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General contractors face direct and vicarious liability for construction injuries

A general contractor may be directly or vicariously liable to its subcontractor’s employees in the event of a breach of the duty to maintain a safe workplace, the Washington Supreme Court unanimously held in Vargas v. Inland Washington, LLC, 452 P.3d 1205 (2019).

In that case, a construction worker was seriously injured when a concrete-pump hose whipped around and struck him. He sued the general contractor, asserting (a) it breached its common-law duty to provide a safe workplace; (b) it breached the statutory provisions of Washington Industrial Safety and Health Act (WISHA); and (c) it was vicariously liable for its subcontractor’s negligence. The trial court granted summary judgment for the general contractor on each point. The worker petitioned for direct review of the trial court decision. The Supreme Court reversed.

In Washington, a general contractor may be directly liable to an employee of a subcontractor for a breach of the general contractor’s duty to provide a safe workplace. The duty is derived from two sources. The first is the common law. Under long-standing precedent, such as Kelley v. Howard S. Wright Const. Co., 90 Wn.2d 323, 582 P.2d 500 (1978), a general contractor has a duty to provide a safe place of work in all areas under its supervision – even if another expert has charge of the area, or multiple subcontractors are working in that area, or the general contractor is not present.

The Court rejected arguments that the Kelley duty is limited to common work areas. Washington precedent does not support such a narrow reading. Instead, because the general contractor supervised the job site and had a right to exercise control over the work of other entities, it had a common-law duty to the injured employee. Whether its actions breached that duty or caused the harm to plaintiff were questions for the jury, and the Court ruled summary judgment should not have been granted.

The second source of the general contractor’s duty is the WISHA statute, chapter 49.17 RCW. The Court held in Stute v. P.B.M.C., Inc., 114 Wn.2d 454, 788 P.2d 545 (1990), that a general contractor owes a duty to comply with WISHA. By virtue of its innate supervisory authority, a general contractor has per se control over the workplace, whether it in fact retained some measure of control.

In this case, the Court expressly stated that Stute remains good law. Because the general contractor had per se control over the workplace for the purposes of WISHA compliance, it had a duty to the plaintiff in this case. Material factual disputes regarding breach and causation precluded summary judgment.

The Court also expanded the potential for vicarious liability, which may be imposed on a general contractor under two theories. First, if a general contractor delegates to another any of its own duties to maintain a safe workplace, it may face vicarious liability for the other’s breach. Second, subcontractors have their own separate duties to comply with safety regulations and maintain a safe workplace. If a subcontractor over which the general contractor retains authority breaches its own duties, the general contractor could be held vicariously liable for that breach.

In this matter, the Court determined that the general contractor had the right to exercise control over the subcontractor, such that it could be vicariously liable if the subcontractor breached its duty. A question of fact remained as to whether the subcontractor did breach, giving rise to vicarious liability. Summary judgment in the general contractor’s favor was reversed.

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