Cook v. RSC Equipment Rental Inc, No. 2:2009cv00376 - Document 54 (W.D. Wash. 2010)
Court Description: ORDER granting in part and denying in part 28 Defendant RSC's Motion for Summary Judgment; granting in part and denying in part 31 Defendant Robinson's Motion for Summary Judgment by Judge James L. Robart.(MD)
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Cook v. RSC Equipment Rental Inc Doc. 54 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 SHONN D. COOK, Plaintiff, 11 RSC EQUIPMENT RENTAL, et al., Defendants. 14 15 ORDER ON MOTIONS FOR SUMMARY JUDGMENT v. 12 13 CASE NO. C09-0376JLR This matter comes before the court on the motions for summary judgment filed by 16 Defendants RSC Equipment Rental, Inc. (“RSC”) and Robinson Construction Co. 17 (“Robinson”) (Dkt. ## 28, 31). Having considered the submissions of the parties and the 18 materials in the record, and neither party having requested oral argument, the court 19 GRANTS in part and DENIES in part RSC’s motion for summary judgment (Dkt. # 28) 20 and GRANTS in part and DENIES in part Robinson’s motion for summary judgment 21 (Dkt. # 31). 22 ORDER- 1 Dockets.Justia.com 1 2 I. BACKGROUND On October 8, 2007, Plaintiff Shonn D. Cook was seriously injured when he fell 3 out of the open gate of a Genie scissor lift at a Lowe’s store in Monroe, Washington. At 4 the time of his accident, Mr. Cook was spray-painting the ceiling of the store. Mr. Cook 5 states that when he stepped backward on the platform of the scissor lift to review his 6 work, he stepped through the open gate and fell nearly 20 feet onto the concrete floor. 7 (Cook Dep.1 202:12-20.) Defendant Robinson was the general contractor for the Lowe’s 8 project. At the time of the accident, Mr. Cook was an employee of DM Hoggatt Painting 9 (“Hoggatt”), one of Robinson’s subcontractors.2 Hoggatt had rented the scissor lift from 10 Defendant RSC, which delivered the scissor lift to the Lowe’s jobsite on September 21, 11 2007. (See 2d Kahler Decl. (Dkt. # 37) Ex. 10.) Hoggatt employees had been working at 12 the Lowe’s site for about 17 days before Mr. Cook’s accident. 13 Mr. Cook was an experienced painter who had used scissor lifts on multiple prior 14 projects. (Cook Dep. 127:15-129:22.) There is evidence that Mr. Cook had most 15 recently been trained and certified on scissor lift operation on September 14, 2007, but a 16 fellow Hoggatt employee states that no training took place and that Hoggatt’s secretary 17 filled out the certifications. (Reinhard Decl. Pt. 2 (Dkt. # 31-3) Ex. 3 (“Hoggatt Dep”) 18 Ex. 2 (certification card); Richardson Decl. (Dkt. # 35) ¶ 8.) Nevertheless, it is 19 1 The parties have submitted multiple excerpts from Mr. Cook’s February 22, 2010 deposition. (Campbell Decl. (Dkt. # 29) Ex. A; Reinhard Decl. Pt. 1 (Dkt. # 31-2) Ex. 1; 2d 21 Kahler Decl. (Dkt. # 37) Ex. 3.) For simplicity of reference, the court cites directly to the pages of the Cook deposition. 20 22 2 Hoggatt is not a party to this lawsuit. ORDER- 2 1 undisputed that Mr. Cook received scissor lift training in September 2006, and Mr. Cook 2 states that he was already familiar with scissor lift operation as well as with the scissor 3 lift’s user manuals and warning signs. (Cook Dep. 130:16-133:24; 141:22-142:11.) 4 Mr. Cook understood from his experience that the gate to the scissor lift would 5 automatically slam shut when he entered the lift. (Cook Dep. 142:12-144:16.) He 6 cannot, however, recall if the gate latched when he entered the lift on the day of the 7 accident. (Cook Dep. 151:7-11.) He could not hear the gate slam because he is deaf in 8 one ear and the Lowe’s jobsite was loud. (Cook Dep. 144:3-6; 146:16-147:8.) Mr. Cook 9 also does not remember if he took any precautions to ensure that the gate was closed, 10 aside from glancing at it. (Cook Dep. 144:7-16; 187:4-189:16.) Mr. Cook agrees that if 11 the safety latch on the gate was working and engaged, the gate would not have opened on 12 its own. (Cook Dep. 189:9-20.) 13 Robinson’s superintendent for the Lowe’s project, Lee Randall, completed an 14 accident report after Mr. Cook fell. (2d Kahler Decl. Ex. 6.) The report stated that the 15 “spring loaded gate did not close automatically.” (Id.) A subsequent inspection revealed 16 that the two springs on the scissor lift’s entry gate were broken. (See id. Ex. 8.) 17 II. ANALYSIS 18 A. Summary Judgment Standard 19 Summary judgment is appropriate if “the pleadings, the discovery and disclosure 20 materials on file, and any affidavits,” when viewed in the light most favorable to the non21 moving party, “show that there is no genuine issue as to any material fact and that the 22 movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2); Celotex ORDER- 3 1 Corp. v. Catrett, 477 U.S. 317, 322 (1986); Galen v. County of Los Angeles, 477 F.3d 2 652, 658 (9th Cir. 2007). The moving party bears the initial burden of showing there is 3 no genuine issue of material fact and that he or she is entitled to prevail as a matter of 4 law. Celotex, 477 U.S. at 323. If the moving party meets his or her burden, then the non5 moving party “must make a showing sufficient to establish a genuine dispute of material 6 fact regarding the existence of the essential elements of his case that he must prove at 7 trial” in order to withstand summary judgment. Galen, 477 F.3d at 658. The non8 moving party “must present affirmative evidence to make this showing.” Id. 9 Furthermore, as the Ninth Circuit teaches, “[b]ald assertions that genuine issues of 10 material fact exist are insufficient,” and a mere scintilla of evidence supporting a party’s 11 position is also inadequate. Id. 12 B. RSC’s Motion for Summary Judgment 13 RSC contends that it is entitled to summary judgment on Mr. Cook’s claims 14 against it because Mr. Cook cannot present evidence establishing (1) that the springs 15 were already broken when RSC delivered the scissor lift to the Lowe’s jobsite; (2) that 16 the broken springs were a proximate cause of his accident; and (3) that any lack of 17 warnings was a proximate cause of his accident. 18 1. RSC’s Motion to Strike the Testimony of Richard Gill 19 RSC moves to strike the testimony of Mr. Cook’s expert witness, Richard Gill, 20 Ph.D., a human factors engineering consultant and professor of mechanical engineering. 21 RSC objects to Dr. Gill’s testimony regarding his opinion that it was likely that the 22 springs on the scissor lift gate were already broken before RSC delivered the lift to the ORDER- 4 1 Lowe’s job site. (See 2d Kahler Decl. Ex. 12 (“Gill Dep.”) 16:21-23.) RSC further 2 objects to Dr. Gill’s testimony that Mr. Cook’s failure to detect the difference between a 3 spring-loaded and a nonspring-loaded gate could be explained because detecting the 4 absence of a stimulus is “in general . . . not the way the human perceptual system 5 works.” (Gill Dep. 22:17-23:2; 102:7-20.) RSC contends that Dr. Gill’s testimony is 6 inadmissible because Dr. Gill had no factual basis for his opinions and the opinions are 7 unreliable. 8 Federal Rule of Evidence 702 provides, 9 If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. 10 11 12 13 Fed. R. Evid. 702. Having reviewed Dr. Gill’s deposition testimony, curriculum vitae 14 (2d Kahler Decl. Ex. 20), expert report (Reinhard Decl. (Dkt. # 32) Ex. 7 (“Gill 15 Report”)), and declaration (Gill Decl. (Dkt. # 49)), as well as the relevant case law, the 16 court finds that Dr. Gill’s testimony meets the requirements of Rule 702. The court 17 therefore denies RSC’s motion to strike Dr. Gill’s testimony. RSC’s objections to Dr. 18 Gill’s testimony can be addressed at trial through rebuttal witnesses and cross19 examination, and the jury can determine how much weight to give to Dr. Gill’s opinions. 20 2. Failure to Inspect 21 Mr. Cook alleges that RSC negligently failed to conduct a reasonable inspection of 22 the scissor lift before delivering it to the Lowe’s jobsite, and that this negligence resulted ORDER- 5 1 in his injuries. Because Mr. Cook’s claim against RSC is one of common law 2 negligence, “[h]e is entitled to a trial unless [RSC] demonstrates that he cannot establish 3 duty, breach, proximate cause, or damage.” Gall v. McDonald Indus., 926 P.2d 934, 938 4 (Wash. Ct. App. 1996). RSC does not contest that it owed Mr. Cook a duty or that Mr. 5 Cook suffered damage. Rather, RSC contends that Mr. Cook cannot establish that it 6 breached its duty or that any breach was a proximate cause of his injury. 7 a. Breach of Duty Generally, the supplier of a chattel owes a duty of reasonable care when it delivers 8 9 a chattel for use by another. Id. The supplier owes this duty to those foreseeably put at 10 risk by its delivery of the chattel. Id. at 938-39. The Washington Court of Appeals has 11 stated, 12 13 14 15 Generally speaking, the supplier performs its duty by taking such action or combination of actions as a reasonable person would take under the same or similar circumstances. Under particular circumstances, then, the supplier may have a duty to inspect and repair the chattel so that a reasonable person would think it safe; to warn of the chattel’s condition in such fashion that a reasonable person would expect the recipient to correct or avoid any unsafe condition; or to engage in some combination of these approaches. 16 Id. at 939. 17 RSC concedes that it had a duty to “‘make a reasonable inspection’ of the scissor 18 lift before delivery and ‘then either to repair any dangerous defects that [it] discover[ed] 19 or to warn those who might be expected to use it of the defects.’” (RSC Mot. at 15 20 (quoting Larner v. Torgerson Corp., 613 P.2d 780,783 (Wash. 1980)).) “‘This duty 21 arises at the time that the supplier transfers possession and control to the insured.’” (Id. 22 (quoting Larner, 613 P.2d at 783)). RSC contends that Mr. Cook cannot show that RSC ORDER- 6 1 breached this standard of care because, it argues, the evidence is undisputed that its 2 employees inspected the scissor lift, including its springs, before delivering the lift to the 3 Lowe’s jobsite; that no one at the jobsite reported broken springs; and that there is no 4 reliable evidence to confirm when the springs broke. 5 The court finds that Mr. Cook has met his burden to show issues of material fact 6 regarding whether RSC performed a reasonable inspection of the scissor lift. First, 7 although RSC’s field service mechanic, Randy Fox, testified that he inspected the scissor 8 lift when it was returned to RSC from its prior renter, he also testified that he spent 9 “maybe five, ten minutes” to perform an inspection which requires the mechanic to check 10 23 items. (Fox Dep. 10:12-20; 2d Kahler Decl. Ex. 15; see also id. Ex. 16 (“Long Dep.”) 11 19:11-14 (testifying that it took three to five minutes to inspect a scissor lift).) Moreover, 12 although the checklist includes an item for inspecting the platform rails and gate latch for 13 damage, it does not include a specific item for inspecting the gate springs, supporting the 14 inference that a mechanic could miss the springs even if he performed a complete 15 inspection. (See 2d Kahler Decl. Ex. 15.) Finally, Mr. Fox testified that RSC inspected 16 the lifts when they were returned from the previous renter and did not inspect them again 17 before renting them to someone else. (Fox Dep. 12:9-21.) RSC last inspected the lift on 18 September 12, 2007, nine days before it was delivered to the job site. (2d Kahler Decl. 19 Ex. 14.) 20 Mr. Cook has also presented evidence establishing issues of material fact 21 regarding whether the springs were broken before the scissor lift was delivered to the 22 Lowe’s jobsite. Noting that the two springs were independent components, that the lift ORDER- 7 1 was delivered to Lowe’s with over 292 hours on the hour meter, and that the hour meter 2 logged only eight additional hours of use while it was in service at Lowe’s, Dr. Gill 3 opined that it was “highly unlikely” that both independent springs would fail “within 4 such a short period of time.” (Gill Dep. 16:4-23; 17:1-3; see 2d Kahler Decl. Ex. 10.) He 5 stated that his opinion was corroborated by the fact that RSC had replaced both springs 6 on a similar lift because they had failed in less than 170 hours. (Gill Dep. 18:7-22.) Dr. 7 Gill agreed that there was no evidence that the springs did not break onsite, but stated that 8 “basic engineering failure analysis would tell you if you have two components that are 9 independent and failed, they likely didn’t fail at the same time” and that it was unlikely 10 that both components failed “in the two-and-a-half percent of its total use.” (Gill Dep. 11 104:1-24.) Further, RSC’s mechanics testified that if the springs were broken, the lift 12 should not have been rented out. (Fox Dep. 18:13-16; Long Dep. 89:10-18.) 13 Viewing this evidence and the reasonable inferences therefrom in the light most 14 favorable to Mr. Cook, the court concludes that Mr. Cook has met his burden to establish 15 a genuine issue of material fact regarding whether RSC breached its duty to perform a 16 reasonable inspection before transferring the scissor lift to Hoggatt. 17 18 b. Proximate Cause “Proximate cause is defined as a cause which in a natural and continuous 19 sequence, unbroken by a new, independent cause, produces the event, and without which 20 that event would not have occurred.” Bernethy v. Walt Failor’s, Inc., 653 P.2d 280, 283 21 (Wash. 1982). “The question of proximate cause is for the jury, and it is only when the 22 ORDER- 8 1 facts are undisputed and the inferences therefrom are plain and incapable of reasonable 2 doubt or difference of opinion that it may be a question of law for the court.” Id. 3 RSC argues that summary judgment is appropriate because Mr. Cook’s failure to 4 ensure that the gate on the scissor lift was latched was the sole proximate cause of his 5 accident. RSC relies on its expert, Alan Topinka, PE, who stated that the gate was not 6 designed to latch automatically when closed and that functional springs would not ensure 7 that the gate would have latched. (Campbell Decl. Ex. F (“Topinka Report.”) at 1; 2d 8 Kahler Decl. Ex. 17 (“Topinka Dep.”) 38:12-19.) Mr. Topinka also opined that the 9 broken springs did not contribute to Mr. Cook’s accident because Mr. Cook should not 10 have relied on the springs to shut the safety gate. (Topinka Dep. 66:3-10.) As a result, 11 RSC contends, the accident could have occurred even if the springs functioned properly. 12 Mr. Cook counters with the opinion of its experts, Dr. Gill and Ms. Joellen Gill, 13 who opined that the primary cause of Mr. Cook’s fall was the defective condition of the 14 aerial platform on the scissor lift. Specifically, they opined that the safety gate is 15 supposed “to automatically close any/every time it is opened” and that it “failed to do so 16 because the hinge spring system was not properly maintained/adjusted.” (Gill Report at 17 1.) They add that Mr. Cook reasonably expected, based on his prior experience, that the 18 gate on the scissor lift would automatically close. (Id. at 2.) In addition, as explained 19 above, Mr. Cook has presented evidence from which a jury could infer that the springs 20 were broken before RSC delivered the lift to the Lowe’s job site. (See Gill Report; Gill 21 Dep. 16:4-18:22.) As the experts have offered contrary explanations of how a properly 22 functioning scissor lift should work, the court finds that Mr. Cook has presented evidence ORDER- 9 1 establishing a genuine issue of material fact regarding whether a gate with properly 2 maintained springs should have latched automatically. 3 Finally, although Mr. Cook concedes that he did not latch the gate, this concession 4 does not preclude recovery. To the contrary, Washington recognizes contributory fault; 5 as a result, even if the jury finds that Mr. Cook’s fault contributed to his accident, Mr. 6 Cook may nevertheless recover a portion of his damages if the jury finds that RSC was 7 also at fault. RCW 4.22.005 (“In an action based on fault seeking to recover damages for 8 injury or death to person or harm to property, any contributory fault chargeable to the 9 claimant diminishes proportionally the amount awarded as compensatory damages for an 10 injury attributable to the claimant’s contributory fault, but does not bar recovery.”); see 11 Gall, 926 P.2d at 942. 12 For these reasons, the court finds, viewing the evidence in the light most favorable 13 to Mr. Cook, that Mr. Cook has met his burden to present evidence establishing a genuine 14 issue of material fact as to whether RSC’s alleged failure to properly inspect the lift was a 15 proximate cause of his injuries. Accordingly, the court denies RSC’s motion for 16 summary judgment on this claim. 17 3. Failure to Warn 18 In his complaint, Mr. Cook alleged that RSC had a duty “to exercise ordinary care 19 to maintain its rental equipment in a proper operating condition” and a duty to “inspect 20 the equipment that it rented to others to make sure . . . that legible warnings were in place 21 on the machinery.” (Am. Compl. (Dkt. # 11) ¶¶ 4.1-4.2.) Mr. Cook alleged that RSC 22 breached these duties when it provided “a defective and dangerous aerial lift that also ORDER- 10 1 lacked proper warnings.” (Am. Compl. ¶ 4.3.) As a result, Mr. Cook alleges, the “gate 2 malfunctioned, and [Mr. Cook] was severely injured.” (Am. Compl. ¶ 4.4.) 3 RSC contends that any alleged lack of warnings on the scissor lift was not the 4 proximate cause of Mr. Cook’s accident. RSC points out that Mr. Cook was an 5 experienced user of scissor lifts, had been trained on their operation on more than one 6 occasion, was familiar with the operating manual for the scissor lift, had read the warning 7 signs before, and that the warning sign instructing the operator to close the gate was 8 present on the scissor lift before the accident. (RSC Mot. at 17-18.) Accordingly, RSC 9 argues, because Mr. Cook was aware of the risk of not securing the gate behind him, any 10 alleged failure to provide legible warnings on the scissor gate was not the proximate 11 cause of the accident. Mr. Cook does not respond to RSC’s argument that the damaged 12 warning placards did not proximately cause his accident. 13 The court notes that it is not clear that Mr. Cook has brought a claim based solely 14 on RSC’s alleged failure to warn him. Rather, Mr. Cook cites the damage to the warning 15 placards as evidence supporting his contention that RSC did not perform an adequate 16 inspection of the scissor lift. (Resp. to RSC Mot. (Dkt. # 36) at 7-8.) To the extent he 17 has brought a claim that RSC’s alleged failure to provide adequate warnings caused his 18 injuries, however, the court considers Mr. Cook’s failure to respond as an abandonment 19 of the claim and grants RSC’s motion for summary judgment accordingly. See Ramirez 20 v. City of Buena Park, 560 F.3d 1012, 1026 (9th Cir. 2009). The court’s ruling does not 21 foreclose Mr. Cook from arguing at trial that the damaged or missing warning placards 22 ORDER- 11 1 are evidence of RSC’s alleged failure to inspect the scissor lift adequately before 2 delivering it to Hoggatt. 3 C. Robinson’s Motion for Summary Judgment 4 Robinson contends that it is entitled to summary judgment because Mr. Cook 5 cannot establish a genuine issue of material fact regarding its breach of either a common6 law or statutory duty. 7 1. Common-Law Duty of Care 8 “At common law, one who hires an independent contractor is not generally liable 9 for injuries to employees of the independent contractor.” Stute v. P.B.M.C., 788 P.2d 10 545, 548 (Wash. 1990) (citing Kelley v. Howard S. Wright Constr. Co., 582 P.2d 500, 11 505 (Wash. 1978)). An exception arises, and the employer may be liable, when the 12 employer retains the right to direct the manner in which the work is performed. Kamla v. 13 Space Needle Corp., 52 P.3d 472, 476 (Wash. 2002). However, “[t]he retention of the 14 right to inspect and supervise to insure the proper completion of the contract does not 15 vitiate the independent contractor relationship.” Hennig v. Crosby Group, 802 P.2d 790, 16 792 (Wash. 1991) (quoting Epperly v. Seattle, 399 P.2d 591, 596 (Wash. 1965)). 17 Robinson contends that it did not owe Mr. Cook a common law duty of care 18 because Hoggatt was an independent contractor and Robinson did not retain control over 19 the manner in which Mr. Cook performed his work. Mr. Cook does not respond to 20 Robinson’s argument regarding a common-law duty of care. Mr. Cook’s failure to 21 respond may be taken as an abandonment of claims based on Robinson’s breach of a 22 common-law duty of care. See Ramirez, 560 F.3d at 1026. Nevertheless, having ORDER- 12 1 reviewed the contract between Robinson and Hoggatt, the court agrees that, although 2 Robinson retained a contractual right to oversee Hoggatt’s compliance with the contract, 3 it did not retain the right to control the manner in which Hoggatt and its employees 4 performed their work. (See Moisan Decl. (Dkt. # 31-4) Ex. 1 at 1, 6 ¶¶ 3.1-3.5.) As a 5 result, the court finds that Robinson has met its initial burden to show that it did not owe 6 a common-law duty of care to Hoggatt’s employees. The court therefore grants summary 7 judgment to Robinson to the extent Mr. Cook raises claims based on a breach of 8 Robinson’s common-law duty of care. 9 10 2. Statutory Duty of Care The Washington Industrial Safety and Health Act (“WISHA”), chapter 49.17 11 RCW, provides that each employer “[s]hall comply with the rules, regulations, and orders 12 promulgated under this chapter.” RCW 49.17.060(2). Pursuant to RCW 49.17.060(2) 3 13 and its counterpart regulation, WAC 296-155-040(2), general contractors have a 14 nondelegable duty to comply with or to ensure compliance with WISHA and its 15 regulations. Stute, 788 P.2d at 550. The general contractor bears the “primary 16 responsibility for compliance with safety regulations because the general contractor’s 17 innate supervisory authority constitutes sufficient control over the workplace.” Id. To 18 that end, “[i]t is the general contractor’s responsibility to furnish safety equipment or to 19 20 21 22 3 WAC 296-155-040(2) provides: 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. ORDER- 13 1 contractually require subcontractors to furnish adequate safety equipment relevant to their 2 responsibilities.” Id. at 551. 3 4 a. Contract Robinson first contends that by contractually requiring Hoggatt to observe safety 5 regulations, it satisfied its duties under RCW 49.17.060(2) and Stute. The Washington 6 Court of Appeals has held, however, that while provisions of the contract between a 7 general contractor and a subcontractor may be admissible as direct evidence of the steps 8 the general contractor took to comply with WISHA safety regulations, the contract is not 9 admissible to show that the general contractor delegated responsibility for compliance 10 with the regulations. Degroot v. Berkley Constr., Inc., 920 P.2d 619, 621 (Wash. Ct. 11 App. 1996). DeGroot makes clear that the existence of a contractual provision, without 12 more, does not establish that the general contractor satisfied its duty to comply with 13 WISHA. (See id.) Accordingly, the provision in the contract between Robinson and 14 Hoggatt that places responsibility for compliance with state regulations on Hoggatt does 15 not, on its own, satisfy Robinson’s burden to show that it is entitled to judgment as a 16 matter of law that it satisfied its statutory duty of care to Mr. Cook. 17 18 b. WISHA Regulations Robinson further contends that Mr. Cook has not established a prima facie case 19 that it violated any WISHA regulations. Robinson cites Washington cases reviewing 20 challenges to citations issued by the Washington State Department of Labor and Industry 21 (“L&I”) for the proposition that Mr. Cook must prove the following elements: “(1) the 22 cited standard applies; (2) the requirements of the standard were not met; (3) employees ORDER- 14 1 were exposed to, or had access to, the violative condition; [and] (4) the employer knew 2 or, through the exercise of reasonable diligence, could have known of the violative 3 condition.” (Robinson Mot. at 21 (quoting Wash. Cedar & Supply Co. v. Dep’t of Labor 4 & Indus., 83 P.3d 1012, 1016 (Wash. Ct. App. 2004) (setting forth the elements that L&I 5 must prove in order to establish a prima facie case of a “serious violation” of a WISHA 6 regulation)).) 7 Robinson has not cited, nor has the court identified, any Washington decisions 8 applying L&I’s test for a “serious” WISHA violation in the context of a tort suit brought 9 by an injured employee. Nevertheless, Robinson contends that Mr. Cook cannot make 10 out a prima facie case of a serious violation of WAC 296-800-11030, a WISHA 11 regulation which provides that an employer must “take responsibility for the safe 12 condition of tools and equipment used by employees,” and that this responsibility 13 “applies to all equipment, materials, tools, and machinery whether owned by the 14 employer or another firm or individual.” Robinson asserts that no violation can be made 15 out because (1) there is no evidence that Robinson knew or should have known of any 16 safety violation; and (2) there is evidence that Robinson and Hoggatt held weekly safety 17 meetings, that Mr. Cook attended these meetings, and that Robinson would have acted on 18 any safety violation if it had found them on its safety walkthroughs. 19 Mr. Cook does not respond to Robinson’s argument regarding WAC 296-800- 20 11030. Instead, Mr. Cook asserts that Robinson breached its duty to comply with or to 21 ensure compliance with four other WISHA regulations: WAC 296-869-60035, 296-86922 40020, 296-869-40005, and 296-869-40010. ORDER- 15 1 2 i. WAC 296-869-60035 First, Mr. Cook asserts that Robinson breached its duties under WAC 296-869- 3 60035, which requires the employer to have the operator of an elevating work platform 4 make sure that “[g]uardrails are installed and access gates or openings are closed per the 5 manufacturer’s instructions” and that “[a]ll persons on the platform are wearing fall 6 protection devices and other safety gear if required.” Mr. Cook points to the operator’s 7 manual for the model of scissor lift used by Mr. Cook on the day of his accident. (1st 8 Kahler Decl. (Dkt. # 34) Ex. 4.) The operator’s manual states, “Occupants should wear a 9 safety belt or harness and comply with applicable governmental regulations” and directs 10 the operator to “Attach the lanyard to the anchor provided in the platform.” (Id. at 5.) It 11 is undisputed that Mr. Cook was not wearing a safety belt, harness, or lanyard while he 12 operated the scissor lift. (See Cook Dep. 160:19-161:18.) 13 Robinson counters that fall protection equipment such as a harness and lanyard is 14 not required in scissor lifts like the one used by Mr. Cook on the day of his accident. 15 Robinson refers the court to WAC 296-869-60040, which requires an employer to 16 “[m]ake sure all persons on the platform of boom-supported elevating work platforms 17 wear a full body harness and lanyard fixed to manufacturer provided and approved 18 attachment points,” and specifies that “guardrails are the primary means of fall protection 19 for manually propelled elevating work platforms.” Robinson contends that a scissor lift 20 is a “manually propelled elevating work platform” and that, as a result, the guardrails 21 provided the only fall protection required under WISHA. It is not clear on the record 22 before the court, however, that this is true. Mr. Cook testified that he drove the scissor ORDER- 16 1 lift, which suggests that the scissor lift was self-propelled rather than manually-propelled. 2 See WAC 296-869-700 (defining “manually propelled elevating work platform” and 3 “self-propelled elevating work platform”); Cook Dep. 193:1-9. In addition, Robinson 4 relies on testimony of Hoggatt and Robinson employees stating their belief that fall 5 protection is not required when using a scissor lift.4 That the Hoggatt and Robinson 6 employees did not believe that fall protection equipment was required when operating the 7 scissor lift does not prove that such protection was not required. Because it is undisputed 8 that Robinson did not require employees on its jobsite to use fall protection equipment 9 when operating scissor lifts, and because it is unresolved on the record before the court 10 whether fall protection was required under WISHA, the court finds that Mr. Cook has 11 met his burden to establish a genuine issue of material fact regarding whether Robinson 12 breached its duty to comply with or to ensure compliance with WAC 296-869-60035. 13 14 ii. WAC 296-869-40020 Mr. Cook also asserts that Robinson failed to comply with or to ensure compliance 15 with WAC 296-869-40020, which requires an employer to “[m]eet the requirements of 16 safety-related bulletins as received from the manufacturer, dealer, or owner.” Mr. Cook 17 points to Customer Safety Bulletin # 2100, which RSC provided with the scissor lift. (1st 18 4 19 20 21 22 (See Cook Dep. 160:19-161:18 (Hoggatt employees never used a harness or lanyard in a 4x8 scissor lift); Supp. Reinhard Decl. (Dkt. # 43) Ex. 1 (“Moisan Dep.”) 30:17-31:4 (fall protection only required if the painter is working outside of the rails of the lift); id. Ex. 2 (“Pearson Dep.”) 25:15-26-7 (fall protection only required in California, but would expect that it would be used if a safety bulletin from rental company stated that it was required); id. Ex. 3 (“Jackson Dep.”) 32:4-33:1 (similar); id. Ex. 4 (“Bowers Dep.”) 61:8-20 (harness was not required in a Genie scissor lift because of the guardrails; but harness was required on lifts that “go higher and drive faster”). But see Long Dep. 93:1-20 (RSC’s mechanic, stating that he always used a lanyard when working on scissor lifts).) ORDER- 17 1 Kahler Decl. Ex. 3 at RSC 00219 (“Bulletin”).) Under the subheading “Safety 2 Precautions,” the Bulletin states, in relevant part: 3 1. Personal protective equipment required by State and Federal OSHA must be worn when using this equipment. Check with your employer before operating. 2. Always wear your safety belt and lanyard when operating this unit. 4 5 6 (Id.) As the court stated above, it is undisputed that Mr. Cook was not wearing a safety 7 belt or lanyard when operating the scissor lift. Robinson contends that, as a matter of 8 law, these provisions should be read in conjunction such that an operator is required to 9 wear a safety belt and lanyard only when they constitute “personal protective equipment 10 required by State and Federal OSHA.” The court disagrees that this is the only 11 reasonable reading of the Bulletin. The Bulletin can also reasonably be read as stating 12 that, while additional personal protective equipment may be required under state and 13 federal law, at minimum the operator must always wear a safety belt and lanyard when 14 operating the scissor lift. Accordingly, the court finds that Mr. Cook has met his burden 15 to establish a genuine issue of material fact regarding whether Robinson failed to satisfy 16 its duty to comply with WAC 296-869-40020. 17 18 iii. WAC 296-869-40005 and 296-869-40010 Finally, Mr. Cook asserts that Robinson failed to comply with or ensure 19 compliance with WAC 296-869-40005 and 296-869-40010, which govern inspection of 20 elevating work platforms. WAC 296-869-40005 requires an employer to “[i]nspect and 21 maintain elevating work platforms to keep them in proper operating condition” and to 22 “[i]mmediately remove from service any elevating work platform that is not in proper ORDER- 18 1 operating condition.” WAC 296-869-40010 requires an employer to “[d]o a prestart 2 inspection of the elevating work platform according to Table 2, Elevating Work Platform 3 Inspections.”5 To support his contention that Robinson was not ensuring compliance 4 with these regulations, Mr. Cook cites the testimony of Lee Randall, Robinson 5 Construction’s superintendant at the Lowe’s job site. Mr. Randall testified that he 6 understood the subcontract to provide that Robinson was not directly responsible for 7 inspecting the lifts or for training its subcontractor’s employees, and that he did not know 8 whether Hoggatt was performing daily inspections. (1st Kahler Decl. Ex. 1 (“Randall 9 Dep.”) 21:16-22:8.) Mr. Cook has also presented evidence supporting the inference that 10 the springs on the lift may have already been broken before the lift was delivered to the 11 Lowe’s jobsite, and that, in any event, the springs were likely broken before Mr. Cook’s 12 accident. (See supra Part II.B.2.a; see also Topinka Report at 8 (opining that the springs 13 “more probably than not had failed prior to the incident”).) Finally, one of Mr. Cook’s 14 fellow Hoggatt employees states that he noticed that “something was not working right 15 with the gate” when he used the scissor lift several days before Mr. Cook’s accident and 16 that the “gate did not close automatically on that lift like the other ones.” (Richardson 17 Decl. ¶ 5.) He states that he reported this problem to Terry Bowers, Hoggatt’s 18 19 5 Table 2 specifies that a prestart inspection is required at the beginning of each shift 20 which includes “a visual inspection and functional test” of “at least the following:” operating and emergency controls; safety devices; personal protective devices, including fall protection; air, 21 hydraulic and fuel system leaks; cables and wiring harness; loose or missing parts; tires and wheels; placards, warnings, control markings, and required manuals; outriggers, stabilizers, and other structures; guardrail system; and items specified by the manufacturer. WAC 296-86922 40010. ORDER- 19 1 superintendent at the Lowe’s site. (Id.) It is undisputed that the lift was not removed 2 from service until after Mr. Cook’s accident. 3 The court finds that this evidence, viewed in the light most favorable to Mr. Cook, 4 supports a reasonable inference that Robinson may have failed to comply with WAC 5 296-869-40005 and 296-869-40010. Accordingly, the court finds that Mr. Cook has met 6 his burden to establish a genuine issue of material fact regarding whether Robinson 7 satisfied its statutory duty of care to comply with or to ensure compliance with WISHA 8 regulations under RCW 49.17.060(2) and Stute. 9 10 3. “Unpreventable Employee Misconduct” Finally, Robinson contends that, even if Mr. Cook can establish that Robinson 11 violated a WISHA regulation, it is not liable for his injuries because, as a matter of law, 12 the accident involved “unpreventable employee misconduct.” Under Washington law, if 13 L&I establishes a prima facie case of a serious violation of a WISHA regulation, the 14 burden shifts to the employer, who can avoid a finding against it by establishing that 15 “unpreventable employee misconduct” was the actual cause of the violation. J.E. Dunn 16 Nw. Inc. v. Wash. State Dep’t of Labor & Indus., 156 P.3d 250, 255 (Wash. Ct. App. 17 2007) (quoting RCW 49.17.120(5)). Robinson, however, has not directed the court to 18 any case holding that the affirmative defense of “unpreventable employee misconduct” is 19 20 21 22 ORDER- 20 1 available to an employer who has been sued in tort by an injured employee.6 To the 2 contrary, as discussed above, Washington recognizes contributory fault, and as a result, 3 even if the jury finds that Mr. Cook’s conduct contributed to his accident, Mr. Cook can 4 recover a portion of his damages if the jury also finds that Robinson breached its duty to 5 comply with or ensure compliance with WISHA regulations. RCW 4.22.005.7 6 For the foregoing reasons, the court denies Robinson’s motion for summary 7 judgment regarding breach of its statutory duty of care to comply with or ensure 8 compliance with WISHA regulations. 9 10 III. CONCLUSION For the foregoing reasons, the court GRANTS in part and DENIES in part RSC’s 11 motion for summary judgment (Dkt. # 28) and GRANTS in part and DENIES in part 12 Robinson’s motion for summary judgment (Dkt. # 31). 13 Dated this 11th day of August, 2010. 14 15 A 16 JAMES L. ROBART United States District Judge ____ 17 6 See 33 Wash. Prac., Wash. Constr. Law Manual § 15:4 (2009 ed.) (discussing WISHA 18 Regional Directive 27.00, which sets forth an affirmative defense to claimed violations of WISHA regulations, and noting that no Washington court has addressed whether a general 19 contractor can assert this affirmative defense against a personal injury claim by a subcontractor’s employee). 20 7 See also Taylor v. Kahne Corp., No. C05-0243L, 2006 WL 691995, at *3 (W.D. Wash. Mar. 14, 2006) (“Although [the deceased] obviously had the last best chance to avoid the 21 accident that killed him, the same can be said for most workplace accidents: the fact that an employee or his direct employer could have taken their own safety precautions does not absolve 22 defendants of their independent contractual and regulatory duties to comply with WISHA.”). ORDER- 21
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