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Case Limits Owners’ and Developers’ Liability for Safety Violations

By Tristan Swanson Ashbaugh Beal

In Washington a general contractor can be sued by any project employee for failure to comply with WISHA regulations. Likewise project owners and developers can be sued for failing to comply with WISHA regulations to the extent they act like general contractors on a project. However as set forth in a recent Washington Court of Appeals decision Hymas v. UAP Distribution Inc. there are limits to owners’ and developers’ liability for safety violations. An owner/developer who retains almost no control over a contractor’s work will not be held liable for WISHA safety violations.

On February 9 2007 John Hymas was using a remote controller for a concrete pour. He stood beside an open trench receiving the concrete pump discharge. The trench 15-feet deep was unguarded by safety rails. He fell into it and seriously injured his leg. Mr. Hymas was an employee of Narum Construction Inc. a concrete contractor. Rather than use a general contractor the project owner UAP had contracted with Narum directly. The UAP/Narum contract required Narum to be solely responsible for safety and for the means and methods of Narum’s work.

After suffering his injury Mr. Hymas sued UAP. Mr. Hymas asserted that UAP (1) had a duty to maintain the trench in compliance with WISHA regulations and (2) had negligently failed to warn and protect him from the hazardous situation. The trial court disagreed and dismissed both of Mr. Hymas’s claims on summary judgment. Mr. Hymas appealed to the Washington Court of Appeals.

The Washington Court of Appeal’s upheld the trial court’s dismissal. Citing to the parties’ contract and testimony establishing that UAP had never sought to control Narum’s work Division One found that UAP had not retained the right to direct the manner in which Narum’s work was performed. Accordingly UAP could not be held liable for violations of WISHA because “if a jobsite owner does not retain control over the manner in which an independent contractor completes its work the jobsite owner does not have a duty under WISHA…” UAP’s right to inspect and supervise to insure the proper completion of the contract did not change the result. Taken together the evidence showed that Narum was entirely free to do the work on its own without any control by the owner.

The Washington Court of Appeal’s also addressed Mr. Hymas’s negligence claim. The court concluded this claim was properly dismissed given that an owner “owes no duty to protect [an independent contractor’s employee] from the negligent acts of his master.” Here “no reasonable trier of fact could find that UAP should have anticipated that Narum would allow Mr. Hymas to perform work and especially distracting work adjacent to the trench without protecting him in some fashion from a fall.”

Tristan Swanson is an Attorney with AGC member Ashbaugh Beal.

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