STEWART v. GRIFFITH INDUSTRIES, 158 Wn. App. 1005 (2010)

DEBRA STEWART, Appellant, v. GRIFFITH INDUSTRIES, INC., ET AL., Respondents.

No. 64052-6-I.The Court of Appeals of Washington, Division One.
October 11, 2010. UNPUBLISHED OPINION

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from a judgment of the Superior Court for King County, No. 08-2-09845-1, Jeffrey M. Ramsdell, J., entered July 27, 2009.

Affirmed by unpublished opinion per Ellington, J., concurred in by Cox and Schindler, JJ.

ELLINGTON, J.

Debra Stewart was injured when an independent contractor hired by Griffith Industries, Inc. negligently installed flooring in her apartment. In Washington, one is generally not liable for the negligence of an independent contractor. Exceptions to this rule exist, but none applies here. We affirm summary judgment for Griffith.

BACKGROUND
Debra Stewart is a resident at Booth Gardens Apartments, a facility for persons with disabilities. In August 2006, Booth Gardens bought carpet and vinyl flooring from Griffith Industries, Inc. Griffith arranged for Rosales Carpet to perform the installation at Stewart’s apartment.

Under an oral agreement, Griffith was to pay Rosales by the square foot of carpet and vinyl flooring it installed. Griffith told Rosales where to pick up the material and where to install it. Griffith did not supervise, direct, or inspect the installation. Neither did Griffith require its subcontractors to adhere to any particular training, safety, or clean-up procedures. Griffith representatives testified Rosales was an independent contractor and not an employee or agent of Griffith.

Rosales installed the carpet and vinyl flooring in Stewart’s apartment while she was present. When they left, Stewart walked onto the newly installed vinyl flooring in her front entry. Her shoe stuck to glue left on top of the flooring by the workers. She fell forward and landed hard on her hip; her injuries left her hospitalized for a week.

Stewart filed suit against Griffith and Rosales. Griffith asserted Stewart’s injuries were caused by individuals or entities over which it had no control, and filed a motion for summary judgment. The court granted the motion. Stewart appeals.

DISCUSSION
Stewart contends summary judgment was inappropriate because there are questions of fact as to whether Rosales was Griffith’s agent and whether Griffith owed Stewart a nondelegable duty to avoid negligence. We apply the usual standard of review for summary judgment.[1]

Stewart first argues summary judgment was inappropriate on the issue of whether Rosales was acting as Griffith’s agent. But Stewart furnished no evidence to establish such a relationship, and the only testimony is to the contrary. Rosales was an independent contractor, and summary judgment was appropriate on this question.

Stewart also argues the court erred because Griffith had a nondelegable duty to ensure the flooring was properly and safely installed.

The general rule is that a person who hires an independent contractor, retaining no right of control and no right to inspect actual work performance, is not liable for onsite injuries.[2] Rosales was an independent contractor, and it is undisputed that Griffith exercised no right of control or inspection. Summary judgment was therefore proper unless some exception to the rule applies.

Stewart contends this case falls into the “White Pass exception”:

When one contracts to perform a specified service or supply a product of a certain quality, liability for negligent performance of the contract cannot be escaped by engaging an independent contractor to perform the very duty which the contract requires. This is the rule of White Pass v. St. John.[3]

Since Rosales was performing a duty contractually assumed by Griffith, Stewart argues Griffith is liable for injuries caused by Rosales’ negligence.

But the White Pass rule is one of contract, not tort, and it benefits the contracting party. As Stewart is not a party to the contract with Griffith, she cannot hold Griffith liable for negligent performance of its terms. The White Pass
exception does not apply.

Stewart also relies on sections 426 and 429 of th Restatement (Second) of Torts. Section 429 is similar to the White Pass rule, [4] but its comments indicate there need be no relationship between the injured person and the party who engaged the independent contractor. Section 426 provides that one may be liable for the negligence of an independent contractor where the contractor’s negligence lies solely in the improper manner in which he or she does the work, creating a risk of harm that is inherent in the work.[5]

But neither of these Restatement sections has been adopted in Washington, and section 426 has been applied only once, in a way unfavorable to Stewart’s position.[6] As a policy analysis for adopting these sections in Washington has not been squarely presented, we decline to depart from the general rule in this case.[7]

Affirmed.

WE CONCUR:

[1] This court reviews summary judgment de novo Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005). Summary judgment is affirmed when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law Id.; CR 56(c). All facts and reasonable inferences are considered in the light most favorable to the nonmoving party, and summary judgment is appropriate only if, from all the evidence, reasonable persons could reach but one conclusion Id.

[2] See, e.g., DeWater v. State, 130 Wn.2d 128, 137, 921 P.2d 1059 (1996); Philips v. Kaiser Alum. Chem. Co., 74 Wn. App. 741, 749, 875 P.2d 1228 (1994).

[3] Bd. of Regents of the Univ. of Washington v. Frederick Nelson, 90 Wn.2d 82, 84, 579 P.2d 346
(1978) (citing White Pass v. St. John, 71 Wn.2d 156, 427 P.2d 398 (1967)).

[4] Restatement (Second) of Torts § 429 (1965) provides: “One who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer or by his servants, is subject to liability for physical harm caused by the negligence of the contractor in supplying such services, to the same extent as though the employer were supplying them himself or by his servants.”

[5] Restatement (Second) of Torts § 426 (1965) provides: “Except as stated in §§ 428 and 429, an employer of an independent contractor, unless he is himself negligent, is not liable for physical harm caused by any negligence of the contractor if (a) the contractor’s negligence consists solely in the improper manner in which he does the work, and (b) it creates a risk of such harm which is not inherent in or normal to the work, and (c) the employer had no reason to contemplate the contractor’s negligence when the contract was made.”

[6] See Woodrome v. Benton County, 56 Wn. App. 400, 407, 783 P.2d 1102 (1989).

[7] See, e.g., Bank of America, N.A. v. Prestance Corp, 160 Wn.2d 560, 564-82, 160 P.3d 17 (2007) (undertaking thorough analysis of various approaches to equitable subrogation before adopting the Restatement of Property’s approach).

Page 1006