General contractor liability has been a hot button issue for Washington courts recently. As explained in a previous blog post, the Washington Supreme Court issued an opinion last year that many thought narrowed jobsite liability for general contractors. Not so. That same Court recently issued a related ruling that will substantially expand jobsite liability for general contractors.
VARGAS v. INLAND
In that recent case, Vargas v. Inland, the Court ruled that a concrete pumping personal injury lawsuit against general contractor Inland could proceed, even though there was little evidence of Inland’s involvement in the injury itself. In so ruling, the Court explained that “general contractors have expansive statutory and common law duties to provide a safe workplace.”
The Court’s analysis provided four avenues for injured workers to bring jobsite liability claims against general contractors:
- The injured worker may sue the general contractor for direct liability if the contractor exercises some control over the work and fails to maintain a safe workplace. This includes merely performing “general supervisory functions.”
- The injured worker may also sue the general contractor for direct liability related to violations of the Washington Industrial Safety and Health Act (WISHA).
- The injured worker may sue the general contractor under vicarious liability (as opposed to direct liability) if it delegates duties to the subcontractor, and the subcontractor is negligent in its failure to maintain a safe workplace.
- A general contractor may also be vicariously liable (regardless of the general contractor’s own negligence) if it has a right to exercise control the subcontractor (e.g. through supervision of the jobsite) and the subcontractor negligently causes injury.
These general principles may be familiar to experienced general contractors. But perhaps the most significant takeaway from Vargas is the minimal facts that the Court held were nevertheless sufficient to maintain the lawsuit. The general contractor was almost completely uninvolved in the concrete pumping that caused the accident. At most, one general contractor employee helped the subcontractors decide where to pump their truck. Other than that, it appears the subcontractors handled the entirety of the pumping job.
This may prove to be a substantial blow to general contractors in Washington. What are the bottom-line ramifications? Likely two-fold.
First, general contractors should be even more cautious to maintain a safe worksite. Although general contractors may not have previously considered safety specifics for specialized subcontractors like concrete pumpers, they should now. Otherwise, an incident that the general contractor was not directly involved in might nevertheless lead to liability. This may, however, ultimately be a double-edged sword, because the more effort that a general contractor puts toward maintaining a safe workplace, the more likely that the general contractor is exercising control over a subcontractor.
Second, this decision makes sufficient insurance coverage more important for general contractors, as both a primary insured, and through indemnities from subcontractors requiring the general contractor be named as an additional insured under subcontractors’ policies. But by that same token, expect construction insurance to become even pricier. Insurance carriers (who were surely displeased with this decision) will now have even greater risk than before, leading to higher premiums.
If you have any questions about jobsite or workplace liability, contact Henry Ross and the attorneys at MPBA at (206) 682-7090.