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alike. To properly evaluate a death case, one must be familiar with the two separate and distinct causes of action that potentially arise and what is and is not recoverable under each cause of action. Defendants must obtain documentary and/or testimonial evidence of each and every claim for loss of earnings/ support/service that plaintiff is alleging in order to aggressively defend a potentially high exposure case.
CONSTRUCTION AND DEATH ACTIONS IN WASHINGTON STATE
Overview of Negligence Actions in Construction Accidents Under Washington Law
As in most states, Washington plaintiffs must prove four elements to succeed in a claim for negligence: (1) a duty of care owed to the plaintiff; (2) breach of that duty of care; (3) said breach was the proximate cause of the plaintiff’s injury; and, (4) compensable damages. Pedroza v. Bryant, 101 Wn.2d 226, 228, 677 P.2d 166 (1984).
In the scope of construction, and worksite injuries, a general contractor has a concurrent, nondelegable duty to ensure compliance with the Washington Industrial Safety and Health Act of 1973, chapter 49.17 RCW (“WISHA”), for the protection of all workers at the jobsite. Under Stute v. P.B.M.C., Inc., 114 Wn.2d 454, 788 P.2d 545 (1990), the court held that the primary responsibility for safety of all workers should rest on the general contractor. The Stute court stated that the “general contractor should bear the primary responsibility for compliance with safety regulations because the general contractor’s innate supervisory authority constitutes sufficient control over the workplace.” Id. at 464. The Stute court concluded that this duty was non-delegable.
Similarly, a general contractor may not delegate its statutory duty to comply with WISHA; if a general contractor delegates its duties under WISHA to another contractor, the general contractor will be “vicariously liable for the negligence of the entity subject to its delegation.” Afoa v. Port of Seattle (“Afoa II”), 191 Wn.2d 110, 124, 421 P.3d 903 (2018).
In late 2019, the Washington Supreme Court unanimously held that a general contractor will be vicariously liable for the negligence of a subcontractor over which it exercises control on a jobsite. Vargas v. Inland Washington, LLC, 194 Wn.2d 720, 729-31, 452 P.3d 1205 (2019) (internal citations omitted). In Vargas, the Court held that, given the general supervisory power of the general contractor, the general contractor has the general authority to control the work of the subcontractors on the jobsite and, as a result, it can be held vicariously liable for the negligence of a subcontractor. “The test of control is not the actual interference with the work of the subcontractor, but the right to exercise such control.” A general contractor’s “general supervisory functions are sufficient to establish control.” Id. This essentially means that any time a subcontractor is proven to be negligent on a jobsite as the cause of an injured worker’s injury, the general contractor will be vicariously liable for the injury as well.
Washington has two relevant pattern jury instructions related to this issue: (1) WPI 60.01, and (2) WPI 60.03. WPI 60.01 allows for the jury to be instructed on any applicable statute, ordinance or administrative rule. WPI 60.03 allows for the jury to be instructed that the violation of any statute, ordinance, or administrative rule may be considered as evidence in determining negligence, although the violation alone is not necessarily evidence of negligence. An additional instruction within WPI 60.03 is that such a violation may be excused if it is due to some cause beyond the violator’s control and that ordinary care could not have guarded against it.
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