Defense Win! - Clement & Drotz and Smith Freed Eberhard
Tuesday, June 7, 2022
by: Melody Retallack and Joy Lee

Section: Spring 2022

Court Dismisses Negligence Action Against a General Contractor in a Post-Vargas World

In Liborio Vallin v. Rush Commercial Construction, Inc., Melody Retallack of Clement & Drotz, PLLC and Joy Lee of Smith Freed Eberhard jointly represented the general contractor in a construction site accident case where the Plaintiff fell from a height of just under 10 feet resulting in paraplegia.  As a result, Plaintiff alleged negligence against the general contractor.  In response, Ms. Retallack and Ms. Lee filed a Motion for Summary Judgment arguing that under Vargas, the general contractor was not disputing the fact that general contractors have a common law non-delegable duty to ensure compliance with safety regulations for the protection of all employees at the worksite, including the employees of a subcontractor.  Rather, what they were disputing was what that “compliance” looked like for the general contractor per the applicable safety regulations and standards.  And in this case, they argued the general contractor complied with those safety regulations and standards and therefore did not breach any duty owed to Plaintiff that would have proximately caused his injuries.

The crux of Plaintiff’s argument rested on the unsupported assertion that as the general contractor, it had a duty to supply Plaintiff with a “retractable lifeline” while he was doing leading edge work at a height of less than 10 feet when he fell.  However, fall protection under WAC 296-155-24611 (the standard cited by Plaintiff’s expert) is only required at “ten feet or more.”  Ms. Retallack and Ms. Lee argued that Plaintiff’s expert, was suggesting that for the general contractor this code somehow applied differently and meant “approximately” 10 feet—despite offering zero basis for this opinion.  Here, they argued, Plaintiff’s expert was simply taking the WACs and creating exceptions for Plaintiff and the general contractor in its application.

 After hearing oral arguments from both parties, Judge Nicole Phelps granted the general contractor’s Motion for Summary Judgment in its entirety, dismissing Plaintiff’s claims against the general countractor with prejudice.  While issuing her oral ruling, Judge Phelps acknowledged the nature of Plaintiff’s injuries to be catastrophic but could not “in good conscience find that a genuine issue of material fact remained for the jury.”  She further advised that the WAC for fall protection requirement pointed out by Plaintiff’s expert is specific to 10 feet.  “To apply it in this case just because it is just under 10 feet, would create a slippery slope.  This is a specific WAC not a broad WAC, and it is not the Court’s job to figure out legislative intent on making it a 10 feet requirement.”