Job Site Owner Liability for Work-Related Injuries of Independent Contractors and Their Employees

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This post [using the Washington Supreme Court decision in Kamla v. Space Needle Corp., 147 Wn.2d 114 (2002)] reviews some of the primary legal theories upon which a job site owner may become liable for work-related injuries of independent contractors and their employees. In Kamla, the employee of a contractor was hurt while installing a fireworks display near the top of Seattle’s Space Needle when a moving elevator caught the employee’s safety line and dragged him into the open elevator shaft. The property owner (Space Needle Corp.) prevailed on the issue of liability because of the terms of the parties’ contract; the parties’ corresponding responsibility for the job site and the parties’ relative experience level(s) with the work at issue.

In Washington, the issue of whether a job site owner has liability for work-related injuries of independent contractors and their employees (in various legal contexts) depends on the issue of ‘control’ and critically whether there is a retention of the right to direct the manner in which the work is performed, not simply whether there is an actual exercise of control over the manner in which the work is performed. An “independent contractor is a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other’s right to control with respect to his physical conduct in the performance of the undertaking.” Restatement (Second) of Agency § 2 (3). On the other hand, employees are “agent[s] employed by [an employer] to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the [employer].” Restatement (Second) of Agency § 2 (2). The difference between an independent contractor and an employee is whether the employer can tell the worker how to do his or her job. Employers are not liable for injuries incurred by independent contractors where employers cannot control the manner in which the independent contractor works. Conversely, employers are liable for injuries incurred by employees where the employer retains control over the manner in which the employee works.

Owner’s Common Law Duty of Care Based Upon Retained Control.

In Kamla, the Court in determining that the owner had no common law liability as a matter of law was guided by Comment “c” of Section 414 of the Restatement Second of Torts:

[T]he employer must have retained at least some degree of control over the manner in which the word is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.
Restatement (Second) of Torts Section 414, comment “c” (1965).

Following the logic of Section 414, comment “c”, the Court reasoned that the critical inquiry was whether the owner retained the right to direct the manner in which the work was completed by the contractor and held (under the facts of the case) that the owner did not have a common law duty of care based upon alleged ‘retained control’ stating that: “Space Needle did not retain the right to interfere with the manner in which Pyro completed its work, nor did Space Needle affirmatively assume responsibility for workers’ safety. Space Needle simply agreed to provide Pyro a suitable display site and fallout zone, access to the display site to set up the display, adequate crowd control, firefighters, and permit fees.” Kamla, 147 Wn.2d at 122.

Owner’s Potential Statutory Duty of Care Under WISHA.

Next, the Court in Kamla considered whether the owner had any statutory duty of care under WISHA (‘Washington Industrial Safety and Health Act’), RCW Chapter 49.17. The Court determined that an owner is not per se liable under the requirements of RCW 49.17.060 (Employer–General safety standard–Compliance) and that jobsite owners do not play a role sufficiently analogous to general contractors to justify imposing upon them the same nondelegable duty to ensure WISHA compliance when there is no general contractor.

Citing Stute v. P.B.M.C., Inc., 114 Wn.2d 454 (1990), the Court recognized that because a general contractor is in the best position, financially and structurally, to ensure WISHA compliance or provide safety equipment to workers “the prime responsibility for safety of all workers … is on the general contractor.” Id. at 463. The Court reasoned that the same was not necessarily true of job-site owners noting that although owners may have a similar degree of authority to control jobsite work conditions, they do not necessarily have a similar degree of knowledge or expertise about WISHA compliant work conditions. Jobsite owners can run the gamut from an owner/developer with the same degree of knowledge about WISHA compliant work conditions as that of a general contractor to a public corporation without any knowledge about WISHA regulations governing a specific trade. Because jobsite owners may not have knowledge about the manner in which a job should be performed or about WISHA compliant work conditions, it is unrealistic to conclude all jobsite owners necessarily control work conditions. Instead, some jobsite owners may reasonably rely on the contractors they hire to ensure WISHA compliance because those jobsite owners cannot practically instruct contractors on how to complete the work safely and properly. Consequently, in Kamla, the Court held that 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 to “comply with the rules, regulations, and orders promulgated under [chapter 49.17 RCW].” RCW 49.17.060(2).

Owner’s Potential Common Law Duty As Landowner.

Finally, the Court in Kamla considered the contractor’s arguments that the owner (Space Needle) has a common law duty as landowner to its invitees. In this regard the Court noted that it had adopted sections 343 and 343A of the Restatement Second of Torts to define a landowner’s duty to invitees:

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.

Restatement Second of Torts § 343. See also Iwai v. State, 129 Wn.2d 84 (1996) (The “legal duty owed by a landowner to a person entering the premises depends on whether the entrant [is] a trespasser, licensee, or invitee.”).

In Kamla, Space Needle argued that because the danger at issue (an open/moving elevator) was known and obvious, that it could not be liable for Kamla’s injury. But, the Court found that this argument ignored section 343A of the Restatement which provided that:

“A possessor of land is not liable to his [or her] invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.”

Restatement (Second) of Torts § 343A.

Consequently, the Kamla Court stated that properly framed, the question of any common law duty as a property owner turned upon whether Space Needle should have anticipated Kamla’s harm, despite an obvious hazard posed by the moving elevator(s). Under the facts, the Court held that Space Needle was entitled to judgment as a matter of law on the issue noting that the contractor Pyro was a business entity that represented itself as possessing expertise in the creation and execution of fireworks displays. Collectively, the project team for Pyro had over 100 years of experience in designing, installing, and executing fireworks displays. Pyro created similar displays at the Space Needle the two previous years and suggested to Space Needle that it incorporate the 200-foot level into the 1997 New Year’s Eve display. Kamla worked for Pyro in the core of the Space Needle the two previous years. Pyro employees who worked in the core were exposed to and aware of the danger posed by the moving elevators. Finally, Pyro employees had independently devised a safety system designed to avoid the elevator openings. Given Pyro’s expertise, The Court concluded given Kamla’s two years of personal experience working on the 200-foot level next to the obvious danger posed by the elevators and his own acute awareness of the danger posed by the moving elevators, that no reasonable trier of fact could find Space Needle should have anticipated that Kamla would drag his safety line across the open elevator shaft.

The Kamla case provides a good starting point when analyzing any issue of potential liability of an owner for injuries sustained by employee(s) of an independent contractor. The case also highlights the importance of contractual negotiations and terms which may dictate the measure of control that an owner retains over the work performed by a contractor.

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