Payne v. Weyerhaeuser Co.

546 P.3d 485

Christian D. PAYNE, an individual, Appellant,

v.WEYERHAEUSER COMPANY, a Washington corporation, Weyerhaeuser NR Company, a Washington corporation, Airgas, Inc., a Delaware corporation, Airgas Safety, Inc., a Delaware corporation, Airgas – NOR PAC, Inc., a Delaware corporation and Industrial Scientific Corporation, a Pennsylvania corporation, Respondents,Airgas USA, LLC, a Delaware limited liability company, Defendants.

Weyerhaeuser Company, a Washington corporation, Weyerhaeuser NR Company, a Washington Corporation, Third-Party Plaintiffs,

v.Safway Services, LLC, a Delaware corporation, Third-Party Defendant.

No. 58137-0-II

Court of Appeals of Washington, Division 2.

Filed April 9, 2024

Appeal from Cowlitz Superior Court, Docket No: 14-2-00208-5, Honorable Stephen M. Warning, Judge.

Mark Stanley Brumbaugh, Walstead Mertsching PS, P.O. Box 1549, Longview, WA, 98632-7934, Kenneth B. McClain, 221 W. Lexington Ave., Ste. 400, Independence, MO, 64050, for Appellant.

Jason M. Pistacchio, Kerr Contractors, P.O. Box 1060, Woodbum, OR, 97071-1060, Andrew Todd Burns, Cosgrave Vergeer Kester LLP, 900 Sw 5th Ave. Fl 24, Portland, OR, 97204-1235, for Defendants.

Timothy David Wackerbarth, Lane Powell PC, P.O. Box 91302, 1420 5th Ave. Ste. 4200, Seattle, WA, 98111-9402, Jeffrey Michael Odom, Andrew J. Gabel, Ryan P. Mcbride, Lane Powell PC, 1420 5th Ave. Ste. 4200, Seattle, WA, 98101-2375, Kevin Robert Clonts, Rizzo Bosworth Eraut PC, 1300 Sw

6th Ave. Ste. 330, Portland, OR, 97201-3530, for Respondents.

Mark J. Dynan, Samuel Ben Behar, Dynan & Associates, P.S., 2102 N Pearl St. Ste. 400, Tacoma, WA, 98406-2550, for Other Parties.

PUBLISHED OPINION

Maxa, J.

¶1 Christian Payne 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.

¶2 Payne 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 safetydoss plan and to ensure compliance with numerous safety requirements.

¶3 Safway gave Payne 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. Payne 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 Payne exited. He suffered severe respiratory injuries as a result of his exposure to chlorine dioxide in Tank #2.

¶4 Payne filed a lawsuit against Weyerhaeuser, ISC, and Airgas. Weyerhaeuser moved for summary judgment, arguing that it did not owe a duty to Payne because he was an independent contractor and Weyerhaeuser did not retain control over his work in Tank #2. Payne asserted a premises liability theory for the first time in response. ISC also moved for summary judgment, arguing that Payne 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. Payne subsequently settled his claims against Airgas.

¶5 We hold that (1) Weyerhaeuser did not owe a duty to Payne 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.

¶6 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

¶7 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.

¶8 In 2008, Weyerhaeuser first hired Safway, a scaffolding contractor, to build scaffolding inside its tanks. Weyerhaeuser employees referred to Safway as a "nonsupervised 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. Supplier also acknowledges that the Site is used for industrial operations and maintained only to standards required for suchuse. Prior to the commencement of Services, 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 Supplier from time to time. In addition to any Site specific safety guidelines, Supplier will meet all OSHA¹ and other applicable Federal and state regulatory agency requirements regarding safety. Supplier represents and warrants that any employee and subcontractor (used in performance of Services) will be adequately trained and at all times comply with the above-listed standards and any other requirements of this contract.

CP at 28 (emphasis added).

¶9 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.

¶10 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 Safway 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 safety supervision; 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." CP at 40.

¶11 Nothing in the contract stated that Weyerhaeuser had any authority or control over the manner in which Safway completed its scaffolding work.

¶12 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." CP at 94. A Weyerhaeuser employee generally served as the entry coordinator for purposes of the permit.

¶13 The space entry permit included a log for "confined space attendant" to sign in. CP at 95. 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. CP at 95. The atmospheric testing log provided that attendants should test for oxygen, hydrogen sulfide, carbon monoxide, chlorine, and lower explosive limit (LED. There was no specific test for chlorine dioxide, but chlorine is a byproduct of chlorine dioxide.

¶14 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

¶15 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...