Eylander v. Prologis Targeted U.S. Logistics Fund

2 Wn.3d 401

Kirsten^† Eylander, as Personal Representative, Petitioner, v. Prologis Targeted U.S. LOGISTICS FUND, LP, ET AL., Respondents.

[No. 101176-8. EN BANC.]

ARGUED MAY 11, 2023.

DECIDED DECEMBER 7, 2023.

[2 Wn.3d 403]

¶1 Montoya-Lewis, J. — This case asks us to consider whether a landowner may delegate their duty to invitees on the premises to an independent contractor. As our society increases the use of contractors for services, the responsibilities of landowners and independent contractors must be

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further refined and addressed. In any field in which independent contractors might be utilized, the question of a landowner’s duty to remediate known or obvious dangers comes into focus when that duty may be delegated.

¶2 In this case, Jeffry Eylander fell to his death while cleaning the roof of a warehouse; at the time he was employed by an independent contractor to complete that task and other work on the site. The warehouse was owned by Prologis Targeted U.S. Logistics Fund and Prologis Management LLC (collectively Prologis). Eylander’s daughter, Kirsten Eylander, as personal representative of his estate (Petitioner), sued Prologis for wrongful death. It is undisputed that Eylander was an invitee and Prologis had a landowner’s duty to remediate risks from known or obvious dangers. Thus, we are asked to determine whether a landowner may satisfy such a duty by delegating the duty to the independent contractor.

¶3 The Court of Appeals held that Prologis did not breach its duty to guard Eylander against known or obvious dangers on the premises by reasonably delegating the duty to an independent contractor who held itself out as a professional roofing contractor with the requisite experience to assume the delegation. We agree. We hold that Prologis fulfilled its duty to guard Eylander against known or obvious dangers on the premises by making a reasonable delegation of this duty to the independent contractor. We affirm and find that summary judgment was properly granted for Prologis.

I. FACTS AND PROCEDURAL HISTORY

A. Factual Background

¶4 In early 2017, Prologis was in need of roofing maintenance and repair work on a commercial warehouse it owned. Prologis selected Commercial Industrial Roofing Inc. (CIR) as an independent contractor at the recommendation of another property manager who was pleased with

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their work. CIR held itself out as a professional roofing company with the expertise to perform the work Prologis was seeking, including compliance with laws requiring permitting and safety precautions, and providing CIR’s own company safety program. As a result, Prologis hired CIR to handle work on the roof, including the cleaning project during which Eylander’s accident occurred.

¶5 Prologis and CIR entered into a contract requiring CIR to abide by all applicable laws, take sole responsibility for the health and safety of anyone providing the service, and immediately notify Prologis upon violation of any such law. Moreover, the contract required CIR to create a site-specific roofer safety plan and post it on-site before gaining roof access.

¶6 CIR, as the professional roofing company, developed a fall avoidance work plan, which involved a safety monitor system for this cleaning project, where a worker warned other workers to be careful and watch out for hazards.¹ The plan also listed the skylights on the roof as hazards. CIR shared the fall avoidance work plan with its employees but did not share its plan with Prologis because CIR had full discretion to select whatever safety measure it desired given its expertise in roofing.

¶7 Eylander was an employee of CIR, working on the cleaning project in June 2017. He and the other CIR employees had signed off on the safety plan and had reminded each other to exercise caution with the unguarded skylights before they began their work. He was cleaning the edge of the roof when he was distracted by loud exhaust coming from an old car in the parking lot. The CIR foreman warned him that he was getting close to the skylight, but Eylander tripped and fell while walking backward. He fell 30 feet to the concrete floor and died as a result of the impact.

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B. Procedural History

¶8 Petitioner sued Prologis for wrongful death. She alleged that Prologis knew or should have known that the dangerous condition of the roof involved an unreasonable risk of harm to invitees such as Eylander, and that it breached its duty to exercise reasonable care to protect him from harm. The superior court granted summary judgment for Prologis, ruling that Prologis did not owe a duty to Eylander because CIR controlled the work and Prologis was entitled to rely on CIR’s expertise as to the need for safety equipment.

¶9 On appeal, Prologis conceded that it owed Eylander a landowner’s duty to remediate risks from known or obvious dangers. Wash. Ct. of Appeals oral arg., Eylander v. Prologis Targeted U.S. Logistics Fund, No. 82834-7-I, at 9 min., 55 sec. through 10 min., 20 sec., video recording by TVW, Washington State’s Public Affairs Network.² Petitioner conceded that Prologis did not have a statutory duty to Eylander and did not argue Prologis had a common law duty based on retained control over his work, thus narrowing the analysis to Prologis’s alleged liability under the common law from its status as a possessor of land. The Court of Appeals accepted the concessions and affirmed the trial court in a published opinion, holding that Prologis did not breach its duty to guard Eylander against known or obvious dangers on the premises by delegating to CIR. Eylander v. Prologis Targeted U.S. Logistics Fund, 22 Wn. App. 2d 773, 780-81, 513 P.3d 834 (2022). It reasoned that Prologis acted reasonably because CIR held itself out as a professional roofing contractor with the experience and capacity to assume the delegation of the duty. Id. We granted review.

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II. ANALYSIS

¶10 We review the grant of a motion for summary judgment de novo. Benjamin v. Wash. State Bar Ass’n, 138 Wn.2d 506, 515, 980 P.2d 742 (1999). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). All evidence must be viewed in the light most favorable to the nonmoving party. Clements v. Travelers Indem. Co., 121 Wn.2d 243, 249, 850 P.2d 1298 (1993). We may affirm a summary judgment ruling as a matter of law on any ground supported by the record. Johnson v. Wash. State Liquor & Cannabis Bd., 197 Wn.2d 605, 611, 486 P.3d 125 (2021).

[1] ¶11 In a wrongful death action based on negligence, the plaintiff must establish four elements: (1) the existence of a duty owed, (2) breach of that duty, (3) a resulting injury, and (4) a proximate cause between the breach and the injury. Degel v. Majestic Mobile Manor, Inc., 129 Wn.2d 43, 48, 914 P.2d 728 (1996). Petitioner concedes Prologis did not have a statutory duty to Eylander and does not argue that Prologis had a common law duty based on retained control over his work. Thus, our analysis is limited to Prologis’s alleged duty to an invitee under the common law from its status as a possessor of land.

[2-4] ¶12 A landowner’s duty of care differs depending on the status of the person on the premises as an invitee, licensee, or trespasser. Tincani v. Inland Empire Zoological Soc’y, 124 Wn.2d 121, 128, 875 P.2d 621 (1994) (citing Van Dinter v. Kennewick, 121 Wn.2d 38, 41-42, 846 P.2d 522 (1993)). It is well settled that an independent contractor’s employees are considered invitees on a landowner’s premises. Kamla v. Space Needle Corp., 147 Wn.2d 114, 125, 52 P.3d 472 (2002) (citing Meyers v. Syndicate Heat & Power Co., 47 Wash. 48, 91 P. 549 (1907); Epperly v. City of Seattle, 65 Wn.2d 777, 786, 399 P.2d 591 (1965)). It is undisputed

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that Eylander was an invitee because Prologis hired CIR to maintain its warehouse. We have adopted Restatement (Second) of Torts § 343 (Am. L. Inst. 1965) (hereinafter § 343) and § 343A (hereinafter § 343A) to define a landowner’s duty to an invitee. Kamla, 147 Wn.2d at 125 (citing Iwai v. State, 129 Wn.2d 84, 93-94, 915 P.2d 1089 (1996) (plurality opinion)). Under § 343, a landowner is only liable for physical harm to their invitees caused by a condition on the land if the landowner

(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.

In short, a landowner owes an invitee a duty of reasonable care to make the land safe for entry. Tincani, 124 Wn.2d at 138-39. "Reasonable care requires the landowner to inspect for dangerous conditions, ‘followed by such repair, safeguards, or warning as may be reasonably necessary for [the invitee’s] protection under the circumstances.’" Id. (alteration in original) (quoting § 343 cmt. b). Such a duty does not render a landowner "a guarantor of safety—even to an invitee." Mucsi v. Graoch Assocs. Ltd. P’ship No. 12, 144 Wn.2d 847, 860, 31 P.3d 684 (2001) (citing Geise v. Lee, 84 Wn.2d 866, 871, 529 P.2d 1054 (1975)). This means that a landowner does not need to deliver a jobsite free from hazards. See Kamla, 147 Wn.2d at 126-27. In fact, a land-owner is not generally liable to their invitees for physical harm caused by a condition on the land "‘"whose danger is known or obvious to them,"’" unless the landowner "‘"should anticipate the harm despite such knowledge or obviousness."’" Mucsi, 144 Wn.2d at 859 (quoting Iwai, 129 Wn.2d at 94 (quoting § 343A(1))).

¶13 Here, Prologis owed a duty of reasonable care to the invitees—the CIR employees—to protect against the dan-

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ger of the unprotected skylights because it could anticipate the danger posed by the skylights despite their...