¶35 (concurring in part, dissenting in part)
I agree the trial court correctly dismissed Dorothy Millican’s individual claim. But in my view under existing law, the trial court did not abuse its discretion and err in admitting the subcontract between N.A. Degerstrom (NAD) and Sharp-Line Industries Inc. Pretrial, the estate of Daren Lafayette (Estate) unsuccessfully moved to exclude any “[a]rgument or inference that Degerstrom did not retain control or exercise supervision over [Sharp-Line’s] work,” citing ER 401, 402, and 403 and Stute v. P.B.M.C., Inc., 114 Wn.2d 454, 788 P.2d 545 (1990). Clerk’s Papers (CP) at 1549. Attached to the motion was the subcontract between NAD and Sharp-Line, which specified in one provision that Sharp-Line
accepts responsibility to prevent accidents to any person who may be close enough to its operations to be exposed to Subcontractor’s work-related hazards. Subcontractor shall be solely responsible for the protection and safety of its employees, for final selection of additional safety methods and means, and for daily inspection of its work area and safety equipment.
CP at 3227. The Estate mistakenly contends this provision impermissibly delegated NAD’s responsibility to ensure compliance with the safety regulations of the Washington Industrial Safety and Health Act of 1973 (WISHA), chapter 49.17 RCW.
¶36 Evidence must be relevant to be admissible, meaning “it must tend to make the existence of any fact of consequence to the action more or less probable.” Degroot v. Berkley Constr., Inc., 83 Wn. App. 125, 128, 920 P.2d 619 (1996). Even relevant evidence may be excluded if its probative value is outweighed by the likelihood that it will mislead the jury. Id. The trial court’s balancing of probative value versus prejudicial effect is entitled to great deference. Id.
¶37 The subcontract’s safety provision was relevant to NAD’s defense that it took all reasonable steps to comply *903with WISHA regulations. Under RCW 49.17.060, each employer
(1) Shall furnish to each of his or her employees a place of employment free from recognized hazards that are causing or likely to cause serious injury or death to his or her employees ...;and
(2) Shall comply with the rules, regulations, and orders promulgated under this chapter.
This statute is mirrored in WAC 296-155-040, which states in part:
(1) Each employer shall furnish to each employee a place of employment free from recognized hazards that are causing or likely to cause serious injury or death to employees.
(2) Every employer shall require safety devices, furnish safeguards, and shall adopt and use practices, methods, operations, and processes which are reasonably adequate to render such employment and place of employment safe. Every employer shall do everything reasonably necessary to protect the life and safety of employees.
See Stute, 114 Wn.2d at 457, 459-60. Stute held RCW 49.17.060 and WAC 296-155-040 create a twofold duty for general contractors. Id. at 457. Subsection (1) of the statute and regulation impose a general duty on employers to protect solely their own employees from “recognized hazards not covered by specific safety regulations.” Id. Subsection (2) of the statute and regulation, however, “impose [ ] a specific duty to comply with WISHA regulations.” Id. This specific duty extends to the employees of subcontractors. Id. at 458. Thus, a general contractor has a nondelegable duty to ensure compliance with safety regulations for the safety of a subcontractor’s employees. Id. at 463-64.
¶38 In Stute, P.B.M.C. Inc., a general contractor, subcontracted with S&S Gutters to install gutters on a condominium complex. Mr. Stute, an employee of S&S Gutters, fell while installing gutters and was injured. The record showed P.B.M.C. knew the employees of S&S Gutters were *904working on the roof without safety devices. Id. at 456. Mr. Stute sued P.B.M.C., alleging the general contractor owed a duty to provide necessary safety devices on the work site. Citing RCW 49.17.060, WAC 296-155-040, and the general contractor’s “innate supervisory authority,” id. at 464, the Supreme Court held a general contractor had a specific duty as a matter of law to supply safety equipment for all employees on a work site or to contractually require subcontractors to provide adequate safety equipment relevant to their responsibilities. Id.
¶39 Here, the trial court correctly reasoned Stute allowed a general contractor to contractually require subcontractors to furnish adequate safety equipment. Id. Thus, in my view, the trial court correctly admitted the subcontract with the understanding it would deal with the legal issues in the jury instructions.
¶40 In Degroot, a subcontractor’s employee was injured while working on a jobsite and sued the general contractors for negligence and WISHA violations. Before trial, the employee moved to exclude a subcontract safety provision that arguably gave the subcontractor sole responsibility for the safety of its employees:
“Subcontractor shall, at its own cost and expense, protect its own employees, employees of Contractor, and all other persons from risk of death, injury or bodily harm arising out of or in any way connected with the work to be performed under this Subcontract.
“Subcontractor shall strictly comply with all safety orders, rules, regulations or requirements of all federal, state and local government agencies, exercising safety jurisdiction over said work including, but not limited to, federal OSHA [Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678] and state occupational safety and health regulations.”
Degroot, 83 Wn. App. at 128. The employee contended that because the safety provision gave the impression that the general contractors had delegated to the subcontractor the duty to furnish a relatively safe working environment, the safety provision was irrelevant and misleading. Id. at 127.
*905¶41 In affirming the trial court’s admission of the evidence, the Degroot court found the boilerplate language in the safety provision appeared to be designed to meet the duty of care outlined in Stute, particularly the general contractor’s duty to “ ‘furnish safety equipment or to contractually require subcontractors to furnish adequate safety equipment.’ ” Id. at 129 (quoting Stute, 114 Wn.2d at 464). Consequently, the safety provision was “at least relevant to whether [the general contractors] fulfilled their WISHA responsibility for the safety of all employees on the work site.” Id. The Degroot court concluded the safety provision was not misleading, because the general contractors agreed at trial they had a nondelegable duty to comply with WISHA safety regulations, never argued the subcontract delegated this duty to the subcontractor, and submitted the safety provision solely as “evidence of their attempt to exercise reasonable care to enforce safety regulations on the work site.” Id. at 131. The trial court in Degroot instructed the jury that the provision was not evidence that the general contractors had delegated their WISHA duties to the subcontractor and that the general contractors were required to exercise ordinary care to ensure compliance with safety regulations on the work site. Id.
¶42 Under Degroot, subcontract safety provisions may be admissible as evidence of the steps the general contractor took to comply with WISHA safety regulations, but the provisions are not admissible to show the general contractor delegated its responsibility for compliance with the safety regulations to the subcontractor. Id. at 129. As in Degroot, the subcontract safety provision here is relevant to whether NAD met its duty to ensure compliance with WISHA safety regulations at the work site. Id.; Stute, 114 Wn.2d at 464; WAC 296-155-040(2).
¶43 The trial court found the relevance of the subcontract safety provision here outweighed the possibility that it *906might mislead the jury regarding the general contractor’s nondelegable duty to comply with WISHA safety regulations. Although the subcontract states Sharp-Line is “solely responsible for the protection and safety of its employees,” CP at 3227, NAD acknowledged in its opening and closing statements that general contractors have a legal duty to provide a safe work site for all employees. No objection was noted to NAD’s arguments in the briefing.
¶44 In terms of a fair trial, NAD employees testified that the general contractor retained the ultimate responsibility for work site safety. Additionally, NAD provided evidence it had a site specific accident prevention plan; it had a foreman and superintendent performing oversight at the jobsite daily, as well as a safety director who checked in on occasion; and it ran weekly safety meetings that were required for all workers on the site. NAD’s closing statement explained that as the general contractor, it was required to take reasonable steps to ensure the safety of the work site, including contractually requiring its subcontractors to furnish any safety equipment related to their work. The trial court was in the best position to rule on any objections, if they had been made.
¶45 Importantly, the jury was instructed that a general contractor has a nondelegable responsibility to ensure the safety of all employees on the work site:
Under Washington law, a general contractor on a construction project owes a duty to every employee at the job site, including employees of subcontractors, to ensure that it and its subcontractors comply with all applicable safety regulations. The general contractor is the party with innate supervisory authority and per se control over the job site, so it bears the primary, non-delegable duty to provide a safe workplace for subcontractor employees.
In Washington, all general contractors have a non-delegable specific duty to ensure compliance with all Washington state construction safety regulations.
*907CP at 3182. We assume juries follow the instructions. Degroot, 83 Wn. App. at 131.
¶46 Accordingly, I concur in affirming the trial court’s dismissal of Ms. Millican’s individual claim, but because I would affirm the trial court’s judgment on the jury’s verdict, I respectfully dissent.
Review denied at 179 Wn.2d 1026 (2014).