- Washington State Case Update: Work Site Safety Responsibilities Rest on Job Site Control
- April 2, 2013 | Author: Gordon G. Hauschild
- Law Firms: Wood, Smith, Henning & Berman LLP - Los Angeles Office ; Wood, Smith, Henning & Berman LLP - Seattle Office ; Wood, Smith, Henning & Berman LLP - Los Angeles Office
Afoa v.Port of Seattle
Docket: 85784-9 Opinion Date: January 31, 2013
Why This Case Is Important
The Washington State Supreme Court underscores in this matter that the duty of work site safety lies in the hands of the entity in the best position to keep a work site safe, regardless of whether an employer-employee relationship exists. The Court extended these duties beyond the context of a general contractor controlling a job site to the scenario of the Port of Seattle(“Port”) controlling worker safety in the highly complex multi-employer work site of Sea-TacAirport. However, job site owners and licensors may take some comfort in the Court’s assurances that the holding is intended to be narrow and not to apply to every situation in which an owner or licensor simply asks on-site workers to comply with safety rules.
Driving a “tug” or “pushback” that moves airplanes from gate to gate, Plaintiff Brandon Afoa lost control of the vehicle when he was driving toward Gate S-16. He yelled for help and crashed into a “K-Loader”. The K-Loader, a large piece of loading equipment, fell on Plaintiff, causing him severe injuries. He filed suit against the Port, claiming that the Port failed to maintain safe premises and violated statutory and common law duties to maintain a safe workplace.
The Port moved for summary judgment, contending that it owed no duty to Plaintiff, as neither Plaintiff nor his employer was an employee of the Port. Rather, the Port claimed that Plaintiff’s employer was a licensee, and the Port was his employer’s licensor.
It is true that the Port did not employ Plaintiff. Rather, he worked for Evergreen Aviation Ground Logistics Enterprises, Inc., or “EAGLE”. EAGLE contracts with airlines to provide ground services, such as loading and unloading airplanes. The Port does not contract with EAGLE for services or employ EAGLE. However, the Port required EAGLE to obtain a license from the Port before EAGLE could work at the airport.
Plaintiff claimed that the Port controlled the “Airfield Area” where the accident occurred. He contended that the Port did so by (1) granting airlines use of the area “subject at all times to the exclusive control and management by the Port,” (2) its license agreement with EAGLE that required EAGLE to abide by all of the Port’s rules and regulations and allowed the Port to inspect EAGLE’s work, and (3) its conduct in supervising and controlling the actions of EAGLE and its employees. In its license agreement with EAGLE, the Port disclaims all liability for accidents and equipment malfunctions. Plaintiff pointed out that the Port previously exercised control over maintenance of the brakes on the tugs after a similar accident, which occurred three months before his accident.
The trial court granted the Port’s motion and dismissed the claims. The Court of Appeals reversed, holding all three of Plaintiff’s claims were viable and rested on genuine issues of material fact.
The Washington Supreme Court affirmed that Plaintiff may proceed with all three causes of action alleged against the Port: (1) premises liability, (2) violation of the Washington Industrial Safety and Health Act, and (3) the common law safe work doctrine.
Premises Liability Theory: The duty of a landowner turns on whether the individual who enters the landowner’s property is a trespasser, a licensee, or an invitee. The Court found Plaintiff to be a business invitee, as he was “invited” to enter onto the land for a purpose relating to business dealings with the possessor of the land. While the Port labeled its contract with EAGLE as a “license”, the Court looked beyond the label to the substance of the relationship. Here, Plaintiff entered the property for a business purpose fundamental to Sea-Tac’s operations - the loading and unloading of airplanes. Since Plaintiff was on the property for a business purpose, he qualified as a “business invitee”.
The Court rejected arguments that the Port did not “invite” Plaintiff to the premises. An invitation in the business sense is not the same as a social invitation. The Port licensed EAGLE to perform tasks that could only be accomplished through its employees. Accordingly, the argument that the Port did not “invite” EAGLE and its employees onto the property is disingenuous. The Court also discounted the argument that there was no “mutuality of interest”. This theory applies in the context of a social guest and not of a business invitee. Clearly, the Port had an interest in having work done by contractors such as EAGLE to support its operations.
As Plaintiff was a business invitee, the Port owed a duty to protect him from open and obvious dangers. Plaintiff presented evidence that clutter in his work area, including the broken-down K-loader that fell on him, caused his injury. This created a triable issue of fact as to whether the Port breached its premises liability duty.
WISHA Claim: Plaintiff claimed that the Port had statutory duties to comply with the Washington Industrial Safety and Health Act or “WISHA”, an act the Legislature passed in 1973 to ensure worker safety and supplement the federal Occupational Safety and Health Act (OSHA). WISHA directs the Department of Labor and Industries to promulgate regulations for safe and healthful working conditions that meet or exceed the federal standards. The Port sought to avoid liability based on its characterization of its relationship with Plaintiff’s employer EAGLE as that of a licensor and licensee.
Under WISHA, an employer has a general duty to maintain a workplace free from recognized hazards and a specific duty for employers to comply with WISHA regulations. In Goucher v. J.R. Simplot Co., 104 WN.2d 662, 709 P.2d 774 (1985) and Stute v. P.B.M.C., Inc., 114 Wn.2d 454, 788 P.2d 545 (1990), the Washington Supreme Court adopted the rule that the specific duty runs to any employee who may be harmed by an employer’s violation of the safety rules, regardless of any employer-employee relationship.
The Court explained that the specific duty does not create liability for any employer. While general contractors and similar employers always have a duty to comply with WISHA regulations, a person or entity who owns a jobsite is not per se liable for WISHA violations. A job site owner has a duty to comply with WISHA only if the owner maintains control over how the contractors complete their work. See Kamla v. Space Needle Corp., 147 Wn2d 114, 52 P.2d 472 (2002). The Court noted that its holding in Kamla is consistent with the federal “multi-employer workplace rule”. Under this rule, an employer who owns or controls a workplace hazard may be liable under OSHA, even if the employees work for a different employer.
The Court held that the specific duty to prevent WISHA violations runs to all workers on the site that may be injured by violations. An employer-employee relationship is not required. The Court noted that the Port’s operations were similar to that of a general contractor, as the Port is responsible for its own employees and allows controlled access to the site to thousands of employees. In response to the dissent’s concern that the decision might establish a broad rule applying to all situations, the Court emphasized that “[w]e hold only that job site owners must comply with WISHA regulation if they retain control over the manner and instrumentalities of work done at the job site”.
Citing to conflicting evidence in the record as to the degree of control the Port maintained over EAGLE and the Plaintiff, the Court also found a triable issue of fact to exist.
Common Law Duty: Under Washington State’s common law safe work place doctrine, general contractors and landowners that keep control over a job site have a duty to maintain safe common work areas. See Kelley v. Howard S. Wright Construction Co., 90 Wn.2d 323, 582 P.2d 500 (1978). As with the other causes of action, the Port argued that it did not have to comply with the law because it is a licensor and not Plaintiff’s employer.
Looking back to Kelley, the Court emphasized that workplace safety may not be avoided by use of labels such as “independent contractor” or “general contractor.” The important question is whether the principal retained control over the job site, not whether there was a direct employer-employee relationship between the parties. While the Court noted the Port’s arguments based on its licensing theory were novel, it found them to be unpersuasive. The Port may not avoid liability by issuing contractors licenses rather than hiring them.
The common law duty does not apply any time a job site owner or licensor asks workers to comply with safety rules. Rather, the duty applies when an owner or licensor controls worker safety in a highly complex multi-employer work site, such as Sea-Tac, and is possibly the only entity in a position to maintain worker safety. The Court also noted as an important factor the substantial control the Port allegedly kept over the manner in which work was performed at the site. Labeling its holding as “narrow,” the Court stated that liability should depend on similar factors should other cases arise in the future.
Plaintiff alleged the Port maintained control over the manner in which work is performed at Sea-Tac, work place safety, and the instrumentalities of work. The Port denied retaining such a degree of control. Viewing the evidence in the light most favorable to the Plaintiff, the Court found a triable issue of fact to exist and affirmed the Court of Appeals’ reversal of summary judgment on this ground.
Stressing that imposition of the duty to keep a work place safe does not rest on labels but rather on which entity is in the best position to ensure job site safety, the Court found that the Plaintiff had three potentially viable claims against the Port.