Opinion Information Sheet

			

                                                                               FILED

                                                                           March 8 2012

                                                                    In the Office of the Clerk of Court
                                                                  WA State Court of Appeals, Division III

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JOHN HYMAS, a single man,                                 No.  29906-6-III
                                                )
                      Appellant,                )
                                                )
       v.                                       )
                                                )
UAP DISTRIBUTION, INC., a foreign               )         Division Three
corporation, CROP PRODUCT                       )
SERVICES, INC., a foreign                       )
corporation, and AGRIUM US, INC., a             )
foreign corporation,                            )
                                                )
                      Respondents,              )
                                                )
AGRESERVES, INC., a foreign                     )
corporation,                                    )
                                                )         PUBLISHED OPINION
                      Defendant.                )
                                                )

       Siddoway, J.  --  We are called upon to decide whether UAP Distribution Inc., the 

owner of a jobsite at which John Hymas was seriously injured while working 

construction, was entitled to summary judgment that it had no statutory or common law 

duty that could give rise to liability for Mr. Hymas's fall into an unguarded trench.  Mr. 

Hymas, whose employer was UAP's cement contractor, argues that UAP owed him a  

No. 29906-6-III
Hymas v. UAP Distribution, Inc.

duty of care under WISHA,1 as a jobsite owner, because it retained control over his

employer's work.  He argues that UAP owed him a duty under common law, as a 

landowner, because it should have anticipated that Mr. Hymas could be injured despite 

his knowledge of the open trench.  We find no issues requiring trial and agree with the 

trial court that on the evidence presented UAP owed no duty as a matter of law.  We

affirm the dismissal of Mr. Hymas's claims.

                      FACTS AND PROCEDURAL BACKGROUND
       UAP Distribution Inc.2 is a chemical and fertilizer manufacturer that does a 

nationwide business.  In 2006, it contracted with Ranco Fertiservice Inc., a manufacturer 

of fertilizer-handling equipment, to develop plans for constructing a fertilizer mixing 

plant on land that UAP owned in Plymouth, Washington.  UAP did not hire a general 

contractor to manage the construction work.  Instead, armed with Ranco's plans, it 

contracted directly with an engineering firm and specialty contractors.  UAP had opted to 

forgo the services of a general contractor on earlier construction projects.  

       Ranco's plans called for the excavation of a 5-foot-deep, 240-foot-long, 10-foot-

       1 Washington Industrial Safety and Health Act of 1973 (WISHA), chapter 49.17 
RCW.

       2 In January 2009, UAP merged with and is now doing business as Crop 
Production Services Inc., which is owned by parent company Agrium US Inc.  Defendant 
Agreserves Inc. was dismissed voluntarily by the parties in April 2010.  We refer to the 
three remaining affiliated defendants, collectively, as UAP.

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wide trench framed with concrete within one of three buildings proposed for the plant, in 

which a below-grade conveyor belt would eventually be installed.  UAP hired Narum 

Concrete Construction Inc. to perform the excavation and concrete work.  

       UAP and Narum entered into a written contract prepared using an American 
Institute of Architects (AIA) standard form agreement.3  Subsection 8.2.1 of the contract, 

under article 8, "CONTRACTOR" and section 8.2, "Supervision and Construction 

Procedures," provides:

       The Contractor [Narum] shall cooperate fully with the Owner [UAP] and 
       Architect and supervise and direct the Work, using the Contractor's best 
       skill and attention.  The Contractor shall be solely responsible for and have 
       control over construction means, methods, techniques, sequences and 
       procedures, and for coordinating all portions of the Work under the 
       Contract, unless the Contract Documents give other specific instructions 
       concerning these matters. 
Clerk's Papers (CP) at 96 (redlining4 omitted).  Sections 15.1 and 15.3 of the contract, 

under article 15, "Protection of Persons and Property," provide in part:

       15.1  SAFETY PRECAUTIONS AND PROGRAMS
       The Contractor shall be responsible for initiating, maintaining and 
       supervising all safety precautions and programs in connection with the 
       performance of the Contract.  The Contractor shall take reasonable 
       precautions for safety of, and shall provide reasonable protection to prevent 
       damage, injury or loss to:

       3 AIA Document A107  --  1997, the "Abbreviated Standard Form of Agreement 
Between Owner and Contractor for Construction Projects of Limited Scope where the 
basis of payment is a Stipulated Sum." Clerk's Papers at 91-111.

       4 "Redlining" is the formatting that tracks the parties' completion or modification 
of the form document.  It appears in the signed contract in this case.

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              .1      employees on the Work and other persons who may be 
                      affected thereby;
              .2      the Work and materials and equipment to be incorporated 
                      therein; and
              .3      other property at the site or adjacent thereto.
       The Contractor shall give notices and comply with applicable laws, 
       ordinances, rules, regulations and lawful orders of public authorities 
       bearing on safety of persons and property and their protection from damage, 
       injury or loss. . . .
       . . . . 
       15.3  The Contractor shall comply with all applicable safety laws and 
       regulations.  Notwithstanding any language to the contrary, the Owner and 
       the Architect shall not have any responsibility for job site inspections or 
       safety accommodations.  Any inspections or observations by the Owner or 
       the Architect are solely for the benefit of the Owner and shall not create any 
       duties or obligations to anyone else.

CP at 104 (redlining omitted). The contract gave UAP the right to terminate the contract

for any reason, approve subtier contractors, perform the construction work with its own 

forces, inspect the work, stop or delay the work, order changes to the work, and reject the 

work.  

       On February 9, 2007, Narum employees were at the jobsite performing concrete 

work.  Mr. Hymas, a concrete pump operator, was operating the pumper truck remotely.  

His work required that he follow along as a co-worker, who was holding a discharge hose 

supported by a crane, poured concrete into forms at an elevation 15 feet above them.  

While watching the pour, Mr. Hymas regulated the pressure and flow of the concrete 

using a wireless remote box that he wore as a backpack, the controls resting on his chest.  

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At the time of the accident resulting in this action, Mr. Hymas was following his co-

worker alongside the trench, which had by then been framed with concrete.  While 

operating the pump, Mr. Hymas stepped over the edge, which was unguarded by safety 

rails, and fell into the trench. He seriously injured his leg.

       Mr. Hymas brought this action against UAP, asserting that UAP failed to maintain 

the trench in compliance with WISHA regulations and negligently failed to protect or 

warn him of a hazardous condition.  His complaint implicated issues of whether and to 

what extent UAP had retained or exercised control over Narum's work.  The parties 

engaged in deposition and other discovery into their representatives' understandings of

the contract and UAP's actual working relationship with Narum and other specialty 

contractors.  

       Evidence as to the parties' background, beliefs, and actions was essentially 

undisputed.  It established that before building the Plymouth plant, UAP had entered into 

contracts with specialty contractors on 24 occasions.  In connection with construction of 

the Plymouth plant it contracted not only with Ranco, but with an engineering firm, an 

electrical contractor, a construction company engaged to pipe water to the site, a shed 

manufacturer engaged to erect a control room, and a material testing and inspection firm 

to perform site inspections and quality control.  UAP exercised its contractual right to 

perform a portion of Ranco's work, painting pieces of the steel frame for the building that 

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No. 29906-6-III
Hymas v. UAP Distribution, Inc.

had been scratched in transit and having two idle employees from its Moses Lake facility 

assist Ranco employees with other painting and welding.  In the second phase of the 

plant, it terminated a pipefitting contractor whose pace was slowing the project and took 

over the work with its own employees.  UAP paid the specialty contractors directly, for a 

total project cost of over $4 million.  

       UAP area manager Brian Jones visited the work site frequently at first and "every 

couple weeks" as the project progressed.  CP at 251.  While Narum was onsite, Mr. Jones 

would meet with Wayne Narum, a Narum principal, "just to find out where we're at on 

our status and on our process just to see how work was going."  Id. He never met with a 

Narum representative other than Mr. Narum, did not discuss safety issues, and did not 

instruct Narum employees on how to perform the work.  UAP plant manager Harold 

Priest testified that different specialty contractors worked on the jobsite at the same time 

and that UAP coordinated their work, although it did not coordinate site safety.  

       UAP managers Mr. Priest and Larry Talmage testified that their contact with 

Narum never involved discussions about the performance of the work and was generally 

limited to observing progress on the project.  Mr. Priest testified that Narum had sole 

control over the methods employed to do the work, that UAP could not instruct Narum to 

perform in a particular manner, and that UAP relied on Narum to ensure a safe working 

environment.  Mr. Talmage stated that he understood UAP's contracts made each 

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contractor responsible for observing safety requirements.  

       Mr. Narum testified to a similar view of his relationship with UAP, stating that his 

conversations with Mr. Jones were limited to "how the project was progressing, when we 

thought we'd have this completed or that."  CP at 307. He testified that they did not 

generally discuss safety issues, other than one occasion when he and a UAP 

representative discussed a safety concern regarding what he described as a deep "leg pit."  

CP at 58. Mr. Narum viewed safety as his company's responsibility and did not expect 

UAP to involve itself in safety matters. He also stated that Narum had control over the 

way the work was to be performed under subsection 8.2.1 of the contract, and that UAP 

did not and could not instruct Narum on the methods it was to employ during the course 

of performance.  He did acknowledge that UAP instructed him on the order in which 

Narum was to construct the three buildings called for by Ranco.  

       In proceedings below and on appeal, Mr. Hymas attached importance to certain

testimony of Mr. Jones and Mr. Narum.  Because UAP argues from the same testimony, 

although placing a different construction and emphasis upon it, we reproduce what Mr. 

Hymas and UAP urge as material portions of the testimony verbatim.

       Mr. Jones, who again, was UAP's area manager, testified in deposition:

              Q        -- had you observed -- had you -- like if you observed an 
       unsafe condition on the construction project, would you have brought it to 
       Narum Concrete Construction's attention?
              A       I probably would, but unless it's something really obvious, I 

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       mean, I can't -- but, yeah, I mean, obviously if I was to see somebody going 
       to hurt themselves, yeah, I would definitely say something.
              Q       And if you told someone at Narum to correct an unsafe 
       condition that you saw, do you believe that they would have followed your 
       instruction?
              . . . .
              [A]     I don't know.  I really don't know if they would or wouldn't. 
       You know, I don't know.
              . . . .
              Q       No, I understand you don't know if, in fact, they would. 
                      Would you expect them to?
              . . . . 
              A       Okay.  I -- I guess if I was to see if somebody was going to get 
       hurt, I would hope that they would do that. Yeah, I'd hope that they would 
       correct their -- their -- their issue of if somebody was going to get hurt, yeah.
       I mean, I think that's, you know, the right thing to do, but -- 
              Q       Right.  And they're working for you.  So if they -- if you told 
       them to do something and they told you no, that would probably be a 
       problem for you I would imagine?
              . . . . 
              [A]     Well, let me back up. If I saw somebody that was going to be 
       hurt or like get run over by a truck, yeah, I would tell them that, yeah, move 
       the hell out of the way.
              . . . .
              Q       Okay.  
              A       But as far as if they're going to take my advice or not, I mean, 
       it's not my responsibility, so they -- you know -- you know, I don't know 
       what their practices are or aren't, so whatever they do, they do. I mean, if 
       it's an employee working for me, it's a totally different situation.
              Q       I understand.  
                      UAP would want to make sure that they're hiring safe 
       contractors though; is that correct?
              . . . . 
              [A]     Yeah, we'd obviously want to have safe contractors, yes.

CP at 87-88.

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       Mr. Narum testified in deposition:

              Q       Did UAP ever raise safety concerns to you or anyone at 
       Narum Concrete Construction?
              A       Now, that one I can't recall. I -- they could have. I do not 
       know for sure. I don't really remember.
              Q       You don't recall if they ever raised a safety issue?
              A       No.
              Q       Okay.  If UAP raised a safety issue and told you to change 
       something that you were doing because UAP thought it was unsafe, would 
       you have followed UAP's instructions?
              A       Yes.

CP at 42.  And,

              Q       Did you UAP --  did UAP do anything to ensure Narum was 
       performing its work in a safe manner?
              A       They were onsite while we were doing the work process, so 
       I'm -- if something was unsafe, I would have thought something would have 
       been said.

CP at 44-45.  And,

              Q       So amongst the people you identified, you would have been 
       the person at Narum to whom observations about safety issues should be 
       directed?
              A       That's correct.
              Q       And do you have any specific recollection of UAP ever 
       coming to you and talking about safety issues?
              A       Just when we were doing the lighting. And I don't remember 
       the conversation, but I do know they were talking safety on -- while they 
       were doing the light leg corning out.
              Q       The what?
              A       The leg.  The leg where that conveyer pit comes in, that real 
       tall, 20-foot deep leg pit that comes out. I know we -- we talked some 
       safety there, but I -- it was just basically making sure that it was covered, or 
       I mean, the [perimeter] was a safe place, because it was 20 feet deep. 

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CP at 58.  And,

              Q       And so UAP had some discussions with you regarding safety 
       when you were performing work on that leg; is that correct?
              A       Yes.
              Q       Do you recall exactly what the safety issue was that was 
       being discussed?
              . . . .
              [A]     Just a very large, deep hole.
              . . . .
              Q       They wanted to make sure nobody fell into it or -- 
              A       Correct.  Or vehicles.
              Q       And what did you do to satisfy UAP's concerns?
              A       We barricaded it up.

CP at 61-62.

       Following discovery, Mr. Hymas and UAP moved for summary judgment.  Their 

cross motions brought to light a dispute over whether Mr. Hymas had adequately pleaded 

a premises liability claim in addition to a statutory claim. The trial court granted UAP's 

motion to dismiss Mr. Hymas's statutory claim, but found adequate notice in Mr. 

Hymas's complaint of a premises liability claim and, by its order, amended his complaint

to conform it to his evidence.

       Shortly thereafter, UAP moved for summary judgment on the premises liability 

claim.  The court granted UAP's motion.  Mr. Hymas timely appealed the dismissal of his 

two claims. 

                                         ANALYSIS

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No. 29906-6-III
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                                               I

       We first address Mr. Hymas's assignment of error to the trial court's dismissal of 

his WISHA claim.  UAP argues that invited error -- Mr. Hymas's own argument below

that material facts bearing on the statutory claim were undisputed and the court could rule 

on the liability issue as a matter of law -- precludes review of Mr. Hymas's argument. It 

also argues, as it did below, that it owed Mr. Hymas no duty as a matter of law.  

                                         Invited Error

       The invited error doctrine prohibits a party from setting up an error at trial and 

then complaining of it on appeal.  Kenneth W. Brooks Trust A. v. Pac. Media, LLC, 111 

Wn. App. 393, 400, 44 P.3d 938 (2002).  It applies when a party "takes affirmative and 

voluntary action that induces the trial court to take an action that party later challenges on 

appeal."  Lavigne v. Chase, Haskell, Hayes & Kalamon, PS, 112 Wn. App. 677, 681, 50 

P.3d 306 (2002).  

       UAP relies for its assertion of invited error on Mr. Hymas's position asserted at 

the time of the summary judgment hearing, which it characterizes as the "exact opposite 

position" from his present argument that the evidence presents, at minimum, a jury 

question.  Br. of Resp't at 16.  It points to the following argument by Mr. Hymas's 

lawyer:

              [UAP is] responsible to Mr. Hymas for the consequences of this 
       failure as a matter of law.  The interpretation of contract terms is a legal 

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No. 29906-6-III
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       question and because these facts aren't in material dispute, it's only the 
       legal effect of the facts.  Mr. Hymas is entitled to summary judgment that 
       UAP had control over the work site based on the contract that they had with 
       Narum and the control that they reserved contractually -- and exercised.

Report of Proceedings (Dec. 17, 2010) at 19.  

       UAP's argument fails to consider the nature of the dispute that the trial court 

resolved by summary judgment.  The point of contention was over which historical facts 

matter, and whether the historical facts that do matter, together with the ultimate facts 

they support, are sufficient to preclude judgment as a matter of law.  The parties did not 

dispute the historical facts: e.g., how many times Mr. Jones was at the jobsite, what he 

discussed with Mr. Narum, or the content of the parties' contract.  But they clearly 

disputed an ultimate fact: whether UAP retained sufficient control over Narum's work to 

give rise to liability. 

       Mr. Hymas's position below was that the evidence that he relied on (e.g., the 

contract provisions he cited, Mr. Jones's testimony that he would raise a safety concern,

Mr. Narum's testimony that Narum would address any concern raised, and the action 

taken on the occasion when a safety concern was expressed) was the evidence that 

mattered, and that it supported judgment in his favor as a matter of law.  He never argued

that -- whatever the court's view of his argument -- it should resolve the case by granting

summary judgment one way or the other.  To the contrary, his brief opposing UAP's 

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No. 29906-6-III
Hymas v. UAP Distribution, Inc.

motion for summary judgment argued that "[a]t the very least, there is a question of fact 

regarding whether UAP retained a sufficient amount of control to justify imposing a duty 

to ensure WISHA compliance." CP at 354.  Nothing in his position induced the court to 

decide summary judgment against him and invited error does not bar his appeal.

                                     Summary Judgment

       A claim of negligence requires the plaintiff to establish (1) the existence of a duty 

owed, (2) breach of that duty, (3) resulting injury, and (4) proximate cause between the 

breach and the injury.  Tincani v. Inland Empire Zoological Soc'y, 124 Wn.2d 121, 127-

28, 875 P.2d 621 (1994).  UAP initially moved for summary judgment on the basis that 

Mr. Hymas could not establish the essential element of a duty owed him by UAP under 

WISHA.  

       The threshold determination of whether the defendant owes a duty to the plaintiff 

is a question of law.  Id. at 128.  The existence of a duty may be predicated upon 

statutory provisions or on common law principles.  Degel v. Majestic Mobile Manor, Inc., 

129 Wn.2d 43, 49, 914 P.2d 728 (1996). Since duty is ordinarily an issue of law, it is 

only where duty depends on proof of facts that are disputed that summary judgment is

inappropriate.  See Afoa v. Port of Seattle, 160 Wn. App. 234, 238, 247 P.3d 482 (citing 

Sjogren v. Props. of the Pac. Nw., LLC, 118 Wn. App. 144, 148, 75 P.3d 592 (2003)), 

review granted, 171 Wn.2d 1031 (2011).

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No. 29906-6-III
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       We review an order granting summary judgment de novo.  Lybbert v. Grant 

County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000). Summary judgment is proper if no 

genuine issue of material fact remains and the moving party is entitled to a judgment as a 

matter of law.  CR 56(c).  A defendant may move for summary judgment on the ground 

that the plaintiff lacks competent evidence to support its claim.  Young v. Key Pharm., 

Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989) (quoting Celotex Corp. v. Catrett, 477 

U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).  After the moving party submits 

adequate affidavits, the nonmoving party must set forth specific facts rebutting the 

moving party's contentions and disclosing that a genuine issue of material fact exists.  

Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 12-13, 721 P.2d 1 (1986). 

When considering a summary judgment motion, the court must construe all facts and 

reasonable inferences in the light most favorable to the nonmoving party.  Lybbert, 141 

Wn.2d at 34.  

       Mr. Hymas argues that UAP owed him a duty of care under RCW 49.17.060(2) to 

comply with all WISHA regulations and that this duty was breached by its failure to 

install guard rails around the trench in which he fell, as required by WAC 296-155-
505(6)(a).5  UAP does not dispute that the WAC provision was not observed, although it 

       5 WAC 296-155-505 provides:
       "(6)  Guarding of open sided surfaces.  
       "(a)  Every open sided floor, platform or surface four feet or more above adjacent 
floor or ground level shall be guarded by a standard railing, or the equivalent, as specified 

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No. 29906-6-III
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argues we need not reach that issue.  
       RCW 49.17.0606 provides:

       Each employer:
              (1) Shall furnish to each of his or her employees a place of 
       employment free from recognized hazards that are causing or likely to 
       cause serious injury or death to his or her employees . . . and
              (2)  Shall comply with rules, regulations, and orders promulgated 
       under this chapter.

In Stute v. P.B.M.C., Inc., 114 Wn.2d 454, 457, 788 P.2d 545 (1990), our Supreme Court

observed that subsection (1) of the statute imposes a general duty on an employer, owed 

only to its employees, to protect them from recognized hazards not covered by specific 

safety regulations, while subsection (2), in light of its textual difference, imposes a 

specific duty on an employer to comply with WISHA that extends beyond its employees.

       The court also determined as a matter of policy that, while the subcontractor owes 

a duty as well, the prime responsibility for compliance with safety regulations should be 

borne by the general contractor.  "A general contractor's supervisory authority places the 

general in the best position to ensure compliance with safety regulations."  Id. at 463.

       Decisions of the Court of Appeals extended the nondelegable duty imposed on 

general contractors by Stute to developer/owners.  In Weinert v. Bronco Nat'l Co., 58 

in subsection (7)(a) of this section, on all open sides, except where there is entrance to a 
ramp, stairway, or fixed ladder."

       6 We quote the current version of RCW 49.17.060, which was amended by Laws 
of 2010, chapter 8, section 12007 to make the language gender neutral.

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No. 29906-6-III
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Wn. App. 692, 696, 795 P.2d 1167 (1990), Division One relied upon the fact that the 

position of the developer/owner before the court -- who had "the same innate overall 

supervisory authority and [was] in the best position to enforce compliance with safety 

regulations" -- was "so comparable to that of the general contractor in Stute that the 

reasons for the holding in Stute apply here." In Doss v. ITT Rayonier, Inc., 60 Wn. App. 

125, 128, 803 P.2d 4, review denied, 116 Wn.2d 1034 (1991), Division Two based its 

conclusion that a developer/owner was liable on the facts that the owner met the statutory 

definition of "employer" and "had innate supervisory authority that gave it control over 

the workplace." In Kamla v. Space Needle Corp., 105 Wn. App. 123, 19 P.3d 461 

(2001), Division One affirmed dismissal of the plaintiff's claim against the owner of the 

Space Needle on summary judgment, disagreeing with Doss in part, and holding that an 

owner who hires an independent contractor to perform specialized work must exercise 

authority, not merely retain it, in order to owe a statutory duty to the contractor's 

employees.  

       The Supreme Court accepted review of Kamla.  Its decision on review is the 

controlling authority on the liability of jobsite owners to independent contractors'

employees under WISHA.  It is the basis for our analysis.  

       Addressing Mr. Kamla's WISHA claim, the Supreme Court first held that jobsite 

owners are not per se liable under the statutory requirements of RCW 49.17.060.  Kamla 

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No. 29906-6-III
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v. Space Needle Corp., 147 Wn.2d 114, 123, 52 P.3d 472 (2002).  It next held that jobsite 

owners do not play a role sufficiently analogous to general contractors to justify imposing 

upon them the same nondelegable duty to ensure WISHA compliance when there is no 

general contractor.  Id. at 123-24.

       The court then turned to the circumstances that would give rise to a duty of 

WISHA compliance on the part of a jobsite owner extending to subcontractors'

employees.  It first considered the issue from Stute's policy rationale:

              Although jobsite owners may have a similar degree of authority to 
       control jobsite work conditions, they do not necessarily have a similar 
       degree of knowledge or expertise about WISHA compliant work conditions.
       Jobsite owners can run the gamut from an owner/developer with the same 
       degree of knowledge about WISHA compliant work conditions as that of a 
       general contractor to a public corporation without any knowledge about 
       WISHA regulations governing a specific trade.  Because jobsite owners 
       may not have knowledge about the manner in which a job should be 
       performed or about WISHA compliant work conditions, it is unrealistic to 
       conclude all jobsite owners necessarily control work conditions.  Instead, 
       some jobsite owners may reasonably rely on the contractors they hire to 
       ensure WISHA compliance because those jobsite owners cannot practically 
       instruct contractors on how to complete the work safely and properly.

Id. at 124-25.  

       It then addressed control as the basis for a duty on the part of a jobsite owner.  The 

court had relied in Stute, at least in part, upon the concept of retained control, which 

comes from the common law exception to nonliability of an employer to independent 

contractors.  Stute, 114 Wn.2d at 460.  For WISHA purposes, Kamla adopted the 

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No. 29906-6-III
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common law concept of control as the exclusive basis on which a jobsite owner acquires

a statutory duty under WISHA: "If a jobsite owner does not retain control over the 

manner in which an independent contractor completes its work, the jobsite owner does 

not have a duty under WISHA to 'comply with the rules, regulations, and orders 

promulgated under [chapter 49.17 RCW].'"  147 Wn.2d at 125 (alteration in original) 

(quoting RCW 49.17.060(2)). 

       The court went on to address the type of control which, if retained by an owner, 

justifies imposing a duty of care, citing approvingly to the Restatement (Second) of Torts:

       "[T]he employer must have retained at least some degree of control over the 
       manner in which the work is done.  It is not enough that he has merely a 
       general right to order the work stopped or resumed, to inspect its progress 
       or to receive reports, to make suggestions or recommendations which need 
       not necessarily be followed, or to prescribe alterations and deviations.  Such 
       a general right is usually reserved to employers, but it does not mean that 
       the contractor is controlled as to his methods of work, or as to operative 
       detail.  There must be such a retention of a right of supervision that the 
       contractor is not entirely free to do the work in his own way."

Id. at 121 (alteration in original) (quoting Restatement (Second) of Torts § 414 cmt. c 

(1965)).  

       "Whether a right to control has been retained depends on the parties' contract, the 

parties' conduct, and other relevant factors." Phillips v. Kaiser Aluminum & Chem. 

Corp., 74 Wn. App. 741, 750, 875 P.2d 1228 (1994).  The proper inquiry is whether the 

jobsite owner retains the right to direct the manner in which work is performed, not 

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No. 29906-6-III
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whether it actually exercises that right.  Kamla, 114 Wn.2d at 121.  We therefore look 

first at the contract provisions identified by the parties as bearing on control. Since no 

evidentiary issues have been presented that would affect construction of the contract, its 

construction presents a question of law for the court and not a question of fact for the 

jury.  Epperly v. City of Seattle, 65 Wn.2d 777, 784-85, 399 P.2d 591 (1965).

       The most clearly-applicable provision of the parties' contract denies UAP control 

over the manner in which Narum performs the work.  Subsection 8.2.1, under 

"Supervision and Construction Procedures," provides in pertinent part: 

       The Contractor shall be solely responsible for and have control over 
       construction means, methods, techniques, sequences and procedures, and 
       for coordinating all portions of the Work under the Contract, unless the 
       Contract Documents give other specific instructions concerning these 
       matters.

CP at 96.  Mr. Hymas focuses on the initial and preceding phrase, in the same subsection,

that "[t]he Contractor shall cooperate fully with the Owner and Architect."  Id.  He 

contends that this cooperation requirement is tantamount to UAP's retaining an 

"unrestricted right to require Narum to comply with its instructions." Reply Br. of 

Appellant at 20.  "Cooperate" is defined, however, as "to act or work with another or 

others to a common end : operate jointly," and "to act together : produce an effect 

jointly."  Webster's Third New International Dictionary 501 (1993).  Use of the word 

"cooperate" does not imply control by UAP, particularly where it appears in the same 

                                               19 

No. 29906-6-III
Hymas v. UAP Distribution, Inc.

subsection that provides that Narum has sole responsibility and control.  Read in its 

entirety, even the sentence requiring cooperation negates supervision or direction by 

UAP; it provides, instead, "Contractor shall cooperate fully with the Owner and Architect 

and supervise and direct the Work, using the Contractor's best skill and attention." CP 

at 96 (emphasis added).

       Sections 15.1 and 15.3 of the contract, dealing with the responsibility for taking 

safety precautions and operating safety programs in connection with Narum's work, also 

assign responsibility exclusively to Narum.  Mr. Hymas argues, however, that the 

requirement in section 15.1 that Narum "comply with applicable laws, ordinances, rules, 

regulations and lawful orders of public authorities bearing on safety of persons and 

property," CP at 104, constitutes a retention of control by UAP, citing Afoa v. Port of 

Seattle as support.  

       In Afoa, the employee of a contractor providing ground support services to four

airlines at Seattle-Tacoma International Airport was injured while operating a vehicle on 

the tarmac.  He sued the owner of the airport, the Port of Seattle, which had granted his 

employer a license to perform services on the tarmac.  He claimed that the port had 

breached its statutory duty to comply with WISHA, among other duties.  160 Wn. App. at 

237.  

       Division One of this court reversed the trial court's summary judgment in favor of 

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No. 29906-6-III
Hymas v. UAP Distribution, Inc.

the port, concluding that the evidence created an issue of material fact regarding whether 

the port retained or exercised control sufficient to give rise to a duty to Mr. Afoa.  It 

relied largely on the port's license to Mr. Afoa's employer, which required that it comply 

with "a wide range of [the port's] rules and regulations that appear to govern many details 

of [the contractor's] operation of its own vehicles."  Id. at 242. The port's regulations 

specifically addressed, for example, how much luggage could be towed by a single 

vehicle and safety protocol for driving vehicles around the tarmac.  Id.  The license also 

required employees of the contractor to "'at all times comply with any lawful signal or 

direction of Port employees'" and prioritized the port's directives over the contractor's 

directives when the two conflicted.  Id. at 242-43. 

       Mr. Hymas argues that UAP's contract similarly requires Narum to comply with 

WISHA regulations, which he argues are themselves detailed.  But there is a clear 

distinction: UAP does not dictate the contents of WISHA regulations, so its contract 

merely requires that Narum comply with independently-existing law, otherwise 

applicable to Narum, over whose content UAP has no control.  In Afoa, the port not only 

required compliance with regulations but dictated their contents. As UAP points out, if it 

cannot assign responsibility for compliance with safety laws without, by that very act, 

exercising control, then it can never allocate responsibility for safety to a contractor.  The 

contract's requirement that Narum comply with applicable law is not evidence of the 

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No. 29906-6-III
Hymas v. UAP Distribution, Inc.

required retention of control over its methods of operation.

       Mr. Hymas finally points to a handful of other contract provisions, including

UAP's right to terminate Narum's contract for any reason, approve subtier contractors, 

take over work being performed by a contractor, stop or delay the work, order changes to 

the work, inspect the work, and reject the work, and argues that these provisions 

individually and/or collectively reserve ultimate control to UAP.

       It is well-settled law that a jobsite owner's retention of the right to inspect and 

supervise to insure proper completion of the contract is not sufficient control.  Hennig v. 

Crosby Group, Inc., 116 Wn.2d 131, 134, 802 P.2d 790 (1991) (quoting Epperly, 65 

Wn.2d at 785). Nor is its retention of the general right to order the work stopped or 

resumed, to make suggestions or recommendations that need not necessarily be followed, 

or to prescribe alterations and deviations.  Kamla, 114 Wn.2d at 121 (quoting 

Restatement § 414 cmt. c).  UAP's right to reject work is, like other contract provisions 

identified in Hennig, authority to ensure that a contractor's work "fully [complies] with 

the contract provisions." 116 Wn.2d at 134. Its right to approve subcontractors is, as 

discussed in comments to the Restatement, the sort of a right often reserved, but does not 

mean that Narum was controlled "as to [its] methods of work, or as to operative detail."

Restatement § 414 cmt. c. These rights do not amount, individually or collectively, to

such a right of supervision that Narum is not entirely free to do the work in its own way.

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No. 29906-6-III
Hymas v. UAP Distribution, Inc.

       UAP's right to perform the construction work with its own forces, if exercised,

implicates Stute's policy rationale, because a jobsite owner with its own employees 

working on the jobsite will have its own obligation for WISHA compliance and will 
either have knowledge of WISHA or a duty to acquire it.7 But while Kamla discusses 

Stute's policy rationale, even that discussion identifies control as the basis for a jobsite 

owner's liability to its contractors' employees.  See Kamla, 147 Wn.2d at 124 ("Because 

jobsite owners may not have knowledge about the manner in which a job should be 

performed or about WISHA compliant work conditions, it is unrealistic to conclude all 

jobsite owners necessarily control work conditions" (emphasis added)).  In addition, 

UAP's option to use its own forces gives rise to an implied retention of control only if 

and to the extent it is exercised.  It was exercised sparingly by UAP, and at times 

unrelated to Narum's work.  The provision does not negate other provisions of the 

contract that make clear it is not retaining control over Narum's methods and operations.

       Mr. Hymas offered evidence of respects in which UAP was general contractor-

like, such as its history of entertaining bids and selecting, contracting with, and paying 

       7 We do not understand Mr. Hymas to argue that the rights to terminate the 
contract or substitute its own workers could be used coercively, to indirectly control the 
contractors.  We would reject the bootstrap argument that the mere possibility that 
provisions having other, legitimate, objects and purposes could be used coercively 
amounts to the required retention of control.  If a plaintiff presented evidence that a 
jobsite owner had actually used such provisions to control the contractor's performance, 
that would be different.  There is no such evidence here.

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No. 29906-6-III
Hymas v. UAP Distribution, Inc.

specialty subcontractors directly; its setting start and stop dates for multiple contractors 

with overlapping work; and its using its own employees and terminating a contractor to 

avoid project delays.  Citing Weinert and Doss, he argues that UAP's conduct was 

sufficiently analogous to that of a general contractor to justify imposing a duty.  But

again, Kamla, which is controlling, holds that whether a jobsite owner owes a statutory 

duty to an independent contractor's employee turns exclusively on whether it assumes the 

type of control that removes the owner from the general rule of nonliability at common 

law.  For purposes of statutory liability, the owner's resemblance to a general contractor

is, at best, only one piece of evidence bearing on whether it could or would have elected 

to retain control.

       Turning to actual conduct, Mr. Hymas points to UAP's expression of concern

about the deep "leg pit," in response to which Narum barricaded the area; to Mr. Jones's

deposition testimony that he would have raised a safety concern with Narum if he thought 

someone might be injured; and to Mr. Narum's testimony that if UAP supervisors had 

asked him to change something Narum was doing because it was unsafe, he would have 

followed UAP's instructions. UAP points out that Mr. Jones was clear that he did not 

believe he could require Narum's employees to take safety precautions, testifying, "if it's 

an employee working for me, it's a totally different situation." CP at 88.

       The fact that UAP discussed one safety concern with Narum and that Narum 

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No. 29906-6-III
Hymas v. UAP Distribution, Inc.

thereafter took action is not sufficient, in light of provisions of the contract and other 

evidence, to create a genuine issue of fact whether UAP had the right to dictate Narum's 

safety control.  The parties' contract explicitly allowed UAP to express a concern without 

thereby upsetting the allocation of responsibility for safety to Narum.  CP at 104 (section 

15.3, providing in part that "[a]ny inspections or observations by the Owner or the 

Architect are solely for the benefit of the Owner and shall not create any duties or 

obligations to anyone else").  In light of this explicit provision, we need not address 

whether this evidence would otherwise be sufficient to raise a jury issue.

       Viewing the evidence in the light most favorable to Mr. Hymas, he did not present 

evidence sufficient to raise a jury question on the required element of a statutory duty

owed to him by UAP.  

                                               II

       Mr. Hymas also argues that UAP breached its duty of care owed him as a business 

invitee upon its premises.  UAP responds that it tendered safe premises to Narum and is 

not liable for Narum's negligence when performing its work.

       The legal standard applicable to this issue is well settled.  The "legal duty owed by 

a landowner to a person entering the premises depends on whether the entrant [is] a 

trespasser, licensee, or invitee." Iwai v. State, 129 Wn.2d 84, 90-91, 915 P.2d 1089 

(1996).  Employees of independent contractors hired by landowners are invitees on the 

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No. 29906-6-III
Hymas v. UAP Distribution, Inc.

landowners' premises.  Meyers v. Syndicate Heat & Power Co., 47 Wash. 48, 91 P. 549 

(1907); Epperly, 65 Wn.2d at 786.

       The obvious character of a dangerous condition bears on duty and liability.  It is 

undisputed that Mr. Hymas had worked at the Plymouth worksite at least 20 times prior 

to his accident, with at least 10 to 12 of those occasions within the month prior, and that 

he had worked near the trench and recognized it as a dangerous condition several months 

before his accident.  

       Washington has adopted sections 343 and 343A of the Restatement, which address 

the duty owed invitees by a landowner with respect to a dangerous condition on its land.  

Kamla, 147 Wn.2d at 125-26.  Section 343 provides:

       "A possessor of land is subject to liability for physical harm caused to his 
       invitees by a condition on the land if, but only if, he
              (a)  knows or by the exercise of reasonable care would discover the 
       condition, and should realize that it involves an unreasonable risk of harm 
       to such invitees, and
              (b)  should expect that they will not discover or realize the danger, or 
       will fail to protect themselves against it, and
              (c)  fails to exercise reasonable care to protect them against the 
       danger."

Id. at 125-26 (quoting Restatement § 343, at 215-16).  Additionally, section 343A 

provides:

       "'A possessor of land is not liable to his [or her] invitees for physical harm 
       caused to them by any activity or condition on the land whose danger is 
       known or obvious to them, unless the possessor should anticipate the harm 
       despite such knowledge or obviousness.'"

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No. 29906-6-III
Hymas v. UAP Distribution, Inc.

Id. at 126 (alteration in original) (emphasis omitted) (quoting Iwai, 129 Wn.2d at 94 

(quoting Restatement § 343A, at 218)).

       A landowner's responsibility for the condition of the land does not make the 

landowner liable for the negligent acts or omissions of an independent contractor. 

Lamborn v. Phillips Pac. Chem. Co., 89 Wn.2d 701, 708, 575 P.2d 215 (1978). In other 

words, "it does not make the landowner liable where the work of an independent 

contractor 'is of an unsafe nature or the defects are due to the imperfect and negligent 

work of the contractor himself.'" Phillips, 74 Wn. App. at 748 (quoting Epperly, 65 

Wn.2d at 786).

       In Golding v. United Homes Corp., 6 Wn. App. 707, 710, 495 P.2d 1040 (1972) 

Division Two of our court was called upon to consider "the nature of the duty owing 

under sections 343 and 343A by a possessor of land . . . to an invitee engaged in the 

performance of inherently dangerous work on the premises when the possessor exercises 

no control or direction over the performance of the contracted work."  

       The case was brought by an employee of an independent contractor killed while 

laying pipe, when the wall of a trench dug by his employer collapsed.  Id. at 708.  His

estate sued the landowner, claiming that it breached the duty owed him as a business 

invitee by failing to warn about the instability of the ground.  Id.  In affirming the trial 

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No. 29906-6-III
Hymas v. UAP Distribution, Inc.

court's grant of summary judgment in favor of the landowner, the court noted that the 

landowner 

       did not supervise the activities of the independent contractor or his 
       workman and did nothing affirmatively to increase the risk of harm inherent 
       within the nature of the work. The premises were safe when turned over to 
       the contractor, and knowledge concerning the nature and condition of the 
       soil upon the premises and the failure to take adequate safety precautions 
       thereafter, was as available to the contractor and his workmen as to the 
       defendant.

Id. at 711-12.  It also reaffirmed the general rule stated in Epperly that the owner of 

premises owes to the servant of the independent contractor employed to perform work on 

his premises the duty to avoid endangering him by the owner's own negligence or 

affirmative act, but owes no duty to protect him from the negligence of his own master.  

Id. at 712 (citing Epperly, 65 Wn.2d at 785).  

       Mr. Hymas strenuously insists that most of the cases relied upon by UAP for

landowner nonliability to an independent contractor's employee predate our Supreme 

Court's adoption of Restatement section 343A in Tincani, 124 Wn.2d 146.  He argues 

that in relying on these earlier cases, UAP is essentially asking us not to apply sections

343 and 343A.  But the principles of common law reflected in sections 343 and 343A do

not displace common law limitations on a principal's liability to an independent 

contractor's employees, which are themselves recognized at, e.g., Restatement §§ 409, 

413 and 414, as well as in the cases relied upon by UAP. Both sets of principles are 

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No. 29906-6-III
Hymas v. UAP Distribution, Inc.

recognized in Washington cases and each operates in its proper sphere.

       The scope of sections 343 and 343A of the Restatement extends beyond 

independent contractors and their principals; it encompasses the liability of every class of 

land possessor to every conceivable person invited onto property -- and for that matter, 

property as varied as a business establishment, a home, or raw land.  Sections 343 and 

343A focus on the land possessor's duty to prepare the land, or through warnings, the 

invitee, for entry of an invitee.  They do not deal with conditions an invitee might create 

and over which it might exercise control during its presence.  

       Sections 343 and 343A recognize that "[i]n determining the extent of preparation 

which an invitee is entitled to expect to be made for his protection, the nature of the land 

and the purposes for which it is used are of great importance."  Restatement § 343 cmt. e.  

By way of example, the comments observe that one who goes on business to the 

executive offices in a factory "is entitled to expect that the possessor will exercise 

reasonable care to secure his visitor's safety," yet he is not entitled to expect that special 

preparation will be made for his safety if he is invited to go on business into the factory 

itself.  In entering that workplace, the invitee "is entitled to expect only such safety as he 

would find in a properly conducted factory."  Id.

       Comments to sections 343 and 343A nowhere suggest that a landowner who has 

prepared its premises for entry by an invitee and protected the invitee from existing 

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No. 29906-6-III
Hymas v. UAP Distribution, Inc.

hazards has a duty to superintend the activities of the contractor following its arrival and 

commencement of work.  Comment e to section 343A states:

       In the ordinary case, an invitee who enters land is entitled to nothing more 
       than knowledge of the conditions and dangers he will encounter if he 
       comes.  If he knows the actual conditions, and the activities carried on, and 
       the dangers involved in either, he is free to make an intelligent choice as to 
       whether the advantage to be gained is sufficient to justify him in incurring 
       the risk by entering or remaining on the land.  The possessor of the land 
       may reasonably assume that he will protect himself by the exercise of 
       ordinary care, or that he will voluntarily assume the risk of harm if he does 
       not succeed in doing so.

Restatement § 343A cmt. e (emphasis added).  Where the landowner has discharged its 

obligation to prepare its land and warn or otherwise protect an independent contractor-

invitee, it is other principles of common law, reflected in the Restatement at sections 409-

429, that address the relative responsibilities of the owner and the independent contractor 

for the independent contractor's activities.  

       Viewed from the perspective of section 343A, common law governing the relative 

liabilities of the owner and contractor informs what the landowner "should anticipate."  

UAP turned raw land over to Narum.  Narum dug and framed the trench.  Mr. Hymas and 

Narum were well aware of the obvious dangerous condition, a five-foot-deep trench 

approaching the area of a football field.  Given Narum's unchallenged competence and 43 

years of performing concrete construction work, Mr. Hymas's 12 years of experience 

working as a concrete pump operator, Narum's express agreement to comply with safety

                                               30 

No. 29906-6-III
Hymas v. UAP Distribution, Inc.

laws and regulations, and Narum's and Mr. Hymas's awareness of the hazard, no 

reasonable trier of fact could find that UAP should have anticipated that Narum would 

allow Mr. Hymas to perform work, and especially distracting work, adjacent to the 

trench, without protecting him in some fashion from a fall.  See Kamla, 147 Wn.2d at 127 

(affirming summary judgment in favor of the landowner where the contractor's injured 

employee had experience working on the site and was acutely aware of the danger posed 

by an obvious hazard).

       Mr. Hymas nonetheless argues that Arnold v. Saberhagen Holdings, Inc., 157 Wn.

App. 649, 653, 240 P.3d 162 (2010), review denied, 171 Wn.2d 1012 (2011) correctly 

limits analysis of liability to the principles set forth in Restatement section 343A and 

supports his position that cases such as Epperly, Lamborn, Phillips, and Golding are 

inapposite.  Arnold involved the claims of the wife and son of an insulator at Lockheed

Shipbuilding Company's shipyard, exposed to the hazard of "'take home exposure'" to 

asbestos fibers through Lockheed's alleged breached of duty. 157 Wn. App. at 653. The 

court reversed the summary judgment dismissing the plaintiffs' claims against Lockheed 

as owner of the shipyard.  But its decision is consistent with our analysis and prior cases; 

it recounts substantial summary judgment evidence that Lockheed supervisors were on 

site daily, providing the insulation material to its contractors' employees that created the 

hazard, and even evidence that Lockheed not only retained actual control over safety but 

                                               31 

No. 29906-6-III
Hymas v. UAP Distribution, Inc.

may have retained even the contractual right of control.  Given the clearly distinguishable 

role assumed by Lockheed, a question of material fact was presented as to its ability to 

anticipate harm to its contractors' employees and family members exposed to asbestos 

fibers on their clothing.

       Mr. Hymas did not present evidence demonstrating a genuine issue of breach of 

UAP's duty owed him as an invitee and the trial court properly dismissed his premises 

liability claim.

       Affirmed.  

                                                ___________________________________
                                                Siddoway, J.

WE CONCUR:

___________________________________
Kulik, C.J.

___________________________________
Korsmo, J.

                                               32