wn.2d at 261;
Dowler, 172 Wn.2d at 484); see also CR
outset, we must deal with a procedural issue. After initially
granting the Vargas family's motion for discretionary
review, the Court of Appeals dismissed this case as
improvidently granted in light of Afoa II.
Vargas, No. 76717-8-1, slip op. at 1-2. We
determined that the standards for discretionary review in our
court were met and granted review. Order, No. 96527-7 (Wash.
Mar. 6, 2019); see RAP 13.5(b) (standards for
discretionary review in our court). Inland Washington now
asks us to dismiss this case as improvidently granted. Suppl.
Br. of Resp't at 4. We reject this request.
Washington first argues that the issue of direct liability is
not properly before us. Id. It claims that the
Vargas family failed to preserve the argument in its notice
of discretionary review. Id. It also claims that the
appellate court did not accept review of the issue.
Id. Both claims are incorrect. In its notice of
discretionary review, the Vargas family explicitly noted that
it was appealing the trial court's 2017 ruling, CP at
2576-77, in which the trial court dismissed all claims
against Inland Washington-including claims of direct
liability, VRP (Mar. 31, 2017) at 93. The commissioner of the
Court of Appeals then granted discretionary review of the
2017 ruling without limitation. Ruling, No. 76717-8-1, at
.12. The direct liability issue is properly before us.
Washington next argues that the issue of vicarious liability
is not properly before us. Suppl. Br. of Resp't at 3-4.
Inland Washington claims that the Vargas family failed to
timely appeal that issue, which the trial court first
addressed back in 2015. Id. But 2017, not 2015, is
the relevant date. In 2017, the trial court considered and
then "confirm[ed]" the 2015 ruling, VRP (Mar. 31,
2017) at 55, 92, and certified its "affirmation" to
the appellate court shortly thereafter, CP at 2579. The trial
court reasoned that it would "rather only do this trial
once" and that "if [it is] wrong, [it would] rather
be told beforehand rather than two years after the
fact." VRP (Apr. 5, 2017) at 128-29; see also
id. at 135-36 (reasoning that a single trial is "in
everybody's best interest"). The trial court
understood that it could have revisited the 2015 decision if
it thought it was incorrect under the current state of the
law. VRP (Mar. 31, 2017) at 92-93. Inland Washington does not
argue that the Vargas family's notice of discretionary
review of the 2017 ruling is untimely. The vicarious
liability issue is properly before us, too.
the merits of this case, Inland Washington is potentially
directly liable under two theories. First, a general
contractor has a common law duty to maintain a safe
workplace. Kelley, 90 Wn.2d at 332. Second, a
general contractor has a statutory duty to comply with WISHA.
Stute, 114 Wn.2d at 457-58 ...