IMPLIED WARRANTIES AND DIFFERING SITE CONDITIONS

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1 IMPLIED WARRANTIES AND DIFFERING SITE CONDITIONS March 22, 2019 WSBA Construction Section CLE Brett M. Hill 999 Third Avenue, Suite 3800 Seattle, WA Phone: (206) Fax: (206) BRETT M. HILL is a partner at Ahlers & Cressman PLLC and concentrates his practice on construction and general litigation. He represents owners, lenders, developers, general contractors, subcontractors, and suppliers in mediations, arbitrations, trials, and appeals. In addition to litigation matters, he also regularly handles transactional/contract drafting matters for construction industry clients. He is a frequent speaker on issues affecting the construction industry and also has been involved in legislative efforts affecting the construction industry. Mr. Hill is admitted to practice in Washington, Oregon and Alaska and in the United States District Court for the Western District of Washington and the Eastern District of Washington. He is a member of the Washington State, Oregon State and Alaska bar associations and the American Bar Association. He is an advocate for the construction industry in Olympia, is on the Legal Affairs Committee for AGC, is on the Board of Directors for the National Utility Contractors of Washington (NUCA) and is the current chair of the Legislative Committee for NUCA. Mr. Hill has been selected as a "Super Lawyer" in Washington by Super Lawyers Magazine for He was a Top 100 Super Lawyer in Washington for He earned his B.S. degree, in economics, with honors, from the University of Washington. Mr. Hill earned his J.D. degree, magna cum laude, from Seattle University School of Law. 1

2 IMPLIED WARRANTIES & OBLIGATIONS Brett M. Hill, Ahlers & Cressman PLLC Section 5.8 Discussion by Brett M. Hill & Daniel Berner Per review by Arne Hedeen Summary 1.1 Introduction 1.2 Implied Duty of Good Faith and Fair Dealing (1) Implication (2) Breach of the Implied Duty (3) No Free-Floating Duty (4) Examples of Possible Breaches of Implied Obligations (a) Overzealous and Retaliatory Contract Administration (b) Coercive Withholding of Payments 1.3 Owner s Implied Warranty of the Plans and Specifications (1) The Implication (2) Spearin Doctrine (3) Disclaiming Owner s Implied Warranty of Adequate Design (4) Invoking Owner s Implied Warranty of Adequate Design 1.4 Implied Duty Not to Hinder or Delay (1) Implication (2) Washington Supreme Court Rule 1.5 Implied Duty to Provide Access to the Site (1) Implication 2

3 (2) Compensable Delays 1.6 Implied Duty to Coordinate Multiple Prime Contractors/Subcontractors (1) Owner s Responsibilities (2) General Contractor s Duty to Coordinate Subcontractors 1.7 Implied Duty to Ensure a Safe Workplace (1) Implication (2) Contractor s Duties (3) Owner/Developer s Duties (4) Conclusion DANIEL BERNER is an attorney at Goldstein Law Office, PLLC, in Olympia, Washington, where he focuses his practice in the areas of real estate, construction, timber trespass, and business law. Mr. Berner has extensive litigation experience representing homeowners, contractors, subcontractors, design professionals, developers, community associations, and other interested parties in a variety of litigation matters. He also has experience with real estate transactions and construction contract drafting. Mr. Berner is admitted to practice in Washington and in the United States District Court for the Western District of Washington. Mr. Berner obtained his law degree from Seattle University School of Law, and his undergraduate degree from the University of Washington. 3

4 IMPLIED WARRANTIES & OBLIGATIONS 1.1 INTRODUCTION In addition to the written contract clauses governing the relationship between contracting parties on a construction project, there are also a number of important implied obligations. Implied obligations are not contained in the contract, but are implied by courts, arbitrations panels and dispute review boards. These implied obligations can be as important or more important that the actual contract language between the parties. This Chapter provides a summary of the key implied warranties and obligations on a construction project, which include the following: (1) implied duty of good faith and fair dealing; (2) implied warranty of the plans and specifications; (3) implied duty not to hinder or delay; (4) implied duty to provide access to the site; (5) implied duty to coordinate multiple prime contractors; and (6) implied duty to ensure a safe work place. 1.2 IMPLIED DUTY OF GOOD FAITH AND FAIR DEALING (1) Implication The implied duty of good faith and fair dealing is implied in every contract, including construction contracts. The implied duty of good faith and fair dealing applies to owners and contractors equally. In its most general sense, the implied duty of good faith and fair dealing requires the parties cooperate with one another so that they each obtain the full benefit of their contracted bargain. Metro. Park Dist. v. Griffith, 106 Wn.2d 425, 437, 723 P.2d 1093 (1986); 4

5 Frank Coluccio Const. Co., Inc. v. King County, 136 Wn. App. 751, 764, 150 P.3d 1147 (2007). The duty of good faith requires "faithfulness to an agreed common purpose and consistency with the justified expectations of the other party." Restatement (Second) of Contracts 205 (1981). Examples of acting in bad faith include: "evasion of the spirit of the bargain, lack of diligence and slacking off, willful rendering of imperfect performance, abuse of a power to specify terms, and interference with or failure to cooperate with the other party's performance." Id. The implied duty of good faith and fair dealing is also codified in the Uniform Commercial Code for contracts relating to the sales of goods. U.C.C (1)(b). That section provides that Good faith in the case of a merchant means honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade. Id. Although it is not directly applicable in construction contracts, the definition is helpful to provide guidance for the meaning of good faith. (2) Breach of the Implied Duty In the construction context, the implied duty of good faith and fair dealing can come up in multiple settings including the general administration of the contract and compliance with contract obligations. Frank Coluccio Const. Co., Inc. v. King County, 136 Wn. App. 751, , 150 P.3d 1147 (2007). For example, in Coluccio, King County and Frank Coluccio Const. Co. entered into a contract for a public works project. Coluccio hired Donald B. Murphy Contractors, Inc. (DBM) as a subcontractor to construct an access shaft at one end of the tunnel, but problems arose during construction of the access shaft which included a blow in on the tunnel that resulted in significant damages and delays on the project. Under the contract with Coluccio, King County was required to procured builder s risk insurance for the project. Id. at 5

6 756. King County never purchased the insurance but failed to tell Coluccio. Coluccio and DBM attempted to make claims against the builder s risk policy but King County denied the claims. Coluccio sued King County alleging that it had breached its implied duties of good faith and fair dealing in handling of the builder s risk claim. The court ultimately found that King County breached the implied duty of good faith and fair dealing because it failed to meet its contractual obligations: (1) to purchase an all-risk builder's risk insurance; (2) to promote and sponsor Coluccio and DBM's builder's risk claims; and (3) to adjust claims brought under the allrisk policy. Id. at 766. King County was found to be liable for the full amount of losses to Coluccio and DBM that would have been covered under the insurance policy that the contract required King County to provide. Id. at 767. (3) No Free-Floating Duty The Washington State Supreme Court has held that there is not a "free-floating" duty of good faith and fair dealing - there must be an existing contract for the duty to exist. Keystone Land & Development Co. v. Xerox Corp., 152 Wn.2d 171, 94 P.3d 945 (2004); Carlile v. Harbour Homes, Inc., 147 Wn. App. 193, 216, 194 P.3d 280 (2008); Rekhter v. Dep t of Soc. & Health Servs., 180 Wn.2d 102, , 323 P.3d 1036 (2014) (The implied covenant of good faith and fair dealing cannot add to or contradict express contract terms or impose a free-floating obligation of good faith on the parties). In Carlile, a group of homeowners brought a lawsuit against Harbour Homes (a developer) alleging, in part, a breach of the implied duty of good faith and fair dealing because the homes did not meet contractual terms regarding certain plan specifications and quality. The court found that there was no contractual requirement regarding 6

7 the homeowner's claims and dismissed their suit because "there is no 'free-floating' duty of good faith and fair dealing apart from the terms of an existing contract " Id. at 216. In other words, the implied duty of good faith and fair dealing cannot expand a party's contractual duties beyond those in the express contract or create duties inconsistent with contract provisions. See Centex Corp v. United States, 395 F3d. 1283, (Fed.Cir. 2005) Badgett v. Security State Bank, 116 Wn.2d 563, 569, 807 P.2d 356 (1991) (The duty only applies to the terms of the parties' contract and does not "inject substantive terms into the parties' contract."); VTR Inc. v. Goodyear Tire & Rubber Co., 303 F. Supp. 773 (S.D.N.Y.1969) (The express terms of a contract can preempt or define the scope of this duty by explicitly allowing conduct that would otherwise be a violation.); Nat l Westminster Bank N.J. v. Lomker, 649 A.2d 1328 (N.J. Super. Ct. App. Div. 1994), cert. denied, 663 A.2d 1361 (N.J. 1995) (the obligation derived from this rule cannot alter the express terms of the contract or deprive a party of its bargained-for rights.). The covenant may not be used to override contract terms. See GMAC v. Everett Chevrolet, Inc., 179 Wn. App , 317 P.3d 1074 (2014)( Courts carefully protect the principle of freedom of contract and establish the terms of the contract. ). (4) Examples of Possible Breaches of Implied Obligations (a) Overzealous and Retaliatory Contract Administration An owner's administration of the contract may obstruct the contractor's performance, and thus, constitute a breach of the implied duties. For example, overly aggressive enforcement of specified safety programs, retaliatory inspections, baseless rejection of submittals, or compliance with all tasks irrespective of how minor, can amount to a contract administration process that harasses the contractor and rises to the level of a breach of the 7

8 implied obligations. See Nova Contracting, Inc. v. City of Olympia, Div II Court of Appeals April 18, 2017 (Unpublished Opinion) (Holding that City s punitive rejection of submittals, which City had unconditional authority to accept or reject, was a breach of the implied duty of good faith and fair dealing). (b) Coercive Withholding of Payments Owners may withhold considerable amounts because of perceived problems leaving the contractor to file claims and finance the project from its own resources. Under Washington statute RCW , a public owner is required to pay undisputed amounts and not hold change orders hostage until an owner acceptable bargain is reached. Withholding progress payments for improper reasons may also constitute a basis for breach of the implied obligations. 1.3 OWNER S IMPLIED WARRANTY OF THE PLANS AND SPECIFICATIONS (1) The Implication There is an implied warranty that the one who furnishes plans and specifications for a project impliedly warrants that the plans and specifications are workable and sufficient. United States v. Spearin, 238 U.S. 132, 136 (1918). If the contractor is bound to build according to plans and specifications prepared by the owner, the contractor will not be responsible for the consequences of defects in the plans or specifications. Id. This doctrine, referred to as the "Spearin" doctrine, has been adopted in Washington and most other states. See Dravo Corp. v. Municipality of Metropolitan Seattle, 79 Wn.2d 214, 218, 484 P.2d 399 (1971); City of Seattle v. Dyad Const., 17 Wn. App. 501, 565 P.2d 423 (1977); Weston v. New Bethel Baptist Church, 23 Wn. App. 747, 753, 698 P.2d 411 (1978). 8

9 (2) Spearin Doctrine The origin of the implied warranty of design adequacy was the landmark United States Supreme Court case of United States v. Spearin, decided in U.S. v. Spearin, 248 U.S. 132 (1918). See Chapter 12, section 12.3 for another discussion of the Spearin doctrine. (a) Origin That case involved construction of a dry dock at the Brooklyn Navy Yard by Spearin. A portion of the project involved relocating a 6 foot sewer line that intersected where the dry dock would be located. The plans provided by the government specified the dimensions, materials and location of the sewer line to be relocated. Spearin constructed the relocated sewer line in accordance with the owner s plans. During construction of the dry dock the 6 foot sewer line failed due to added pressure caused by an obstruction not caused or known by Spearin in a different sewer line that was connected to the 6 foot line. This flooded the dry dock and Spearin stopped work. The government argued that Spearin was responsible for the cost to repair and was required to continue work. The Court disagreed, holding that [i]f the contractor is bound to build according to plans and specifications prepared by the owner, the contractor will not be responsible for the consequences of defects in the plans and specifications. U.S. v. Spearin, 248 U.S. 132, 136 (1918). (b) Recovering Compensation Although the Spearin case did not involve a situation where the contractor had performed the extra work resulting from the defective specifications, the Court did hold that Spearin was justified in stopping work and that the government improperly terminated Spearin. 9

10 The implication of the case is certainly that had Spearin performed the extra work it would have been entitled to additional compensation. Subsequent cases have permitted recovery of additional compensation when a contractor performs added work due to a breach of the implied warranty. Tyee Const. Co. v. Pacific Northwest Bell Telephone Co., 3 Wn. App. 37, 40-41, 472 P.2d 411 (1970) (Permitting recovery for contractor for extra work due to breach of implied warranty). The owner's implied warranty may also be used by the contractor to recover additional compensation for extra work when there is no differing site conditions clause in the parties contract. In Fairbanks North Star Borough v. Kandik Inc. & Assocs., the plans and specifications provided to the contractor by the government understated the amount of material that needed to be excavated. 795 P.2d 793 (Alaska 1990), opinion vacated in part and rehearing on other grounds, 823 P.2d 832 (Alaska 1991). The government had deleted the differing site conditions clause from the contract. The Supreme Court of Alaska nonetheless allowed the contractor to recover extra costs incurred by performing pursuant to defective specifications. A recent decision from the Washington Court of Appeals recognized some case specific limitations to the Spearin Doctrine. King County v. Vinci Const. Grand Projects, 191 Wn. App. 142, 364 P.3d 784 (2015). That case involved the Brightwater sewer project and the TBM (tunnel boring machine) that was stuck underground. VPFK said that King County was responsible for the performance of the TBM under the Spearin Doctrine because King County specified the TBM. However, Division I held that because there was no evidence that a machine other than the [specified TBM] could effectively accomplish the task of boring the site specific tunnel drives, the owner s implied warranty did not apply. Additionally, both the trial court and Division I cited VPFK s preference for the specified TBM method as grounds for the finding that there was no evidence to support VPFK s breach of implied warranty claim. 10

11 (c) Spearin as a Defense Washington courts recognize that the Spearin Doctrine can also be used as a defense to a claim for damages from an owner. [T]he rule has become well settled, in practically every American jurisdiction in which the matter has been involved, that a construction contractor who has followed plans and/or specifications furnished by the contractee, his architect or engineer, and which have proved to be defective or insufficient, will not be responsible to the contractee for loss or damage which results-at least after the work is completed-solely from the defective or insufficient plans or specifications, in the absence of any negligence on the contractor's part, or any express warranty by him as to their being sufficent or free from defects. Kenney v. Abraham, 199 Wash. 167, 170, 90 P.2d 713, 714 (1939); Valley Const. Co. v. Lake Hills Sewer Dist., 67 Wn.2d 910, 915, 410 P.2d 796 (1965). The key to relying upon this defense by the contractor is establishing that the plans and specifications were followed by the contractor. Valley Const., 67 Wn.2d at (Contractor liable for damages when it departed from plans and specifications). (3) Disclaiming Owner s Implied Warranty of Adequate Design Owners often attempt to disclaim the implied warranty of design adequacy through written disclaimers contained in the contract documents. In Spearin, the Court recognized that general disclaimers are not enforceable: This implied warranty is not overcome by general clauses requiring the contractor to examine the site, to check up the plans, and to assume 11

12 responsibility for the work until completion and acceptance. Spearin, 248 U.S. at 137. There is a significant body of law in both federal and state courts rejecting attempts by owners to disclaim this implied warranty with general disclaimers. 3 Bruner & O'Connor Construction Law 9:80 (2016). Generally, owners have more success disclaiming the implied warranty through the use of various specific disclaimers. Id. (4) Invoking Owner s Implied Warranty of Adequate Design To invoke the implied warranty of adequate design plans and specifications, the contractor must demonstrate that the plans and specifications (1) were substantially complied with by the contractor and (2) that they were defective. Valley Const. Co. v. Lake Hills Sewer Dist., 67 Wn.2d 910, 916, 410 P.2d 796 (1965); Donald B. Murphy Contractors, Inc. v. State, 40 Wn. App. 98, 103, 696 P.2d 1270 (1985), review denied, 103 Wn.2d 1039 (1985) (The owner warrants that if the design is followed, a satisfactory result will follow). The contractor need not demonstrate that the design falls below some professional standard, which is generally a higher burden. The contractor is only required to demonstrate that the contract documents contain inconsistencies, are ambiguous or otherwise insufficient to build the project. 1.4 IMPLIED DUTY NOT TO HINDER OR DELAY (1) Implication In every construction contract there is an implied term that the owner or person for whom the work is being done will not hinder or delay the contractor, and for such delays, the contractor may recover additional compensation. Bignold v. King County, 65 Wn.2d 817,

13 26, 399 P.2d 611 (1965); (citing United States v. L.P. & JA. Smith, 256 U.S. 11, 65 L.Ed. 808, 41 S.Ct. 413 (1921); Haley v. Brady, 17 Wn.2d 775, 137 P.2d 505, 146 A.L.R. 859 (1943); Ericksen v. Edmonds Sch. Dist., 13 Wn.2d 398, 125 P.2d 275 (1942) and cases cited therein). (2) Washington Court Decisions Washington courts have consistently recognized the owner s implied obligation to not hinder or delay the work of the contractor. V. C. Edwards Contracting Co., Inc. v. Port of Tacoma, 83 Wn.2d 7, 13, 514 P.2d 1381 (1973); City of Seattle v. Dyad Const., Inc. 17 Wn. App. 501, 571, 565 P.2d 423 (1977). For example, in Dyad Const., the issue was whether the City was responsible for delays on a project when it had to redesign the project during the course of the contractor s work. During construction, the contractor had discovered deficiencies in the City s design. The City revised the design for the project which resulted in a 4 month delay to the contractor. The Court of Appeals held that the City was responsible for the delays because its redesign delays had delayed the contractor s work and breached the City s implied obligation to not hinder or delay the contractor. 1.5 IMPLIED DUTY TO PROVIDE ACCESS TO THE SITE (1) Implication The rule is well settled that in every construction contract the law implies a covenant that the owner will provide the contractor timely access to the project site to facilitate performance of work. Howard Contracting, Inc. v. G.A. MacDonald Constr. Co., Inc., 71 Cal. App. 4 th 38, 83 Cal. Rptr. 2d 590, 596 (2d Dist. 1998). When necessary permits relating to the 13

14 project are not available or access to the site is limited by the owner, the covenant is breached. Id.; see also Douglas Northwest, Inc. v. Bill O Brien Sons Const., Inc., 64 Wn. App. 661, 828 P.2d 565 (1992) (Owner responsible for delays damages due to grading permit not being issued timely). (2) Compensable Delays The owner s obligation to provide access to the site comes up most often in the context of schedule delays and whether such delays are compensable delays. If the delay is caused by an event that is within the owner s control or something that was contractually the owner s responsibility, then this typically results in a compensable delay for the contract. Scheduling delays and compensable delays are address more fully in Chapter IMPLIED DUTY TO COORDINATE MULTIPLE PRIME CONTRACTORS/SUBCONTRACTORS (1) Owner s Responsibilities Public and private owners will on occasion contract with multiple prime contractors on a project. This is perhaps more common on private projects where an owner/developer contracts with separate trade contractors for work on a project. Courts have held that when an owner contracts with multiple prime contractors, the owner retains responsibility to coordinate the work of all contractors, unless stated otherwise by contract, and is responsible for damages due its failure to coordinate multiple prime contractors. See Paccon, Inc. v. United States, 399 F.2d 162, (Government had an obligation to do what it reasonably could to see that other contractor 14

15 complied with schedule requirements); Walter Kidde Constructors, Inc. v. State, 37 Conn. Supp. 50, 434 A.2d 962) (Super. Ct. 1981) (Owner responsible for delays by another contractor). (2) General Contractor s Duty to Coordinate Subcontractors Out of the general contractor's implied obligation to cooperate and not to hinder arises the general contractor's obligation to supervise its work and that of other subcontractors so they do not interfere with each other's work. The general contractor generally owes an obligation to supervise the work of other subcontractors so that the subcontractors do not interfere with each other's work, and so that the work may be performed in a normal and logical sequence. H.H Robertson Co. v. V.S. Diclaro General Contractors, Inc., 950 F.2d 572 (8 th Cir. 1991); see, also, Bat Masonry Co., Inc. v. Pike-Paschen Joint Venture III, 842 F. Supp. 174, 178 (D. Md. 1993). Like the owner s duty to coordinate the work of multiple prime contractors, the general contractor s duty to coordinate the work of its subcontractors may also be delegated by contract. Many general contractors delegate the duty to coordinate the work of subcontractors to the subcontractors themselves in their subcontract agreements. 1.7 IMPLIED DUTY TO ENSURE A SAFE WORKPLACE (1) Implication The question of who owes the duty to ensure a safe workplace often arises in the construction industry. As often is the case, it depends on the facts of each project. Sometimes the duty to ensure a safe workplace belongs to the general contractor, sometimes the 15

16 subcontractor, and sometimes the owner or developer. It is also possible that the duty can apply to more than one party. RCW imposes a statutory duty on every employer: (1) to protect its own employees from recognized hazards not covered by specific safety regulations, and (2) to comply with WISHA regulations. The duty of an employer to protect its own employees is well established and mirrors the common law duty of employers. The duty to comply with WISHA regulations is less clear, and several Washington courts have considered who owes that duty. (2) Contractor s Duties In Washington, general contractors have a nondelegable duty to comply with WISHA regulations for every employee on the jobsite - both their own employees and the employees of independent subcontractors. In Stute v. P.B.M.C., the Washington Supreme Court held that RCW (2) creates the general contractor's duty to comply with WISHA regulations as to all employees at the jobsite - including all subcontractors. 114 Wn.2d 454, 788 P.2d 545 (1990). The Stute case involved a subcontractor's employee that fell three stories when installing a roof. The general contractor failed to provide scaffolding or other safety equipment for the roofing work. The general contractor (P.B.M.C.) argued that the subcontractor owed the duty to ensure compliance with WISHA safety regulations. The court held that the general contractor, as the primary employer, has the primary responsibility for safety and a duty to comply with WISHA regulations because "[a] general contractor's supervisory authority places the general in the best position to ensure compliance with safety regulations." 114 Wn.2d at 463. The court reasoned that the general contractor should bear the prime responsibility for compliance with WISHA regulations because the general 16

17 contractor's "innate supervisory authority constitutes sufficient control over the workplace." Id. at 464. Mere months after Stute, the Court of Appeals in Weinert v. Bronco Nat. Co., extended the duty to comply with WISHA regulations to both a second-tier subcontractor and an owner/developer. 58 Wn. App. 692, 795 P.2d 1167 (1990). In Weinert, the second-tier subcontractor erected scaffolding for installation of siding. The court found that there was no evidence that the general contractor helped erect the scaffolding, and the general contractor had no knowledge of any defects in the erection of the scaffolding. The court reasoned that the second-tier subcontractor owed the same duty as the general contractor because Stute did not exclude imposing "a similar but more limited duty on a subcontractor" and because the subcontractor had the "innate supervisory authority" (Id. at 697) over the siding installation. 58 Wn. App. at 697. The second-tier subcontractor had the duty to comply with WISHA regulations under its control because it was in a better position to inspect and supervise work done on the scaffolding than the general contractor, whose responsibilities were broader. The court noted that the second-tier subcontractor's duty to comply with WISHA regulations extended only to employees under its control and supervision and that the general contractor's duty covered the rest of the project that was under its control and supervision. In Husfloen v. MTA Const., Inc., a general contractor hired a subcontractor to build a foundation for a residential construction project. 58 Wn. App. 686, 794 P.2d 859 (1990). The subcontractor hired a lower-tier subcontractor to pump concrete into forms. An employee of the lower-tier subcontractor was injured when the boom of his concrete pump truck contacted a power line. The pump truck was within 10 feet of the power line, which violated a WISHA regulation. The Court of Appeals held that the second-tier subcontractor owed a duty to comply 17

18 with WISHA regulations because it was in a better position than the general contractor to ensure compliance with safety regulations because the general contractor did not supervise the site and did not supervise the subcontractor's work. In Gilbert H. Moen Co. v. Island Steel Erectors, Inc., the Supreme Court stated that both general contractors and subcontractors are responsible to ensure compliance with WISHA safety regulations within their areas of control. 128 Wn.2d 745, 912 P.2d 472 (1996). The court explained that under RCW , and the Stute court's reasoning, a "subcontractor, despite the general contractor's workplace safety duty, retains concurrent responsibility to meet workplace safety standards in the areas under its control." 128 Wn.2d at 757. (3) Owner/Developer s Duties After Stute, there have been a number of cases in which courts have considered whether an owner or developer also owes a duty to comply with WISHA regulations. In Weinert (cited above), the Supreme Court extended the duty to comply with WISHA regulations to an owner/developer. The court reasoned that because the owner/developer s position was so comparable to that of a general contractor that the policy behind enforcing the duty to comply with WISHA regulations regarding a general contractor was the same because the owner/developer in Weinert had the same innate supervisory authority and was in the best position to enforce compliance with WISHA. Similarly, in Doss v. ITT Rayonier, Inc., the Court of Appeals held that an owner had a duty to comply with WISHA regulations after an employee was injured on the job because there was no significant distinction between the owner-independent contractor relationship and the general contractor-subcontractor relationship because the owner had "innate supervisory 18

19 authority" that gave it control over the independent contractor. 60 Wn. App. 125, 803 P.2d 4 (1991). In contrast, in Kamla v. Space Needle Corp., the Supreme Court held that owners are not per se liable under RCW Wn.2d 114, 52 P.2d 472 (2002). In that case, the owner (Space Needle Corp.) did not owe a duty to an employee of a contractor when the employee was injured on the job because the owner did not have any knowledge regarding WISHA compliance for the work, and because the owner did not control any of the work. In Afoa v. Port of Seattle, a 2011 Court of Appeals case, the court reversed a summary judgment ruling that dismissed the Port of Seattle, as the owner of a project, because there were questions of fact regarding whether the Port retained control over the manner in which a contractor completed its work, whether the Port had the better opportunity and ability to insure compliance with safety standards than the general contractor, and whether the Port had "innate supervisory authority." 160 Wn. App. 234, 247 P.2d 482 (2011). (4) Conclusion Washington courts assume that general contractors have control over the worksite, and therefore have a nondelegable duty to comply with WISHA regulations. However, if someone alleges that any other party (i.e., owners, developers, subcontractors, or sub-tier subcontractors) has control of the worksite, then the courts will examine whether that party had an "innate supervisory authority" over a portion of the worksite to determine whether they also owed a duty to comply with WISHA regulations. This determination is fact specific to each case and project. It is clear that the more supervisory authority that any party has over a worksite, the more likely they will be responsible for complying with WISHA regulations. In Cano-Garcia v. King 19

20 County, a 2012 case, the Court of Appeals stated that "liability flows to those who are in a position to control the actual implementation of safety standards in the workplace." 168 Wn. App. 223, 277 P.3d 34 (2012). Thus, whoever has control - general contractor, subcontractor, sub-tier contractor, owner/developer, etc. - has a duty to comply with WISHA regulations. 20