Who’s on First? Washington State Employer Liability at the Worksite for Safety Violations

Brian Esler and Rebecca Schach | Miller Nash

The Washington Supreme Court handed down a new framework last week on an employer’s responsibility at the worksite for health and safety violations. The Tradesmen decision results from two separate lawsuits involving different industries in which staffing agencies—defendants Tradesmen and Laborworks—placed temporary workers with host employers. In both cases, the Department of Labor and Industries (“Department”) cited the staffing agencies along with the host employers for WISHA violations. On appeal, the parties agreed that an employment relationship existed between the workers and staffing agencies. The only issue was whether staffing agencies may be liable employers for safety violations under WISHA, in a joint employment context.

In the first lawsuit, the staffing agency Tradesmen contracted to provide employees at a construction site. Under the contract, Tradesmen hired and paid the employees’ compensation, including wages and benefits, taxes, unemployment insurance, and workers’ compensation insurance. In return, the host employer at the construction site was solely responsible for directing, supervising and controlling Tradesmen employees and their work.

Related to workplace safety, the contract required that the host employer to notify Tradesmen if any employees were moved to a different worksite. Tradesmen inspected each new or different worksite where the employees worked for health and safety issues. In this instance, the host employer assigned a Tradesmen employee to a different site without notifying Tradesmen so a worksite inspection was never done.

At the construction site, the Department cited Tradesmen and the host employer for fall risk and scaffold hazards.

In the second lawsuit, the staffing agency Laborworks contracted to provide temporary workers to sort recycling and waste at a recycling plant. Under the contract, Laborworks hired and on-boarded the workers, paid the wages and taxes, provided benefits, provided unemployment insurance, and paid for workers’ compensation insurance. In return, the host employer contracted to “supervise, control, and safeguard [the worksite] premises, processes, or systems.”

At the recycling plant, the Department cited Laborworks and the host employer for failing to provide vaccinations, failure to provide proper safety equipment for sharp object exposure, inadequate safety training, and inadequate medical recordkeeping.

The Washington Supreme Court reviewed a number of its own decisions and federal OSHA decisions to lay the foundation for its decision. The Washington Supreme Court ruled that WISHA liability where the putative employer is a staffing agency should focus on whether the staffing agency (1) has sufficient control over the workers and (2) has sufficient control over the work environment to abate the relevant safety hazards. To help with this determination of liability, the Court instructs the Department to consider these factors:

  • Power to control the workers;
  • Control over the manner and instrumentalities of the work being performed, i.e. how the work gets done;
  • Power or ability to change the work conditions and status; and
  • Level of knowledge of the relevant safety hazard involved in the violation.

With this framework in mind, the Court found that Tradesmen was not liable for worksite violations because Tradesmen did not control the workers, how the work was being performed, the worksite conditions, and lacked knowledge of the relevant safety hazard because the host employer never notified Tradesmen of the worksite change. In contrast, Laborworks was liable for worksite violations because Laborworks controlled the workers’ preparation for the work including vaccinations, training, and related recordkeeping. Laborworks also had knowledge of the relevant safety hazard from a prior workplace injury.

The Tradesman decision gives Washington employers an important framework to consider when determining who is responsible for worksite health and safety. Liability will be made on a case-by-case basis, so Washington contractors and employers should revisit both their written contracts and job-site practices to consider who will be liable for workplace safety. Simply put, the written contract terms alone are not determinative regarding liability. Also as a reminder to our Washington employers, the determination of employer liability differs by statute, so while staffing agencies may be liable employers for the purposes of the Minimum Wage Act, that may not translate to liability under WISHA, so this analysis and evaluation should be ongoing even with existing business relationships. If you have questions about whether your contracts and job safety practices are sufficient, we are here to help.

What Should Slip and Fall Accident Victims do to Prove Liability in their Case?

Searcy Denney Scarola Barnhart & Shipley

Slip and fall accidents in Florida are complicated and fact-dependent. Put another way, slip and fall accidents depend heavily on the actual facts of the claim. All such claims are different and unique in their own specific ways.

Further compounding the issue is the complexity of the laws in Florida, which means successful slip and fall claims require matching a series of actual facts that must be established to the specific laws. This reality requires an experienced attorney, like a Florida injury attorney at Searcy Denney, to navigate the nuances of a claim.

Slip and Fall Accidents in General

Slip and fall accidents are among the most common of all accidents. Slip and fall claims are based on the area of law referred to as “premises liability.” Premises liability claims revolve around accidents that are caused by unsafe conditions on another person’s property. So, for example, if you are at a museum and fall down a flight of stairs because of a defective handrail that breaks off into your hand, you may be able to hold the owner or manager of the museum responsible for your injuries.

In Florida, as with most states, successfully proving a slip and fall claim requires a victim to establish that:

  • The property owner/manager owed a duty of care
  • The property owner/manager breached that duty of care
  • The breach was the cause of the accident on the premises
  • The injuries suffered by the victim were the result of that accident

Proving Fault in a Slip and Fall Accident

Liability is essentially a synonym for fault — a term for fault that is often used in the legal arena. Proving fault is the keystone in establishing a successful slip and fall claim. The following lays out the steps for proving fault in a slip and fall claim in a general sense, including the steps that must be taken before fault can be established. However, establishing fault, in reality, requires a classification of what type of visitor has been injured (i.e., what the purpose of the visit was). In big-picture terms, a victim must:

Collect Evidence and Establish Facts

Like all personal injury claims, the victim must first collect all relevant evidence. Generally speaking, this may include obtaining videos and pictures of the accident scene as it existed at the time of the accident. Specifically, for example, documentation of any conditions that may have contributed to the fall, including conditions like:

  • Slippery substances on the ground or floor
  • Broken or uneven flooring
  • Dangerous terrain
  • Torn carpeting
  • Broken or uneven stairs
  • Defective handrails
  • Obstacles in walkways

It is also helpful for the victim or a family member/friend to immediately document the events exactly as they happened. This will provide necessary details, and since it was written down immediately, it is more likely to be credible than memories that may become stale. Eyewitness accounts should similarly be collected, and medical evidence, such as hospital and treatment records, is similarly critical.

The evidence collected will be critical in developing the series of critical facts, and the more believable the evidence is, the more likely the victim’s version will be found credible. A Florida injury attorney at Searcy Denney is experienced in this critical stage of your claim and will help ensure you have all the evidence needed to establish the facts of your claim.

Show Responsibility

While the owner/manager is responsible for maintaining a reasonably safe property, the victim is also accountable for reasonably avoiding hazards on the property. The property owner/manager and their insurance company may argue that the victim did not accept this responsibility by engaging in some type of careless behavior, such as staring at a phone, wearing inappropriate shoes or outer clothing, deeply engaging in conversations with their friends, or other behavior showing the victim was not reasonably responsible.

They may also require some explanation as to whether the victim had a legitimate reason to be in the area where the slip occurred and may further argue that a reasonable person would have noticed the condition and avoided it.

As is the case with many legal doctrines, “reasonableness” is the standard by which many decisions are made in the law. The easiest way to think of reasonableness is to put yourself in the owner/manager’s shoes and ask yourself, “Was I really paying attention? Could I have avoided this? Was anybody else hurt?” If the answers indicate that you were not really paying attention, a court may find that you are at least partly responsible.

Establish Fault

Liability, or fault, is a question of which party was the cause for any failure to be responsible. Try to convincingly argue that the property owners/managers should have inspected their premises regularly to identify any potentially dangerous conditions that existed. If such conditions were found, the owners/managers should have fixed these conditions within a reasonable amount of time. Again, reasonableness is the key to identifying and fixing dangerous conditions, as well as the adequacy of any warnings posted.

So, for example, if a property owner/manager has not regularly inspected his or her premises, that likely won’t be considered reasonable. Also, if an owner/manager notices a dangerous condition that is easy to fix but does not fix it within, say, a few weeks, or notices a hazardous condition that is hard or very expensive to fix but doesn’t fix it within, say, a year, that also likely won’t be considered reasonable.

Again, the easiest way to think of reasonableness is to put yourself in the owner/manager’s shoes and ask yourself, “What will it take to make repairs or replacements? What would I do if it were my business?” If a victim is found to be at least partly at fault, the court may adjust their damages accordingly. For example, victims may recover 80% of their damages rather than 100%. Again, this is a part of your claim that requires the experience of a Florida injury attorney at Searcy Denney.

Florida Personal Injury Lawyers Answer Six Common Questions Asked About Slip and Fall Lawsuits

Searcy Denney Scarola Barnhart & Shipley

Slip and fall accidents in Florida depend primarily on the facts of a claim and can become very complex very quickly. Because of this, slip and fall claims are all unique in their own ways, and there are no “templates” for successfully establishing such claims.

Read on as the Florida personal injury lawyers answer and explain the six most common questions that are asked about slip and fall lawsuits.

What is a Slip and Fall Lawsuit?

Slip and fall lawsuits stem from accidents where a victim slips and is injured by unsafe conditions on someone else’s property. Occasionally referred to as “slip, trip, and fall” accidents, they are among the most common, if not the most common, types of accidents experienced by victims on other people’s property. These lawsuits are based on what is known as “premises liability.”

The accidents that lead to slip and fall injuries are caused by unsafe conditions on the property in question. So, for example, if you are at a gas station market and trip over an empty box, or slip on a wet area that has no warning sign posted, you may be able to sue for your resulting injuries.

Who is Responsible for My Slip and Fall Injuries?

Slip and fall accidents are often due to the negligence of the property owner. If this is the case, the property owner or the property manager can be held responsible for your injuries and any damages that you sustain due to the fall. Aside from your legal claim, you may also be able to seek compensation through their insurance policy.

How Long Do I Have To Sue the Property Owner or Manager?

Like most lawsuits, there is a time limit by which you must file your claim. This deadline is known as the statute of limitations. In Florida, for any type of personal injury claim, including premises liability claims, the statute of limitations is four years from the date of the accident, although there may be relevant exceptions.

For example, not all injuries are immediately symptomatic, and injuries may not be noticed until weeks or even months after the accident. In this case, a victim may be able to extend the start of the limitation until the victim notices or should have noticed the existence of the injury. Nonetheless, after the time limit is reached, any claims by the victim may be time-barred by the court.

Are Property Owners Liable for Slip and Fall Accidents on Personal Property or Commercial Property?

Both. In Florida, private property can be either personal and commercial. No matter how the private property is being used, property owners are legally required to maintain safe conditions for visitors who enter the premises, and the duties of property owners change according to what type of visitor has been injured; i.e., what the purpose of the visit was.

How Serious Are Slip and Fall Accidents?

Slip and fall accidents are not as insignificant as the name may suggest. In fact, they can be quite common, and quite serious. According to the Nation Floor Safety Institute (NFSI):

  • Fall fatalities are nearly equally divided between men and women. However, more women will experience a slip-and-fall accident. According to the Bureau of Labor Statistics, falls accounted for 5% of the job-related fatalities for women compared to 11% for men.
  • Falls account for over eight million hospital emergency room visits, representing the leading cause of visits (21.3%). Slips and falls account for over 1 million visits or 12% of total falls.
  • Fractures are the most serious consequences of falls and occur in 5% of all people who fall.
  • Slips and falls do not constitute a primary cause of fatal occupational injuries but represent the primary cause of lost days from work.
  • Slips and falls are the leading cause of workers’ compensation claims and are the leading cause of occupational injury for people aged 55 years and older.
  • According to the Consumer Product Safety Commission (CPSC), floors and flooring materials contribute directly to more than 2 million fall injuries each year.
  • Half of all accidental deaths in the home are caused by a fall. Most fall injuries in the home happen at ground level, not from an elevation.
  • Of all fractures from falls, hip fractures are the most serious and lead to the greatest health problems and number of deaths.

Because of the high percentage of the elderly in Florida, slip and fall accidents are particularly concerning. If you’re caring for an elderly relative or friend, it’s incumbent upon you to take extra precautionary steps for prevention.

Where Do Slip and Fall Accidents Occur?

Slip and fall accidents can happen anywhere, at any time, and always catch the victim off-guard. The two primary areas for slip and fall accidents are the workplace and the home. They may also occur in the homes and apartments of friends or family members, in business establishments, in parking lots, at sporting or concert events, on sidewalks, in parks or other recreational establishments or areas, at swimming pools, on boats, or literally wherever people are walking or running.

Dealing with Wrongful Death Issues in Slip and Fall Claims

Seary Denney Scarola Barnhart & Shipley

Slip and fall accidents in Florida are frequently underestimated because the term “slip and fall” sounds relatively minor. Our minds tend to create images of slipping, falling onto our floor, and standing back up, albeit a bit more slowly, with a few curse words and maybe a bruise for our clumsiness.

And, quite frequently, this, or something similar to this, is what actually happens. Occasionally, however, a slip and fall accident is anything but minor. These types of accidents can be severe, costly, and expensive, with injuries that are complicated and painful, often requiring extended medical care.

About Slip and Fall Accidents and Premises Liability

When slip and fall accidents occur on someone else’s property and are caused by some type of unsafe condition, you may be able to hold the property owner liable for your injuries under a premises liability claim. Particularly tragic are slip and fall accidents that result in the death of a loved one. If you’re experiencing this type of heartbreaking devastation, you’re usually buried in the necessary legwork of putting your loved one to rest and grieving. Financial compensation may be the last thing on your mind.

However, the financial compensation you’re entitled to will become very important as you begin to deal with the loss of income, medical bills, and other types of expenses. A Florida wrongful death attorney at Searcy Denney understands the suffering you’re experiencing and can handle your insurance and legal claims for you, allowing you to deal with your other tragic responsibilities.

About Wrongful Death Claims

A wrongful death claim is a claim resulting from another person’s negligence or direct act, in this case, by unsafe conditions on another’s property, which causes the death of a family member. In Florida, wrongful death claims are governed by the “Florida Wrongful Death Act,” Florida Statutes Sections 768.16-768.26. The Act, in Section 768.19, states that surviving members of the family may file a lawsuit if the loss is due to:

  • A wrongful act
  • Negligence
  • Default
  • Breach or of contract or warranty

There’s also a statute of limitations regarding wrongful death claims, which is two years from the time of death. Under certain circumstances, the attorney or personal representative for the family may be granted an extension for the claim.

Who Can Recover for Wrongful Death?

Under Florida law, a personal representative for the deceased person can bring a wrongful death claim on behalf of the deceased person’s survivors. “Survivors” include “the [deceased person’s] spouse, children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters. It includes the child born out of wedlock of a mother, but not the child born out of wedlock of the father unless the father has recognized a responsibility for the child’s support.”

In addition, certain specific survivors can recover other specified damages. A Florida wrongful death attorney can help with these.

Under Privette Doctrine, A Landowner Delegates All Responsibility For Workplace Safety to its Independent Contractor, and therefore Owes No Duty to Remedy or Adopt Measures to Protect Against Known Hazards

Krsto Mijanovic, Jeffrey C. Schmid and John M. Wilkerson | Haight Brown & Bonesteel

In Gonzalez v. Mathis (2021 WL 3671594) (“Gonzalez”), the Supreme Court of California held that a landowner generally owes no duty to an independent contractor or its workers to remedy or adopt other measures to protect them against known hazards on the premises. The Court applied the Privette doctrine which establishes a presumption that a landowner generally delegates all responsibility for workplace safety to its independent contractor. (See generally Privette v. Superior Court (1993) 5 Cal.4th 689; SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590.) As such, the independent contractor is responsible for ensuring that the work can be performed safely despite a known hazard on the worksite, even where the contractor and its workers are unable to take any reasonable safety precautions to avoid or protect themselves from the known hazard.

In Gonzalez, the landowner, Mathis, had hired an independent contractor, Gonzalez, to clean a skylight on his roof. To access the skylight, Gonzalez needed to utilize a narrow path between the edge of the roof and a parapet wall. While walking along this path, Gonzalez slipped and fell to the ground, sustaining serious injuries. Gonzalez alleged this accident was caused by several dangerous conditions on the roof, including a slippery surface, a lack of tie-off points to attach a safety harness, and a lack of a guardrail. Gonzalez was aware of all of these hazards prior to the accident.

The trial court granted Mathis’ motion for summary, finding that Mathis owed no duty to Gonzalez pursuant to the Privette doctrine. The Court of Appeal reversed, holding that a landowner may be liable to an independent contractor or its workers for injuries resulting from known hazards when the landowner exposes them to a known hazard that cannot be remedied through reasonable safety precautions. The Court of Appeal additionally held that summary judgment was improper because there were disputed issues of material fact as to whether Gonzalez could have taken such precautions.

The California Supreme Court reversed and upheld the trial court’s ruling, declining to create a new exception to the Privette doctrine in this situation. The Court’s holding is grounded in Privette’s strong presumption in favor of delegation. Because the hirer presumptively delegates to the independent contractor the authority to determine the manner in which the work is to be performed, the contractor also assumes the responsibility to ensure that the worksite is safe, and the work is performed safely. The Court’s holding is also consistent with the rationale behind Privette and its progeny, as independent contractors can typically factor the cost of added safety precautions or any increased safety risks into the contract price, and can purchase workers’ compensation to cover any injuries sustained while on the job. Notably, the Court’s analysis does not change even though Gonzalez did not have workers’ compensation coverage. The holding in Gonzalez also avoids the unfair “tort damages windfall” that would result from allowing independent contractors and their workers to obtain tort damages from the landowner while the landowner’s own employees are limited to workers’ compensation.

The Court emphasized that its holding does not apply to unknown and undiscoverable hazards; it is limited to hazards on the premises of which the independent contractor is aware or should reasonably detect. Gonzalez also does not address the situation in which a hazard is not located on or near the worksite or is unconnected to the independent contractor’s work on the premises.

Gonzalez is helpful because it clarifies that landowners do not have a responsibility to affirmatively assess workplace safety to determine whether their independent contractor is able to adopt reasonable safety precautions to protect against known hazards. Landowners are permitted to rely on the expertise of their independent contractors, as they are in a better position to determine whether they can protect themselves and their workers against a known hazard on the worksite and whether their work can be performed safely despite the hazard.

This document is intended to provide you with information about general liability law related developments. The contents of this document are not intended to provide specific legal advice. If you have questions about the contents of this alert, please contact the authors. This communication may be considered advertising in some jurisdictions.