Tauscher v. Puget Sound Power & Light Co.

635 P.2d 426, 96 Wash. 2d 274, 1981 Wash. LEXIS 1259
CourtWashington Supreme Court
DecidedOctober 15, 1981
Docket46952-1
StatusPublished
Cited by88 cases

This text of 635 P.2d 426 (Tauscher v. Puget Sound Power & Light 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
Tauscher v. Puget Sound Power & Light Co., 635 P.2d 426, 96 Wash. 2d 274, 1981 Wash. LEXIS 1259 (Wash. 1981).

Opinions

Dimmick, J.

This case involves a wrongful death action brought by the estate of an employee of an independent contractor against an electric company. At issue is whether a public utility owes a nondelegable duty to employees of the utility's independent contractors to take reasonable precautions against work which is inherently dangerous or to ensure compliance with the safety mandates of statutes and administrative rules. The trial court found no such duty and granted summary judgment on the pleadings in favor of Puget Sound Power and Light Company (Puget Power). We affirm.

In July of 1978, Potelco, Inc. (Potelco) contracted with respondent Puget Power to perform certain work for Puget Power. The work was designated as the White River to Olympia 55 KV Rebuild (White River Rebuild). Potelco assigned apprentice lineman Steven Shaw to work on the [276]*276White River Rebuild along with foreman Ray Matheson and fellow journeyman Rod Johnston as part of a 4-man crew.

On September 1, 1978, the date of the accident, Shaw had climbed a telephone pole using climbing apparatus, and was connecting copper wire between the energized high voltage lines above him and an apparatus attached to the pole known as a "cut out". He was alone on the pole, working within 2 feet of the energized high voltage line without any protective barriers to cover and insulate the line in violation of safety rules. In addition, although an apprentice, Shaw was performing a journeyman's task and was without adequate supervision. Johnston was working at the next pole north, but was in an insulated bucket rather than using climbing apparatus. Matheson and a fourth member of the crew were on the ground at or between the two poles. While alone on his pole, and within 2 feet of the energized high voltage lines, Shaw, while handling some copper wire sent up to him from the ground, came in contact with the high voltage line and was electrocuted.

Shaw's mother, plaintilf/appellant Alice M. Tauscher, acting in the capacity of personal representative of her son's estate, brought a wrongful death suit against respondent Puget Power, decedent's union, and Rod Johnston. Since the workers' compensation act limited the liability of Potelco, it was not made a defendant. However, by subrogation contract with defendant, Potelco was made a third party defendant. Only claims against Puget Power will be discussed as the summary judgment applied only to it.

Tauscher alleged that Puget Power violated statutory and common law duties owed by respondent to Shaw, which were the proximate cause of Shaw's death. Specifically, appellant alleged that Puget Power owed Shaw a nondelegable duty to insure that safety requirements were complied with on the basis of (1) the inherently dangerous nature of Shaw's work, (2) the provisions in RCW 19.29-.010, RCW 80.28.010, and WAC 296-45, and (3) the fact that Puget Power was a public franchise. Appellant further [277]*277contended that the safety provisions were violated and that the violations led to Shaw's death. Appellant made no allegations that Puget Power was negligent in hiring Potelco, that Puget Power maintained any control over the work site, or that there were any physical defects in Puget Power's equipment or the work site. In response, Puget Power claimed that appellant failed to state a cause of action on any theory against it, and that the proximate cause of the death of Shaw was through either his own negligence, or that of others not under Puget Power's control.

I

The common law rule is that one who engages an independent contractor is not liable for injuries to employees of the independent contractor resulting from the contractor's work. Fenimore v. Donald M. Drake Constr. Co., 87 Wn.2d 85, 94, 549 P.2d 483 (1976); Seattle Aerie 1 v. Commissioner, 23 Wn.2d 167, 171-72, 160 P.2d 614 (1945); Bowen v. Smyth, 68 Wash. 513, 123 P. 1016 (1912); Campbell v. Jones, 60 Wash. 265, 267,110 P. 1083, 20 A.L.R. 671 (1910); W. Prosser, Torts § 468 (4th ed. 1971). Courts have recognized exceptions based on common law, statute and contractual assumption of duty. Kelley v. Howard S. Wright Constr. Co., 90 Wn.2d 323, 582 P.2d 500 (1978). Appellant argues that Puget Power was liable for the death of Shaw based on the existence of several of these exceptions to the common law rule.

The decisions of this court have recognized the liability of the employer of an independent contractor to third persons injured by the negligence of the contractor in the performance of work of an inherently dangerous nature. See Epperly v. Seattle, 65 Wn.2d 777, 781, 399 P.2d 591 (1965); Kendall v. Johnson, 51 Wash. 477, 481, 99 P. 310 (1909). See also Engler v. Seattle, 40 Wash. 72, 82 P. 136 (1905). In the present case the issue is whether the liability in such cases extends to the employees of an independent contractor.

[278]*278Appellant cites to Kelley as standing for that proposition. This reliance on Kelley is misplaced. In Kelley, an ironworker's guardian ad litem sued a construction site general contractor after the worker fell 29 feet from a beam on which he was working. Our decision, holding Howard S. Wright Construction Company liable was primarily based on the fact that Howard S. Wright, as the general contractor on a multi-employer project, retained control over the common work area and thus had the duty, within the scope of that control, to provide a safe place to work for all employees. Kelley, supra at 332-33. We did, however, recognize three other exceptions to the general rule of nonliability, including liability based upon the existence of inherently dangerous work. Without analyzing the inherently dangerous exception or Washington case law, we concluded:

Another ground for imposing a duty of care on Wright under the common law of tort is the inherently dangerous nature of the work respondent Kelley was doing. When work by its very nature creates some peculiar risk of injury, and the general contractor has reason to know of the inherent hazards of the work, the general contractor has a duty to take reasonable precautions against those hazards.

Kelley, supra at 332. Our landmark case of Epperly, supra, was not cited in the Kelley opinion. Appellant claims Epperly was overruled sub silentio, while respondent contends it controls in the instant case. We agree with respondent.

In Epperly v. Seattle, supra, a worker, Guy Epperly, died when struck by a falling cable while working on High Gorge Dam on the Skagit River. He was an employee of the contractor with whom the City had contracted to perform the work. Inspection rights were reserved to the City. The cable, which failed, was placed by the contractor, was solely under the contractor's control and not a part of the dam as it was to be completed. We held that the owner of land who hires an independent contractor to perform work thereon is [279]

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

Related

Golik v. CBS Corp.
472 P.3d 778 (Court of Appeals of Oregon, 2020)
Dean Wilcox v. Basehore
356 P.3d 736 (Court of Appeals of Washington, 2015)
Gaytan v. Wal-Mart
289 Neb. 49 (Nebraska Supreme Court, 2014)
King v. Garfield County Public Hospital District No. 1
17 F. Supp. 3d 1060 (E.D. Washington, 2014)
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)
Afoa v. Port of Seattle
296 P.3d 800 (Washington Supreme Court, 2013)
Stout v. Warren
290 P.3d 972 (Washington Supreme Court, 2012)
Herrell v. NATIONAL BEEF PACKING CO., LLC
259 P.3d 663 (Supreme Court of Kansas, 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)
Herrell v. NATIONAL BEEF PACKING CO., LLC
202 P.3d 691 (Court of Appeals of Kansas, 2009)
Aba Sheikh v. Choe
156 Wash. 2d 441 (Washington Supreme Court, 2006)
Franks v. Independent Production Co., Inc.
2004 WY 97 (Wyoming Supreme Court, 2004)
Pettit v. Dwoskin
68 P.3d 1088 (Court of Appeals of Washington, 2003)
Cuiksa v. Hallmark Hall of Fame Productions, Inc.
252 F. Supp. 2d 1166 (D. Kansas, 2003)
Hickle v. Whitney Farms, Inc.
64 P.3d 1244 (Washington Supreme Court, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
635 P.2d 426, 96 Wash. 2d 274, 1981 Wash. LEXIS 1259, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tauscher-v-puget-sound-power-light-co-wash-1981.