Vargas vs Inland Washington et al.
On November 21, 2019, the Washington State Supreme Court issued its decision in Vargas v. Inland Washington et al., which arguably expanded a general contractor’s liability for personal injuries occurring on the jobsite.
By way of summary, Plaintiff 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. At the time of the incident, Plaintiff was helping pour the concrete walls of what would become a parking garage for an apartment building. Plaintiff was employed by Hilltop Concrete Construction LLC (“Hilltop”). Inland Washington LLC (“Inland”) was the general contractor on the construction project. Inland subcontracted with Hilltop to install concrete. Hilltop, in turn, entered into agreements with Ralph’s Concrete Pumping Inc. (“Ralphs”) and Miles Sand & Gravel Company (“Miles”).
Plaintiff sued Inland, Ralphs and Miles for negligence. The trial court granted summary judgment in favor of the general contractor and stayed the proceedings against Ralphs and Miles pending Plaintiff’s appeal to the Supreme Court, which was limited to Plaintiff’s claims against Inland. Plaintiff claimed that Inland was directly liable because it (1) breached its common law duty to provide a safe workplace, (2) violated WISHA and (3) was vicariously liable for any negligence of Hilltop, Ralphs and Miles. Plaintiff requested discretionary review from the Washington Supreme Court, which was granted. The Supreme Court reversed and remanded the case to the trial court, finding that genuine issues of material fact remained regarding both Inland’s direct and vicarious liability.
Direct Liability The Court found that Inland was potentially directly liable under two theories. First, a general contractor has a common law duty to maintain a safe workplace. The Court found that if a general contractor has the authority to supervise a given area, then it must ensure that the area is safe. “This is true regardless of whether an expert other than the general contractor happens to be in charge of a specific job in the area. It is true regardless of whether multiple subcontractors happen to be working in that area at the same time.” Second, the Court held that a general contractor has a statutory duty to comply with WISHA. The Court found that “a general contractor always owes this duty under WISHA – no analysis of whether the general contractor retained control is necessary.”
Vicarious Liability The Court also found that Inland was potentially vicariously liable under two theories.
First, a general contractor may not delegate its statutory duty to comply with WISHA. The Court held that if a general contractor delegates its own duties to a subcontractor, the general contractor will be liable for the subcontractor’s breach of that delegated duty. Second, a general contractor will be vicariously liable for the negligence of any entity over which it exercises control. Thus, multiple entities – jobsite owners, general contractors, subcontractors – may concurrently owe independent yet overlapping duties to maintain a safe workplace. And one entity, such as a general contractor, may be vicariously liable for another entity’s, such as a subcontractor’s, negligence. This is distinguishable from the version of vicariously liability that arises when a general contractor delegates its own nondelegable duty. The Court held that Inland, as the general contractor, supervised the jobsite and had a right to exercise control over the work of the various entities on the jobsite and thus is potentially liable for the negligence of those other entities. Notably, the Court concluded that “[o]f course, a general contractor who retains a right to exercise control will not be vicariously liable unless the plaintiff proves that some entity on the jobsite was negligent. But if the plaintiff can do that, then the general contractor will be vicariously liable for that negligence.”
Implications This decision reaffirmed and potentially enlarged a general contractor’s expansive duties to ensure worker safety. In this case, the Court found that a genuine issue of material fact remained as to Inland’s direct liability for breaches of either its common law or statutory duties and Inland’s vicarious liability for the negligence, if any, of the other subcontractor’s working on the jobsite. This ruling will make it even more difficult for a general contractor to prevail on a motion for summary judgment, as there will likely be questions of fact regarding at least one subcontractor’s negligence and therefore the general contractor would be held to be vicariously liable.
In light of this ruling, general contractors should review their current indemnity and immunity waivers used with their subcontractors to ensure that the subcontractors have agreed to waive their immunity and defend and indemnify the general contractor to the extent of the subcontractor’s negligence.