Kelley v. Howard S. Wright Construction Co.

582 P.2d 500, 90 Wash. 2d 323, 1978 Wash. LEXIS 1214
CourtWashington Supreme Court
DecidedJuly 27, 1978
Docket44838
StatusPublished
Cited by144 cases

This text of 582 P.2d 500 (Kelley v. Howard S. Wright Construction Co.) 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
Kelley v. Howard S. Wright Construction Co., 582 P.2d 500, 90 Wash. 2d 323, 1978 Wash. LEXIS 1214 (Wash. 1978).

Opinions

Horowitz, J.

This case raises the issue of the duty of a general contractor on a multi-employer jobsite to take safety precautions for the benefit of employees of subcontractors working on the site.

Edward Kelley, an employee of a subcontractor hired by defendant Wright Construction Company, brought this action for damages for personal injuries he sustained due to the alleged negligence of Wright, the general contractor. The trial judge gave the jury instructions regarding Wright's duty of care, including an instruction that Wright was under a duty to comply with an Occupational Safety and Health Act (OSHA) safety regulation which required specific safeguards for workmen on Kelley's crew. The evidence showed Wright did not comply with the regulation. The jury found Wright negligent, plaintiff Kelley 10 percent contributorially negligent, and damages in the amount of $800,000. The judge reduced the damages by 10 percent for plaintiff's negligence and entered judgment for the plaintiff in the amount of $720,000.

Defendant Wright appeals, claiming: (1) it had no duty to comply with safety regulations for Kelley's benefit; (2) that certain exhibits were improperly admitted into evidence; and (3) the award of damages should have been reduced by a percentage equal to the percentage of negligence attributable to the injured man's employer. Plaintiff [326]*326cross-appeals, claiming his award should not be reduced for his own contributory negligence. We affirm the judgment of the trial court and dismiss the cross appeal for the reasons stated herein.

Defendant Wright Construction Company (Wright) was the general contractor for the construction of the Bank of California Center Building in Seattle. Wright contracted with H. H. Robertson, Kelley's employer, for the metal decking on the project. Robertson's crews laid panels of decking over the bare structural beams. Therefore the workers often had to walk over bare beams in order to begin their work. After reaching a bundle of decking panels, the men laid a temporary platform from which to work. It was from such a temporary platform, measuring 6 feet by 36 feet, on the fourth floor level of the bank building, that plaintiff, Edward Kelley, fell.

Kelley was a special apprentice assigned to the crew laying metal decking. He had begun work without proper shoes, wearing street shoes with rather high heels. Some time prior to the accident he had been seen slipping, and was told to get shoes with lower heels for work. There is no standard footwear established for iron workers. On the day of the accident he was wearing regular engineer boots with 1/2-inch rubber heels and leather soles.

The day of the accident, December 19, 1972, was windy, cold and rainy. Robertson's crew was unable to work in the tower because of the weather, but chose to work on the fourth floor level of the bank building rather than go home. The conditions there were worsened by a residue of fireproofing material on the beams which was slippery when wet. In order to get out to the bundles of decking panels the workers had to walk over bare beams. They wore no safety belts or lifelines; there was no safety net in place. Kelley was working with another member of the crew, laying decking. He was walking "on his heels," perhaps to avoid putting his leather soles on the slick surface of the temporary surface of the temporary platform. As he walked toward the stack to get another panel, his feet slipped out [327]*327from under him and he pitched off the end of the platform head first. He fell over 29 feet to the concrete floor below, striking his head on a piece of electrical conduit and sustaining severe injuries. He was unable to testify at the trial because of brain damage and has been represented in these proceedings by his sister, who is acting as guardian ad litem.

Kelley's employer, H. H. Robertson, is covered by the State Industrial Insurance Act and is immune from liability in any action for Kelley's injuries. Kelley's medical bills and monthly compensation benefits are being paid by the Department of Labor and Industries pursuant to the insurance act, pending the outcome of this case. The suit is brought under RCW 51.24.010, which provides a right of action for an injured workman against a third party "not in the same employ" for injuries due to the negligence or wrong of that third party. The Department is subrogated to Kelley's rights to the extent of payments it has made. Kelley alleges Wright was negligent in not providing a safety net for Robertson's workmen — a safety device which would have prevented Kelley's injuries and which he claims was required by an OSHA safety regulation.

In ,its contract with the owners of the project, Wright assumed sole responsibility for supervising and coordinating all aspects of the work. Wright agreed to be responsible for "initiating, maintaining and supervising all safety precautions and programs in connection with the work," and to "erect and maintain as required by existing conditions and progress of the work, all reasonable safeguards for safety and protection." Wright was obligated under this contract to appoint a safety director "whose duty shall be the prevention of accidents." Although Wright held weekly safety meetings attended by representatives of all the subcontractors on the job, it did not appoint a safety director.

H. H. Robertson also had responsibilities for safety under its contract with Wright. It agreed that " [ajdequate precautions must be taken at all times to insure safe conditions," and promised to "be responsible" for any violations [328]*328of the Construction Safety Act and/or the Occupational Safety and Health Act (OSHA). Robertson conducted its own safety meetings and maintained lifelines and safety belts for its employees.

There was testimony at trial that Robertson's workers did not find lifelines practical when they were laying decking because the lines made movement difficult and had to be so long that a worker could fall 39 feet before reaching the end of a line. A safety net, on the other hand, would have been both practical and effective, according to the testimony. The use of safety nets is customary in the construction industry when workers are more than 20 or 25 feet above the ground and other effective devices are impractical or otherwise not used. Plaintiff Kelley introduced into evidence an OSHA regulation applicable to all employers in the construction industry:

§ 1926.105 Safety nets.
(a) Safety nets shall be provided when work places are more than 25 feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical.

29 CFR § 1926.105(a). Plaintiff also introduced the Manual of Accident Prevention in Construction of the Associated General Contractors, of which Wright is a member. That manual provides:

Where it is not feasible to use safety belts and lifelines, lines, guarded platforms and scaffolds or temporary floors, safety nets should be suspended below the area where men are working more than twenty-five feet above a floor, ground or water.

The trial judge allowed Wright to show H. H.

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

Related

Jody Aucoin, V. C4digs, Inc
555 P.3d 884 (Court of Appeals of Washington, 2024)
Christian D. Payne, V. Weyerhaeuser Company
Court of Appeals of Washington, 2024
Exxonmobil Oil Corp, V. Wayne Wright
Court of Appeals of Washington, 2021
Joel And Stephanie Thoen v. Cdk Construction
Court of Appeals of Washington, 2020
Vargas v. Inland Washington, LLC
Washington Supreme Court, 2019
Afoa v. Port of Seattle
421 P.3d 903 (Washington Supreme Court, 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
Dorothy A. Millican v. N.a. Degerstrom Inc.
Court of Appeals of Washington, 2013
Millican v. N.A. Degerstrom, Inc.
313 P.3d 1215 (Court of Appeals of Washington, 2013)
Williams v. Leone & Keeble, Inc.
285 P.3d 906 (Court of Appeals of Washington, 2012)
Cano-Garcia v. King County
168 Wash. App. 223 (Court of Appeals of Washington, 2012)
Afoa v. Port of Seattle
160 Wash. App. 234 (Court of Appeals of Washington, 2011)
Stout v. Johnson
159 Wash. App. 344 (Court of Appeals of Washington, 2011)
Arnold v. Saberhagen Holdings, Inc.
157 Wash. App. 649 (Court of Appeals of Washington, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
582 P.2d 500, 90 Wash. 2d 323, 1978 Wash. LEXIS 1214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelley-v-howard-s-wright-construction-co-wash-1978.