I dissent. We are given an opportunity to remedy the confusion in defining a principal's duty to the employees of an independent contractor in the context of jobsite injuries. The confusion lies not in the answers developed by the common law, but instead in the way the courts have been posing the questions. Unfortunately, reliance on out of-context language in our seminal cases, Kelley v. Howard S. Wright Construction Co.,90 Wn.2d 323, 582 P.2d 500 (1978) and Stute v. P.B.M.C., Inc.,114 Wn.2d 454, 788 P.2d 545 (1990), without further analysis has spawned confusion in the law.
This Court has considered specific iterations of this problem, but has yet to develop a comprehensive approach. In Kelley we analyzed the duties a general contractor owed the employees of subcontractors, and concluded the general contractor had a nondelegable duty to provide a safe jobsite for all employees. Kelley, 90 Wn.2d at 330, 334. In Stute, we analyzed the duty of a general contractor to enforce Washington Industrial Safety and Health Act (WISHA), chapter 49.17 RCW, work safety regulations and concluded that the general contractor bore the primary duty for enforcement of specific safety regulations. Stute, 114 Wn.2d at 457. Underlying Kelley and Stute is the principle that our law attempts to place the duty of reasonable care on the entity best suited to meet it. Unfortunately, case law has drifted from this fundamental principle. Formalistic reliance on Kelley and Stute outside the context of general contractors has led us astray. Kelley and Stute apply this fundamental underlying principle of the common law and demonstrate the important interplay between duty, the identity of the principal, the alleged dangerous activity or condition, and the nature and scope of the right of control retained by the principal. *Page 129
Properly read, our case law establishes a multiple step analysis to determine whether the principal has an enforceable duty of care toward the employees of independent or subcontractors. First, we ask if the principal is a jobsite owner. If so, it has the duty of every landowner to every invitee, reasonable care to protect from knowable dangers, including obvious dangers if the principal should anticipate that mere knowledge is not sufficient to protect the invitee. The bare fact that a claimant can be classified as the employee of an independent contractor does not relieve the principal of the duty of reasonable care as a landowner.2
If invitee analysis does not resolve the issue, we turn to the second question: whether the principal, as a general contractor or owner has a nondelegable duty to provide a safe workplace to ensure compliance with specific safety regulations. See Kelley, 90 Wn.2d at 334; Stute,114 Wn.2d at 457. A business owner may have functionally equivalent duties to a general contractor for the purposes of this analysis. SeePhillips v. Kaiser Aluminum Chem. Corp., 74 Wn. App. 741, 750-51,875 P.2d 1228 (1994).
If the principal is solely an owner and not a general contractor we proceed to the third question: what is the nature of the activity or condition alleged to have caused the injury? If the claimant contends the acts or omissions of the principal or its agents caused the injuries, we analyze the principal's duty under standard common law tort principles.
If, however, the alleged cause of injury is a dangerous or defective condition on the premises, we turn to the fourth question: whether the condition was within the province of the principal and existed completely independent of the *Page 130 work of the contractor. If so, we should ask again whether it should best be analyzed under the duty to invitees or under standard negligence principles.
Finally, if the alleged dangerous activity or condition was caused solely by the act or omission of the independent contractor, we recognize that generally there is no liability on the part of the principal:
Except as stated in [Restatement (Second) of Torts §§] 410-429 [(1965)], the employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his servants.
RESTATEMENT (SECOND) OF TORTS § 409 (1965), cited with approval in Kelley, 90 Wn.2d at 330; Hansen v. Horn Rapids O.R.V. Park,85 Wn. App. 424, 429-30, 932 P.2d 724 (1997). It is only at this point, and not at the beginning of the analysis as some courts would have it, that the principal's retained right of control enters the legal framework. The principal has a duty to act with reasonable care within the scope of any retained control over the contractor's work. RESTATEMENT, supra, § 414. Therefore, even if the alleged dangerous condition was created solely by the independent contractor, the principal may still have liability so long as the condition was within the scope of the principal's retained right of control.
Whether the principal has an enforceable duty under its retained right of control depends on two factors. First, whether some right of control was retained by the principal. See RESTATEMENT, supra, § 414; Hennigv. Crosby Group, Inc., 116 Wn.2d 131, 133-34, 802 P.2d 790 (1991). Second, whether the alleged dangerous activity or condition was within the retained right of control. See RESTATEMENT, supra, § 414. `In other words, the premises owner's duty of care is commensurate with the control it retains over the independent contractor's work." Bright v. DowChem. Co., 1 S.W.3d 787, 790 (Tex.App. 1999). To determine this, we must examine whether the specific condition or activity that caused the injury was within the scope of the retained *Page 131 control. See Kelley, 90 Wn.2d at 330; Doss v. ITT Rayonier, Inc.,60 Wn. App. 125, 130, 803 P.2d 4 (1991).
The relationship between the scope of the right of retained control and the dangerous condition is critical, especially in the context of the retained right of control of the premise owner. See generally Phillips,74 Wn. App. at 743 (summary judgment for principal reversed when principal's foreman supervised the cutting of heavy aluminum "bus" with chain saw furnished by principal; aluminum bus became unstable and fell on worker; principal retained sufficient control for exception to attach); Hennig, 116 Wn.2d 131 (affirming dismissal of suit against premises owner when a 3 pound screw pin fell 60 feet from a crane solely operated by the independent contractor); Epperly v. City of Seattle,65 Wn.2d 777, 778-80, 399 P.2d 591 (1965) (affirming dismissal of wrongful death suit against premises owner when a large pad eye `designed, fabricated and installed' by the independent contractor failed and permitted a cable to fall); Shingledecker v. Roofmaster Prods. Co.,93 Wn. App. 867, 971 P.2d 523 (1999) (principal owed no duty to the employee of a supplier who rotated his conveyor into high voltage power lines while delivering materials to the jobsite before the principal was present or had started the job). Unfortunately, many courts have gone about this determination backward; they have first analyzed whether actual control was retained by the principal, without looking at whether the particular risk was within the right of control retained. See, e.g.,Smith v. Myers, 90 Wn. App. 89, 950 P.2d 1018 (1998).
With this step by step analytical framework in mind, I will examine the facts and contentions raised by Jeff Kamla and The Space Needle Corporation (Space Needle).
FACTS For several years, the Space Needle hired Pyro Spectaculars (Pyro) to provide fireworks for New Year's Eve celebrations; Kamla had worked all of these shows. In 1997, the *Page 132 Space Needle allowed Pyro to install fireworks on the 200 foot level for the first time. The 200 foot level is a hexagonal platform through which the Space Needle's three elevators pass. There are no guardrails or other barriers around the elevator openings. The use of the 200 foot level presented the new danger of elevators, controlled by the Space Needle, moving through the work area.
The danger of the moving elevators was obvious to everyone. Because the Pyro employees faced the danger of falling, after several discussions between Pyro and the Space Needle, they secured safety lines at strategic secure points on the 200 foot platform. The Space Needle knew workers with safety lines attached to harnesses would be working near moving elevators, but the elevators continued to run through the work area at their normal operating speeds. No fall protection was provided, nor was any mechanism employed to prevent the elevators from striking workers or their equipment. A few minutes after Kamla came on duty, he accidentally dragged his safety line over the elevator shaft. As one of the elevators descended, it snagged Kamla's safety line and yanked him 45 feet down though the elevator opening, injuring him severely. The Department of Labor and Industries examined the work area after Kamla's fall and found four safety standard violations, including the running of the elevators through an active work site. Pyro was cited and fined.
After Kamla's fall, the Space Needle hired a safety consultant. On the consultant's recommendation, the Space Needle parked its elevators in the opening of the 200 foot level to prevent the elevators from striking anyone or anything and to prevent anything from falling through the elevator shafts during the remainder of Pyro's work. Kamla sued the Space Needle alleging that it had breached its duty to provide a safe workplace.
ANALYSIS Kamla ultimately developed three theories of liability: (1) the Space Needle's duty to Kamla as an invitee to exercise *Page 133 ordinary care not to cause him injury, (2) the "right of retained control," and (3) the duty to comply with specific WISHA regulations. These contentions will be examined in order. Evidentiary issues will then be examined.
Common Law Duty to Invitees Kamla argues that the Space Needle breached its common law duty of care to invitees. I agree with the majority that Kamla was an invitee. SeeIwai v. State, 129 Wn.2d 84, 90-91, 915 P.2d 1089 (1996); accord Meyersv. Syndicate Heat Power Co., 47 Wn. 48, 55, 91 P. 549 (1907). Further, I agree with the majority that the proper analysis is laid out by Restatement (Second) of Torts §§ 343, 343A (1965). Finally, I agree that the mere obviousness of the danger does not exculpate the Space Needle. Iwai, 129 Wn.2d at 94.
I must part company with the majority, however, because it chooses to focus on only one aspect of invitee liability. The majority determines that, as a matter of law, the Space Needle could not have anticipated that the obviousness of the danger was not enough to protect Kamla. This mistakes the gravamen of Kamla's invitee theory that the Space Needleendangered Kamla by its own affirmative acts. "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, for negligence in the hiring of the independent contractor and for injuries resulting from any latent defects on the land." Tauscher v.Puget Sound Power Light Co., 96 Wn.2d 274, 281-82, 635 P.2d 426 (1981).3 Kamla contends, and a jury could conclude, that Kamla was injured by the Space *Page 134 Needle's own negligence. The Space Needle controlled and operated the elevator on a normal schedule and at normal speeds while people were working on the 200 foot level. The Court of Appeals was correct in concluding that the "Space Needle owed Kamla a duty of care to keep the premises reasonably safe and to avoid endangering Kamla by its own negligence or affirmative acts." Kamla v. Space Needle Corp.,105 Wn. App. 123, 135, 19 P.3d 461 (2001). Kamla's claim that the Space Needle failed to take adequate steps to ensure that its elevators would not cause harm should go to a jury.
I disagree with the majority that the obviousness of the danger exculpates the Space Needle from a duty of care. A property owner's duty to an invitee is not always discharged merely because a warning is shouted or the danger is obvious. See Iwai, 129 Wn.2d at 94; see alsoThorpe v. Boeing Co., 5 Wn. App. 706, 708, 490 P.2d 448 (1971). The rule is more subtle than that. "'A possessor of land is not liable to his [or her] invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unlessthe possessor should anticipate the harm despite such knowledge orobviousness.'" Iwai, 129 Wn.2d at 94 (alteration in original) (emphasis added) (quoting RESTATEMENT (SECOND) OF TORTS § 343A (1965)). It is a question of fact whether the Space Needle should have anticipated the harm despite the obviousness of moving elevator cars.
This case is not significantly different from cases where we have found liability on the part of a railroad, despite the obvious danger presented by a moving train. When trains injure people on a railroad right-of-way our inquiry goes further than whether the hazards of railroads are obvious. If the claim is that the claimant tripped upon the tracks, then the railroad has no liability. See, e.g., Gaeta v. Seattle City Light,54 Wn. App. 603, 774 P.2d 1255 (1989) (denying recovery where a motorcycle tire caught in obvious tracks *Page 135 on Seattle City Light's road over Diablo Dam). However, if the railroad knowingly operated its train through an area known to be congested with people, the fact that the train created an obvious hazard would not prevent us from requiring the railroad to take reasonable precautions to protect persons who might go upon the tracks. See, e.g., Hewitt v.Spokane, Portland Seattle Ry., 66 Wn.2d 285, 402 P.2d 334 (1965) (holding that where a railroad crossing is extra hazardous, special precautions must be employed to guard against foreseeable accidents). Such precautions might include erecting stop signs, crossing gates or other appropriate barriers, and warning of oncoming trains with a whistle.
The danger posed by the moving elevator was completely within the control of the Space Needle. At oral argument below, the Space Needle correctly conceded that the obviousness of the danger did not eliminate its common law duty of care. The majority improperly weighs the evidence. Majority at 16. This should be left for the trier of fact. We should reverse and remand for trial on this theory.
Retained Control Exception I stress my agreement with the majority. The majority quite rightly rejects the Space Needle's invitation to abandon our `right of retained control' test in favor of an `actual control' test. Majority at 7-8. I also agree with the majority that a principal who engages an independent contractor is not generally liable for injuries to the employees of the independent contractor. Tauscher, 96 Wn.2d 274. Generally, imposing liability would be inequitable and in violation of the fundamental principles articulated above because the principal lacks the right and the power to control how the independent contractor performs the work.Hennig, 116 Wn.2d at 133-34 (citing Epperly, 65 Wn.2d at 785). An exception exists, however, "where the employer of the independent contractor . . . retains control over some part of the work. The [employer] then has a duty, within the *Page 136 scope of that control, to provide a safe place of work." Kelley,90 Wn.2d at 330; accord Bozung v. Condo Builders, Inc., 42 Wn. App. 442,446, 711 P.2d 1090 (1985); RESTATEMENT (SECOND) OF TORTS § 414 (1965); W. PAGE KEETON ET AL., PROSSER AND KEETON ON TORTS § 71, at 510 (5th ed. 1984). If the Space Needle retained the right of control, and if Kamla can establish that the mechanism of injury was properly within this retained right of control, summary judgment was improper. The heart of Kamla's retained control claim is that the Space Needle retained the right of control over the operations of the elevators and, within that control, had a duty to make the 200 foot level safe while Pyro employees performed their work. I find he has established this connection sufficient to overcome summary judgment.
Rather than ask whether, in some global sense, the Space Needle retained the right of control, we should ask a more pointed question: whether the Space Needle retained the right to control the condition or activity alleged to have caused injury. I therefore turn to the mechanism of injury to determine if it properly falls within the scope of the performance of the work (in this case, under the control of Pyro, and therefore engendering no liability for the Space Needle) or a condition of the premises (in this case, under the control of the Space Needle, and therefore potentially engendering liability). Such a distinction may not always be easy, though in this case it is comparatively straightforward. For example, if Kamla had been injured by an explosive provided solely by Pyro, and managed solely by Pyro, the scope of control inquiry would be focused on the performance of the work and the condition of the premises. Unless specific facts (e.g., a contract which required the Space Needle to provide for the safety of the workers) pointed to retained right of control, the principal would have no liability. Here the alleged dangerous condition relates to a condition of the work site and the failure to provide protective barriers, so our scope of retained control inquiry must focus on the elevators. *Page 137
Within the scope of that limited control, the Space Needle had a duty of care. Accord Phillips, 74 Wn. App. at 751; Greenleaf v. Puget SoundBridge Dredging Co., 58 Wn.2d 647, 652, 364 P.2d 796 (1961) (finding the common law duty was breached by failing to provide proper lighting);Doss, 60 Wn. App. at 130 (holding that summary judgment was improper because the common law duty might have been breached by failing to provide a safety net above the worker to guard against falling slag). The Space Needle retained sufficient control to prevent the specific risk from ripening to injury, and within the scope of that control, failed to provide a safe workplace. Summary judgment was improper.
Further, the Space Needle had some control over the manner in which work was performed.4 The Space Needle met with Pyro employees several times to discuss safety issues, and specifically discussed the risks associated with moving elevators. These facts show that the Space Needle retained considerable right to control the work. The majority cuts too fine the control that must be retained; the control exerted is sufficient under these facts to defeat summary judgment.
Statutory Duty The trial court dismissed any claim based on the Space Needle's duty to comply with WISHA, and the Court of Appeals affirmed. The Court of Appeals reasoned that actual control over the job or jobsite was required, and that mere right of control was not sufficient to trigger statutory duties. Kamla, 105 Wn. App. at 133. The court below applied the wrong analytical approach. *Page 138
This Court has never analyzed the duty of a principal, other than a general contractor, to enforce WISHA regulations for the employees of others. We therefore must determine what is required to trigger a jobsite owner's duty to comply with WISHA regulations; a question of first impression at this court.
WISHA defines the general safety standards:
Each employer:
(1) Shall furnish to each of his employees a place of employment free from recognized hazards that are causing or likely to cause serious injury or death to his employees . . .
(2) Shall comply with the rules, regulations, and orders promulgated under this chapter.
RCW 49.17.060. This Court has found that the statute creates two different categories of duties; the general duty to safeguard an employer's own employees from recognized hazards, RCW 49.17.060(1), and the specific duty to comply with all WISHA rules, regulations, and orders, running to all employees on a jobsite including the employees of independent contractors, RCW 49.17.060(2); Stute, 114 Wn.2d at 457, 460. General contractors have a duty to comply with "pertinent" and "particular" WISHA safety regulations not only because of the express statutory direction, but also because the innate supervisory authority of a general contractor places it in the best position to ensure compliance. Stute, 114 Wn.2d at 456, 460-61. The Court of Appeals has quite properly held that for the same policy reasons, if a jobsite owner exercises the "requisite degree of control over the work," then it will be responsible for ensuring compliance with pertinent and particular WISHA regulations. Kennedy v. Sea-Land Serv., Inc., 62 Wn. App. 839,854, 816 P.2d 75 (1991); Doss, 60 Wn. App. at 128-29; Weiner v.Bronco Nat'l Co., 58 Wn. App. 692, 696, 795 P.2d 1167 (1990). The general RCW 49.17.060 duty to furnish a workplace "free from recognized hazards," on the other hand, runs only to the employer's own employees. Our case law does not make clear whether that "requisite degree of *Page 139 control" is the same as under the "retained right of control" discussed above.
Under WISHA, "[t]he term `employer' means any person . . . or other business entity which engages in any business . . . in this state and employs one or more employees." RCW 49.17.020(4). "The term `employee' means an employee of an employer who is employed in the business of the employer . . . and every person in this state who is engaged in the employment of or who is working under an independent contract the essence of which is his personal labor for an employer." RCW 49.17.020(5).
When we read the statutory definition along side our case law, the first question becomes whether the Space Needle is an `employer.' The claimant must establish that the principal (1) has a business, (2) employs at least one employee, and (3) (for our purposes) conducts business on the premises. RCW 49.17.020; Stute, 114 Wn.2d at 460-61. The Space Needle is an employer within this definition. It conducts business and it employs employees on the premises. In passing, I note that this statutory definition of employer excludes homeowners not conducting business on the premises. Accord Smith v. Myers, 90 Wn. App. 89,950 P.2d 1018 (1998); Rogers v. Irving, 85 Wn. App. 455, 933 P.2d 1060 (1997); see also RESTATEMENT (SECOND) OF TORTS § 413 cmt. f (1965),quoted with approval in Kennedy, 62 Wn. App. at 854.
Only after determining whether the jobsite owner is an "employer" in terms of WISHA do we turn to whether the duty to comply with specific WISHA regulations runs to the employees of the independent contractor. What regulations are pertinent and particular will vary. Relevant to this inquiry will be whether the principal is able and competent to enforce WISHA compliance given its experience, training, or supervision of the work. There will be hard cases requiring us to develop more nuanced rules, but this case does not present a perplexing issue at the edges of the doctrine. The Space Needle conducts its business on the premises, it controls the premises, and it is already *Page 140 obligated to comply with all pertinent and particular WISHA regulations. This duty runs to all employees working on the premises. This question would be harder had Pyro been working off site, or if the Space Needle had cordoned off the 200 foot level for the exclusive use of Pyro, but we are not faced with those questions today.5 Pertinent WISHA regulations apply and summary judgment was improper on this claim. On remand, Kamla will have to establish that specific pertinent WISHA regulations were violated, and that the Space Needle exercised the requisite control over those sites and instrumentalities such that it comports with WISHA and our common law to place responsibility for compliance upon it.
Evidentiary Issues Kamla submitted evidence that after the accident, the Space Needle stopped work at the 200 foot level, hired a safety consultant, and allowed the work to continue only after the site had been made safe. The Space Needle successfully moved to exclude this evidence. While not an issue before this Court, given my disposition of the substantive issues, I address this briefly.
Evidence of subsequent remedial measures is not admissible to prove negligence or culpability. ER 407. However, such evidence may be admitted for other purposes, including, critically, control. Id.
The Space Needle admitted control over the elevators, so the trial court excluded the evidence on the grounds that control was not in dispute. However, the issue is not control of the elevators, but who had control of the work site at the 200 foot level. The evidence should have been admitted for the purpose of determining whether the Space Needle had control over the work site, or any other proper, and controverted, matter. ER 407; Brown v. Quick Mix Co., 75 Wn.2d 833, 839, 454 P.2d 205 (1969) ("[E]vidence of subsequent *Page 141 repairs . . . may be admitted for the limited purposes of showing dominion or control over the instrumentality."). Similarly, if relevant, evidence of subsequent repairs would be admissible for impeachment purposes, so long as such evidence was not used to establish negligence or culpability. See ER 407.
CONCLUSION I would affirm the Court of Appeals in part and reverse in part, and vacate the trial court's order of summary judgment and remand for further proceedings. Therefore, I respectfully dissent.
IRELAND, J., concurs with CHAMBERS, J.
Reconsideration denied October 29, 2002.