THE SUPERIOR COURT OF THE
STATE OF WASHINGTON
COUNTY OF SPOKANE
|
Edward
Boleyn, Plaintiff,
vs. Chewelah Fibre
Mill Plant, Defendant |
|
NO.
000-000-001 MEMORANDUM
IN SUPPORT OF PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON LIABILITY
RE: WISHA VIOLATIONS AND NEGLIGENCE |
I. INTRODUCTION
Plaintiff Edward Boleyn (“Boleyn”), an
employee of an independent contractor, sued Chewelah Fibre Mill Plant
(“Chewelah”), alleging that its negligence caused permanent physical injuries
to be inflicted upon him. Boleyn
asserts that Chewelah breached a duty to comply with special duties found in
the regulations promulgated under the Washington Industrial Safety and Health
Act (“WISHA”) RCW Ch. 49.17, and/or that Chewelah breached its common law duty
to provide a safe workplace. This memorandum of law is submitted in support of
plaintiff’s motion pursuant to CR 56 for an order granting partial summary
judgment on liability.
II. STATEMENT OF FACTS
This lawsuit arises out of serious spinal
injury the plaintiff, Edward Boleyn (“Boleyn”) sustained when he fell from a
suspended position while working at the defendant Chewelah Fibre Mill Plant in
Cheewlah, Washington on September 12, 2001. (R. at 1). This injury has left the plaintiff paralyzed
from the chest down. (R. at 1)
Boleyn had been hired by Inland Northwest
Construction Contractors (“Inland”), on August 18, 2001, to work as a welder at
the Chewelah Fibre Mill plant. (R. at
1). During the course of Boleyn’s work
he worked the same schedule as Chewelah’s employees. (Boleyn Aff. ¶ 4); (Rogers Aff. ¶4). While on the Chewelah site, Boleyn was subject to the supervision
of Inland’s on site supervisor Steve Cooper.
(Cooper Aff. ¶¶ 1, 2, 3). His
work however was subject to the review and inspection of Dave Rogers,
Chewelah’s plant supervisor (Rogers Aff. ¶ 8), and other Chewelah
employees. (Boleyn Aff. ¶¶ 6 -
10). Chewelah employees would discuss Boleyn’s
work with him and if they did not find it satisfactory they would tell Steve
Cooper to have Boleyn redo the work.
(Boleyn Aff. ¶¶ 6 - 10); (Copper Aff. ¶¶ 4 - 7).
On September 12, 2001 Boleyn was
suspended by a lanyard approximately 20 feet above the ground level while
welding a framework onto a debarker.
(R. at 1). The lanyard used by
Boleyn was provided by Inland, the welding machine had been provided by
Chewelah, and the work area had been inspected by one of Chewelah’s employees
prior to the accident. (R.1). However, neither Inland or Chewelah reviewed
or provided any protective gear when working above ground or provided any
training regarding protective measures or fall avoidance. (R.1).
During the course of his welding, the support line of the lanyard was
severed causing him to fall the result of which is his paralysis. (R. at 1).
The accident site was lacking scaffolding, guardrail, safety net, safety
line, and a fall arrest system. (R. at 1).
In
early September 2002, Boleyn contacted the Defendant in an effort to negotiate
a settlement. This attempt was unsuccessful
and a complaint filed. Immediately thereafter, the defendant filed a discovery
request seeking information that would have been embarrassing, burdensome,
harassing and private, requiring Boleyn to seek protection from the court in
the form of a protection order. Having
completed discovery, the defendant still refuses to negotiate any form of
settlement. It is at this point that
Boleyn asks the court for summary judgment in his favor.
IV. ARGUMENT
4.1 Standard of Review
Summary judgment is appropriate if there
is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. CR 56; Olympic
Fish Prods., Inc. v. Lloyd, 93 Wn.2d 596, 611 P.2d 737 (1980). The facts are view in the light most
favorable to the non-moving party, however a nonmoving party must set forth
sufficient facts to rebut the moving party’s contention and may not rely on
speculation or argumentative assertions that a material fact exists. Olympic Fish Prods., Inc., 93 Wn.2d
596, 611 P.2d 737 (1980); Seven Gables Corporation v. MGM/UA Entertainment
Co., 106 Wn.26 1, 721 P.2d 1 (1986)..
Questions of negligence and proximate cause may be decided as a matter
of law when reasonable minds could reach but one conclusion. Ruff v. County of King, 125 Wn.2d
697, 887 P.2d 886 (1995). For purposes
of this motion, no facts are in dispute and Boleyn is entitled to judgment as a
matter of law.
4.2 Chewelah
is liable for Boleyn’s injuries resulting from ITS violation of specific wisha
regulations.
Chewelah is liable because it caused
Boleyn’s injuries when it breached its duty to ensure the safety precautions of
WAC 296-155-24510 were followed.
Chewelah is not immune from suit, is subject to the WISHA regulations,
and Boleyn has a statutory right to pursue compensation for his injuries from
Chewelah. Because Chewelah retained
supervisory authority over the work conducted on its premises, Chewelah was
required to ensure compliance with WISHA as a matter of law.
A.
Chewelah
is not immune from suit under the Industrial Insurance Act because it was not
Boleyn’s direct employer.
Boleyn may bring suit against Chewelah
because “without an employer-employee relationship [Chewelah] could not be
immune.” Hildahl v. Bringolf,
101 Wn.App 634, 648, 5 P.3d 38, 45 (2000).
Were a worker is injured, he may bring suit against a responsible third
person not in the worker’s same employ.
Id. at 640 - 644, 5 P.3d at 41 - 43; RCW 51.24.030(1) (2002).
In Hildahl, 101 Wn.App 634, 5 P.3d
38 (2000), the employee of an independent contract brought suit against a
homeowner for injuries he sustained during a roofing project. The court held that the homeowner was not
immune from suit under Washington’s industrial insurance scheme. Id. at 642 - 644, 5 P.3d 42 -
43. The court reasoned that the
defendant was not a worker in the same employ as the plaintiff and that RCW
51.24.030(1) provides a right of action against third parties. Id.
There is no dispute that Chewelah was not
Boleyn’s employer at the time of the accident. (R. at 1); (Boleyn Aff. ¶
2). Although there may have been
discussion about Boleyn joining Chewelah after the completion of the project
for inland, this had not happened at the time of accident. (Rogers Aff. ¶ 5). Chewelah may argue that they were in the
same employ, but the intention of the “same employ” immunity was to avoid
assessing liability against a coworker or the direct employer who is paying
industrial insurance premiums. Hildahl,
101 Wn.App 634, 5 P.3d 38 (2000).
At the time of the accident, Boleyn was employed by Inland Northwest
Construction Contractors, not Chewelah.
For these reasons, Chewelah is not immune
from suit under the Industrial Insurance Act.
Chewelah was not Boleyn’s employer nor was it in the “same employ”. Having established that Chewelah is not immune
from suit, there is still the question of whether it breached a duty owed to
Boleyn.
B.
Chewelah’s
violation of the regulations promulgated under WISHA subject it to liability
because a contracting party with supervisory authority is responsible for enforcing
WISHA as a matter of law.
Chewelah is liable for Boleyn’s injuries
because it breached its duty to ensure compliance with the WISHA
regulations. Where a safety regulation
that creates a special duty has been violated, an employer as defined in RCW
49.17.020(4) that has supervisory authority analogous to that of a general
contractor is liable for injuries that may result. RCW 49.17.020(4), .060(2) (2002); Stute v. P.B.M.C., Inc.,
114 Wn.2d 454, 788 P.2d 545 (1990); Phillips v. Kaiser Aluminum & Chemical
Corporation, 74 Wn.App. 741, 875 P.2d 1228 (1994); cf. Kamla v. Space
Needle Corporation, 147 Wn.2d 114, 52 P.3d 472 (2002) (recognizing that
this rule does not apply to a jobsite owner unless some control is
retained). This rule has been applied to
relationships where independent contractors have been employed by general
contractor/jobsite owners, owner/developers, and jobsite owners with
supervisory authority. Phillips,
74 Wn.App. 741, 875 P.2d 1228 (1994); Doss v. ITT Rayonier, Incorporated,
60 Wn.App. 125, 803 P.2d 4 (1991); Husfloen v. MTA Construction, Inc.,
58 Wn.App. 686, 794 P.2d 859 (1990); Weinert v. Bronco National Company,
58 Wn.App. 692, 795 P.2d 1167 (1990).
In Stute v. P.B.M.C., Inc., 114
Wn.2d 454, 788 P.2d 545 (1990), a general contractor was sued by the employee
of a subcontractor who fell off a roof while installing rain gutters on a
condominium complex. The Washington
Supreme Court reversed the trial court and the court of appeals when it held
that “[a] general contractor’s supervisory authority is per se control
over the workplace, and the duty [to comply with safety regulations] is placed
upon the general contractor as a matter of law.” Id. at 464, 788 P.2d 550 - 551. The court reasoned as a matter of policy that the general contractor’s
supervisory authority placed it in the best position to ensure that all workers
comply with safety regulations. Id.
at 463, 788 P.2d 550.
The court applied this rule to a jobsite
owner in Doss v. ITT Rayonier, Incorporated, 60 Wn.App. 125, 803 P.2d 4
(1991), where the employee of an independent contractor was injured while
cleaning a boiler. The court held that
the jobsite owner’s duty to comply with the WISHA regulations extended to the
employees of the independent contractor.
Id. at 129, 803 P.2d 6.
The court reasoned that the jobsite owner met the definition of employer
under RCW 49.17.020(4), and it had innate supervisory authority that gave it
control over the workplace. Id.
Chewelah meets the definition of employer
because it is an “entity which engages in any business, . . . [and] who
contracts with one or more persons, the essence of which is the personal labor
of such person.” RCW 49.17.020(4)
(2002). Additionally, it is uncontested
that Chewelah did not provide scaffolding, guardrail, safety net, safety line,
and a fall arrest system as required under WAC 296-155-24510. (R. at 1).
Therefore, the primary inquiry is whether Chewelah had control over the
jobsite equivalent to that of a general contractor. The record and affidavits show that Chewelah’s employees would
periodically inspect Boleyn’s work. (Boleyn Aff. ¶¶ 6 - 10); (Cooper Aff. ¶¶ 4
- 7); (Rogers Aff. ¶ 8). This
inspection was not limited to checking compliance with the contract, but if a
portion of the job was not done as the Chewelah bosses thought it should be,
they would instruct Boleyn’s supervisor to tell him to redo the work. Id. Additionally, Chewelah controlled the
working hours and break periods of Boleyn.
(Boylen Aff. ¶ 4), (Rogers Aff. ¶ 4).
These sorts of actions are of the type that would usually be expected of
a general contractor exercising its innate supervisory authority and thus is per
se control of the workplace. As
additional evidence of control of the workplace, one can point to the fact that
Chewelah prepared the site before Inland began working and provided the welder
that Boleyn was using when injured. (R. at 1); see Phillips v. Kaiser
Aluminum & Chemical Corporation, 74 Wn.App. 741, 875 P.2d 1228 (1994)
(provided chain saws and supervised the independent contractor’s work).
Chewelah may argue that decision in Kamla
v. Space Needle Corporation, 147 Wn.2d 114, 52 P.3d 472 (2002), excepts
jobsite owners from liability for WISHA violations. This however is not a reasonable reading of Kamla, which
merely recognized that “it is unrealistic to conclude all jobsite owners
necessarily control work conditions.” Kamla,
147 Wn.2d 114, 52 P.3d 477 (2002).
Additionally, the intent of the
legislature to assure safe and healthful working conditions would best be
served by holding Chewelah responsible because Chewelah is in a position where
it could ensure that all contractors on its premises are in compliance with the
safety regulations. See RCW
49.17.010 (2002). It could
contractually require the contractors to comply with the safety regulation,
require them add the cost of compliance into bids submitted to Chewelah, order
a noncomplying contractor to stop work, and withhold payment if a contractor
refuses to comply with the safety regulations. See generally Stephen L.
Bulzomi & John L. Messina, Jr., Washington’s Industrial Safety
Regulations: The Trend Towards Greater Protection for Workers, 17 U. Puget
Sound L. Rev. Cite Law Review 315 (1994) (discussing the policy behind WISHA
and describing the difference between negligence claims based on WISHA and
common law retained control).
Therefore, Chewelah is liable for
Boleyn’s injuries. Chewelah is an
employer under WISHA and due to its supervisory authority Chewelah had per se
control over the jobsite. This control
vested a duty to ensure compliance with the safety regulations in Chewelah as a
matter of law. Because it is
uncontested that these regulations were violated, there is no genuine issue of
material fact and Boleyn is entitled to judgment as a matter of law. Not only is Chewelah liable under the
statutory scheme of WISHA, but it also breached a common law duty owed to
Boleyn.
4.3
BECAUSE
OF CHEWELAH’S SUPERVISORY AUTHORITY IT OWED A DUTY TO PROVIDE A SAFE WORK PLACE
AS A MATTER OF LAW UNDER AN EXCEPTION TO THE COMMON LAW RULE OF NON-LIABILITY
FOR INJURIES SUSTAINED BY AN INDEPENDANT CONTRACTOR.
Boleyn is entitled to recover from
Chewelah because it failed to provide a safe workplace and subjected him to an
inherently hazardous work environment, the result of which is his
paralysis. As a general rule, an
employer of an independent contractor is not liable for injuries sustained by
the contractor, however when an employer of independent contractor retains
supervisory authority it has per se control over the work of the
contractor and is responsible for injuries to the contractor’s employees. Kelly v. Howard S. Wright Constr. Co.,
90 Wn.2d 323, 582 P.2d 500 (1978); Phillips v. Kaiser Aluminum &
Chemical Corporation, 74 Wn.App. 741, 875 P.2d 1228 (1994); Kamla v.
Space Needle Corporation, 147 Wn.2d 114, 52 P.3d 472 (2002).
In Kelly v. Howard S. Wright Constr.
Co., 90 Wn.2d 323, 582 P.2d 500 (1978), the employee of a subcontract
brought suit against a general contractor after he fell over 29 feet while
working on a building. The court held
that the general contractor’s supervisory and coordinating authority alone are
sufficient to create a duty to provide a safe workplace. Kelly, 90 Wn.2d at 330 - 332, 582
P.2d 505 - 506. The court reasoned that
a general contractor has the authority to require safety precautions and is in
the best position to ensure that subcontractors follow the safety
precautions. Id.
As already established in the discussion
under part 4.2 supra, Chewelah had innate supervisory control. Under the common law, innate supervisory
authority is sufficient to satisfy the common law retained control test. Kelly v. Howard S. Wright Constr. Co.,
90 Wn.2d 323, 582 P.2d 500 (1978).
Because of this control, Chewelah owed a duty to provide a safe workplace
as a matter of law. The record and
affidavits are brimming with evidence that Chewelah breached this duty. The most obvious evidence of this breach is
the violation of the WISHA regulations already discussed. Although violation of a statute is no longer
negligence per se in Washington, it is to be considered evidence of
negligence by the jury. RCW 5.40.050
(2002). Additionally, Chewelah did not
bother to inspect the lanyard Boleyn was using. (R. at 1). Even though
Chewelah prepared the work site, its employees would inspect Boleyn’s work, and
the plant supervisor even watched him work on occasion, no effort was made to
provide a safe workplace for Boleyn.
(R. at 1); (Rogers Aff. ¶ 6); (Boleyn Aff. ¶ 6).
Additional evidence that Chewelah breached
its duty is the fact that it subjected Boleyn to an inherently dangerous work
environment without taking adequate safety measures. Specifically, Chewelah allowed Boleyn to be suspended 20 feet
above the ground without an approved safety harness, scaffolding, or
netting. (R. at 1). This situation is closely analogous to the
worker in Kelly, 90 Wn.2d 323, 582 P.2d 500 (1978), who was required to
walk on beams 25 feet above the ground in which situation the court recognized
that the situation is inherently dangerous.
Reasonable minds can come to but one
conclusion; Chewelah breached its duty to Boleyn and caused his injuries. As a matter of law, Chewelah owed a duty to
provide a safe work site. Instead,
Chewelah failed to comply with the WISHA safety regulations and subjected
Boleyn to an inherently dangerous work environment without adequate safety
measures. Because no reasonable mind
could conclude otherwise, Boleyn is entitled to judgment as a matter of law.
V. CONCLUSION
Because Chewelah breached its statutory
duty to comply with the WISHA when it violated the safety regulations, and also
breached its common law duty to provide a safe work site, Plaintiff Boleyn asks
this Court to grant judgment on the issue of liability against defendant Chewelah
Fibre Plant.
DATED this 26th day of November, 2002
DEFORREST, CHEATSUM, & HOWE PLLC
_____________________________
Ove Rworked, WSBA #
Attorney for Plaintiff