Under well-established Washington legal authority, a general contractor has a nondelegable duty to ensure the safety of all workers on a jobsite. First, a general contractor has a general common law duty to maintain a safe workplace. Second, a general contractor has a specific statutory duty to comply with the Washington Industrial Safety and Health Act (“WISHA”). Breach of either of these two duties may lead to direct liability. The Supreme Court in Crisostomo Vargas v. Inland Wash., LLC, 194 Wn.2d 720, 452 P.3d 1205 (2019) addressed a general contractor’s exposure to vicarious liability arising out of a worksite injury caused by the actions or omissions of its subcontractors.
In Vargas, the general contractor subcontracted with plaintiff’s employer to place concrete on the jobsite. Plaintiff and another worker were guiding the placement of concrete from a pump truck. Plaintiff was severely injured when a rubber hose carrying concrete whipped plaintiff in the head, rendered him unconscious, and resulted in a traumatic brain injury.
Plaintiff brought suit against Inland Washington, as well as the pump truck operator and the supplier of the concrete. Plaintiff was unable to directly sue his employer because it was immune from liability under WISHA. Among other claims, plaintiff alleged Inland Washington was vicariously liable for the negligence of the concrete subcontractor, pump truck operator, and the concrete supplier.
Upon hearing Inland Washington’s first motion for summary judgment, the trial court ruled the general contractor was “not vicariously liable” for plaintiff’s injuries. Following a second round of summary judgment motions, the trial court confirmed its previous ruling on vicarious liability, finding no change in the law that would warrant revisiting its earlier ruling.
The Supreme Court reversed the trial court finding Inland Washington was potentially vicariously liable under two theories. “First, a general contractor may not delegate its statutory duty to comply with WISHA.” Vargas, 194 Wn.2d at 738. “[I]f a general contractor delegates its own duties to a subcontractor, the general contractor will be liable for the subcontractor’s breach of that delegated duty.” Vargas, 194 Wn.2d at 738-39. “Second, a general contractor will be vicariously liable for the negligence of any entity over which it exercises control.” Vargas, 194 Wn.2d at 738. ‘The 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 741. A general contractor’s ‘general supervisory functions is sufficient to establish control.’ Vargas, 194 Wn.2d at 741. However, the court noted a general contractor who retains a right to exercise control will not be vicariously liable unless the plaintiff proves that some entity on the jobsite was negligent in causing injury.