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52 P.

3d 472 Page 1
147 Wash.2d 114, 52 P.3d 472
(Cite as: 147 Wash.2d 114, 52 P.3d 472)

Kamla v. SpaceNeedle Corp. who is not controlled by the other nor subject to the
Wash.,2002. other's right to control with respect to his physical
conduct in the performance of the undertaking.
Supreme Court of Washington,En Banc. Restatement (Second) of Agency § 2(3).
Jeff KAMLA and Lois Kamla, husband and wife,
Petitioners,
v. [2] Labor and Employment 231H 23
The SPACENEEDLE CORPORATION, a
Washington corporation, Respondent.
231H Labor and Employment
No. 70966-1.
231HI In General
231Hk22 Nature, Creation, and Existence of
Argued Nov. 27, 2001. Employment Relation
Decided Aug. 15, 2002. 231Hk23 k. In General. Most Cited Cases
(Formerly 255k1 Master and Servant)
Employee of contractor, who was injured by “Employees” are agents employed by an employer to
movement of elevator while he was installing perform service in his affairs whose physical conduct
fireworks on structure, brought personal injury action in the performance of the service is controlled or is
against owner of structure. The Superior Court, King subject to the right to control by the employer.
County, Linda Lau, J., granted owner's motion for Restatement (Second) of Agency § 2(2).
summary judgment. Employee appealed. The Court
of Appeals, 105 Wash.App. 123, 19 P.3d 461,Baker,
J., affirmed in part and reversed in part. Employee
appealed and owner cross-appealed. The Supreme [3] Negligence 272 1204(1)
Court, Johnson, J., held that: (1) owner of structure
was not liable, under the retained control exception, 272 Negligence
for any negligence of contractor toward contractor's 272XVII Premises Liability
employee, and (2) owner of structure did not owe 272XVII(G) Liabilities Relating to
employee a duty to warn him to avoid an open, Construction, Demolition and Repair
obvious potential hazard about which the employee 272k1204 Accidents and Injuries in
was aware and warned. General
272k1204(1) k. In General. Most Cited
Affirmed in part, reversed in part. Cases
Owner of structure was not liable, under the retained
control exception, for any negligence of contractor
Chambers, J., dissented and filed a separate opinion
toward contractor's employee, who was injured by
in which Ireland, J., joined.
movement of elevator while he was installing
West Headnotes fireworks on structure; although owner controlled the
elevator, it did not control the actual work being
[1] Labor and Employment 231H 29 performed by contractor, and the owner did not
affirmatively assume responsibility for the
231H Labor and Employment employee's safety.
231HI In General
231Hk28 Independent Contractors and Their
Employees
[4] Negligence 272 1205(7)
231Hk29 k. In General. Most Cited Cases
(Formerly 255k5 Master and Servant)
An “independent contractor” is a person who 272 Negligence
contracts with another to do something for him but 272XVII Premises Liability

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

U. to ensure WISHA compliance or provide 272XVII Premises Liability safety equipment to workers. Govt. under the statutory requirements of Washington Industrial Safety and [8] Negligence 272 1204(5) Health Act (WISHA) regulations. Most their work. Most 272k1204(4) Safe Workplace Laws Cited Cases 272k1204(5) k.3d 472 Page 2 147 Wash. the owner did not 272k1205 Liabilities of Particular Persons actually supervise the work being done by contractor Other Than Owners and did not retain the right to control the manner in 272k1205(6) Contractors which the contractor and its employees completed 272k1205(7) k. a duty 272XVII Premises Liability of care under statute imposing on employers a duty to 272XVII(G) Liabilities Relating to comply with Washington Industrial Safety and Construction.17.52 P.3d 472) 272XVII(G) Liabilities Relating to 272XVII Premises Liability Construction. In General. Works. West's RCWA 49. In General. Demolition and Repair 272 Negligence 272k1204 Accidents and Injuries in 272XVII Premises Liability General 272XVII(G) Liabilities Relating to 272k1204(4) Safe Workplace Laws Construction. Demolition and Repair general contractor.S. Most Cited Cases Negligence 272 1205(7) Owner of structure did not owe employee of contractor. a general contractor is in the best position.060. financially and 272 Negligence structurally.17. In General.2d 114. Demolition and Repair 272k1204(5) k. Demolition and Repair Other Than Owners 272k1204 Accidents and Injuries in 272k1205(6) Contractors General 272k1205(7) k. [5] Negligence 272 1204(5) 272 Negligence 272XVII Premises Liability [7] Negligence 272 1204(5) 272XVII(G) Liabilities Relating to Construction. West's RCWA 49. Cited Cases Jobsite owners are not per se liable in negligence to contractor's employees. Most 272k1204 Accidents and Injuries in Cited Cases General 272k1204(4) Safe Workplace Laws 272k1204(5) k.060. who was injured by movement of elevator 272 Negligence while he was installing fireworks on structure. and thus the prime 272XVII(G) Liabilities Relating to responsibility for safety of all workers is on the Construction. 272k1204 Accidents and Injuries in General 272k1204(4) Safe Workplace Laws 272k1204(5) k. 52 P. West's RCWA 49.060. In General. Demolition and Repair 272XVII(G) Liabilities Relating to 272k1205 Liabilities of Particular Persons Construction. Demolition and Repair Health Act (WISHA) regulations. No Claim to Orig. Most All general contractors have a nondelegable specific Cited Cases duty to ensure compliance with all Washington Jobsite owners do not play a role sufficiently Industrial Safety and Health Act (WISHA) analogous to general contractors to justify imposing regulations.17.060. In General. West's RCWA 49. .2d 114. upon them the same nondelegable duty to ensure compliance with Washington Industrial Safety and Health Act (WISHA) regulations when there is no general contractor. Most [6] Negligence 272 1204(5) Cited Cases If a jobsite owner does not retain control over the 272 Negligence manner in which an independent contractor © 2007 Thomson/West.17.3d 472 (Cite as: 147 Wash. In General. 52 P.

52 P. licensee. Care Required in 30XVI(G) Presumptions General. Most Cited Employees of independent contractors hired by Cases landowners are invitees on the landowners' premises. . Govt. obviousness. Most Cited harm caused to his invitees by a condition on the land Cases if.2d 114. [12] Negligence 272 1037(4) 272 Negligence 272XVII Premises Liability [9] Negligence 272 1036 272XVII(C) Standard of Care 272k1034 Status of Entrant 272 Negligence 272k1037 Invitees 272XVII Premises Liability 272k1037(4) k. Care Required in 272XVII(C) Standard of Care General. invitees for physical harm caused to them by any Most Cited Cases activity or condition on the land whose danger is The legal duty owed by a landowner to a person known or obvious to them. In General. West's RCWA 49. Persons Working on Court Property. Works. Most Cited Cases 30k893(1) k.S. 52 P. but only if. and orders.3d 472) completes its work. [15] Negligence 272 1204(1) © 2007 Thomson/West. Care Dependent on Status.17. In General.3d 472 (Cite as: 147 Wash.3d 472 Page 3 147 Wash. Restatement (Second) of Torts § 343A. he (a) knows or by the exercise of The appellate court will view the evidence on a reasonable care would discover the condition. Most Cited Cases 30k934 Judgment A possessor of land is subject to liability for physical 30k934(1) k. Most Cited Cases 272k1034 Status of Entrant A possessor of land is not liable to his [or her] 272k1036 k. [11] Negligence 272 1037(4) 272 Negligence 272XVII Premises Liability [14] Appeal and Error 30 934(1) 272XVII(C) Standard of Care 272k1034 Status of Entrant 30 Appeal and Error 272k1037 Invitees 30XVI Review 272k1037(4) k. No Claim to Orig. U. and motion for summary judgment and draw reasonable should realize that it involves an unreasonable risk of inferences in a light most favorable to the nonmoving harm to such invitees. or invitee. Restatement (Second) of Torts § 343. regulations.060(2). [10] Negligence 272 1037(7) [13] Appeal and Error 30 893(1) 272 Negligence 30 Appeal and Error 272XVII Premises Liability 30XVI Review 272XVII(C) Standard of Care 30XVI(F) Trial De Novo 272k1034 Status of Entrant 30k892 Trial De Novo 272k1037 Invitees 30k893 Cases Triable in Appellate 272k1037(7) k. unless the possessor entering the premises depends on whether the entrant should anticipate the harm despite such knowledge or is a trespasser.2d 114. will not discover or realize the danger. The appellate court will review summary judgment orders de novo and will affirm if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. 52 P. the jobsite owner does not have a duty under Washington Industrial Safety and Health Act (WISHA) to comply with the WISHA rules. or will fail to protect themselves against it. and (b) should expect that they party. and (c) fails to exercise reasonable care to protect them against the danger.

obvious 200-foot level of the SpaceNeedle. Common Law Duty of Care Based on Retained Control The Court of Appeals affirmed the trial court's dismissal of the statutory and common law retained control claims but reversed the trial court's We first address whether the Court of Appeals determination on the common law landowner/invitee correctly determined SpaceNeedle did not retain the claim. As he did. Amicus Curiae on Behalf of Washington State Trial Lawyers Kamla filed suit against SpaceNeedle.060. On appeal. through the elevator shaft and injuring him. the employee had dragged his which three elevators pass. Jeff Kamla was installing fireworks on the a duty to warn him to avoid an open. employee's status as invitee..S. the General jobsite and landowner. Kamla v. and holding a genuine (WISHA). 19 P. The 200-foot potential hazard about which the employee was level is an open-core hexagonal platform through aware and warned. Stephen Bulzomi.2d 114. J. Spokane. SpaceNeedle against a jobsite owner by an injured employee of a did not retain control or supervision over the job.” this opinion will Johnson & Martens P. use the terms “landowner” and “jobsite for Respondent. 123. FN1. U. The common law has long common law retained control claims and reverse the distinguished between an employer's liability for © 2007 Thomson/West. Seattle. and contractor. the contractor. The trial court granted SpaceNeedle's on the jobsite owner's alleged retained control over summary judgment motion..17. SpaceNeedle owner's status as landowner and the injured Corp. Govt. . 1997. 52 P. 52 P. We the general rule of nonliability for the injuries of affirm the Court of Appeals on the statutory and *118 independent contractors. On December Owner of structure did not owe contractor's employee 30.52 P. Bryan Harteniaux. 105 Wash.3d 472 Page 4 147 Wash. The injured employee further argued the jobsite SpaceNeedle did not owe Kamla a common law owner owed him a statutory duty of care under the duty of care based on retained control or a duty of Washington Industrial Safety and Health Act care under RCW 49.App. Most Cited (Pyro). FN1 hired Pyro-Spectaculars 272k1204(1) k. owner” interchangeably. The trial court dismissed the claims on summary judgment. 343A.3d 472 (Cite as: 147 Wash. JOHNSON. After arriving on the 200- safety line over an open elevator shaft. holding job. Works. Robert L.17 RCW.S. dragging him Torts §§ 343. the Court of the manner in which the contractor completed the Appeals affirmed in part and reversed in part. breached common law and statutory duties. **473*117 Messina Law Firm. he dragged two previous years. Tacoma. the injured issue of fact remained as to whether SpaceNeedle employee **474 argued the jobsite owner owed him owed Kamla a common law duty of care based on a common law duty of care based on the jobsite Kamla's status as an invitee. Demolition and Repair 272k1204 Accidents and Injuries in The SpaceNeedle Corporation (SpaceNeedle).3d 472) Court of Appeals on the common law 272 Negligence landowner/invitee claim. alleging it Association. and the contractor had his safety line across an open elevator shaft. We granted the injured employee's petition for right to direct Kamla's work sufficient to bring it review and the jobsite owner's cross-petition for within Washington's “retained control” exception to review. In General.3d 461 (2001). Because the common law claim speaks David A. to install a New Year's Eve Cases fireworks display at the SpaceNeedle. Kamla attached his safety line and began worked on the fireworks display at the structure the moving around the platform. The injured employee argued the jobsite the danger posed by the moving elevators was open owner owed him a common law duty of care based and obvious. arguing This case involves a personal injury action brought Pyro was an independent contractor. We affirm in part and reverse in part. Debra Stephens. Christie. Restatement (Second) of level and snagged Kamla's safety line. Bufalini. 272XVII Premises Liability 272XVII(G) Liabilities Relating to FACTS Construction. in terms of “landowners. chapter 49. The independently devised a safety system designed to elevator traveled down the shaft through the 200 foot avoid the elevator openings. employee had foot level. No Claim to Orig.2d 114. Finally. SpaceNeedle moved for summary judgment. for Petitioners.

869. employees are “agent[s] employed by [an employer (the independent contractor). 711 P.2d at 134. Hennig.” Smith. and the Port of Seattle.” pound screw fell 60 feet onto his head.2d 790. [the independent contractor's] work to ensure that it The difference between an independent contractor fully complied with the contract provisions. The plaintiff sued his hand. 89.2d 1090 (1985)). Howard S. 874. No Claim to Orig. “The *121 liable for his injuries under the common law retention of the right to inspect and supervise to “retained control” exception. at 447.. 711 P. City of Seattle. the plaintiff was injured when a three conduct in the performance of the undertaking.App. the pin employer] to perform service in his affairs whose manufacturer. insure the proper completion of the contract does not vitiate the independent contractor relationship.App.2d 323.App. 785. 445-46. Conversely. alter our common law statement. 52 P.2d 1052 worker is an independent contractor or an employee.2d 777.. (1986). at 875. Straw. On the other Wash.2d 114. and argues Kelley's “right Bozung. “[t]he ‘retained control’ exception applies .App. The contract physical conduct in the performance of the service is under which the Port of Seattle hired the independent controlled or is subject to the right to control by the contractor authorized the Port of Seattle “to inspect [employer]. Straw. 90 Wash.2d at 134. 802 P. simply held that such “general contractual rights as Kelley's “retained control” analysis in favor of an the right to order the work stopped or to control the “actual control” analysis. 950 P. Inc.S. controls the method of the contractor's work. 65 Wash.2d 591 (1965)). Condo.” Restatement (Second) of Agency § 2(2). Inc.. Co. Bozung v. Govt. 52 P. Esteem of an employer's liability depends on whether the Constr.2d 790 (quoting subcontractor. These decisions represent a straightforward only when one who engages an independent application of the Restatement Second of Torts § 414 contractor retains actual control over the workplace cmt.2d 790. 42 Wash. 950 P. The Bozung court whether we have abandoned.2d 1018 contractors and an employer's liability for work. two Court of Appeals the “retained control” exception is controlled by this opinions also cited by Smith. who is not controlled by the other nor subject to the other's right to control with respect to his physical In Hennig. insulation: employers are liable for injuries incurred by It is one thing to retain a right to oversee compliance employees precisely because the employer retains with contract provisions and a different matter to so control over the manner in which the employee involve oneself in the performance of the work as to works..2d 1018 (1998).2d 790 (1991). the court held. or should now abandon. c (1965): and affirmatively assumes responsibility for project [T]he employer must have retained at least some © 2007 Thomson/West. Straw v. order of the work or the right to inspect the progress of the work do not mean that the general contractor Space Needle cites Smith v. 42 Wash.” Kelley v.App. Crosby Group. 45 common law liability insulation.. We must determine Wash.2d at 132. Myers. to control rule” no longer controls. Wash.” 95. 802 P.3d 472 (Cite as: 147 Wash. but *120 the right to exercise such Epperly v. (citing Hennig v. 90 P. 116 Wash. 330-31. In Smith. . [1][2] An “independent contractor is a person who Hennig. 802 P. Works.” Hennig. 442. The Straw court merely held that courts have modified Kelley such that the bare right controlling the timing of construction did not amount to control is no longer enough to strip away the to controlling the performance of the work.3d 472 Page 5 147 Wash.3d 472) work-related injuries suffered by independent safety.. 90 Wash. 134. Employers are not authority to merely inspect the work and demand liable for injuries incurred by independent contractors contract compliance was not “retained control” because employers cannot control the manner in sufficient to strip away the common law liability which the independent contractor works. 116 Wash.2d 1090. Space Needle argues that Washington liability exception.” In the past. Co.2d 1052. and Bozung. Kamla**475 contends Space Needle retained undertake responsibility for the safety of the control over the manner in which he worked and is independent contractor's employees. 728 P.App. We held the worker how to do his or her job. however. 399 control. Wright Constr. do not support contracts with another to do something for him but Space Needle's argument or the holding in Smith. 802 P. Kamla argues Space Needle's common law liability under Neither Straw nor Bozung. 728 P. at 95. 45 Wash.52 P. we have stated. Builders. 116 Restatement (Second) of Agency § 2(3).2d related injuries suffered by its employees.2d 500 (1978).2d 114. “[t]he test of control is not the actual interference with the work of the Hennig. and an employee is whether the employer can tell the 116 Wash. 582 P. The scope 131. U.

788 P. 692. injuries. Bronco.2d the work is performed. We hold SpaceNeedle did not owe a common law duty of care based on retained The appellate courts extended the Stute rule to jobsite control and is. 58 Wash. he sued Bronco arguing Bronco [3]SpaceNeedle did not retain the right to interfere owed him a specific duty to comply with WISHA with the manner in which Pyro completed its work. the Court of Appeals correctly noted that SpaceNeedle did not exercise control over the Stute“rejected a claim that [the specific] duty . [and]. not liable for Kamla's owners in Doss v. Bronco Nat'l Co. In Weinert v. at 464. not simply whether there is an Adrey Construction. Weinert. The Weinert court Security and fencing as determined by the Seattle acknowledged Bronco was an owner/developer rather Fire Department.” Stute. 803 P. 795 P. Govt.” Weinert.. authority is per se control over the workplace.App. at 696. to make suggestions policy: “to further the purposes of WISHA to assure or recommendations which need not necessarily be safe and healthful working conditions for every followed. the Court of Appeals simply agreed to provide Pyro a suitable display site pointedly noted. This expansive liability is but it does not mean that the contractor is controlled justified because “[a] general contractor's supervisory as to his methods of work. 464. 1167. 125.. in turn.2d 545 (1990). or to prescribe alterations and deviations.2d 4 (1991). but employed the Stute rule relations. an law. The Kamla argues SpaceNeedle owed him and breached deceased worker's estate sued ITT Rayonier. at [4] In Washington. No Claim to Orig.” Stute. SpaceNeedle argues it it violated a specific WISHA provision. In Doss. manner in which Pyro completed its work. there the display.App. “Access to the site. 52 P.” As an independent contractor. regulations. 795 P..2d 114. 795 P. contractors. retention of the right to direct the manner in which The *123 contractor.2d 1167.3d 472 (Cite as: 147 Wash. 60 Wash. but found “no significant difference .B. the proper inquiry becomes whether there is a owner/developer..2d 545. P.2d 1167.C. attached only if the general contractor controlled the work of the subcontractor. 803 P. 114 is done. ITT Rayonier hired an independent contractor to clean a boiler at one of Statutory Duty of Care of Jobsite Owner its mills. 788 P.App. . at 696.. The Stute right to order the work stopped or resumed.. person working in Washington. Technical assistance and support. that the reasons for the holding in Stute [applied].3d 472) degree of control over the manner in which the word all WISHA regulations.App. After Weinert fell off scaffolding erected by Adrey Construction.App. all general contractors have a 128. It is not enough that he has merely a general Wash. 52 P. work in its own way. Public than a general contractor. to inspect court imposed the per se liability as a matter of its progress or to receive reports. ITT Rayonier Inc. U. rejected the contention that and fallout zone.” Doss. and must be proof the general contractor controlled the permit fees. hired a contractor to install siding. 788 P.2d 1167 (1990). subcontracted with the work is performed. adequate crowd control. access to the display site to set up before [the specific] duty could be imposed. or as to operative detail. There must be such a retention of a right of 114 Wash.S. 58 When we distill the principles evident in our case Wash.M. 58 Wash. by whom Weinert was actual exercise of control over the manner in which employed.App.2d 114. firefighters. SpaceNeedle did because “[t]he owner/developer's position [was] so not retain control over the manner in which Pyro comparable to that of the general contractor in Stute installed the fireworks display or completed its work.52 P.3d 472 Page 6 147 Wash.. supervision that the contractor is not entirely free to do the work in his own way. Public broadcast. 60 Wash. Pyro was free to do the Weinert. between an owner- © 2007 Thomson/West. 114 Wash. “Stute. The court noted ITT Rayonier was a nondelegable specific duty to ensure compliance with jobsite owner and not a general contractor. The court of appeals has extended Stute's nondelegable duty of ensuring WISHA compliant We cannot accept Space Needle's implicit invitation work conditions to parties other than general to abandon the “retained control” **476 inquiry. As in did not owe him a statutory duty of care because Weinert.. nor did Space*122Needle affirmatively assume responsibility for workers' safety. 58 Wash. alleging a duty of care under WISHA. at 693.” Clerk's Papers at 330. therefore.2d 545. 795 P. SpaceNeedle Holding Bronco could be liable.. A chunk of slag fell and killed a worker employed by the independent contractor.2d 4.2d 454. SpaceNeedle also agreed to provide work of the subcontractor. Stute v.2d Such a general right is usually reserved to employers.2d at 464. Inc. Works.

Meyers v.2d at 462. 788 P. 114 Wash. some jobsite owners may reasonably rely on the contractors they hire to ensure **477[5][6] Our first question is whether jobsite WISHA compliance because those jobsite owners owners are per se liable under the statutory cannot practically *125 instruct contractors on how to requirements of RCW 49.2d at Common Law Duty of Landowner to Invitee 462. 796-97. Seattle.2d 545.2d well settled. We hold they do 49. 65 Wash. 593 P. practical opportunity and ability to insure compliance with safety standards.2d 84. Stute. or invitee. they the Restatement Second of Torts to define a do not necessarily have a similar degree of landowner's duty to invitees. 788 Space Needle is not liable under WISHA for the P.. and should realize that it governing a specific trade. . Finally. conditions. we relied in part on a California held a reasonable trier of fact could find Space Supreme Court decision that imposed “responsibility Needle was negligent in operating the elevators.2d 4. Wright Constr. We for safety requirements on those who have the greater disagree. 114 premises. 59 Cal. 915 P. but only if. the entrant [is] a trespasser. and orders promulgated under [chapter when there is no general contractor. 91 P.” Iwai financially and structurally. [7][8] If a jobsite owner does not retain control over The second question is whether jobsite owners play a the manner in which an independent contractor role sufficiently analogous to general contractors completes its work. licensee.17 RCW].2d 591 (1965). Nothing in chapter 49. Instead. 47 Wash. 427 P. Pyro was an independent contractor.3d 472 Page 7 147 Wash. As we already not. Epperly v.17. Synd. Iwai. They are not. 60 conclude all jobsite owners necessarily control work Wash.17 RCW specifically imposes a duty upon jobsite owners to comply with WISHA. Although jobsite owners may have a similar degree [11][12] We have adopted sections 343 and 343A of of authority to control jobsite work conditions. Employees of independent contractors hired we place “the prime responsibility for safety of all by landowners are invitees on the landowners' workers . Heat & Power Co. 181 Mont.2d 114.2d 1089 compliance or provide safety equipment to workers. U. a person entering the premises depends on whether Because a general contractor is in the best position. We recognized a general work. State.” Stute. 399 P. The same is not true Wash.App. We hold at a construction site. 117. 129 Wash. Because jobsite owners involves an unreasonable risk of harm to such may not have knowledge about the manner in which invitees. the jobsite owner does not have a *124 to justify imposing upon them the same duty under WISHA to “comply with the rules.2d at 461.” Stute.S. 52 P. working conditions. discussed..52 P. 788 P. nondelegable duty to ensure WISHA compliance regulations. 90-91.17.2d 777. The “legal duty owed by a landowner to 790.Rptr.3d 472 (Cite as: 147 Wash.2d at 463. 52 P. City of of jobsite owners. Howard S.” Doss. 2..2d 545. 915 P. We noted other jurisdictions have held manner in which Pyro and its employees completed since a general contractor controls the property and their work. (1996). Co.2d 438 The Court of Appeals reversed the trial court and (1979)). [9][10] The legal standard applicable to this issue is 788 P.2d at knowledge or expertise about WISHA compliant 93.060. 114 Wash. 786. Owens. No Claim to Orig.3d 472) independent contractor relationship and a general compliant work conditions. 66 Cal. 114 Wash.2d 114.2d 781 (1967)). 803 P.. Space Needle did not retain the right to control the manner We discussed the nature of a general contractor's in which Pyro and its employees completed their authority in Stute.2d 545 (citing Shannon v. he as that of a general contractor to a public corporation (a) knows or by the exercise of reasonable care would without any knowledge about WISHA regulations discover the condition. Govt. 269. complete the work safely and properly.” Stute. 129 Wash. at 127 n.2d 1089: work conditions. 549 (1907). it is unrealistic to contractor-subcontractor relationship.060(2). to ensure WISHA v. and a job should be performed or about WISHA © 2007 Thomson/West.”RCW 49. on the general contractor. “the general contractor will have the duty to provide for safety. it simply hired the independent contractor and contractor has authority to influence work conditions owned the jobsite where Pyro worked. Jobsite owners can run the gamut **478 A possessor of land is subject to liability for from an owner/developer with the same degree of physical harm caused to his invitees by a condition knowledge about WISHA compliant work conditions on the land if.2d 545 (quoting Alber v. Works. 48.

as possessing expertise in the creation and execution I dissent. similar enough to a general contractor to justify imposing the same nondelegable duty of care to [13][14] We review summary judgment orders de ensure WISHA compliant work conditions. Works.3d 472 Page 8 147 Wash. obvious potential hazard about which Furthermore. Space Needle independently devised a safety system designed to argues because the danger was known and obvious. which we also cited in Iwai:“A Given Pyro's expertise. Wilson Court Ltd. Space Needle is not he was aware and warned. The confusion lies not in displays. C. 896 P. J. Pyro created similar displays at the Space the answers developed by the common law.” that Kamla would drag his safety line across the open elevator shaft. concur. Under the facts in the claims.3d 472) *126 (b) should expect that they will not discover or Space Needle that it incorporate the 200-foot level realize the danger.. Inc. 52 P. P. Because Space Needle did not retain anticipated Kamla's harm.2d 692. MADSEN. despite the obvious hazard control over the manner in which Pyro completed its posed by the moving elevators. we reverse the Court of Iwai. Finally.. We are given an opportunity to remedy the of fireworks displays. SMITH. Kamla worked against it. 127 Wash. [15] Pyro was a business entity that represented itself CHAMBERS. stating. Highfield. the trial court is affirmed on all 17. Pyro employees who worked in the against the danger.3d 472 (Cite as: 147 Wash. Space Needle is not liable to Pyro or its dismissed this claim on summary judgment. JJ. it avoid the elevator openings. and executing fireworks context of jobsite injuries.2d 114. BRIDGE and OWENS. avoid an open. we believe no reasonable trier of anticipate the harm despite such knowledge or fact could find Space Needle should have anticipated obviousness.2d 665 (1995). (Second) of Torts § 343A).J. 915 P. core were exposed to and aware of the danger posed by the moving elevators. CONCLUSION A landowner is liable for harm caused by an open and obvious danger if the landowner should have Common law liability for injuries to independent anticipated the harm.2d 590 (1998). Therefore. Properly framed. but Needle the two previous years and suggested to instead in the way the courts have been posing the © 2007 Thomson/West. as a jobsite owner. and for Pyro in the core of the Space Needle the two (c) fails to exercise reasonable care to protect them previous years.. employees for workplace injuries incurred because of “the defendant is not liable for plaintiff's failure to the manner in which the work was completed. Space Needle was entitled to judgment as a matter of law.2d at 94. ALEXANDER.2d 1089 (alteration in Appeals on this point and affirm the trial court's original) (quoting (emphasis added) Restatement ruling. record. 134 Wash.52 P. Tony Maroni's. 952 Kamla. (dissenting). Schaaf v. The trial court work. despite the open and obvious contractors and their employees exists where control nature of the danger. Kamla's two years of personal possessor of land is not liable to his [or her] invitees experience working on the 200-foot level next to the for physical harm caused to them by any activity or obvious danger posed by the elevators. We view the evidence and draw reasonable inferences in a light most favorable to the **479*128 The Court of Appeals is affirmed in part nonmoving party. . U. But this argument ignores section 343A. 129 Wash. novo and will affirm if there is no genuine issue of given the professed expertise of Pyro.2d 114. No Claim to Orig. 698. 21. Pyro employees had Restatement Second of Torts § 343.2d and reversed in part. and Kamla's material fact and the moving party is entitled to own work experience at the Space Needle. the project team confusion in defining a principal's duty to the for Pyro had *127 over 100 years of experience in employees of an independent contractor in the designing. Finally. and Kamla's condition on the land whose danger is known or own acute awareness of the danger posed by the obvious to them. Govt. unless the possessor should moving elevators. SANDERS. installing. is not liable for Kamla's injury. Space judgment as a matter of law. Collectively.” Clerk's Papers at 607. 52 P. or will fail to protect themselves into the 1997 New Year's Eve display. P'ship Needle had no duty to anticipate the harm that befell v.S. the question in is retained over the manner in which the work is this case is whether Space Needle should have completed.

that our law attempts to place the duty of reasonable care on the entity best suited to meet it. duty. 343A (1965)).2d 545. against harms either known or knowable Wright Construction Co. . 582 P. obviousness.R. Kelley and Stute apply this omissions of the principal or its agents caused the fundamental underlying principle of the common law injuries. Underlying Kelley and Stute is the principle 741. 114 Wash. 93-94. Kelley v. 52 P. 74 Wash. P. Stute. In Kelley we analyzed the duties a general contractor owed the employees of subcontractors.2d at 94. 875 P.2d 114.2d at (WISHA). Park. if the alleged dangerous activity or condition including obvious dangers if the principal should was caused solely by the act or omission of the anticipate that mere knowledge is not sufficient to independent contractor. but has yet to develop a comprehensive (Second) of Torts § 343A (1965)).2d at 457. we turn to the fourth question: whether the *129 Properly read. 85 §§ 343.52 P. If so. 90 Wash. reasonable care to protect from knowable dangers.2d 114. the identity of the principal..Hansen v.2d 323. we recognize that generally protect the invitee. general contractor or owner has a nondelegable duty Kelley. Govt.V. 90 Wash. the duty of every landowner to every invitee.FN1 contractor is not liable for physical harm caused to another by an act or omission of the contractor or his FN1.App. however.2d with approval Restatement (Second) of Torts 500. and the nature and If. If so.2d 545.. Works. we should ask again whether employees of independent or subcontractors. A business owner may have regulations and concluded that the general contractor functionally equivalent duties to a general contractor bore the primary duty for enforcement of specific for the purposes of this analysis. If the principal is solely an owner and not a general Unfortunately. work safety 457. See Phillips v. Id. P.2d at 330.2d This duty persists even in the face of 454. 788 P. without further analysis obvious risks if the owner should have has spawned confusion in the law.. 114 Wash.17 RCW.2d at 330. the employer of an independent reasonable care as a landowner.2d 1089 (1996) (quoting with approval in Kelley. Horn Rapids O. we analyzed the duty of a general contractor to with specific safety regulations. See Kelley. 582 P. 114 Wash. The bare fact that a claimant can there is no liability on the part of the principal: be classified as the employee of an independent Except as stated in [Restatement (Second) of Torts §§ contractor does not relieve the principal of the duty of ] 410-429 [ (1965) ].B. 334. 500 (1978) and Stute v.. No Claim to Orig. it should best be analyzed under the duty to invitees we ask if the principal is a jobsite owner.2d 1228 (1994). the alleged dangerous activity or condition. Formalistic reliance on Kelley the nature of the activity or condition alleged to have and Stute outside the context of general contractors caused the injury? If the claimant contends the acts or has led us astray. chapter 49.2d at 334. In to provide a safe workplace to ensure compliance Stute.3d 472 Page 9 147 Wash. reliance on out-of-context Restatement. dangerous or defective condition on the **480 premises. Unfortunately. we analyze the principal's duty under and demonstrate the important interplay between standard common law tort principles.3d 472) questions. 129 Wash. our case law establishes a condition was within the province of the principal multiple step analysis to determine whether the and existed completely independent of the *130 work principal has an enforceable duty of care toward the of the contractor. approach. 788 Kaiser Aluminum & Chem. Inc. 915 P. 90 enforce Washington Industrial Safety and Health Act Wash. as a duty to provide a safe jobsite for all employees.’ ” Iwai.2d 1089 (quoting Restatement problem. we turn concluded the general contractor had a nondelegable to the second question: whether the principal. Finally. Under Iwai and the © 2007 Thomson/West. it has or under standard negligence principles. Corp. 582 P.C. 90 Wash. anticipated “ ‘harm despite such . and If invitee analysis does not resolve the issue. 129 Wash. owner's common law duty to protect invitees from harm. This Court has considered specific iterations of this 915 P. First..2d Restatement (Second) of Torts § 409 (1965).Stute. an owner has a duty to protect language in our seminal cases. U. Howard S.S. case law has drifted from this contractor we proceed to the third question: what is fundamental principle. safety regulations.2d through an exercise of reasonable care.3d 472 (Cite as: 147 Wash.M. 750-51. See Iwai v. 582 P. State. 52 P.2d 500.. In the background is the property servants. the alleged cause of injury is a scope of the right of control retained by the principal.2d 500.2d 545 (1990). cited 84. 788 P.

and not at the beginning of the delivering materials to the jobsite before the principal analysis as some courts would have it. fabricated and installed” by the Kamla's fall and found four safety standard independent contractor failed and permitted a cable to violations. the principal may still have liability so long as the condition was within the scope With this step by step analytical framework in mind. The Department of death suit against premises owner when a large pad Labor and Industries examined the work area after eye “designed. No Claim to Orig.2d 114.S. 950 P. 778-80. independent contractor.App. § these shows. 867. 52 P.2d 114.. the premises owner's duty of Pyro to **481 install fireworks on the 200 foot level care is commensurate with the control it retains over for the first time. City of Seattle. 424. 60 Wash. he accidentally dragged his owner when a 3 pound screw pin fell 60 feet from a safety line over the elevator shaft. without looking control over the contractor's work.Doss v. Co. especially in the context of the retained right Pyro and the Space Needle.2d 131. The 200 foot level is a hexagonal the independent contractor's work. The use of the condition or activity that caused the injury was within 200 foot level presented the new danger of elevators. supra. even if the alleged control retained. Phillips. Co. principal's retained right of control enters the legal many courts have gone about this determination framework. See Restatement. they secured safety lines of control of the premise owner. Therefore. See. Second. U. aluminum bus became unstable and fell on fall protection was provided. e. 52 P. Roofmaster Prods.App.2d 131. 875 P. 429-30.2d 523 (1999) (principal owed no duty to the employee of a supplier who rotated his © 2007 Thomson/West. whether the alleged Spectaculars (Pyro) to provide fireworks for New dangerous activity or condition was within the Year's Eve celebrations. whether some right of control was retained by FACTS the principal. Unfortunately. work area. There are no guardrails or other determine this. Govt..3d 472 Page 10 147 Wash. See Restatement. 116 Wash.App. Inc. As one of the crane solely operated by the independent contractor). at 743.2d 724 (1997). Because the Pyro employees faced the retained control and the dangerous condition is danger of falling. The danger of the moving elevators was obvious to The relationship between the scope of the right of everyone.2d 790 (affirming dismissal of suit against premises Kamla came on duty. “In other words. The principal has a duty to act with backward.2d 790 (1991).3d 787. Myers.App. Crosby Group.App. Inc. the Space Needle hired Pyro P.2d 500. it snagged Kamla's safety line Epperly v. 130. 90 controlled by the Space Needle. 89. the scope of the retained *131 control. and yanked him 45 feet down though the elevator 399 P.2d 591 (1965) (affirming dismissal of wrongful opening. 1 S. its retained right of control depends on two factors. nor was any mechanism worker. Smith v.2d 4 (1991).g.W. . I will examine the facts and contentions raised by Jeff Kamla and The Space Needle Corporation (Space Whether the principal has an enforceable duty under Needle). See generally at strategic secure points on the 200 foot platform. they have first analyzed whether actual reasonable care within the scope of any retained control was retained by the principal. 116 Wash.2d at 330. It is conveyor into high voltage power lines while only at this point.. 90 dangerous condition was created solely by the Wash. of the principal's retained right of control. In 1997. principal retained sufficient control for employed to prevent the elevators from striking exception to attach). 74 Wash.2d 1228 The Space Needle knew workers with safety lines (summary judgment for principal reversed when attached to harnesses would be working near moving principal's foreman supervised the cutting of heavy elevators. 125. § 414. the *132 Space Needle allowed 414. elevators descended. moving through the Wash. 65 Wash.2d 1018 (1998). Wash. Hennig v. 932 P.52 P. ITT Rayonier.App. after several discussions between critical. No principal. Dow platform through which the Space Needle's three Chem. Works. Shingledecker v.. but the elevators continued to run through aluminum “bus” with chain saw furnished by the work area at their normal operating speeds.3d 472 (Cite as: 147 Wash. 133-34. 93 through an active work site.2d 777. at whether the particular risk was within the right of supra. injuring him severely. To elevators pass. Pyro was cited and fined.. 790 (Tex. we must examine whether the specific barriers around the elevator openings. that the was present or had started the job). 803 P. supra. 971 P.3d 472) Wash.1999). First. including the running of the elevators fall). 802 workers or their equipment.” Bright v. See Kelley. Restatement. 582 P. Kamla had worked all of retained right of control. Hennig. 802 For several years. § 414. A few minutes after P.

for physical harm caused to them by any activity or including employees of the independent contractor.. 915 P. 706.. 399 P.. 5 Wash. negligence principles. 281-82.2d 426 (quoting Restatement (Second) of Torts § 343A (1981). condition on the land whose danger is known or for his or her own negligence.2d 84.”). 129 Wash. SpaceNeedle Corp. 96 1089 (alteration in original) (emphasis added) Wash. 635 P.52 P. 490 P. 708. U. 91 P. 135..2d at 134. the the majority that the proper analysis is laid out by independent contractor. This mistakes the Wash. affirmatively increase the risk. (2) the “right of retained control. we should apply standard common law 129 Wash.S.” Kamla v. No Claim to Orig.2d 274.’ ” Iwai. Restatement (Second) of Torts §§ 343. the SpaceNeedle controlled and operated the elevator on SpaceNeedle parked its elevators in the opening of a normal schedule and at normal speeds while people the 200 foot level to prevent the elevators from were working on the 200 foot level. 90-91.see also Thorpe v. the SpaceNeedle hired a safety Space*134Needle's own negligence. gravamen of Kamla's invitee theory that the Space Boeing Co. 47 common law duty to an invitee does not Wash. for negligence in the obvious to them. Because Kamla's accord Meyers v.3d 472) After Kamla's fall.2d 790. State. In Hennig. retained-control analysis is unnecessary to 129 Wash. Because Kamla Kamla argues that the Space Needle breached its contends the affirmative acts of the Space common law duty of care to invitees.” 116 These contentions will be examined in order. 129 not enough to protect Kamla. See Iwai v. I agree that the mere obviousness of the independent contractors and the resultant danger does not exculpate the Space Needle. 802 P. the principles of nonliability for the acts of Finally. liability: (1) the SpaceNeedle's duty to Kamla as an invitee to exercise *133 ordinary care not to cause FN2. majority that Kamla was an invitee. The consultant. **482 that Kamla was injured by the Needle should have anticipated the harm despite the © 2007 Thomson/West. caused his injury. The Court of striking anyone or anything and to prevent anything Appeals was correct in concluding that the from falling through the elevator shafts during the “SpaceNeedle owed Kamla a duty of care to keep remainder of Pyro's work. affirmative acts. Further. 915 P.2d at 94. the Space Needle could not have always discharged merely because a warning is anticipated that the obviousness of the danger was shouted or the danger is obvious. 48. A property owner's duty to an invitee is not matter of law. Kamla's ANALYSIS claim that the SpaceNeedle failed to take adequate steps to ensure that its elevators would not cause Kamla ultimately developed three theories of harm should go to a jury.” obviousness.2d 1089 (1996).3d 472 (Cite as: 147 Wash. Iwai. Works.2d 114. and a jury could (1965)).3d 472 Page 11 147 Wash. 915 P. I agree with the Needle's own employees caused his injury.App. did not furnish the appliance which failed and it did nothing affirmatively to increase the risk. Kamla sued the the premises reasonably safe and to avoid SpaceNeedle alleging that it had breached its duty to endangering Kamla by its own negligence or provide a safe workplace. On the consultant's recommendation.2d 114. I agree with involve contentions that Pyro. 549 (1907). “ ‘A acts. I must part company with the majority. Epperly. 65 Wash. as a of care.2d 448 Needle endangered Kamla by its own affirmative (1971).2d at 94. The rule is more subtle than that.2d 1089. Puget Sound Power & Light Co. See Iwai. 55.” and (3) Seattle “otherwise did nothing to the duty to comply with specific WISHA regulations. I disagree with the majority that the obviousness of because it chooses to focus on only one aspect of the danger exculpates the Space Needle from a duty invitee liability. 123. 52 P. Wash.FN2Kamla contends.2d Tauscher v.2d 1089.2d 591 (“the city did not supervise the activities of Common Law Duty to Invitees the workmen. . 52 P.App.3d 461 (2001). It is a question of fact whether the Space conclude. 105 Wash. The majority determines that. unless the possessor should hiring of the independent contractor and for injuries anticipate the harm despite such knowledge or resulting from any latent defects on the land. analyze this theory. 19 P. Syndicate Heat & Power Co. “An owner who employs an independent possessor of land is not liable to his [or her] invitees contractor is already liable to all third persons. Govt.2d at 787.2d at 94. See also Evidentiary issues will then be examined. however. 915 P. we stated that the Port of him injury. 343A (1965).

2d 1228.2d 790 (citing Epperly.S. we should include erecting stop signs.g. Diablo Dam). This engendering liability). 96 Wash. 402 P. special precautions must be employed to guard against Rather than ask whether. activity alleged to have caused injury. right-of-way our inquiry goes further than whether Condo. W. This case is not significantly different from cases retains control over some part of the work. where a railroad crossing is extra hazardous. See. crossing gates or other ask a more pointed question: whether the Space appropriate barriers. For example. despite the obvious danger presented by a that control. Inc.2d 647.. Such a distinction may not should be left for the trier of fact.Greenleaf v.2d 591). 774 P.g. at 785. the scope of control inquiry would be focused on the performance of the work and the condition of the I stress my agreement with the majority. 635 P. Such precautions might Space Needle retained the right of control. The heart of operated its train through an area known to be Kamla's retained control claim is that the Space congested with people. U. 65 Wash.App. at 751. the and the power to control how the independent Space Needle had a duty of care.2d 1255 (1989) Space Needle retained the right of control. under the control of Pyro. and warning of oncoming trains Needle retained the right to control the condition or with a whistle. Majority at 475. at 510 (5th ed. and therefore potentially improperly weighs the evidence. The majority premises. moving train... 446.” Kelley. Hennig.2d 274. 74 contractor performs the work. 603. However. the of an “actual control” test. so our scope of retained control inquiry must contractor. employees performed their work.2d at 330.3d 472 (Cite as: 147 Wash. focus on the elevators. 802 P.2d Wash. Govt.. under the eliminate its common law duty of care.3d 472 Page 12 147 Wash. within the *136 scope of railroad. At (in this case. Unless specific facts (e. and managed solely by Pyro. The majority control of the Space Needle.1984). Works.2d 426.2d 114..2d 500. Gaeta v. the fact that the train created Needle retained the right of control over the an obvious hazard would not prevent us from operations of the elevators and.. 652.52 P. Spokane. requiring the railroad to take reasonable precautions had a duty to make the 200 foot level safe while Pyro to protect persons who might go upon the tracks. if the railroad knowingly summary judgment was improper.2d 334 (1965) (holding that summary judgment.App. Tauscher. Prosser railroad has no liability.App. 582 P.g.2d 114.3d 472) obviousness of moving elevator cars. 52 P. **483Restatement (Second) of that the claimant tripped upon the tracks. within that control. Builders. Here the alleged agree with the majority that a principal who engages dangerous condition relates to a condition of the an independent contractor is not generally liable for work site and the failure to provide protective injuries to the employees of the independent barriers. I also principal would have no liability. If the City Light.2d Sound Bridge & Dredging Co. if Kamla had been injured by an explosive provided Retained Control Exception solely by Pyro. the Space Needle correctly engendering no liability for the Space Needle) or a conceded that the obviousness of the danger did not condition of the premises (in this case. Accord Phillips. and therefore oral argument below. 442. then the Torts § 414 (1965). comparatively straightforward. 116 Wash.. to provide a safe place of work. Portland & Seattle Ry.2d 1090 (1985). and if (denying recovery where a motorcycle tire caught in Kamla can establish that the mechanism of injury obvious tracks *135 on Seattle City Light's road over was properly within this retained right of control. 58 Wash. . though in this case it is and remand for trial on this theory. Puget at 133-34.. 399 P.. imposing liability would be inequitable and in violation of the fundamental principles articulated above because the principal lacks the right *137 Within the scope of that limited control. in some global sense. however. a contract which quite rightly rejects the Space Needle's invitation to required the Space Needle to provide for the safety of abandon our “right of retained control” test in favor the workers) pointed to retained right of control. Page Keeton et al. 711 the hazards of railroads are obvious. I therefore turn to the mechanism of injury to determine if it properly The danger posed by the moving elevator was falls within the scope of the performance of the work completely within the control of the Space Needle. When trains injure people on a railroad 90 Wash. No Claim to Orig. See. “where the employer of the independent contractor . 54 Wash. If the claim is P.2d 285.accord Bozung v. Majority at 16. 42 Wash. An exception exists. Generally. 875 P. Seattle and Keeton on Torts § 71. Hewitt v. the foreseeable accidents). e. I find he has e. The where we have found liability on the part of a [employer] then has a duty. 66 established this connection sufficient to overcome Wash. We should reverse always be easy. © 2007 Thomson/West. 52 P.

runs only to The trial court dismissed any claim based on the the employer's own employees. the control exerted specific duty to comply with all WISHA rules. running to all employees on a judgment. but also because the Needle had the right and authority to control innate supervisory authority of a general contractor the work site. 105 Under WISHA.. failing to provide a safety net above the worker to guard against falling slag).App. 711 P. P. at 446. in this state and employs one or more employees. a question of first impression at this common law duty might have been breached by court. 114 Wash. Stute. This Court has found that the statute risks associated with moving elevators.060 duty to furnish a workplace “free from recognized hazards. 696.FN3 The Space orders promulgated under this chapter.3d 472 (Cite as: 147 Wash. to enforce is employed in the business of the employer . Needle met with Pyro employees several times to discuss safety issues.2d 75 (1991)... 42 Wash.17.App. if a jobsite owner exercises Wash. Doss.App. 52 P. or other business entity which engages in applied the wrong analytical approach. 692. Summary employment free from recognized hazards that are judgment was improper. Our case law does Space Needle's duty to comply with WISHA. and that mere right of control was not sufficient to trigger statutory duties.17. jobsite including the employees of independent contractors. WISHA safety regulations not only because of the In this case.17. 52 P. 851. RCW 49.020(4). Kennedy principal/employer reserves the right to v.3d 461. Inc.2d 545. and within the scope of that (1) Shall furnish to each of his employees a place of control. it is undisputed that the Space express statutory direction.2d it will be responsible for ensuring compliance with 1090. The test of control is not places it in the best position to ensure compliance.2d 4. RCW 49.S. and orders. 816 inspect for compliance with the contract. 60 Wash. The majority cuts too fine recognized hazards. and manner in which work was performed. Govt.App.2d 75 (1991). Sea-Land Serv. and every person in this state who is engaged in the © 2007 Thomson/West. 816 P..060(2). These facts creates two different categories of duties.2d at 456. was required. The general RCW Statutory Duty 49. subcontractor. 62 the same policy reasons. It is not enough that the pertinent and particular WISHA regulations.. and other relevant factors.. The Court of Appeals control” is the same as under the “retained right of reasoned that actual control over the job or jobsite control” discussed above.2d 545. and specifically discussed the RCW 49. the “requisite degree of control over the work..” then Bozung. Works. 795 P. . 460-61. and the not make clear whether that “requisite degree of *139 Court of Appeals affirmed. “[t]he term ‘employer’ means any Wash. Kamla. failed to provide a safe workplace.2d FN3.” RCW 49.17. Bronco Nat'l Co.2d 4 (holding that jobsite owner's duty to comply with WISHA **484 summary judgment was improper because the regulations. 854.3d 472) 364 P. General contractors have a retained depends on the parties' contract. No Claim to Orig. 802 P. but the right to exercise such The Court of Appeals has quite properly held that for control.060(1)...2d 114. 19 P.. at 128-29. Whether a right to control has been at 457. P.52 P. 62 Wash. Inc. “The term *138 This Court has never analyzed the duty of a ‘employee’ means an employee of an employer who principal. 116 Wash. is sufficient under these facts to defeat summary regulations. Sea-Land Serv. therefore must determine what is required to trigger a Doss. any business . We was breached by failing to provide proper lighting).. other than a general contractor. regulations. the duty to comply with “pertinent” and “particular” parties' conduct. 839.App.2d 1167 (1990). the general show that the Space Needle retained considerable duty to safeguard an employer's own employees from right to control the work. Further. actual interference with the work of the Stute. causing or likely to cause serious injury or death to his employees . The Space Needle WISHA defines the general safety standards: retained sufficient control to prevent the specific risk Each employer: from ripening to injury. 114 Wash..2d 114. at 130. 803 P.. 460. at 133. and the the control that must be retained.060.App. 803 Hennig. the Space Needle had some control over the (2) Shall comply with the rules.2d 790.App.2d at 134. 788 P.3d 472 Page 13 147 Wash.Weinert v.” on the other hand.17. 58 Wash. 788 P.2d 796 (1961) (finding the common law duty WISHA regulations for the employees of others. U. 839. The court below person . 60 Wash. Kennedy v.

933 P. admissible to prove negligence or culpability. such evidence may be admitted for Wash. Relevant to this inquiry will be controverted.2d 1018 (1998).”). but who had an “employer” in terms of WISHA do we turn to control of the work site at the 200 foot level. critically.S. claim.2d 205 (1969) enforce WISHA compliance given its experience. and (3) (for our hired a safety consultant..52 P. ER 950 P.3d 472 Page 14 147 Wash. Space Needle Corp. 839. 788 P.3d 472) employment of or who is working under an appropriate to ask whether an owner who independent contract the essence of which is his conducts business on the premises has personal labor for an employer. 52 P. 62 Wash. This question would be harder had Pyro CONCLUSION been working off site. see also other purposes. However. Restatement (Second) of Torts § 413 cmt. and that the Space Needle exercised the requisite Wash. this statutory definition of employer excludes homeowners not conducting business on the Evidence of subsequent remedial measures is not premises. 114 Wash.” The claimant must Kamla submitted evidence that after the accident.. Accord Smith v. Only after determining whether the jobsite owner is the issue is not control of the elevators. if relevant. rules.2d at 460-61..3d 472 (Cite as: 147 Wash. No Claim to Orig. I address employees on the premises. . matter. Id.17. control. it may be more © 2007 Thomson/West. so conducts its business on the premises. 454 P. the establish that the principal (1) has a business. The 49. Works. 85 407. 52 P.3d 472 place responsibility for compliance upon it.2d 75. evidence of subsequent repairs issue at the edges of the doctrine. Rogers v. There will be admitted for the limited purposes of showing hard cases requiring us to develop more nuanced dominion or control over the instrumentality. On remand. so the trial court excluded the evidence on the grounds that control was not in dispute. Kamla will have to establish that specific pertinent WISHA regulations were violated. 816 P. and allowed the work to purposes) conducts business on the premises. and it is already obligated*140 to comply negligence or culpability. However.2d 1060 (1997). including. Quick Mix whether the principal is able and competent to Co.020.2d 114. 89. and vacate the trial court's order of questions today. I note that this briefly. employs at least one employee. The Space Needle would be admissible for impeachment purposes. but we are not faced with **485 those reverse in part. but this case does not present a perplexing Similarly. IRELAND. with all pertinent and particular WISHA regulations. While not an issue before this Court. 52 P.2d Space Needle successfully moved to exclude this 545. at 854. The whether the duty to comply with specific WISHA evidence should have been admitted for the purpose regulations runs to the employees of the independent of determining whether the Space Needle had control contractor. END OF DOCUMENT FN4. control over those sites and instrumentalities such Kamla v. it controls the long as such evidence was not used to establish premises. Govt. 455.2d 114. U. 75 Wash. Brown v. When we read the statutory definition along side our Evidentiary Issues case law. quoted with approval in Kennedy.. This duty runs to all employees working on the premises.2d 833.17. What regulations are pertinent and over the work site. Myers.App. Stute.” RCW 49. I respectfully dissent.App.FN4 Pertinent WISHA regulations summary judgment and remand for further apply and summary judgment was improper on this proceedings. surrendered control of the work site.2d 114. ER 407. The Space Needle is an employer within this evidence.2002.App. It conducts business and it employs my disposition of the substantive issues.020(5). and particular will vary. RCW continue only after the site had been made safe.. or any other proper. J. The Space Needle admitted control over the elevators. concurs. that it comports with WISHA and our common law to 147 Wash. In this context. the first question becomes whether the Space Needle is an “employer. 90 Wash. (2) Space Needle stopped work at the 200 foot level. may be training. or supervision of the work. In passing. Irving. given definition. (“[E]vidence of subsequent *141 repairs . f (1965). Therefore. SeeER 407. or if the Space Needle had cordoned off the 200 foot level for the exclusive use I would affirm the Court of Appeals in part and of Pyro.