This is a crazy case! The mill hired a contractor to build scaffolding inside one of its Chlorine Dioxide (CLO2) tanks. The mill prepped the tank and even performed the initial air sampling of the space. Turned it over to one of the scaffolding contractor employees who would be the attendant for the entry. Three entrants and the attendant were wearing personal Cl2 air monitors. Three scaffolding builders entered the tank. After 30-40 minutes, one of them felt ill and exited the tank. Once outside his personal detector alarmed. Soon after, the other two workers' detectors went into alarm, and they exited the tank. Two entrants were hospitalized for two (2) days; the other two were treated and released. The employee who filed the suit continued to suffer symptoms from chlorine dioxide exposure, including excessive coughing and wheezing. He was diagnosed with bronchiolitis obliterans and upper airway injuries.
He sued the mill, the company that made the personal detectors, and the company that supplied the detectors.
So far, he has lost his case. This was his appeal, but it did not go well.
The paper mill claimed they had no control over the event, even though it was their tank on their property. This post is NOT about limiting liability but about managing PRCS entry hazards.
I will note that the meters' manufacturer presented evidence that two of the monitors detected chlorine dioxide limits that would have put them into alarm, but the monitors were switched off less than two minutes later. This happened several times over 24 minutes for one monitor and 33 minutes for the other. As noted above, their final inspection of the monitors before they were sold to the rental company had low alarm settings at 0.10 ppm and high alarm settings at 0.20 ppm. By the time of the incident, the settings had been changed to 0.20 ppm and 0.50 ppm. Safway employees stated that they had not changed the settings. The presumption is that the rental company changed them.
Here is all the legal wrangling!
Worker appeals the trial court’s grant of summary judgment in favor of Weyerhaeuser Company and Industrial Scientific Corporation (ISC) in his lawsuit against them seeking damages for injuries he sustained while working as an independent contractor inside a chlorine dioxide tank at a pulp and paper mill Weyerhaeuser owned.
Worker worked for Safway Services LLC (Safway), a contractor specializing in scaffolding. Weyerhaeuser contracted with Safway to erect scaffolding in a chlorine dioxide storage tank (Tank #2) in order to complete regularly scheduled tank maintenance.
Weyerhaeuser’s contract required Safway to prepare a safety/loss plan and to ensure compliance
with numerous safety requirements.
Safway gave the worker and his colleagues GasBadge Pro (GBP) air monitors to wear while they worked in Tank #2. ISC manufactured the GBP monitors, and Airgas USA LLC (Airgas) leased them to Safway. The GBP monitors were equipped with chlorine dioxide sensors and should have alerted if exposed to dangerous levels of chlorine dioxide. He worked in Tank #2 for about 30 minutes when he began to feel dizzy and left the tank. None of the GBP monitors alarmed until after He exited. He suffered severe respiratory injuries as a result of his exposure to chlorine dioxide in Tank #2.
He filed a lawsuit against Weyerhaeuser, ISC, and Airgas. Weyerhaeuser moved for summary judgment, arguing that it did not owe a duty to He because he was an independent contractor and Weyerhaeuser did not retain control over his work in Tank #2. He asserted a premises liability theory for the first time in response. ISC also moved for summary judgment, arguing that he failed to present specific evidence of a defect in the GBP monitors and failed to show that the monitors were defective when they left ISC’s control.
The trial court granted Weyerhaeuser and ISC’s motions for summary judgment. He subsequently settled his claims against Airgas.
We hold that
(1) Weyerhaeuser did not owe a duty to the worker as an independent contractor because it did not retain control over the manner in which Safway performed its work,
(2) Weyerhaeuser is not liable under a premises liability theory because it delegated to Safway its duty to guard against known or obvious dangers on the premises,
(3) Weyerhaeuser is not liable under a res ipsa loquitur theory, and
(4) ISC is subject to liability under a product liability theory because the GBP monitors’ failure to go into alarm when exposed to high levels of chlorine dioxide raises a genuine issue of material fact as to whether they were reasonably safe.
Accordingly, we affirm the trial court’s grant of summary judgment in favor of Weyerhaeuser, but we reverse the trial court’s grant of summary judgment in favor of ISC and remand for further proceedings.
FACTS
Background
Weyerhaeuser owns a pulp and paper mill in Longview. Weyerhaeuser uses a chlorine dioxide solution to bleach the pulp as part of its manufacturing process. The Longview mill has two tanks that hold the chlorine dioxide solution. Periodically, Weyerhaeuser shuts down the mill for maintenance. In order to complete maintenance in the chlorine dioxide tanks, it is necessary to erect scaffolding inside them.
In 2008, Weyerhaeuser first hired Safway, a scaffolding contractor, to build scaffolding inside its tanks. Weyerhaeuser employees referred to Safway as a “non-supervised scaffolding contractor” during testimony. The contract between Weyerhaeuser and Safway contained a safety provision, which stated as follows:
Safety; Familiarity with Site. Supplier understands that safety is a high priority. The supplier also acknowledges that the Site is used for industrial operations and maintained only to standards required for such use. Before the commencement of Services, the Supplier will, at its own expense, become familiar with the Site, its operations, and any safety rules or guidelines set forth in Attachment D or provided to the Supplier from time to time. In addition to any Site-specific safety guidelines, the Supplier will meet all OSHA and other applicable Federal and state regulatory agency requirements regarding safety. The Supplier represents and warrants that any employee and subcontractor (used in the performance of Services) will be adequately trained and at all times comply with the above-listed standards and any other requirements of this contract.
Attachment D to the contract set forth “Contractor Safety Requirements.” CP at 40. Attachment D stated, “Contractor is responsible for ensuring that all Contractor employees, their Subcontractor employees and Supplier employees meet the following requirements.” CP at 40. Attachment D also stated that Safway was required to
(1) provide Weyerhaeuser a copy of a written “Safety/Loss Program,” which had to include 16 categories such as “respiratory protection,” “confined space,” and personal protective equipment;
(2) ensure that Safeway employees had received training, including “[a]t least one OSHA approved [training] program or other program(s)” accepted by Weyerhaeuser as well as department and job specific orientations;
(3) provide Weyerhaeuser with a list of all employees scheduled to be on site, including verification that they had received the required safety training;
(4) provide specific safetysupervision; and
(5) ensure that all employees comply with WISHA2 safety standards and Weyerhaeuser’s policies and procedures. CP at 40. Safway also was required to “[p]rovide all necessary safety equipment, education, training, and devices necessary to safely perform work.”
Nothing in the contract stated that Weyerhaeuser had any authority or control over the manner in which Safway completed its scaffolding work. Weyerhaeuser required all of its contractors to comply with their confined space entry permit when they worked within confined spaces on the jobsite. Weyerhaeuser filled out the permit. The permit identified the confined space that the contractor planned to enter, the purpose of entry, PPE requirements, atmospheric test requirements, and entry hazards. It also contained a checklist for the entry coordinator to complete “immediately prior to initial entry.”
A Weyerhaeuser employee generally served as the entry coordinator for purposes of the permit. The space entry permit included a log for “confined space attendant” to sign in. The confined space attendant was in charge of ensuring that all permit conditions were met before employees enter the confined space. The permit also included an “atmospheric test log” that required atmospheric tests initially, before every entry into the tank, every two hours during the job, and each time the job was discontinued for more than 30 minutes. The atmospheric testing log provided that attendants should test for oxygen, hydrogen sulfide, carbon monoxide, chlorine, and lower explosive limit (LEL). There was no specific test for chlorine dioxide, but chlorine is a byproduct of chlorine dioxide.
Before any scheduled maintenance, Weyerhaeuser would prepare the chlorine dioxide tanks to ensure they were safe for entry. According to Weyerhaeuser’s written procedure, Weyerhaeuser was to
(1) isolate Tank #2 from Tank #1 to ensure that chlorine dioxide would not leak between the tanks,
(2) empty Tank #2 of chlorine dioxide,
(3) dechlorinate the tank using a mixture of water, peroxide, and caustic, (4) rinse the tank, and (5) drain the tank.
The cleaning process takes two days, and could require an additional 24 hours to ventilate the air inside the tank before it is safe for entry.
Personal Air Monitors and Chemical Gases
ISC sold the four GBP monitors in use at the time of the incident to Airgas no later than December 31, 2008. Airgas rented the monitors to Safway for their employees to wear while working inside Tank #2. The GBP monitors had sensors that could detect chlorine dioxide, and would alarm if they detected a gas concentration higher than the set alarm thresholds. ISC established default set points for the GBP monitors for various gases. ISC’s default low alarm and high alarm set points for chlorine dioxide were 0.10 parts per million (ppm) and 0.20 ppm, respectively. These default set points were in accordance with those recommended by OSHA and the Association Advancing Occupational and Environmental Health.
Chlorine dioxide has an odor threshold of 0.30 ppm. Chlorine dioxide smells like chlorine or ozone. In addition, gases have different weights. This means that if gases are in the atmosphere of a confined space, they tend to settle at different levels within the space depending on conditions like heat and humidity.
Safway’s Work in Tank #2
On March 2, 2011, Weyerhaeuser took Tank #2 out of service. The next day, Weyerhaeuser filled the tank with a mixture of hydrogen peroxide and water. They did not use a caustic to clean the tank. They then rinsed and drained the tank and ventilated the tank for two days. Weyerhaeuser scheduled Safway to perform scaffolding work in Tank #2 on March 8. Weyerhaeuser required Safway employees to undergo training before they entered Weyerhaeuser property. A Safway employee was the trainer. The training consisted of watching a video provided by Weyerhaeuser and taking a test.
On March 8, a Weyerhaeuser employee, was the entry coordinator for Tank #2 pursuant to the confined space entry permit. At 7:50 AM, he checked the atmosphere in the tank, using a six foot attachable air wand while he stood outside the tank. He tested for oxygen, hydrogen sulfide, carbon monoxide, chlorine, and LEL. His testing revealed that there were safe levels of each chemical in the entry of the tank. A Safway employee was present for the testing. At 7:56 AM, the Safeway employee signed in as the confined space attendant under the confined space entry permit. At that point, the Weyerhaeuser employee turned things over to Safway and left the area in control of the Safeway attendant. His responsibility was to perform his own testing and to ensure that it was permissible for workers to enter the tank. The entry permit does not reflect that he conducted additional atmospheric testing once he took over. However, he stated that he checked the atmosphere inside the tank before anyone entered.
Three workers entered Tank #2. They each wore a GBP personal air monitor outfitted to detect chlorine and a rescue respirator. When the Safway employees entered the tank, they encountered the smell of chlorine. None of the GBP monitors alarmed when they entered the tank.
The men were in the tank for between 30 and 40 minutes when He began to feel symptoms. The worker who filed the suit later explained that he started to feel bad shortly after he started working on the second-floor deck of the scaffolding, 15 feet up off the bottom of the tank. His throat began to itch, he struggled to speak, and he got dizzy. He told the others that he needed to get out of the tank, and he climbed down from the scaffolding and exited the tank. His monitor alarmed after he exited the tank, and showed a reading of 3.75 ppm. The other two remained in the tank. While still working in the tank, one of their GBP monitor alarmed. At that time, both exited the tank. Upon exiting the tank, all three men were coughing.
The employees reported the incident to Weyerhaeuser, and then went to Safway’s designated break area at the jobsite. Other Safway employees commented that the men smelled like chlorine. The men went to a wellness clinic. Fleming did not experience any symptoms, and the clinic discharged him. However, the clinic sent two of the workers to the hospital, where they remained under observation for two days before being released.
The employee who filed the suit continued to suffer symptoms from chlorine dioxide exposure, including excessive coughing and wheezing. He was diagnosed with bronchiolitis obliterans and upper airway injuries.
GBP Monitors in Tank #2
The three entrants and the Attendant each wore GBP monitors, identified as GBP 1 through GBP 5.4 The monitors had low alarm settings for chlorine dioxide at 0.2 ppm and high alarm settings at 0.50 ppm. According to reports provided by ISC, two of the GBP monitors worn inside Tank #2 recorded concentrations of chlorine dioxide above the pre-set low and high alarm settings. GBP 1 recorded a minimum concentration of chlorine dioxide of 0.48 ppm and a maximum of 0.61 ppm. GBP 5 recorded a minimum concentration of chlorine dioxide of 0.89 ppm and a maximum of 1.10 ppm. GBP monitors 2 and 4 did not detect any chlorine dioxide.
ISC presented evidence that two of the monitors detected chlorine dioxide limits that would have put the monitors into alarm, but then the monitors were switched off less than two minutes later. This happened several times over 24 minutes for one monitor and 33 minutes for the other monitor.
As noted above, ISC’s final inspection of the monitors before they were sold to Airgas had low alarm settings at 0.10 ppm and high alarm settings at 0.20 ppm. By the time of the incident, the settings had been changed to 0.20 ppm and 0.50 ppm. Safway employees stated that they did not change the settings. The presumption is that Airgas changed them.
Trial Court Proceedings
In February 2014, the injured worker filed a lawsuit against Weyerhaeuser, ISC and Airgas, alleging negligence against Weyerhaeuser and Airgas and alleging that ISC provided gas monitors that were defective and not reasonably safe. His allegations regarding Weyerhaeuser included
(1) failing to properly clean the tank,
(2) failing to ensure that the tank was free from harmful chemicals before permitting Safway employees to enter,
(3) providing an unsafe work environment for Safway employees, and
(4) failing to comply with various state, local and federal regulations. He also claimed that Weyerhaeuser was liable under the doctrine of res ipsa loquitur.
He did not state that Weyerhaeuser was liable under a premises liability theory. He alleged that ISC sold defective gas monitors that were not reasonably safe, and that it was liable to him under theories of negligence and strict liability.
In January 2018, Weyerhaeuser moved for summary judgment, arguing that it did not owe a duty to him as an independent contractor because it did not retain control over the manner in which Safway performed its work. Weyerhaeuser also argued that res ipsa loquitur did not apply because it did not have exclusive control over Tank #2.
In opposition to summary judgment, the injured worker argued that as the owner of the jobsite, Weyerhaeuser owed a duty to him to provide a safe workplace because Weyerhaeuser retained the right to control Safway’s work. He argued that Weyerhaeuser retained control over Safeway’s work in Tank #2 by providing job specific training, coordinating the safety protocols at the job site, mandating that Safway comply with the confined space entry permit, and preparing Tank #2 for entry by Safway employees. He also argued that Weyerhaeuser was liable under res ipsa loquitor.
In addition, He argued that Weyerhaeuser owed him a duty under the business invitee theory of premises liability. He claimed that Weyerhaeuser, as a landowner, was liable because Tank #2 was hazardous to business invitees like him and Weyerhaeuser should have expected that he would not discover the danger of the chlorine dioxide in Tank #2. In reply, Weyerhaeuser pointed out that he had not pleaded a premises liability theory in his complaint. However, Weyerhaeuser did not object to him raising the issue and proceeded to argue his premises liability claim on the merits.
In February 2018, ISC also moved for summary judgment. It argued that that he offered no evidence that any of the monitors were defective when they left ISC’s control. In the alternative, ISC argued that because none of the air monitors contained sensors to monitor all of the known hazards in Tank #2, he could not establish a claim against them.
In opposition, he argued that ISC was strictly liable under the design defect theory of product liability. He argued that the GBP monitors were more dangerous than the ordinary consumer would expect. He submitted the deposition of Dr. David Atwood in support of his argument.
In March 2018, the trial court entered orders granting Weyerhaeuser’s and ISC’s motions for summary judgment. The court orally ruled that Weyerhaeuser did not retain control of Safway’s work and did not owe a duty to him. The trial court also commented “I do believe there’s a public policy element to this, that those kinds of restrictions on what to do, what you can do before you’re allowed to start your job are functionally, factually, legally different than restrictions on how you actually do your job.”
Regarding ISC, the court suggested that ISC could not be held liable because the set points on the GBP monitors were different than when they left ISC’s control. In March 2023, the trial court entered a stipulation and agreed order dismissing He’s claims against Airgas.
He appeals the trial court’s orders granting Weyerhaeuser’s and ISC’s motions for summary judgment.
ANALYSIS
WEYERHAEUSER’S DUTY AS JOBSITE OWNER
The injured worker argues that the trial court erred in granting summary judgment in favor of
Weyerhaeuser because Weyerhaeuser retained control over Safway’s work, and therefore owed him a duty even though he was an employee of an independent contractor. We disagree.
1. Legal Principles
The threshold determination in a negligence claim is the existence of a duty – whether the defendant owed the plaintiff a duty. Turner v. Dep’t of Soc. & Health Servs., 198 Wn.2d 273, 284, 493 P.3d 117 (2021). The existence of a duty is a question of law that we review de novo.
A jobsite owner’s duty is determined with reference to a general contractor’s duty. Afoa v. Port of Seattle, 191 Wn.2d 110, 121, 421 P.3d 903 (2018) [Afoa II]. “Under the common law, a general contractor owes a duty to all employees on a jobsite to provide a safe place to work in all areas under its supervision.” Vargas v. Inland Wash., LLC, 194 Wn.2d 720, 730, 452 P.3d 1205 (2019). Despite this rule, a general contractor on a worksite who hires an independent contractor to perform certain work generally is not liable for injuries to the employees of that independent contractor. Id. at 731. But if a general contractor hires a subcontractor and retains control over the work performed, the general contractor has a common law duty within the scope of control to provide a safe workplace. Id.
In addition to the common law duty, a general contractor has a statutory duty to provide a safe workplace. Vargas, 194 Wn.2d at 735. Under RCW 49.17.060(2), general contractors have a duty to ensure compliance with WISHA regulations. Vargas, 194 Wn.2d at 735. For general contractors, this statutory duty extends to all employees working at the jobsite regardless of whether the general contractor retains control over the jobsite. Id. at 735-36.
Jobsite owners also may owe the same common law and statutory duties as general contractors to provide a safe workplace. Afoa II, 191 Wn.2d at 121. Like general contractors, jobsite owners have a common law duty to the employees of independent contractors if they “retain[] control over the manner in which work is done on a work site.” Afoa v. Port of Seattle, 176 Wn.2d 460, 478, 296 P.3d 800 (2013) [Afoa I]. However, unlike general contractors, “jobsite owners have a duty to comply with WISHA only if they retain control over the manner in which contractors complete their work.” Id. at 472.
The Supreme Court has expressed the retained control rule in slightly different ways. In Kamla, the court referred to whether the jobsite owner “retains control over the manner in which the employee works.” 147 Wn.2d at 119. In Afoa I, the court cited Kamla in referring to jobsite owners’ liability under WISHA when they “retain control over the manner in which contractors complete their work.” 176 Wn.2d at 472. Later, the court stated that jobsite owners must comply with WISHA regulations “if they retain control over the manner and instrumentalities of work being done on the jobsite.” Id. Regarding common law liability, the court referred to the jobsite owner retaining “the right to control work.” Id. at 477; see also Afoa II, 191 Wn.2d at 121 (“degree of control over the work”).
In Kamla, the court quoted with approval from a comment to section 414 of Restatement (Second) of Torts, which states, “[T]he employer must have retained at least some degree of control over the manner in which the work is done. . . . 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.”
For purposes of this retained control rule, “ ‘[t]he test of control is not the actual interference with the work of the subcontractor, but the right to exercise such control.’ ” Vargas, 194 Wn.2d at 731 (quoting Kelley v. Howard S. Wright Constr. Co., 90 Wn.2d 323, 330-31,582 P.2d 500 (1978)). Stated differently, “the proper inquiry becomes 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.” Kamla, 147 Wn.2d at 121.
2. Duty Analysis
Weyerhaeuser owed a duty to the injured worker only if it retained the right to control the manner in
which Safway performed its work in Tank #2. We conclude that Weyerhaeuser did not retain the right to control Safway’s work and therefore did not owe a duty to He.
Initially, there is no evidence that Weyerhaeuser had the right to control any aspect of the work Safway contracted to perform – the installation of scaffolding inside of Tank #2. Weyerhaeuser contracted with Safway because Safway had expertise and experience in installing scaffolding in its tanks. As in Kamla, Safway was an independent contractor that was free to install the scaffolding in its own way.
In addition, Weyerhaeuser did not control the entry of the Safway employees into the tank. After conducting initial testing, the Weyerhaeuser employee left the area and turned over control to a Safway employee. Safway then determined whether it was safe for its employees to enter.
However, the injured worker argues that Weyerhaeuser exercised control over its work by imposing
specific safety requirements in Attachment D to the contract and in the confined space entry permit. He argues that these specific requirements show that Weyerhaeuser exercised control over the safety aspects of Safway’s work. He claims that Weyerhaeuser supervised and controlled Safway’s work through Attachment D and the confined space entry permit. Initially, we note that confined space entry permits were not something that only Weyerhaeuser required – they are required by WISHA. WAC 296-307-65002, -65004. In addition, he focuses on the requirement of ongoing testing when workers are a confined space as an element of control, but the WISHA-mandated confined space entry permit requires the recording of initial and periodic tests. WAC 296-307-65004(1)(f). And WAC 296-307-
65012 requires both preentry testing and subsequent testing for toxic gases. Jobsite owners insisting that an independent contractor comply with WISHA safety standards or permits or even their own safety requirements does not mean that they retain control over the manner in which the independent contractor performs its work. Retained control necessarily focuses on the specific work the contractor was hired to perform – here, installation of scaffolding – not on safety requirements.
This conclusion is consistent with the Supreme Court’s statement in Afoa I: “Certainly, not every licensor or jobsite owner takes on a common law duty to maintain a safe workplace any time it requires on-site workers to comply with safety rules and regulations.” Id.
The court in Afoa I acknowledged that retained control may exist when a jobsite owner “undertakes to control worker safety in a large, complex work site like Sea-Tac Airport.” Id. In other words, a jobsite owner retains control if the owner is responsible for enforcing the safety requirements. But here, Weyerhaeuser did not “undertake to control worker safety” or to monitor its safety requirements. The contract and Attachment D stated that Safway, not Weyerhaeuser, was responsible for ensuring that the safety requirements were being followed.
Safway, not Weyerhaeuser, was responsible for developing a detailed safety plan. And the confined space entry permit contemplated that Safeway would assume control of the work on Tank #2 once initial testing was completed. In other words, Weyerhaeuser did not retain control over implementation of the safety requirements. That control was transferred to Safway.
He argues that a jobsite owner can owe a duty not only by controlling the manner in which the independent contractor performs its work, but by generally maintaining control over the “workplace.” The court in Afoa I mentioned this concept: “Under our common law safe workplace doctrine, landowners and general contractors that retain control over a work site have a duty to maintain safe common work areas.” But this concept appears to be limited to unique work sites like Sea-Tac Airport, where the Port of Seattle necessarily has extensive control over the entire area. Otherwise, the cases are clear that retained control is based on control over the manner in which work is performed.
In any event, the workplace here is Tank #2. The evidence is clear that Weyerhaeuser did not retain control over the tank once it was emptied and cleaned. A Weyerhaeuser employee performed initial air testing of the tank, but once that testing was done control of the tank was turned over to Safway to perform the contracted work.
He also argues that Weyerhaeuser retained control of the work site because only Weyerhaeuser was able to operate Tank #2’s ventilation system while Safway was working. But merely operating a ventilation system for the tank does not indicate that Weyerhaeuser retained control over the manner in which Safway performed its work.
Finally, He argues that the trial court improperly based its ruling on Weyerhaeuser’s motion for summary judgment on “public policy” grounds. Br. of App. at 27-34. However, this court reviews summary judgment orders de novo. Mihaila, 21 Wn. App. at 231. Therefore, the trial court’s stated reasons for its ruling during oral argument are irrelevant to our analysis.
Accordingly, we reject his argument that Weyerhaeuser retained control over Safway’s work and hold that the trial court did not err in granting summary judgment in favor of Weyerhaeuser on He’s jobsite owner liability claim.
C. PREMISES LIABILITY CLAIM AGAINST WEYERHAEUSER
The injured worker argues that the trial court erred in granting summary judgment in favor of
Weyerhaeuser because Weyerhaeuser owed a duty to him as a business invitee on its premises.
Weyerhaeuser argues that this court should decline to consider this argument because He did not assert this claim in his complaint. We will consider this claim, but we conclude that Weyerhaeuser is not liable because it properly delegated to Safway its duty to protect him from known or obvious dangers.
1. Consideration of Claim
He argues that his complaint can be interpreted as asserting a premises liability claim. He also contends that even if he did not plead the claim, the issue was argued by implied consent of the parties in the summary judgment proceedings and we should treat the claim as if it had been raised in the complaint pursuant to CR 15(b). We agree with the CR 15(b) argument.
The complaint arguably did not assert a premises liability claim. However, we can consider He’s premises liability claim under CR 15(b), which states, “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.”
Here, Weyerhaeuser moved for summary judgment, arguing that it did not retain control of Safway’s work and therefore owed no duty to He. In opposition to Weyerhaeuser’s motion for summary judgment, He argued that Weyerhaeuser owed him a duty as a business invitee under a premises liability cause of action. In its reply in support of its summary judgment motion, Weyerhaeuser pointed out that this was the first time that He had raised the business invitee argument. But Weyerhaeuser did not object to him raising the issue. Instead, Weyerhaeuser proceeded to address the premises liability claim on the merits. At oral argument, he argued that there was a basis for liability under the premises liability theory. However, neither Weyerhaeuser nor the trial court addressed the argument during oral argument.
2. Liability for Obviously Dangerous Condition
The injured worker argues that the trial court erred in granting summary judgment in favor of
Weyerhaeuser because Weyerhaeuser owed a duty to He as a business invitee. We disagree.
a. Standard of Liability
A landowner’s duty to a person entering their property under premises liability law depends on whether the person is a trespasser, a licensee, or an invitee. The employees of an independent contractor hired by the landowner are invitees. Weyerhaeuser concedes that he was a business invitee.
For business invitees, we apply the standard stated in the Restatement (Second) of Torts § 343 and § 343A. Eylander v. Prologis Targeted U.S. Logistics Fund, LP, 2 Wn.3d 401, 408, 539 P.3d 376 (2023). Section 343 states:
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.
b. Analysis
There is no dispute that Weyerhaeuser owed He a duty as a business invitee to make its premises safe. The question is whether Weyerhaeuser delegated this duty to Safway, and if so, whether the delegation was reasonable. Eylander, 2 Wn.3d at 409. Weyerhaeuser delegated its duty through its contract with Safway, in which Safway agreed to prepare an extensive loss/safety plan and ensure compliance with WISHA and Weyerhaeuser’s safety requirements.
Because Safway accepted the terms of the contract, Weyerhaeuser “unambiguously and explicitly” delegated its duty to Safway to exercise reasonable care to make Tank #2 safe for entry.
It also is clear that Weyerhaeuser’s delegation to Safway was reasonable. The record reflects that Safway held itself out as a professional scaffolding company that was capable of assuming the delegation. Weyerhaeuser first hired Safway to perform scaffolding work in 2008, three years before He’s accident. Nothing in the record suggests that Weyerhaeuser had any reason to question Safway’s professionalism or specialized knowledge about installing scaffolding inside its tanks. There is no indication that Weyerhaeuser acted unreasonably when it relied on Safway’s expertise to protect against the dangers posed by working in Tank #2.
He argues that this case is similar to Mihaila, in which there was an open and obvious danger and a genuine issue of material fact existed as to whether the defendant should have anticipated harm. However, as discussed above, under Eylander Weyerhaeuser owed He no duty because it reasonably delegated the duty to Safway.
Accordingly, we hold that Safway’s premises liability claim fails.
Source: https://www.courts.wa.gov/opinions/pdf/D2%2058137-0-II%20Published%20Opinion.pdf
