Degroot v. Berkley Construction, Inc.

920 P.2d 619, 83 Wash. App. 125
CourtCourt of Appeals of Washington
DecidedAugust 15, 1996
DocketNo. 13990-5-III
StatusPublished
Cited by14 cases

This text of 920 P.2d 619 (Degroot v. Berkley Construction, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Degroot v. Berkley Construction, Inc., 920 P.2d 619, 83 Wash. App. 125 (Wash. Ct. App. 1996).

Opinions

Schultheis, J.

Gary Degroot was injured while working on a construction site and sued general contractors, Berkley Construction, Inc., and Sabey Corporation (Berkley/Sabey).1 The jury found that Berkley/Sabey were not at fault. Mr. Degroot appeals, contending the court erred in admitting the contract between Sabey and subcontractor Eller Corporation, Mr. Degroot’s employer. We affirm.

Mr. Degroot was a backhoe operator, one of a team [127]*127working around-the-clock to expand the Northtown shopping mall in Spokane. Late one night in June 1989, Mr. Degroot fell and injured his back as he exited the cab of his backhoe. He sued Berkley/Sabey for negligence and violation of the Washington Industrial Safety and Health Act of 1973 (WISHA), RCW 49.17.

Before trial, Mr. Degroot moved to exclude a subcontract "health and safety” provision. This section provides that the subcontractor (Eller) must strictly comply with all safety regulations and must protect its own employees from risk of harm or death. It also requires indemnification by the subcontractor for any liability the general contractor suffers as a result of the subcontractor’s violation of safety regulations. At the hearing on the motion in limine, the parties agreed that a general contractor has a nondelegable duty to furnish a reasonably safe working environment for its workers. Stute v. P.B.M.C., Inc., 114 Wn.2d 454, 788 P.2d 545 (1990). Mr. Degroot asserted the safety provision gave the impression this duty was delegated to Eller. Berkley/Sabey argued the provision merely represented one of the steps used by the contractors to exercise reasonable care. The court ordered admission of the safety provision.'

At trial, the court included the following limiting instruction proposed by Mr. Degroot:

Exhibit 103 [the safety provision] was received in evidence for a limited purpose relating to whether [Berkley/Sabey] exercised due care in carrying out its duties under WISHA administrative regulations. It was not received in evidence for the purpose of showing that those WISHA duties had been delegated to Eller Corporation.

The parties agreed to another instruction informing the jury that a general contractor must exercise ordinary care to provide for compliance with safety regulations on the job site. By special verdict, the jury found that the general contractors were not negligent. The court entered judgment on the verdict in April 1994 and this appeal followed.

[128]*128Mr. Degroot contends the court erred in admitting into evidence the safety provision from the subcontract. The pertinent sections of this provision are as follows:

30. HEALTH AND SAFETY. Subcontractor shall, at its own cost and expense, protect its own employees, employees of Contractor, and all other persons from risk of death, injury or bodily harm arising out of or in any way connected with the work to be performed under this Subcontract.
Subcontractor shall strictly comply with all safety orders, rules, regulations or requirements of all federal, state and local government agencies, exercising safety jurisdiction over said work including, but not limited to, federal OSHA and state occupational safety and health regulations.

Mr. Degroot argues first, that the evidence was not relevant to the issue of Berkley/Sabey’s negligence, and second, that even if relevant, the evidence should have been excluded as misleading.

In order to be admissible, evidence must be relevant, meaning it must tend to make the existence of any fact of consequence to the action more or less probable. ER 401, 402; State v. Luvene, 127 Wn.2d 690, 706, 903 P.2d 960 (1995); Wallace Real Estate Inv., Inc. v. Groves, 72 Wn. App. 759, 771, 868 P.2d 149, aff’d, 124 Wn.2d 881, 881 P.2d 1010 (1994). Even if relevant, evidence may be excluded if its probative value is substantially outweighed by the likelihood it will mislead the jury. Luvene, 127 Wn.2d at 706; ER 403. The trial court’s decision to admit or exclude evidence and the court’s balancing of probative value against prejudicial effect are entitled to "a great deal of deference, using a 'manifest abuse of discretion’ standard of review.” Luvene, 127 Wn.2d at 707; Havens v. C&D Plastics, Inc., 124 Wn.2d 158, 168, 876 P.2d 435 (1994).

Mr. Degroot alleged that Berkley/Sabey failed to provide sufficient lighting on the night of his accident, a [129]*129violation of WAC 296-155-1652 (a regulation authorized by WISHA, RCW 49.17.040, .050), and that Berkley/Sabey had neither an accident prevention program nor safety supervision adequate to constitute due care. We agree with the trial court that the subcontract’s safety provision was relevant to Berkley/Sabey’s defense, showing one of many steps the general contractors had taken to use reasonable care and to comply with the WISHA safety regulations.

The general contractor has the duty, as a matter of policy, to ensure compliance with WISHA regulations.3 Stute, 114 Wn.2d at 463. To that end, it is the general contractor’s responsibility "to furnish safety equipment or to contractually require subcontractors to furnish adequate safety equipment relevant to their responsibilities.” Stute, 114 Wn.2d at 464. The subcontract safety provision at issue here contains boilerplate language that appears designed to meet the duty of care outlined in Stute. Accordingly, the evidence is at least relevant to whether Berkley/Sabey fulfilled their WISHA responsibility for the safety of all employees on the work site.

Mr. Degroot contends the facts here are indistinguishable from those in Ward v. Ceco Corp., 40 Wn. App. 619, 699 P.2d 814, review denied, 104 Wn.2d 1004 (1985), in which the court excluded a contract that delegated to the [130]*130general contractor the responsibility to provide certain safety features. The subcontractor in Ward failed to erect guardrails around a high wooden platform it had built and an employee of the general contractor fell, sustaining injuries. Finding that RCW 49.17.060(2) imposed a duty on all employers at a work site to provide a safe workplace for all employees, the court concluded the subcontractor’s duty was nondelegable and therefore refused to admit contract evidence that the duty had been delegated. Ward, 40 Wn. App. at 625, 629-30.

What distinguishes Ward from the case before us is the fact that the Ward

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Bluebook (online)
920 P.2d 619, 83 Wash. App. 125, Counsel Stack Legal Research, https://law.counselstack.com/opinion/degroot-v-berkley-construction-inc-washctapp-1996.