Hyatt v. Sellen Construction Co.

Citations: 700 P.2d 1164; 40 Wash. App. 893Docket: 11910-9-I

Court: Court of Appeals of Washington; May 9, 1985; Washington; State Appellate Court

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Lou M. Hyatt, an employee of subcontractor Fischbach and Moore, Inc., sued Sellen Construction Company, Inc., the general contractor, for injuries sustained from a fall at a construction site owned by Boeing. The jury found in favor of Sellen, prompting Hyatt's appeal. Hyatt argued that the trial court erred by (1) refusing to instruct the jury on the general contractor's duty at multi-employer sites, (2) not instructing that violations of Washington regulations regarding floor openings constituted negligence per se, and (3) excluding parts of an expert's testimony. The court affirmed the jury's verdict. 

Sellen had a contract with Boeing and subcontracted electrical work to Fischbach and Moore, employing Hyatt. On the day of the incident, Hyatt fell into an unbarricaded trench after stepping off a lift to assist a co-worker. The responsibility for uncovering the trench was not established during the trial. 

The appellate court evaluated the rejection of Hyatt's proposed jury instruction regarding the general contractor's safety obligations. It highlighted that jury instructions must be considered as a whole and can be refused even if they accurately reflect the law. Hyatt's proposed instruction, based on the precedent set in Kelley v. Howard S. Wright Constr. Co., asserted that a general contractor with supervisory control has a duty to ensure safe working conditions. However, the court did not find the rejection of this instruction to be erroneous.

The trial court provided an instruction affirming that if the defendant maintained control over the construction site, it had a duty to ensure the plaintiff's safety within that control. This principle of control was deemed sufficient for the plaintiff to present his case. The court noted that a party is not entitled to specific wording in jury instructions as long as they adequately inform the jury, referencing Braxton v. Rotec Indus. Inc.

The second issue addressed whether a general contractor could be held strictly liable for injuries to a subcontractor's employee due to a violation of WAC 296-155-505. The plaintiff did not successfully prove Sellen's negligence. Hyatt argued that the jury should have been instructed that a violation of the regulation constituted negligence per se. Since there was no evidence that Sellen had either removed a cover or failed to barricade a trench, the refusal of this instruction was only prejudicial if Sellen could be held strictly liable for the regulation's violation.

The plaintiff proposed an instruction based on WAC 296-155-505, which outlines safety measures for temporary conditions posing risks of falls. The trial court decided that the regulation did not apply, possibly due to doubts about whether the trenches qualified as 'floor openings' under the regulation. The court will not overturn this determination without a complete record.

The Washington court has recognized that violations of safety regulations can constitute negligence per se if these regulations aim to protect against the harm suffered by the plaintiff. However, in previous cases, such as Bayne v. Todd Shipyards Corp. and Kelley v. Howard S. Wright Constr. Co., the courts did not establish strict liability for violations; instead, they indicated that defendants need to demonstrate reasonable efforts to comply with regulations. There is no indication from the Washington Industrial Safety and Health Act of 1973 or associated regulations that the Legislature intended to impose strict liability on general contractors.

In Kelley v. Howard S. Wright Constr. Co., the court established an exception to contractor nonliability when a general contractor retains control over work areas. The case involved a general contractor's failure to provide a required safety net, leading to the plaintiff's injuries from a fall. Unlike the current case, the contractor in Kelley had not only failed to provide safety devices but also was aware of the regulatory violation. The court clarified that the ruling was based on the contractor’s retained control over the project, imposing a duty to ensure a safe work environment for all employees. The ruling cited Funk v. General Motors Corp., which emphasized the necessity for general contractors to take reasonable precautions against observable dangers, requiring a showing of actual negligence. Consequently, the refusal to instruct the jury on the safety regulation was deemed non-prejudicial due to the plaintiff's failure to demonstrate the contractor's actual negligence.

The court also addressed the exclusion of proposed expert testimony from Edward R. Lucero, who was barred from opining on the applicability of regulations, the defendant's obligations, and the consequences of a lack of barriers. The court noted that legal interpretations fall under the judge's purview, referencing State v. O'Connell. Lucero's previous testimony in Everett v. Diamond, which was similarly focused on legal conclusions, was deemed erroneous but harmless. The exclusion of Lucero's testimony in the current case was thus justified, and the judgment was affirmed.