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Morris v. Vaagen Bros. Lumber9/27/2005
rference with the work, but the right to exercise such control. Id. at 119-22. When determining whether the right to control exists, a court can consider such factors as the parties' conduct and the terms of their contract. Phillips v. Kaiser Aluminum & Chem. Corp., 74 Wn. App. 741, 750, 875 P.2d 1228 (1994). Retention of the right to inspect and supervise to ensure proper completion of contractual duties does not create a retained control exception to the general rule. Kamla, 147 Wn.2d at 120-21 (quoting Hennig v. Crosby Group, Inc., 116 Wn.2d 131, 134, 802 P.2d 790 (1991)). In Kamla, the employee of a subcontractor was injured when he dragged his safety line across an open elevator shaft and was dragged through the shaft when the elevator snagged the line. Id. at 118. Based on this record, the court concluded that summary judgment was appropriate as to the issue of retained control, because the Space Needle did not retain control over the manner in which the subcontractor performed or completed its work. Id. at 122.
However, in Kinney v. Space Needle Corporation, 121 Wn. App. 242, 85 P.3d 918 (2004), summary judgment was deemed inappropriate. The evidence presented demonstrated that the facility manager for the Space Needle Corporation was in charge of security and safety for the employees of a subcontractor installing fireworks on the Space Needle. Id. at 247. The facility manager provided some of the necessary safety equipment needed to work at heights, instructed the subcontractor's employees on required safety procedures, and checked and regulated the employees' safety practices. Id. at 244-45. Elizabeth Kinney, an employee of the subcontractor, was injured in a fall because her safety line did not have a line stop and the rope was longer than the 28 feet that she fell. Id. at 246. The court concluded that there was sufficient evidence to raise a question of fact as to whether the Space Needle Corporation actively controlled and supervised all safety activities of the subcontractor's employees, especially those working on the roof. Id. at 247-48. Examining the record here, there is insufficient evidence to raise a question of fact as to whether the retained control exception applies. Global did not reserve the right to involve itself in the manner in which E.P. Johnson completed the disassembly project. Likewise, Global did not actively control or supervise the safety activities of E.P. Johnson's employees.
The trial court properly dismissed Mr. Morris's claim based upon retained control.
RCW 49.17.060. Under RCW 49.17.060(1) and (2), WISHA requires employers to (1) provide a safe work environment for its employees, and (2) comply with all applicable WISHA regulations. The first section, RCW 49.17.060(1), creates a general duty of the employer to its employees, while the second section, RCW 49.17.060(2), creates a specific duty to comply with WISHA regulations. Stute v. P.B.M.C., Inc., 114 Wn.2d 454, 457, 788 P.2d 545 (1990).
Duty under RCW 49.17.060(1). Mr. Morris contends that Global had a duty to all employees, including Ms. Morris, to provide a safe work place and comply with all WISHA regulations.
But Ms. Morris was an employee of an independent contractor hired by Global. RCW 49.17.060(1) does not impose a general duty on an employer to provide a safe work place to an employee of an independent contractor retained by the general contractor. Adkins v. Aluminum Co., 110 Wn.2d 128, 152, 750 P.2d 1257, 756 P.2d 142 (1988). Hence, Global did not owe a duty to Ms. Morris under this provision.
Duty under RCW 49.17.060(2). The liability imposed under RCW 49.17.060(2) is expansive and imposes a non-delegable specific duty on all genera
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