Jeff Kamla, et al., Petitioners, v. The Space Needle Corporation, Respondent, 147 Wash. 2d 114

Johnson, J. — This case involves a personal injury action brought against a jobsite owner by an injured employee of a contractor. The injured employee argued the jobsite owner owed him a common law duty of care based on the jobsite owner’s alleged retained control over the manner in which the contractor completed the job. The injured employee further argued the jobsite owner owed him a statutory duty of care under the Washington Industrial Safety and Health Act of 1973 (WISHA),

chapter 49.17 RCW. Finally, the injured employee argued the jobsite owner owed him a common law duty of care based on the jobsite owner’s status as landowner and the injured employee’s status as invitee. The trial court dismissed the claims on

summary judgment. 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 determination on the common law landowner/invitee claim. We granted the injured employee’s petition for review and the jobsite owner’s cross-petition for review. We affirm in part and reverse in part. We affirm the Court of Appeals on the statutory and common law retained control claims and reverse the Court of Appeals on the common law landowner/invitee claim.

FACTS The Space Needle Corporation (Space Needle), the jobsite and landowner, hired Pyro-Spectaculars (Pyro), the contractor, to install a New Year’s Eve fireworks display at the Space Needle. On December 30, 1997, Jeff Kamla was installing fireworks on the 200-foot level of the Space Needle. The 200-foot level is an open-core hexagonal platform through which three elevators pass. After arriving on the 200-foot level, Kamla attached his safety line and began moving around the platform. As he did, he dragged his safety line across an open elevator shaft.

The elevator traveled down the shaft through the 200-foot level and snagged Kamla’s safety line, dragging him through the elevator shaft and injuring him. Kamla filed suit against Space Needle, alleging it breached common law and statutory duties. Space Needle moved for

summary judgment, arguing Pyro was an independent contractor, Space Needle did not retain control or supervision over the job, and the danger posed by the moving elevators was open and obvious. The trial court granted Space Needle’s

summary judgment motion. On appeal, the Court of Appeals affirmed in part and reversed in part, holding Space Needle did not owe Kamla a common law duty of care based on retained control or a duty of care under RCW 49.17.060, and holding a genuine issue of fact remained as to whether Space Needle owed Kamla a common law duty of care based on Kamla’s status as an invitee. Kamla v. Space Needle Corp., 105 Wn. App. 123, 19 P.3d 461 (2001).

ANALYSIS Common Law Duty of Care Based on Retained Control We first address whether the Court of Appeals correctly determined Space Needle did not retain the right to direct Kamla’s work sufficient to bring it within Washington’s “retained control” exception to the general rule of nonliability for the injuries of independent contractors. The common law has long distinguished between an employer’s liability for work-related injuries suffered by independent contractors and an employer’s liability for work-related injuries suffered by its employees.

The scope of an employer’s liability depends on whether the worker is an independent contractor or an employee. An “independent contractor is a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other’s right to control with respect to his physical conduct in the performance of the undertaking.” Restatement (Second) of Agency § 2(3) (1958).

On the other hand, employees are “agent[s] employed by [an employer] to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the [employer].” Restatement (Second) of Agency § 2(2). The difference between an independent contractor and an employee is whether the employer can tell the worker how to do his or her job. Employers are not liable for injuries incurred by independent contractors because employers cannot control the manner in which the independent contractor works.

Conversely, employers are liable for injuries incurred by employees precisely because the employer retains control over the manner in which the employee works. Kamla contends Space Needle retained control over the manner in which he worked and is liable for his injuries under the common law “retained control” exception. In the past, we have stated, “[t]he test of control is not the actual interference with the work of the subcontractor, but the right to exercise such control.” Kelley v. Howard S. Wright Constr. Co., 90 Wn.2d 323, 330-31, 582 P.2d 500 (1978).

Kamla argues Space Needle’s common law liability under the “retained control” exception is controlled by this statement. Space Needle argues that Washington courts have modified Kelley such that the bare right to control is no longer enough to strip away the common law liability insulation. We must determine whether we have abandoned, or should now abandon, Kelley’s “retained control” analysis in favor of an “actual control” analysis. Space Needle cites Smith v. Myers, 90 Wn. App. 89, 95, 950 P.2d 1018 (1998), and argues Kelley’s “right to control rule” no longer controls.

In Smith, the court held, “[t]he ‘retained control’ exception applies . . . only when one who engages an independent contractor retains actual control over the workplace and affirmatively assumes responsibility for project safety.” Smith, 90 Wn. App. at 95 (citing Hennig v. Crosby Group, Inc., 116 Wn.2d 131, 134, 802 P.2d 790 (1991); Straw v. Esteem Constr. Co., 45 Wn. App. 869, 874, 728 P.2d 1052 (1986); Bozung v. Condo. Builders, Inc., 42 Wn. App. 442, 445-46, 711 P.2d 1090 (1985)). Hennig, Straw, and Bozung, however, do not support Space Needle’s argument or the holding in Smith.

In Hennig, the plaintiff was injured when a three pound screw fell 60 feet onto his head. Hennig, 116 Wn.2d at 132. The plaintiff sued his employer (the independent contractor), the pin manufacturer, and the Port of Seattle. The contract under which the Port of Seattle hired the independent contractor authorized the Port of Seattle “to inspect [the independent contractor’s] work to ensure that it fully complied with the contract provisions.” Hennig, 116 Wn.2d at 134.

We held the authority to merely inspect the work and demand contract compliance was not “retained control” sufficient to strip away the common law liability insulation: It is one thing to retain a right to oversee compliance with contract provisions and a different matter to so involve oneself in the performance of the work as to undertake responsibility for the safety of the independent contractor’s employees. “The retention of the right to inspect and supervise to insure the proper completion of the contract does not vitiate the independent contractor relationship.” Hennig, 116 Wn.2d at 134 (quoting Epperly v.

City of Seattle, 65 Wn 2d 777, 785, 399 P.2d 591 (1965). Neither Straw nor Bozung, two Court of Appeals opinions also cited by Smith, alter our common law liability exception. The Straw court merely held that controlling the timing of construction did not amount to controlling the performance of the work. Straw, 45 Wn. App. at 875.

The Bozung court simply held that such “general contractual rights as the right to order the work stopped or to control the order of the work or the right to inspect the progress of the work do not mean that the general contractor controls the method of the contractor’s work.” Bozung, 42 Wn. App. at 447. These decisions represent a straightforward application of the Restatement Second of Torts § 414 cmt. c (1965): [T]he employer must have retained at least some degree of control over the manner in which the work is done.

It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.

We cannot accept Space Needle’s implicit invitation to abandon the “retained control” inquiry. When we distill the principles evident in our case law, the proper inquiry becomes whether there is a retention of the right to direct the manner in which the work is performed, not simply whether there is an actual exercise of control over the manner in which the work is performed. Space Needle did not retain the right to interfere with the manner in which Pyro completed its work, nor did Space Needle affirmatively assume responsibility for workers’ safety.

Space Needle simply agreed to provide Pyro a suitable display site and fallout zone, access to the display site to set up the display, adequate crowd control, firefighters, and permit fees. Space Needle also agreed to provide “Access to the site; Technical assistance and support; Security and fencing as determined by the Seattle Fire Department; Public broadcast, [and]; Public relations.” Clerk’s Papers at 330. Space Needle did not retain control over the manner in which Pyro installed the fireworks display or completed its work. As an independent contractor, Pyro was free to do the work in its own way.

We hold Space Needle did not owe a common law duty of care based on retained control and is, therefore, not liable for Kamla’s injuries. Statutory Duty of Care of Jobsite Owner Kamla argues Space Needle owed him and breached a duty of care under WISHA. Space Needle argues it did not owe him a statutory duty of care because Space Needle did not exercise control over the manner in which Pyro completed its work. In Washington, all general contractors have a nondelegable specific duty to ensure compliance with all WISHA regulations. Stute v. P.B.M.C., Inc., 114 Wn.2d 454, 464, 788 P.2d 545 (1990).

The Stute court imposed the per se liability as a matter of policy: “to further the purposes of WISHA to assure safe and healthful working conditions for every person working in Washington.” Stute, 114 Wn.2d at 464. This expansive liability is justified because “[a] general contractor’s supervisory authority is per se control over the workplace.” Stute, 114 Wn.2d at 464. The court of appeals has extended Stute’s nondelegable duty of ensuring WISHA compliant work conditions to parties other than general contractors. In Weinert v. Bronco Nat’l Co., 58 Wn.

App. 692, 795 P.2d 1167 (1990), Bronco, an owner/developer, hired a contractor to install siding. The contractor, in turn, subcontracted with Adrey Construction, by whom Weinert was employed. Weinert, 58 Wn. App. at 693. After Weinert fell off scaffolding erected by Adrey Construction, he sued Bronco arguing Bronco owed him a specific duty to comply with WISHA regulations.

Holding Bronco could be liable, the Court of Appeals pointedly noted, “Stute .. . rejected the contention that before [the specific] duty could be imposed, there must be proof the general contractor controlled the work of the subcontractor.” Weinert, 58 Wn. App. at 696. The Weinert court acknowledged Bronco was an owner/developer rather than a general contractor, but employed the Stute rule because “[t]he owner/developer’s position [was] so comparable to that of the general contractor in Stute that the reasons for the holding in Stute [applied].” Weinert, 58 Wn. App. at 696.

The appellate courts extended the Stute rule to jobsite owners in Doss v. ITT Rayonier, Inc., 60 Wn. App. 125, 803 P.2d 4 (1991). In Doss, ITT Rayonier hired an independent contractor to clean a boiler at one of its mills. A chunk of slag fell and killed a worker employed by the independent contractor. The deceased worker’s estate sued ITT Rayonier, alleging it violated a specific WISHA provision. As in Weinert, the Court of Appeals correctly noted that Stute “rejected a claim that [the specific] duty . . . attached only if the general contractor controlled the work of the subcontractor.” Doss, 60 Wn.

App. at 128. The court noted ITT Rayonier was a jobsite owner and not a general contractor, but found “no significant difference . . . between an owner-independent contractor relationship and a general contractor-subcontractor relationship.” Doss, 60 Wn. App. at 127 n.2. Our first question is whether jobsite owners are per se liable under the statutory requirements of RCW 49.17.060. They are not. Nothing in

chapter 49.17 RCW specifically imposes a duty upon jobsite owners to comply with WISHA. The second question is whether jobsite owners play a role sufficiently analogous to general contractors to justify imposing upon them the same nondelegable duty to ensure WISHA compliance when there is no general contractor. We hold they do not. We discussed the nature of a general contractor’s authority in Stute. We recognized a general contractor has authority to influence work conditions at a construction site. Stute, 114 Wn.2d at 461.

We noted other jurisdictions have held since a general contractor controls the property and working conditions, “the general contractor will have the duty to provide for safety.” Stute, 114 Wn.2d at 462 (citing Shannon v. Howard S. Wright Constr. Co., 181 Mont. 269, 593 P.2d 438 (1979)). Finally, we relied in part on a California Supreme Court decision that imposed “ ‘responsibility for safety requirements on those who have the greater practical opportunity and ability to insure compliance with safety standards.’ ” Stute, 114 Wn.2d at 462 (quoting Alber v. Owens, 66 Cal. 2d 790, 796-97, 427 P.2d 781, 59 Cal.

Rptr. 117 (1967)). Because a general contractor is in the best position, financially and structurally, to ensure WISHA compliance or provide safety equipment to workers, we place “the prime responsibility for safety of all workers ... on the general contractor.” Stute, 114 Wn.2d at 463. The same is not true of jobsite owners. Although jobsite owners may have a similar degree of authority to control jobsite work conditions, they do not necessarily have a similar degree of knowledge or expertise about WISHA compliant work conditions.

Jobsite owners can run the gamut from an owner/developer with the same degree of knowledge about WISHA compliant work conditions as that of a general contractor to a public corporation without any knowledge about WISHA regulations governing a specific trade. Because jobsite owners may not have knowledge about the manner in which a job should be performed or about WISHA compliant work conditions, it is unrealistic to conclude all jobsite owners necessarily control work conditions.

Instead, some jobsite owners may reasonably rely on the contractors they hire to ensure WISHA compliance because those jobsite owners cannot practically instruct contractors on how to complete the work safely and properly. If a jobsite owner does not retain control over the manner in which an independent contractor completes its work, the jobsite owner does not have a duty under WISHA to “comply with the rules, regulations, and orders promulgated under [chapter 49.17 RCW].” RCW 49.17.060(2). As we already discussed, Pyro was an independent contractor.

Space Needle did not retain the right to control the manner in which Pyro and its employees completed their work; it simply hired the independent contractor and owned the jobsite where Pyro worked. We hold Space Needle is not liable under WISHA for the manner in which Pyro and its employees completed their work. Common Law Duty of Landowner to Invitee The Court of Appeals reversed the trial court and held a reasonable trier of fact could find Space Needle was negligent in operating the elevators. We disagree. The legal standard applicable to this issue is well settled.

The “legal duty owed by a landowner to a person entering the premises depends on whether the entrant [is] a trespasser, licensee, or invitee.” Iwai v. State, 129 Wn.2d 84, 90-91, 915 P.2d 1089 (1996). Employees of independent contractors hired by landowners are invitees on the landowners’ premises. Meyers v. Syndicate Heat & Power Co., 47 Wash. 48, 91 P. 549 (1907); Epperly v. City of Seattle, 65 Wn.2d 777, 786, 399 P.2d 591 (1965). We have adopted sections 343 and 343A of the Restatement (Second) of Torts to define a landowner’s duty to invitees. Iwai, 129 Wn.2d at 93.

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (

a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (

b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (

c) fails to exercise reasonable care to protect them against the danger. Restatement Second of Torts § 343, at 215-16. Space Needle argues because the danger was known and obvious, it is not liable for Kamla’s injury. But this argument ignores

section 343A, which we also cited in Iwai: “A possessor of land is not liable to his [or her] invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.” Iwai, 129 Wn.2d at 94 (emphasis added) (alteration in original) (quoting Restatement (Second) of Torts § 343A at 218). A landowner is liable for harm caused by an open and obvious danger if the landowner should have anticipated the harm, despite the open and obvious nature of the danger.

Properly framed, the question in this case is whether Space Needle should have anticipated Kamla’s harm, despite the obvious hazard posed by the moving elevators. The trial court dismissed this claim on

summary judgment, stating, “the defendant is not liable for plaintiff’s failure to avoid an open, obvious potential hazard about which he was aware and warned.” Clerk’s Papers at 607. We 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. Wilson Court Ltd. P’ship v. Tony Maroni’s, Inc., 134 Wn.2d 692, 698, 952 P.2d 590 (1998). We view the evidence and draw reasonable inferences in a light most favorable to the nonmoving party. Schaaf v. Highfield, 127 Wn.2d 17, 21, 896 P.2d 665 (1995). Under the facts in the record, Space Needle was entitled to judgment as a matter of law.

Pyro was a business entity that represented itself as possessing expertise in the creation and execution of fireworks displays. Collectively, the project team for Pyro had over 100 years of experience in designing, installing, and executing fireworks displays. Pyro created similar displays at the Space Needle the two previous years and suggested to Space Needle that it incorporate the 200-foot level into the 1997 New Year’s Eve display. Kamla worked for Pyro in the core of the Space Needle the two previous years.

Pyro employees who worked in the core were exposed to and aware of the danger posed by the moving elevators. Finally, Pyro employees had independently devised a safety system designed to avoid the elevator openings. Given Pyro’s expertise, Kamla’s two years of personal experience working on the 200-foot level next to the obvious danger posed by the elevators, and Kamla’s own acute awareness of the danger posed by the moving elevators, we believe no reasonable trier of fact could find Space Needle should have anticipated that Kamla would drag his safety line across the open elevator shaft.

Therefore, we reverse the Court of Appeals on this point and affirm the trial court’s ruling. CONCLUSION Common law liability for injuries to independent contractors and their employees exists where control is retained over the manner in which the work is completed. Because Space Needle did not retain control over the manner in which Pyro completed its work, Space Needle is not liable to Pyro or its employees for workplace injuries incurred because of the manner in which the work was completed.

Furthermore, as a jobsite owner, Space Needle is not similar enough to a general contractor to justify imposing the same nondelegable duty of care to ensure WISHA compliant work conditions. Finally, given the professed expertise of Pyro, and Kamla’s own work experience at the Space Needle, Space Needle had no duty to anticipate the harm that befell Kamla. The Court of Appeals is affirmed in part and reversed in part; the trial court is affirmed on all claims. Alexander, C.J., and Smith, Madsen, Sanders, Bridge, and Owens, JJ., concur.

Because the common law claim speaks in terms of “landowners,” this opinion will use the terms “landowner” and “jobsite owner” interchangeably.