* Joel And Stephanie Thoen, Appellants V. Cdk Construction, Respondents

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(‘~ 	FILED
5/14/2020
Court of Appeals
Division 	I
State of Washington
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
JOEL THOEN and STEPHANIE ) 	No. 79123-1 -I
THOEN, as husband and wife, 	)
Appellant, 	)
)
v. 	)
CDK CONSTRUCTION SERVICES, ) 	ORDER GRANTING MOTION
INC., a Washington corporation, 	) 	TO PUBLISH OPINION
)
Respondent. )
_______________________________________________________________________________)
Non-party Department of Labor & Industries filed a motion to publish the
court’s March 23, 2020 opinion. Following consideration of the motion, the panel
has determined the motion should be granted. Now, therefore, it is hereby
ORDERED that non-party Department of Labor & Industries’ motion to
publish is granted.
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No. 79123-1-1/2
~J1 1~
2
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FtLED
3/23/2020
Court of Appeals
Division 	I
State of Washington
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
JOEL THOEN and STEPHANIE 	) 	No. 79123-1-I
THOEN, as husband and wife, 	)
)
Appellant,
)
v. 	)
)
CDK CONSTRUCTION SERVICES, ) 	UNPUBLISHED OPINION
INC., a Washington corporation, 	)
) 	FILED: March 23, 2020
Respondent. )
VERELLEN, J. — A general contractor can be directly liable for injuries to a
subcontractor’s employee on a construction site under two theories. Based on its
innate supervisory authority over the entire construction site, the general
contractor has a statutory duty to provide a safe worksite for all workers by
ensuring compliance with the Washington Industrial Safety and Health Act
(WISHA).1 “[N]o analysis of whether the general contractor retained control is
necessary.”2 A general contractor also owes a common law duty to provide a safe
worksite so long as it has the right to exercise control over the site, Its “‘general
I Ch. 49.17 RCW.
2 Vargas v. Inland Washington, LLC, 194 Wn.2d 720, 736, 452 P.3d 1205
(2019).
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
JOEL THOEN and STEPHANIE ) 	No. 79123-1-I
THOEN, as husband and wife, 	)
Appellant,
v.
)
CDK CONSTRUCTION SERVICES, ) 	UNPUBLISHED OPINION
INC., a Washington corporation, )
) 	FILED: March 23, 2020
Respondent.
VERELLEN, J. — A general contractor can be directly liable for injuries to a
subcontractor’s employee on a construction site under two theories. Based on its
innate supervisory authority over the entire construction site, the general
contractor has a statutory duty to provide a safe worksite for all workers by
ensuring compliance with the Washington Industrial Safety and Health Act
(WISHA).1 “[Nb analysis of whether the general contractor retained control is
necessary.”2 A general contractor also owes a common law duty to provide a safe
worksite so long as it has the right to exercise control over the site. Its “‘general
1 	Ch. 49.17 RCW.
2 Vargas v. Inland Washincjton, LLC, 194 Wn.2d 720, 736, 452 P.3d 1205
(2019).
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No. 79123-1-1/2
supervisory functions are sufficient to establish control.”3 Neither duty is
predicated on the general contractor actually exercising control over the
subcontractor or the subcontractor’s employees. Neither duty is limited to
common work areas.
Because the special verdict form and jury instructions prejudiced Joel
Thoen by conditioning any finding of liability on general contractor CDK
Construction Services, Inc. having exercised control over Thoen’s work as an
employee of a subcontractor, a new trial is required.
We reverse.
FACTS
Thoen worked for American Railworks (Am Rail), a specialized construction
subcontractor that installs deck rails. General contractor CDK hired AmRail to
install rails on the deck of a golf clubhouse. Because the deck was 11 feet above
the ground, workers on the deck were supposed to wear fall protection equipment.
Thoen, his boss, and another AmRail employee arrived on the job site to
install the rails, but they forgot fall protection equipment. Thoen’s boss decided he
would go on the deck to set the rails while Thoen and the other employee would
assist from ladders. Thoen’s boss discussed this plan with CDK’s site supervisor.
The site supervisor gave them a single fall protection harness to do the work,
although he had more available.
ki. at 731 (quoting Kelley v. Howard S. Wriciht Const. Co., 90 Wn.2d 323,
331, 582 P.2d 500 (1978)).
2
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No. 79123-1-1/3
While installing the rails, Thoen’s boss was handling one large, heavy rail
and asked for help. Thoen climbed up to help without any fall protection
equipment. He fell off the deck, landing on his head and back on asphalt.
Thoen filed suit against CDK and alleged that it failed to provide a safe work
site, first, because it failed to comply with safety regulations requiring a written fall
protection plan for the work site, and second, because it failed to exercise its
authority to provide a safe work site. Trial was held in September of 2018.
The court approved a special verdict form asking the jury to determine, as a
predicate question to determining liability, whether CDK “exercise[dJ control over
[Thoen’s] work.”4 The special verdict form directed the jury not to answer any
further questions if it decided that CDK did not exercise control over Thoen’s work.
The court instructed the jury that it had to determine whether CDK “retained
control over American Railworks, LLC’s work site” to find it liable.5 The court also
instructed the jury that CDK had a duty “to provide a safe place of work, within
common areas it controls.”6 Because the jury answered “no” to the predicate
question on the special verdict form, it answered no other questions. The court
entered judgment for CDK.
Thoen appeals.
~ Clerk’s Papers (CP) at 4402.
~ CP at 4422 (jury instruction 12); see CP at 4427 (jury instruction 16 stating
that CDK was not liable unless it “retained actual control or the legal right of
control” over Thoen’s work).
6 CP at 4424 Gury instruction 13).
3
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No. 79123-1-1/4
ANALYSIS
We review de novo whether jury instructions and special verdict forms
correctly stated the law.7 Jury instructions are considered in their entirety and are
sufficient if they “(1) permit each party to argue his theory of the case; (2) are not
misleading; and (3) when read as a whole, properly inform the trier of fact of the
applicable law.”8 A special verdict form is inadequate if it “cloud[s] the jury’s
vantage point of the contested issues.”9 It is reversible error when the jury
instructions or the special verdict form misstate the law and prejudice a party.1°
Four months after the parties filed their briefs in this appeal, our Supreme
Court decided Vargas v. Inland Washington, LLC, which is dispositive of many of
the issues here.11 We asked counsel for both parties to be prepared at oral
argument to discuss Vargas’s impact on this case.
~ Afoa v. Port of Seattle, 191 Wn.2d 110, 119, 421 P.3d 903 (2018) (Afoa
II); Canfield v. Clark, 196 Wn. App. 191, 199, 385 P.3d 156 (2016). CDK argues
we should conduct review under an abuse of discretion standard because
“determining whether and to what extent a duty of care exists depends upon a
factual determination.” Resp’t’s Br. at 14. This misunderstands the issues on
appeal. Because it is undisputed that CDK was the general contractor who hired
AmRail and its employee, Thoen, we consider the purely legal issue of whether
the jury instructions and special verdict form correctly stated the law governing the
duties a general contractor owes to employees of its subcontractors. ~ Vargas,
194 Wn.2d at 730 (“‘Existence of a duty is a question of law.”) (quoting Hertog v.
City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999)).
8 Capers v. Bon Marche, Div. of Allied Stores, 91 Wn. App. 138, 142, 955
P.2d 822 (1998).
~Id.at 143.
10kLat 142.
11194 Wn.2d 720, 452 P.3d 1205 (2019).
4
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No. 79123-1-115
At oral argument, CDK contended it has no duty of care to the employees of
a subcontractor absent a factual determination that it exercised control over the
subcontractor’s work site. CDK misreads the controlling case law.
In Varcias, our Supreme Court unambiguously stated that a general
contractor can be directly liable for breaching either its statutory or common law
duties regarding workplace safety.12 WISHA establishes a general contractor’s
statutory duties, and it owes these specific duties to “all employees working on the
premises.”13 Since WISHA’s enactment in 1973, these statutory duties have
existed irrespective of a general contractor’s exercise of control over a
subcontractor’s work.14 The common law also imposes a duty to see that proper
12 ~ at 729. CDK claimed at oral argument that allowing a general
contractor to be held directly liable for breaches of WISHA amounted to imposing
either vicarious or strict liability. CDK misapprehends the scope of its statutory
duties under WISHA. A general contractor has a specific, direct duty to all
employees on a worksite to—among other duties—establish, supervise, and
enforce an accident prevention program. Id. at 735, 737 (citing
WAC 296-155-100(1)). When a plaintiff shows a general contractor breached this
duty and proximately caused him injury, then liability can attach. Because this
standard requires proof of the general contractor’s own negligent breach of its duty
of care, this is neither vicarious nor strict liability.
13 Stute v. P.B.M.C., Inc., 114 Wn.2d 454, 457-58, 788 P.2d 545 (1990).
14 ~ j~ at 464 (‘[W]e hold the general contractor should bear the primary
responsibility for compliance with [WISHA] safety regulations because the general
contractor’s innate supervisory authority constitutes sufficient control over the
workplace.”); Adkins v. Aluminum Co. of Am., 110 Wn.2d 128, 153, 750 P.2d 1257
(1988) (RCW49.17.060(2) “applies [to a general contractor] when a party asserts
that the employer failed to comply with a particular WISHA standard or regulations.
In such a case, all employees who work on the premises of another employer are
members of the protected class.”).
5
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No. 79123-1-1/6
safety precautions are taken at the job site it oversees.15 This duty of care exists
because a general contractor’s “general supervisory functions are sufficient to
establish control over [a subcontractor’s] work conditions.”16 This duty extends to
every part of the job site where the general contractor has the authority to
supervise.17 Even if an area of the job site were under a subcontractor’s exclusive
control, the general contractor’s duty remains.18
Thoen argues special verdict form question one and several jury
instructions misstated CDK’s duties and prejudiced him. Question I on the special
verdict form required that the jury stop deliberating if it found CDK did not
“exercise control over” Thoen’s work.19 Jury instruction 12 required that Thoen
prove CDK “retained control over [AmRail]’s work site” for the jury to hold it liable
for any breach, including breach of its statutory duty.2° Similarly, jury instruction
16 prohibited finding CDK liable “unless you find that [CDK] retained actual control
or the legal right of control over the manner, means and methods in which
[Am Rail] performed its work.”21
15 Varcias, 194 Wn.2d at 730 (citing Kelley, 90 Wn.2d at 332).
16 Kelley, 90 Wn.2d at 331.
17 Vargas, 194 Wn.2d at 733 (citing Kelley, 90 Wn.2d at 332).
18 kI. (“[A] general contractor with supervisory authority over an area must
ensure the area is safe regardless of whether the general contractor is present—a
general contractor cannot shirk its duties merely by vacating the premises.”).
19CPat4402.
20 CP at 4422.
21 CPat4427.
6
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No. 79123-1-1/7
The special verdict form and the jury instructions misstated the scope of
CDK’s statutory and common law duties. Under RCW 49.17.060(2), a general
contractor’s duty to comply with WISHA is based upon its innate authority over the
job site.22 CD K’s right to exercise authority meant it had a statutory duty to Thoen
regardless of whether it exercised its authority.23 CDK also had common law
duties to Thoen because it had the authority to supervise the part of the job site
where he worked.24 Because question I on the special verdict form and jury
instructions 12 and 16 misstated the law and misled the jury, the court erred by
issuing them.
The court also erred by adopting jury instruction 13. That instruction
explained a general contractor met the standard of ordinary care if it took
reasonable steps to provide a safe work environment “within common areas it
controls.”25 Our Supreme Court rejected this “common work area” concept in
22 Stute, 114 Wn.2d at 462-64.
23 CDK contended at oral argument that it had no duty to Thoen absent an
exercise of control over Am Rail because Vargas explained a general contractor
could be directly liable for breaching its WISHA duties. CDK appears to
misapprehend the meaning of “direct liability.” “Direct liability” is “liability for
breach of one’s own duty of care.” 16 DAvID K. DEW0LF & KELLER W. ALLEN,
WASHINGTON PRAcTIcE: TORT LAWAND PRAcTIcE § 4.1, at 178 (4th ed. 2013). If
CDK had a statutory duty to Thoen only after exercising control over AmRail, then
only vicarious liability could attach to it. ~ ki. (“Vicarious liability is legal
responsibility by virtue of a legal relationship.”); Vargas, 194 Wn.2d at 730 (“[A]
general contractor. . . will be ‘vicariously liable for the negligence of any entity’
over which it exercises control.”) (quoting Afoa II, 191 Wn.2d at 122-24).
24 Vargas, 194 Wn.2d at 733.
25 CP at 4424.
7
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No. 79123-1-1/8
Vargas and explained a general contractor’s common law duty actually extends to
all portions of a job site “regardless of whether an expert other than the general
contractor happens to be in charge of a specific job in the area.”26 In light of
Vargas, jury instruction 13 misstated the law by limiting CDK’s duty only to
common areas.
Because the special verdict form and jury instructions misstated the law,
Thoen is entitled to a new trial if the misstatements prejudiced him.27 Before
concluding CDK did not “exercise control” over Thoen, the jury asked the court,
“How broad is the meaning of ‘exercise control’ . . . ? Does it require active
supervision, or is it more general, including not just ‘actual control’ but also a legal
relationship to broader supervision?”28 The jury was confused about how to
answer question 	1 on the special verdict form, and its question revealed a
fundamental misunderstanding about the scope of CDK’s statutory and common
law duties to the extent it believed proof of “active supervision” or “actual control”
was required. Notably, Thoen had warned the trial court that the jury could be
confused by the instructions and verdict form because a general contractor could
fail to comply with WISHA without being viewed as controlling a subcontractor’s
work. Because the jury instructions and special verdict form misled the jury,
26 Vargas, 194 Wn.2d at 733.
27 Carers, 91 Wn. App. at 142.
28 CP at 4406. The jury referred to “~ 17” as the source of the phrase
“exercise control,” but the record does not reveal where to find paragraph 17.
Because the phrase “exercise control” appeared in special verdict question 	1 and
the jury answered only that question, “~[ 17” was likely a misprint.
8
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No. 79123-1-1/9
misstated the law, and resulted in a legally immaterial finding that prevented the
jury from considering material issues, Thoen was prejudiced. Retrial is required.
Thoen also assigns error to a jury instruction and special verdict form
question regarding apportionment of fault to Am Rail. We reach these issues to
provide guidance on retrial.
Pretrial, the trial court concluded it was “going to allow, essentially, an
empty chair defense” and “allow the jurors to apportion damages amongst those
parties. . . Mr. Thoen, [AmRail], and CDK.”29 Jury instruction 20 directed the jury
to “determine what percentage of the total negligence is attributable to each entity
that proximately caused” Thoen’s injury, including AmRail.3° Question 8 of the
special verdict form asked the jury to apportion 100 percent of the total liability for
Thoen’s injury between Thoen himself, CDK, and AmRaiI. And question 3 of the
special verdict form asked whether “the actions or omissions of immune entity
[AmRail] [were] a proximate cause of [Thoen’s] damages?”31
RCW 4.22.070(1) requires that a jury “determine the percentage of the total
fault which is attributable to every entity which caused the claimant’s damages
except entities immune from liability to the claimant under Title 51 RCW.” Title 51
RCW, the Industrial Insurance Act, immunizes employers against lawsuits from
29 Report of Proceedings (Sept. 5, 2018) at 188.
30CPat4433.
31 CP at 4403.
9
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No. 79123-1-1/10
employees injured while working.32 RCW 4.22.070(1) prohibits the jury from
considering the fault of “those entities immune from liability to the claimant under
Title 51 RCW.” The jury should not be asked “to make an irrelevant determination
of the immune employer’s fault.”33
The legislature implemented this policy to ensure that the injured worker’s
recovery, the Department of Labor & Industries’ reimbursement, and the
third-party defendant’s liability exposure would not be reduced by the worker’s
employer’s fault for the injury.34 A defendant, such as a general contractor, can
argue the immune employer was the proximate cause of the worker’s injury, but
“the exact percentage of fault attributable to an immune employer has no legal
effect on the liability of the parties.”35 The legislature also enacted this statutory
scheme to preclude a general contractor from raising an empty chair defense
when sued by a subcontractor’s injured employee.36
Here, it is undisputed that AmRail was immune under Title 51.
RCW 4.22.070(1) prohibited the jury from considering AmRail’s fault when
apportioning liability. Jury instruction 20 and question 8 of the special verdict form
incorrectly directed the jury to do so. The court also erred by approving special
32 Gilbert H. Moen Co. v. Island Steel Erectors, Inc., 128 Wn.2d 745, 752,
912 P.2d 472 (1996).
~ Edgar v. City of Tacoma, 129 Wn.2d 621, 633-34, 919 P.2d 1236 (1996).
ki. at 632.
35kLat633.
36 Moen, 128 Wn.2d at 761.
10
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No. 79123-1-I/li
verdict question 3. By asking the jury to determine whether AmRail proximately
caused Thoen’s injuries, it effectively ordered the jury to consider an immune
employer’s liability as part of an empty chair defense.
On retrial, no attempt should be made to allocate fault to Title 51 immune
employer AmRail, nor should CDK be allowed to raise an empty chair defense.
CDK can argue it was not at fault without requiring a legally irrelevant and
statutorily prohibited jury determination of an immune employer’s fault.
Therefore, we reverse.
V
WE CONCUR:
_-_
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