General Contractor’s Duty to Non-Employees Expanded in Aucoin v. C4Digs
The Washington Supreme Court recently denied review of the appellate decision in Aucoin v. C4Digs 32 Wash. App. 2d 103, 555 P.3d 884 (2024), signaling a significant expansion of the duty of a general contractor to maintain a safe workplace beyond duties owed to its own employees and beyond the physical space of the “worksite.” In Aucoin, a subcontractors employee operated a forklift delivering pavers to the work site and was fatally injured after being directed by the General Contractor to a sloped area adjacent to the worksite because the delivery entrance normally used to offload building materials was closed. The forklift driver was killed when the forklift toppled on the uneven slope on the adjacent property.
Th subcontractor’s estate made a claim against the General Contractor for failure to maintain a safe workplace pursuant to WISHA and the common law as set out in Stute v. PBMC, Inc 114 Wn.2d 454, 788 P,.2d 545 (1990) and its progeny. Whereas Stute expanded the General Contractor’s “non-delegable duty” to employees of subcontractors on the job site, the Court in Aucoin extends the General Contractor’s duty to any area where it retains the right to control areas adjacent to the actual physical boundaries of the worksite.
The Estate’s claims were initially dismissed by the trial court on summary judgment The trial court agreed and dismissed the claims on summary judgment. On appeal, Division I reversed, holding that the contractors’ statutory and common law duties to maintain a safe workplace extend to areas outside of the construction site as long as the contractors have and retain the right to control the work performed in those areas. The court based its decision on prior case law indicating that the fundamental basis for a contractor’s duty to maintain a safe workplace is the contractor’s right and ability to control the manner in which work is performed. Such control involves “authority over work conditions and the ability to implement safety precautions.” Aucoin, 32 Wn. App. 2d 103, 115, 555 P.3d 884 (2024).
Simply put, Aucoin stands for the proposition that, “if there is control … there is duty.” Id. at 113. The importance of this decision is that the duty extends to those activities where there is actual control, or the right to control, notwithstanding whether the activity occurred within the physical dimensions of the work site.