Washington Construction Law Blog

L&I has issued its new proposed crane operator & certification rules for public comment.

Under Washington law, an owner must have an existing structure surveyed for the presence of asbestos prior to any renovation or demolition (RCW 49.26.013).  In this case, SPU hired Prezant to conduct the survey.  When Prezant finished the survey (and abatement of discovered asbestos), SPU brought in Democon for the demolition and during that operation 10 workers were exposed to asbestos which had not been detected by Prezant.

L&I cited Prezant for a serious violation of WISHA and associated regulations and Division 1 affirmed, holding that Prezant's certified inspector failed to conduct the survey in accordance with applicable rules.  Specifically, the inspector failed to take samples from the vinyl floor on the second floor because the inspector believed (incorrectly) that the flooring was the same color or texture as the sample he had obtained from the first floor.

Copy of decision also available here Download file

This exhaustive opinion will tell you everything you need to know about complying with WISHA's fall restraint regulations.   The case arose from violations committed by a roofing contractor.

The decision can also be accessed here Download file

Washington courts continue to narrowly apply the "retained control" exception to the ordinary rule that an owner is not liable for injuries sustained by the employees of their independent contractors.  Here, a driver employed by such a contractor failed in his suit against ARCO (the owner) for lack of evidence that ARCO retained control over the contractor's means and methods of doing its work.

We previewed the ergonomics case in this prior post.  Today the Supreme Court voted 8-1 in favor of allowing L&I to proceed with ergonomics-related investigations under the general duty clause of WISHA.  The employer, supported by the industry, had contended that Initiative 841 passed in 2001 essentially preempted this general authority.  The case is now remanded to the trial court to enforce the investigative subpoena which triggered this dispute in the first place.

By a 5-4 vote with three separate dissents, the Supreme Court last week upheld a WISHA repeat violation penalty against a roofing contractor in a case that attracted significant industry amicus activity.  The gist of the issue was whether a repeat violation could be based on the more lenient test of demonstrating that the prior violation related to the same general type of harm (i.e., fall protection) or the more stringent test of demonstrating the prior violation was based on the same underlying conduct.  The majority opted for the more lenient test, citing the language of the statute and WISHA's remedial purpose.

The two cases seemed similar enough. In the venerable Stute case decided in 1990, the employee of a subcontractor slipped while installing gutters on a condo project and fell off the roof. The Supreme Court held he could bring a direct action against the project's GC based on its nondelegable duty to comply with WISHA safety rules such as scaffolding regulations.

And here a subcontractor employee was also installing gutters on a home project when injured in a fall. The difference, according to Division I in dismissing the suit, was that this plaintiff had zero evidence of causation between the GC's negligence and his injury:

Stute is distinguishable because the cause of the accident in that case was known. Stute slipped. The only issue was whether the general contractor owed the employee of a subcontractor a duty to comply with specific regulations promulgated under WISHA. The court held that the general contractor owed Stute such a duty. Stute did not hold that a general contractor is liable for injuries to the employee of a subcontractor regardless whether the general contractor's failure to comply with safety regulations caused the accident. Without evidence to explain how his accident occurred, Little could not establish proximate cause and could not withstand summary judgment.

Washington voters in 2003 approved Initiative 841, which repealed workplace ergonomics rules issued by the Department of Labor & Industries (L&I). The AGC and other industry organizations were heavily involved in the campaign.

Last week, the Supreme Court took up the issue of how far I-841 went. In this case, (SuperValu Holdings, Inc. v. Dep’t of Labor & Industries), L&I issued an investigative subpoena to an employer to examine possible ergonomic-related injuries. The employer moved to quash the subpoena, arguing that I-841 had stripped L&I of authority in this field. The trial court agreed and quashed the subpoena.

On direct appeal to the Supreme Court, L&I maintains it still has the authority under the "general duty" clause of RCW 49.17.060(1) to investigate and regulate ergonomic injury because Initiative 841 merely repealed a specific set of rules, not the concept of ergonomic workplace injury itself. The employer (with AGC as an amicus) contend the scope of Initiative 841 was broader and reflected the voters' conclusion that ergonomics was itself not fit for regulation at this time. A decision is expected within three months and, based on the nature of the questions from the bench, it appears the Court is sharply divided.