Degroot v. Berkley Construction, Inc.

Sweeney, C.J.

(concurring) — A general contractor’s *132duty to provide a safe workplace is nondelegable. Stute v. P.B.M.C., Inc., 114 Wn.2d 454, 463-64, 788 P.2d 545 (1990) (primary employer has a duty to provide for safety); Kelley v. Howard S. Wright Constr. Co., 90 Wn.2d 323, 331-32, 582 P.2d 500 (1978) (general contractor has ultimate responsibility for job safety); Ward v. Ceco Corp., 40 Wn. App. 619, 628-29, 699 P.2d 814 (duty is nondelegable), review denied, 104 Wn.2d 1004 (1985). The subcontract provision admitted into evidence here provides:

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 and state occupational safety and health regulations.

I write separately because I believe the effect of giving this agreement to the jury was to suggest that the general contractor could discharge its nondelegable duty by contractually shifting that obligation to the subcontractor. It cannot.

At issue in this case was what steps the general contractor took to protect the subcontractor’s employees. Evidence showing that the general contractor required the subcontractor to hold regular safety meetings, erect handrails or guardrails, and furnish protective clothing or respiratory devices, or that it would periodically review the subcontractor’s records or work site is relevant. For me this subcontract provision merely shows that the general contractor tried to shift its legal obligation to the subcontractor.

The provision was not relevant and therefore should not have been admitted. Its admission did not tend to "make the existence of any fact that is of consequence to the de*133termination of the action more probable or less probable than it would be without the evidence.” ER 401. And admission of the provision could have misled and confused the jury. ER 402, 403.

Reversal is required, however, only if there is a substantial likelihood that the error affected the verdict. Henderson v. Tyrell, 80 Wn. App. 592, 620, 910 P.2d 522 (1996). And the admission did not affect the verdict here. By special verdict form, the jury found neither the general contractor nor the subcontractor negligent. Therefore, even if the jury was led to believe that the subcontract shifted the general contractor’s duty, it would not have changed the result. The admission of the subcontract provision was therefore harmless.