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Morris v. Vaagen Bros. Lumber9/27/2005
orris a duty as an invitee.
Employees of an independent contractor are invitees on the premises of the landowner. Epperly v. City of Seattle, 65 Wn.2d 777, 786, 399 P.2d 591 (1965). Washington has adopted sections 343 and 343A of the Restatement (Second) of Torts to define the landowner's duty to an invitee. Kamla v. Space Needle Corp., 147 Wn.2d 114, 125, 52 P.3d 472 (2002) (citing Iwai v. State, 129 Wn.2d 84, 93, 915 P.2d 1089 (1996)).
The Restatement (Second) of Torts sec. 343 reads as follows:
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(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.
Restatement (Second) of Torts sec. 343, at 215-16 (1965) (hereinafter Restatement).
Section 343A of the Restatement reads as follows:
(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.
Restatement, supra, at 218.
Mr. Morris's amended complaint does not state a claim against Global based on premises liability. Instead, the amended complaint states that Vaagen is the owner of the site and that Vaagen owed a duty to Ms. Morris to inspect and maintain the premises in a reasonably safe manner. Moreover, there is scant evidence to establish a question of fact as to whether Global was the possessor of the sawmill. The only evidence brought forth by Mr. Morris is the language contained in the Contract. The Contract provides that the disassembly project must be complete and the site restored, as required under the Vaagen-Global agreement, by November 9, 1996.
Even if we assume that Global was the possessor of the premises, Mr. Morris raises no question of fact to defeat summary judgment on this claim. Mr. Morris contends that Ms. Morris's death was caused by a condition on the land. But the parties appear to agree that the death was caused when the building collapsed because the equipment being dismantled helped to anchor the walls of the building. This is not a condition on the land. Also, there are no facts indicating that Global could have discovered the danger by the exercise of reasonable caution or that Global should have realized that the disassembly of the sawmill equipment involved an unreasonable risk of harm to Ms. Morris. Likewise, there are no facts indicating that Global should have anticipated that E.P. Johnson would fail to take reasonable care when completing the disassembly process. Finally, there are no facts indicating that the danger should have been anticipated or that the danger was known and obvious.
The court properly dismissed Mr. Morris's claim based upon premises or possessor liability.
Retained Control
Under the common law, an employer generally has no liability for injuries to an employee of an independent contractor. Kelley v. Howard S. Wright Constr. Co., 90 Wn.2d 323, 330, 582 P.2d 500 (1978). However, there is an exception to this rule when the employer of the independent contractor retains control over the right to direct the work. Kamla, 147 Wn.2d at 121. The test of control is not the amount of actual inte
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