Ignacio Cano-Garcia was injured on a construction project owned by King County and monitored by Jacobs Civil, Inc. While working with cement, the mixture got into his boots and attached to his skin; he required skin graft surgery for his injuries. Cano-Garcia claimed that King County and Jacobs “each had a duty to protect him from injury” on the project.
In Ignacio Cano-Garcia v. King County (Division 2, May 8, 2012), the Court of Appeals disagreed, holding as a matter of law that neither Jacobs nor the County owed a duty to Cano-Garcia to protect him from injury. Rather, that duty belonged to Kenny/Shea/Traylor (“KST”), one of eight general contractors on the project and the one for which Cano-Garcia worked. However, under the workers’ comp system, KST was immune from suit. (Also under the workers’ comp system, Cano-Garcia received payments from the Department of Labor for his medical bills and lost time.)
Washington law imposes “a nondelegable duty on all general contractors to ensure compliance with [Washington Industrial Safety and Health Act] regulations.” That duty has been extended to some jobsite owners “who maintain sufficient control over the workplace or the work to justify imposing statutory liability.” Accordingly, on the County’s and Jacobs’ motion for summary judgment:
The dispositive question . . . is whether a material question of fact exists as to whether King County and Jacobs retained the right to control the manner in which KST and its employees performed their work such that King County and/or Jacobs were in a position to control the actual implementation of safety standards in the workplace.
The Court of Appeals recognized that this determination is “fact-based” and turns on a number of factors, such as:
- whether “King County and/or Jacobs retained control over the manner in which KST and its employees did their work,”
- “whether King County and/or Jacobs had the greater practical opportunity and ability to insure compliance with safety standards,”
- “whether the King County and/or Jacobs had innate supervisory authority,” and
- “[w]hether a right to control has been retained depends on the parties’ contract, the parties’ conduct, and other relevant factors.”
In considering these factors (and others!), the Court noted that “evidence of actual control can indicate retained control.”
Brief aside: Goodness, that seems like a fact-intensive inquiry for determination on summary judgment against Cano-Garcia. However, the issue — whether the County or Jacobs had a duty of care to Cano-Garcia — is the sort of issue that should be and often is decided on summary judgment as a matter or law. Despite the fact-intensity, this really seems more suited to judicial determination, rather than jury determination. That is especially so when the nature and scope of the duty is determined largely by contract.
Anyway, back to the show. According to the Court, the relevant contract language makes clear that KST had complete control over the manner in which it managed and supervised the day-to-day work of KST employees.” Sure, there was a “submittal review process,” by which KST submitted plans to King County and Jacobs for review/approval, but that was not retained control. Nor was the project’s “safety incentive program,” which involved KST, King County, and Jacobs staff and which evaluated safety on the project. Moreover, looking at the contract between Jacobs and King County, that contract did not constitute retained control by Jacobs. While Jacobs had to report on safety issues, it could not require KST to take particular actions with respect to those issues.
In the wake of all the contractual analysis, this was really the meat of the Court’s holding:
Cano-Garcia has presented no direct evidence, beyond his own conclusory testimony, that King County or Jacobs prescribed that KST complete the work in any particular way, except that it was required to do so safely and in compliance with all relevant laws.
According to the Court of Appeals, the obligations to be safe and to comply with the law were insufficient to constitute sufficient control to impose GC liability on King County or Jacobs. For similar reasons, the Court also declined to impose a common law duty on the defendants.