277 P.3d 34
Wash. Ct. App.2012Background
- Cano-Garcia was injured while working for KST, the general contractor on King County's Brightwater project.
- Jacobs monitored several general contractors, ensuring contract compliance and safety standards.
- KST and Cano-Garcia allege King County and Jacobs retained control over safety and thus liability under WISHA and common law.
- Cano-Garcia sustained injuries from concrete and water exposure during a pour; primary injury date December 5, 2008.
- KST is immune from suit under Washington's workers' compensation scheme; plaintiffs sue King County and Jacobs instead.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did King County/Jacobs owe a statutory duty under WISHA? | Cano-Garcia contends retained control created WISHA duty. | County/Jacobs did not retain control over work methods. | No retained control; no statutory duty. |
| Did King County/Jacobs owe a common law duty to provide a safe workplace? | Retention of control by KC/Jacobs imposes duty as general contractor. | KST remained responsible; no retained control by KC/Jacobs. | No common law duty; no retained control. |
| Are KC/Jacobs liable under concerted action theories? | KC, Jacobs, and KST acted in concert. | Only KST was at fault; no concerted action. | Not liable under concerted liability; no joint fault. |
| Was Cano-Garcia's business invitee argument preserved for summary judgment review? | KC breached invitee duty. | Argument not raised in opposition to summary judgment. | Not preserved; not considered. |
Key Cases Cited
- Kamla v. Space Needle Corp., 147 Wash.2d 114 (2002) (retained control required for nondelegable duty; mere right to inspect not enough)
- Stute v. P.B.M.C., Inc., 114 Wash.2d 454 (1990) (employer's control over safety creates duty; primary responsibility on general contractor)
- Weinert v. Bronco Nat'l Co., 58 Wash.App. 692 (1990) (inspections alone do not establish retained control)
- Doss v. ITT Rayonier, Inc., 60 Wash.App. 125 (1991) (owner-indep. contractor relation; no difference from general contractor under certain facts)
- Kelley v. Howard S. Wright Constr. Co., 90 Wash.2d 323 (1978) (nondelegable duty where contractor assumed responsibility for safety)
- Arnold v. Saberhagen Holdings, Inc., 157 Wash.App. 649 (2010) (distinguishes between jobsite owner vs. general contractor control)
- Hennig v. Crosby Grp., Inc., 116 Wash.2d 131 (1991) (retention of right to inspect/supervise insufficient to show retained control)
- Phillips v. Kaiser Aluminum & Chem. Corp., 74 Wash.App. 741 (1994) (employee inspections do not necessarily show control over methods)