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
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, plaintiff/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
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 Wn. 513, 123 P. 1016 (1912); Campbell v. Jones, 60 Wn. 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 Wn. 477, 481, 99 P. 310 (1909). See also Engler v. Seattle, 40 Wn. 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.
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
Other jurisdictions which have faced this issue are divided over whether employers of an independent contractor owe to the employees of the contractor a nondelegable duty of care based on the presence of an inherently dangerous activity. Several jurisdictions have held that such a nondelegable duty is owed to employees of independent contractors.
Although electrical work is considered by most to be an inherently dangerous activity, it is not necessarily inherently dangerous to experienced linemen. In Humphreys v. Texas Power & Light Co., 427 S.W.2d 324, 330 (Tex. Civ. App. 1968), involving an identical factual situation as the case at hand, the Texas Supreme Court wrote:
(Citations omitted.) See also Epperly, supra at 782; Restatement (Second) of Torts §§ 519, 523 (1965). We follow the majority of jurisdictions that have reached this question. Support for the exception to the rule on nonliability is expressed in sections 413, 414, 416 and 427
There are strong policy considerations behind limiting an owner's liability to those third parties other than employees of independent contractors. First, the rationale underlying the exception to the rule for nonliability, which is that we did not want an owner shifting his or her liability by hiring an independent contractor to perform a task, is not relevant in the case of an employee of an independent contractor. An owner who employs an independent contractor is already liable to all third persons, including employees of the independent contractor, for his or her own negligence,
Secondly, under our workers' compensation statutory scheme, the employer is released from financial responsibility for on-the-job injuries to his or her employees. To hold an employer liable for injuries to employees of the independent contractor would subject the employer to a greater liability than if the employer had utilized his or her own employees. King, at 663; Vagle, at 1218; Cochran v. International Harvester Co., 408 F.Supp. 598, 602-03 (W.D. Ky. 1975).
Finally, to hold otherwise would serve to encourage owners to use their own employees (who may be inexperienced) and thereby escape liability for any negligent acts and conversely, discourage owners from hiring experienced independent contractors, who specialize in hazardous work.
Appellant next argues that a public utility, such as Puget Power, owes a nondelegable duty to employees of the utility's independent contractors to ensure compliance with RCW 19.29.010, RCW 80.28.010 and WAC 296-45. According
RCW 19.29.010, the first statute which appellant contends creates such a duty, reads in relevant part:
Clearly, RCW 19.29 was designed for the safety of electrical workers. See, e.g., Goodell v. ITT-Federal Support Servs., Inc., 89 Wn.2d 488, 573 P.2d 1292 (1978). As an electrical power company, Puget Power is subject to its requirements for it states in RCW 19.29.010 that its provisions are applicable to any person, corporation, or governmental body or its agents and employees who "erect, maintain, or use any electrical apparatus or construction". See Goodell, supra at 491-92. Potelco, as an electrical contractor is also subject to these requirements.
Although our statutory scheme is, in some respects, similar to that of California's, we decline to adopt the interpretation given by the California court. The California court interpreted its statutory provision in the belief "that sound social policy ... induce[s] the courts to make further inroads upon the rule of nonliability in this class of cases." Snyder, supra at 800. California case law has previously extended liability in intrinsically dangerous work situations. Washington has not. See Campbell v. United States, 493 F.2d 1000 (9th Cir.1974). Our policy, as articulated by legislative enactments and judicial decisions, is to not permit an employee of an independent contractor to recover from the owner of premises for torts of the contractor even when the work involved is intrinsically dangerous. Epperly, supra. If the legislature wished to abrogate our common law, it would have specifically done so.
Appellant also contends that WAC 296-45, which outlines safety standards for electrical workers, creates such a nondelegable duty.
WAC 296-45-65003 provides:
(Italics ours.) Thus the nature of the work, i.e., electrical construction rather than the identity of the employer determines the applicability of these regulations.
Certainly, administrative rules may impose nondelegable duties as do statutes. See Restatement (Second) of Torts § 424 (1965). But, there is no language in WAC 296-45 which even intimates that public utilities must guarantee that employees of independent contractors comply with the safety standards of WAC 296-45. In fact, the language of WAC 296-45-65003(9) further militates against such a conclusion:
Appellant next contends that RCW 80.28.010 also creates such a nondelegable duty. RCW 80.28.010 reads:
As its title indicates, this provision applies to service-related matters rather than to construction practices which are covered by RCW 19.29.010 and WAC 296-45, previously discussed. Appellant has not alleged any defect in Puget Power's service, instrumentalities or facilities. Therefore, reliance on this provision is not in point.
In sum, when an owner is operating under a public franchise, or when a statute imposes a duty, or in inherently dangerous situations, an owner cannot delegate his or her duty of care toward "others" to an independent contractor and escape liability. Employees of an independent contractor, however, are not in the protected class of "others". There are exceptions to this rule of nonliability when the owner retains control over the work place, is personally negligent, is negligent in hiring the independent contractor, or fails to warn of latent defects in the work place. The general contractor hired by an owner, by contract can have a higher duty of care to the subcontractors' employees on a multi-employer jobsite, when the general contractor retains control over the jobsite. None of the exceptions to the rule of nonliability is present in the case at bench.
BRACHTENBACH, C.J., and STAFFORD, UTTER, and HICKS, JJ., concur. ROSELLINI, J. (dissenting)
The negligence of the independent contractor borders on gross negligence. "An uninsulated high voltage power line carrying a deadly current must be considered one of the most dangerous contrivances known to man." Black v. Public Serv. Elec. & Gas Co., 56 N.J. 63, 72, 265 A.2d 129, 133 (1970).
An energized high voltage line, under proper atmospheric pressure, will arc anywhere from 10 to 12 feet and strike any metal object within the arc.
Steve Shaw, on September 1, 1978, was an apprentice with the independent contractor. He was permitted to climb a power pole on which there were high voltage energized lines. Shaw was working within 2 feet of the high voltage lines without any protective barrier being used or covering to insulate the lines, and was involved in attaching a copper wire to the energized high voltage lines above him. He was doing journeyman labor without adequate or proper supervision. While performing his work, Shaw came in contact with the high voltage line and was electrocuted. A journeyman worker on the pole next to Shaw was using an insulated bucket as a safety precaution. It was almost inevitable that Shaw, being permitted to work in violation of all statutory safety rules and common sense around energized high voltage lines, would be injured or electrocuted.
Public service utilities enjoy a unique and privileged status not enjoyed by any other business. They are companies which generate and distribute electricity for profit. They are given an exclusive franchise for an exclusive territory. They are guaranteed a profit; the rates are fixed at amounts which are just, fair, reasonable and sufficient. RCW 80.28.010. They are given state governmental power for the exercise of eminent domain. RCW 80.32.060. They are given the right to enter upon any land for the purpose
RCW 80.04.460 requires that a private service company shall give immediate notice to the commission of every accident resulting in death or injury occurring in the plant or system. RCW 80.28.130 provides that the commission may order repairs in order to promote the security or convenience of the public or employees.
RCW 80.04.440 provides:
RCW 80.04.300-.320 provide that a budget showing an amount of money which will be needed during the ensuing year for maintenance, operation and construction must be forwarded to the Utilities and Transportation Commission for its approval.
The whole scheme of regulating and controlling private utilities supports the conclusion that the utility has a nondelegable duty to see to the safety of persons employed on its premises, and that it cannot insulate itself from the negligence of an independent contractor.
The employer should be liable for the negligence of the independent contractor if, in the course of work, gravely injurious consequences might be expected to result from such negligence. There are inherently dangerous activities which require a whole set of precautions against the large number of hazards recognizable in advance as likely to occur. This nondelegable duty is dictated by a public policy designed to insure that the greatest precautions will be taken to avoid injury to an employee or other persons.
In order to safeguard against accidents, an owner who engages in such activities should have the duty to double-check safety requirements, whether upon the theory that
Addressing the concept of particularly dangerous or inherently dangerous nondelegable duty, W. Prosser, Torts § 70 (3d ed. 1964), at page 485 states:
(Italics mine. Footnotes omitted.)
I would hold that work on energized high tension voltage lines is so inherently dangerous that the owner has a nondelegable duty to assure the safety of employees, which renders him liable for the independent contractor's negligence.
DOLLIVER, WILLIAMS, and DORE, JJ., concur with ROSELLINI, J.
Reconsideration denied December 7, 1981.
"One who employs an independent contractor to do work which the employer should recognize as likely to create, during its progress, a peculiar unreasonable risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the absence of such precautions if the employer
"(a) fails to provide in the contract that the contractor shall take such precautions, or
"(b) fails to exercise reasonable care to provide in some other manner for the taking of such precautions."
Section 414 of the Restatement (Second) of Torts reads:
"One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care."
Section 416 of the Restatement (Second) of Torts reads:
"One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise."
Section 427 of the Restatement (Second) of Torts reads:
"One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor's failure to take reasonable precautions against such danger."
Although this language was not contained in the Restatement as finally adopted, it does evidence an intent by the authors of the Restatement to clearly delimit the parameters of the exception. See King; Welker v. Kennecott Copper Co., 1 Ariz.App. 395, 403 P.2d 330 (1965); Sloan v. Atlantic Richfield Co., 552 P.2d 157 (Alaska 1976). Apparently the authors determined to allow each state to interpret the provision according to their own case law and workers' compensation statutes.
"An individual or a corporation carrying on an activity which can be lawfully carried on only under a franchise granted by public authority and which involves an unreasonable risk of harm to others, is subject to liability for physical harm caused to such others by the negligence of a contractor employed to do work in carrying on the activity."