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Vargas v. Inland Washington, LLC

Supreme Court of Washington, En Banc

November 21, 2019

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.

          GORDON McCLOUD, J.

         Gildardo 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.

         We 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.

         Factual and Procedural Background

         In May 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.

         Inland 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.

         On the 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.

         At this 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.

         The 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).

         Vargas (through his guardian ad litem), along with his wife and children, sued Inland Washington, [1] 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.[2] 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.

         In 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 court's ruling.

         Two 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[3] 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 2579.

         A 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)).

         A year 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),

         The 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 1.[4]

         Standard of Review

         "We 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 56(c).


         At the 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.

         Inland 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.

         Inland 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.

         As to 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 ...

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