Vargas v. Inland Wash., LLC

452 P.3d 1205

Gildardo Crisostomo VARGAS, an incapacitated person, by and through William Dussault, his Litigation Guardian ad Litem; Lucina Flores, an individual; Rosario Crisostomo Flores, an individual; and Patricia Crisostomo Flores, a minor child by and through Lucina Flores, her natural mother and default guardian, Petitioners,

v. INLAND WASHINGTON, LLC, a Washington limited liability company, Respondent,andInland Group P.S., LLC, a Washington limited liability company, Ralph’s Concrete Pumping, Inc., a Washington corporation, and Miles Sand & Gravel Company d/b/a Concrete Nor’West, a Washington corporation, Defendants.

NO. 96527-7

Supreme Court of Washington.

Argued June 27, 2019

Filed November 21, 2019

Raymond Everett Sean Bishop, Derek K. Moore, Benjamin Reed Ferguson, Bishop Legal, 19743 1st Avenue S., Normandy Park, WA 98148-2401, for Appellant.

Robert L. Christie, Thomas P. Miller, Christie Law Group, PLLC, 2100 Westlake Avenue N, Suite 206, Seattle, WA 98109-5802, for Respondents.

David Philip Hansen, Aiken St. Louis & Siljeg PS, 801 2nd Avenue, Suite 1200, Seattle, WA 98104-1571, John Kermeth Butler, David E. Chawes, Preg O. Donnell & Gillett PLLC, 901 5th Avenue, Suite 3400, Seattle, WA 98164-2026, Kenneth Wendell Masters, Masters Law Group PLLC, 241 Madison Avenue N, Bainbridge Island, WA 98110-1811, Steven George Wraith, Lee Smart PS Inc., 701 Pike Street, Suite 1800, Seattle, WA 98101-3929, for Defendants.

Jackson Wilder Maynard, Jr., Hannah Sarah Sells Marcley, Building Industry Association of Washing, 111 21st Avenue SW, Olympia, WA 98501-2809, for Amicus Curiae (Building Industry Association of Washington).

Anastasia R. Sandstrom, Paul Michael Weideman, Attorney General's Office, 800 5th Avenue, Suite 2000, Seattle, WA 98104-3188, for Amicus Curiae (Department of Labor & Industries).

Joshua J. Stellmon, Matthew M. Malmsheimer, Attomey at Law, 200 SW Market Street, Suite 1777, Portland, OR 97201-5771, for Amicus Curiae (Pacific Northwest Regional Council of Carpenters).

Valerie Davis McOmie, Attorney at Law, 4549 NW Aspen Street, Camas, WA 98607-8302, Daniel Edward Huntington, Richter-Wimberley PS, 422 W. Riverside Avenue, Suite 1300, Spokane, WA 99201-0305, for Amicus Curiae (Washington State Association For Justice Foundation).

Dmitri L. Iglitzin, Jennifer L. Robbins, Bamard Iglitzin & Lavitt LLP, 18 W. Mercer Street, Suite 400, Seattle, WA 98119-3971, for Amicus Curiae (Washington State Labor Council).

GORDON McCLOUD, J.

¶ 1 Gildardo Crisostomo Vargas was working on a construction project when a concrete-carrying hose whipped around, hit him in the head, and caused a severe traumatic brain injury. Vargas and his family sued the general contractor, the concrete supplier, and the concrete pumper for negligence. The trial court granted summary judgment in favor of the general contractor.

¶ 2 We reverse. General contractors have expansive statutory and common law duties to provide a safe workplace. See Stute v. P.B.M.C., Inc., 114 Wash.2d 454, 788 P.2d 545 (1990) ; Kelley v. Howard S. Wright Constr. Co., 90 Wash.2d 323, 582 P.2d 500 (1978). Here, genuine issues of material fact remain as to whether the general contractor is directly liable—that is, whether it breached its duties to provide a safe workplace and whether any breach proximately caused Vargas’s injury. In addition to this potential direct liability, the general contractor is also potentially vicariously liable for the negligence, if any, of the other entities on the jobsite. We therefore remand for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 In May 2013, a rubber hose carrying concrete whipped Vargas in the head. It knocked him unconscious and caused a traumatic brain injury. Clerk’s Papers (CP) at 1716-17, 1743-45. At the time of the incident, Vargas was helping pour the concrete walls of what would become a parking garage for an apartment building. CP at 1716-17. Vargas was employed by Hilltop Concrete Construction LLC. CP at 2457.

¶ 4 Inland Washington LLC was the general contractor on the construction project. Id. Inland Washington subcontracted with Hilltop, Vargas’s employer, to install concrete. CP at 1669-93, 2457. Hilltop, in turn, entered into agreements with Ralph’s Concrete Pumping Inc. and Miles Sand & Gravel Company (also referred to as Concrete Nor’West). CP at 34-36, 71-72; Verbatim Report of Proceedings (VRP) (Apr. 10, 2015) at 170-71. Under the agreements, Ralph’s would provide both a pump truck and a certified pump operator, and Miles would supply the concrete. Id.

¶ 5 On the morning of the incident, Anthony Howell, a certified pump operator employed by Ralph’s, arrived with a pump truck. CP at 263-65. The truck was equipped with a 47-meter-long adjustable boom, a long mechanical arm that allows the operator to pump concrete over a distance and into hard-to-reach areas. CP at 35-36, 71, 77, 1798, 3074. Upon arrival, Howell checked in with Matt Skoog, Hilltop’s foreman, who told Howell "where to set up the pump and showed [him] the walls [they] were pumping that day." CP at 263; see also CP at 1716. Matt Skoog claims that Steve Miller, Inland Washington’s superintendent, helped make the decision of where to park the pump truck. CP at 418-21, 1291-92. Howell then parked the pump truck, prepared the pump, adjusted the boom, and attached a rubber hose to the end of the boom. CP at 263-64, 1716. The boom extended from the street, where the truck was parked, to a scaffold, where three Hilltop employees, including Vargas, stood ready to guide the pumped concrete into place. CP at 35, 270, 1707, 1716. Around the time that Howell was setting up, Derek Mansur, a truck driver employed by Miles, arrived with the concrete. CP at 265, 752-53.

¶ 6 At this point, the stage was set. Mansur, the concrete company’s truck driver, would load the concrete into the pump truck’s hopper and make sure the hopper remained sufficiently full throughout the pumping. CP at 68, 272-74; VRP (Oct. 28, 2016) at 347-48. Howell, the pump operator, would use a remote control to pump the concrete mix up the boom and out the hose. CP at 271. Vargas and the other Hilltop employees would guide the concrete into place. CP at 1716. Matt Skoog, Hilltop’s foreman, would observe the pour from a distance of about 10 to 20 feet. Id.

¶ 7 The pour did not proceed as planned. Not long after Howell turned on the pump, his remote lost signal with the truck, causing the pump to automatically shut down. CP at 271. Howell moved closer to the truck to reestablish connection and turned the pump back on. CP at 274-75. Shortly after restarting, the hose emitted a loud, shotgun-like bang and began to whip around. CP at 279-80, 1716-17. Within seconds, the hose struck Vargas, who had been standing approximately 12 feet from the end of the hose, in the side of the head, knocking off his hard hat and leaving him unconscious. CP at 280, 287-88, 1717. It is unclear why the hose whipped; apparently, either concrete clogged the hose or air somehow entered the system. Compare CP at 1716-17 (testimony that the hose was clogged), with CP at 282-83 (testimony that air entered the system).

¶ 8 Vargas (through his guardian ad litem), along with his wife and children, sued Inland Washington,¹ Ralph’s, and Miles. CP at 1739. The Vargas family could not sue Hilltop, Vargas’s direct employer, because Hilltop is immune from liability under Title 51 RCW. CP at 2457. The trial court has stayed proceedings against Ralph’s and Miles pending this appeal, which is limited to the family’s claims against Inland Washington, the general contractor on the project.² The Vargas family claims that Inland Washington is directly liable because it breached its common law duty to provide a safe workplace and violated the Washington Industrial Safety and Health Act of 1973 (WISHA), ch. 49.17 RCW. The Vargas family also claims that Inland Washington is vicariously liable for any negligence of Hilltop, Ralph’s, and Miles.

¶ 9 In February 2015, Inland Washington filed its first motion for summary judgment. CP at 1. It argued that "there is no admissible evidence that [it] violated a specific WISHA safety standard leading to Mr. Vargas’ injury" and that it "did not otherwise breach a duty of care." CP at 4. The court denied that motion in part, ruling that Inland Washington "owes non-delegable duties under Stute ." CP at 1218; see also VRP (June 26, 2017) at 475-76. The trial court ruled that the jury is in the best position to determine whether Inland Washington was at all responsible for the injury. VRP (June 26, 2017) at 477-78. The trial court explained that the Vargas family’s expert, Rick Gleason, presented sufficient evidence that Inland Washington breached its duty. Id. at 476-78. However, the court also ruled that Inland Washington "is not vicariously liable." CP at 1218; see also VRP (June 26, 2017) at 475-79. Neither party sought discretionary review of the trial court’s ruling.

¶ 10 Two years later, Inland Washington filed its second motion for summary judgment. CP at 1639. (At this point, the case had been reassigned to a different trial judge.) In opposition, the Vargas family asked the court to vacate its previous ruling on vicarious liability and to instead rule that Inland Washington is vicariously liable as a matter of law. CP at 1860, 1864. The court granted Inland Washington’s motion and dismissed the general contractor from the case with prejudice. CP at 2509. The court reasoned that it did "not see[ ] much in the way of substance" as to which nondelegable duty was violated and explained that a general contractor is not "a generalized guarantor of safety across the board." VRP (Mar. 31, 2017) at 93. The court also "confirm[ed]" the previous ruling on vicarious liability, finding "no sea change in the law" that would "warrant going back to ... revisit [the] earlier ruling" and noting that Afoa v. Port of Seattle³ had not yet finished working its way through the...