Kamla v. the Space Needle Corporation

52 P.3d 472, 147 Wash. 2d 114, 2002 Wash. LEXIS 519
CourtWashington Supreme Court
DecidedAugust 15, 2002
DocketNo. 70966-1
StatusPublished
Cited by70 cases

This text of 52 P.3d 472 (Kamla v. the Space Needle Corporation) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kamla v. the Space Needle Corporation, 52 P.3d 472, 147 Wash. 2d 114, 2002 Wash. LEXIS 519 (Wash. 2002).

Opinions

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 [118]*118common 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,1 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).

[119]*119ANALYSIS

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 [120]*120the 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.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Daniel v. United States
W.D. Washington, 2024
A.B., J.L., V. Kiwanis International
Court of Appeals of Washington, 2024
Jody Aucoin, V. C4digs, Inc
555 P.3d 884 (Court of Appeals of Washington, 2024)
Wright v. 3M Co.
533 P.3d 113 (Washington Supreme Court, 2023)
Kristina Cosgrave, V. Jeanette Stofleth
Court of Appeals of Washington, 2022
Vargas v. Inland Washington, LLC
Washington Supreme Court, 2019
Afoa v. Port of Seattle
421 P.3d 903 (Washington Supreme Court, 2018)
Shawna L. Akin & Luca Cero v. Julie & Michael Mckelvey
Court of Appeals of Washington, 2018
Brandon Apela Afoa, / Cross-app. v. Port Of Seattle, / Cross-res.
198 Wash. App. 206 (Court of Appeals of Washington, 2017)
Angel Garcia-titla, Flores, V Sfc Homes Llc
Court of Appeals of Washington, 2016
McKown v. Simon Prop. Grp., Inc.
Washington Supreme Court, 2015
McKown v. Simon Property Group, Inc.
344 P.3d 661 (Washington Supreme Court, 2015)
Miguel Gaona v. Glen Acres Golf & Country Club
Court of Appeals of Washington, 2014
Gholamreza Malekpour v. Environmental Protection Agenc
585 F. App'x 543 (Ninth Circuit, 2014)
David And Robin Christman v. Eastgate Theatre
Court of Appeals of Washington, 2014

Cite This Page — Counsel Stack

Bluebook (online)
52 P.3d 472, 147 Wash. 2d 114, 2002 Wash. LEXIS 519, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kamla-v-the-space-needle-corporation-wash-2002.