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Who Is Mr. Stute?

And What Does His Case Mean In Washington?

Presented by Bradley K. Crosta, 2010 Seminar
Andre Stute was born and raised in Auburn, Washington. He graduated from Auburn High School in 1978 and began what he thought would be a life long career in the construction industry. When he was only 23 years old, Andre reported for work one day in March 1983, went out on the roof of a three-story building, slipped, and fell to the ground. The injuries he suffered were severe, permanent, and debilitating.

I have worked in the field of worker’s safety and health in Washington for the last 35 years. One of the most significant changes in construction safety occurred when the Stute v PBMC decision was handed down by the Washington State Supreme Court. Almost overnight, General Contractors in Washington were taking responsibility for the safety of everyone on their job site, not just their own workers. The safety and health of workers of subcontractors improved markedly as there was now one entity responsible to ensure that the entire worksite was safe, the General Contractor.

Andre Stute had been working that day without the benefit of any safety lines, scaffolding or other safety equipment. The injuries he suffered changed the course of his life and forced him out of the construction trade. The lawsuit he filed against the general contractor for failing to enforce safety regulations ultimately resulted in a ruling from the Washington Supreme Court that places the primary responsibility for job site safety on the general contractor, resulting in safer working conditions for construction workers throughout the State.

Andre Stute’s case is an excellent illustration of the dual role that tort law, which is commonly referred to as personal injury law, serves in our society. The first and most obvious purpose of the law is to provide compensation for individuals who are injured as a result of the negligent or intentional misconduct of others. The person or company responsible for causing the injuries is rightfully charged with responsibility for payment of the injured person’s medical expenses, loss of income, and reasonable compensation for the physical pain and emotional suffering of the injured party.

As courts in our state have frequently recognized, the broader purpose of tort law is to promote public safety by encouraging the implementation of reasonable safety precautions designed to minimize the risk of harm. While in a perfect world it would not be necessary to impose a threat of civil liability in order to encourage businesses and individuals to act with due regard to the safety of others, the fact is that in modern society it is often necessary and appropriate to encourage safe conduct by imposing responsibility in the form of monetary damages on those who willfully disregard prudent safety practices.

The general principles of liability in the law of torts are quite simple.
In order to establish liability for alleged wrongful conduct, three basic elements must be present:

  1. The existence of a legal duty;
  2. Violation of that duty;
  3. Harm directly resulting from the violation of duty.

The duty to take a certain action, or to refrain from certain acts, generally arises from either statute adopted by the Legislature, or basic principles found in the common law and enunciated in decisions by the Washington Supreme Court or Court of Appeals. Numerous examples of a legal duty to others are well known to anyone who operates a motor vehicle. The Rules of the Road set forth in Title 46 of the Revised Code of Washington establish the duties which must be followed by every driver, such as obeying traffic signals, yielding the right of way to oncoming traffic when making a turn, and obeying posted speed limits. A driver who violates one of these rules and causes harm to another person as a result of the violation will be held liable in a court of law for the injuries and damages suffered by the innocent victim.

When a person is injured as a result of the negligence of another party, the monetary damages which may be recovered by the injured person include all reasonable and necessary medical expenses, loss of income resulting from the injuries, and reasonable compensation for the physical pain and emotional suffering endured.

The law also provides for immunity from liability in certain situations. Of particular importance to the present discussion is the immunity afforded to employers under the Workers’ Compensation system adopted by the Washington State legislature in 1911. The system provides a statutory form of insurance for any worker in the State who is injured while in the course and scope of his or her employment. When an injury occurs on the job site, the injured worker is automatically entitled to payment of their medical bills and to compensation for a specific percentage of their loss of income. The payment of medical bills and time loss is granted as a matter of right and is not conditioned upon the worker being able to prove that there was negligence or any other wrongful conduct which might have led to the recovery of damages in a civil lawsuit. In return for this automatic payment of benefits, the worker forfeits the right to bring a lawsuit against the employer. The immunity from suit is not absolute, as there are certain exceptions for intentional acts, but in general, the employer is entitled to immunity from claims of negligence.

Prior to the 1990 Supreme Court decision in Andre Stute’s case, general contractors in the State of Washington faced very little risk of ever being held responsible for injuries occurring on the job site. Under the Workers’ Compensation system, the general contractor had almost total immunity from any claims brought by the general contractor’s own employees. In addition, it was very difficult to hold a general contractor responsible when employees of subcontractors on the worksite were injured. In 1978, the Washington Supreme Court decided a case called Kelley v. Howard S. Wright Construction, in which the Court established a limited right of recovery for injuries to subcontractors’ employees, contingent upon their ability to prove that the general contractor had retained specific control over the manner in which the subcontractor’s employees performed their work. Knowing that retaining a specific right of control might lead to liability, general contractors were able to almost entirely avoid civil liability for unsafe conditions on the job site by hiring subcontractors and allowing the subcontractors to specify their own manner and methods of performing their work.

This was the legal climate that prevailed in the 1980s when Andre Stute went to work for a gutter installation company known as S&S Gutters. Andre was only a few years out of high school and had tried his hand at a number of different occupations before settling on a career with S&S Gutters. He found that the specific work of this company was extremely well suited to his interests and abilities, and he quickly became a lead person for S&S Gutters, with responsibility for bidding jobs and supervising a crew of workers.

Andre’s employer was awarded a contract by a general contractor known as PBMC, Inc., to install gutters on a series of condominium buildings under construction in Kent, Washington. On the morning of March 13, 1984, Andre Stute reported for work as usual at the construction site managed by PBMC, Inc. Andre and his crew went to work on the third-floor roof of one of the buildings and were engaged in the process of installing gutters while working without the benefit of safety lines, scaffolding, or any other safety equipment required by the Washington Industrial Safety and Health Act. During depositions in the lawsuit which was later filed against PBMC, Inc., supervisors employed by the general contractor acknowledged that they were well aware of the fact that the employees of S&S Gutters, including Andre Stute, were working without the benefit of any safety equipment. It was also admitted that the general contractor’s supervisory employees had the authority to stop any obvious unsafe practices. Unfortunately for Andre Stute, none of the responsible parties that day took the initiative to order that the work be done in a safe manner. The roof was wet and slippery, due to recent rains. As Andre approached the edge of the building during the course of his work, he slipped and fell approximately twenty-eight feet to the ground. The injuries he suffered changed the course of his life forever.

As a result of his fall, Andre suffered fractures of three vertebrae, a broken bone in his foot, and a torn anterior cruciate ligament. Although he received excellent medical care at Valley Medical Center and his knee was skillfully repaired by a prominent orthopedic surgeon, Andre was not able to recover fully from his injuries and he was advised that he would never be able to do construction work again. He incurred over $11,000 in medical bills and was out of work for more than a year before he was able to return to a less strenuous, and less remunerative, form of employment.

While his medical bills were paid by the Department of Labor & Industries under the Workers’ Compensation system, and he received a fraction of his lost wages from the State, Andre was not able to enjoy anywhere near his former lifestyle and he had no funds available to seek retraining for another occupation. He consulted with lawyers knowledgeable in the personal injury field and ultimately a lawsuit was filed against the general contractor on the job site, PBMC, Inc. It was clear that PBMC had not retained control over the manner and methods of the subcontractor’s work, so there would be no liability under the principals enunciated in the Kelley v. Howard S. Wright decision. Andre’s lawyers believed that the general contractor had another duty, though: a duty to provide safety equipment required by WISHA regulations.

The Rules of Civil Procedure which apply to Superior Court cases provide a mechanism for judges to dismiss claims which are deemed to be of no merit. The procedure is known as a Summary Judgment, and as applied in personal injury cases, essentially provides that a case will be dismissed if a judge concludes that the laws of the State of Washington do not provide a remedy for harm that occurs under a specific set of facts. The summary judgment rule gives the injured party the benefit of the doubt as far as being able to prove the facts and requires the judge to decide whether or not the law provides a remedy under those specific facts.

In Andre Stute’s case, a King County Superior Court judge examined the facts concerning Andre’s employment and his fall and concluded that the law did not impose upon the general contractor a duty to provide safety equipment to the subcontractor’s employees. Having reached this legal conclusion, the judge dismissed the case.

Andre filed an appeal and his case then came before Division I of the Court of Appeals. A court commissioner in the Court of Appeals reviewed the case file and determined that the trial court judge was correct, meaning that Andre’s claim would not be reinstated. Andre’s attorneys then utilized a procedure under which a panel of judges in the Court of Appeals is asked to modify a commissioner’s ruling, but the three-judge panel which reviewed the commissioner’s decision agreed with both the trial judge and the court commissioner that Andre did not have a right to pursue his claim against the general contractor.

The case now having been reviewed by a total of five lower court judges (the trial court judge, Court of Appeals commissioner, and a three-judge panel of the Court of Appeals), Andre was left with only one final chance to succeed in his claim against PBMC, Inc. He filed a petition asking for the Washington State Supreme Court to review the decision of the Court of Appeals. An injured person does not have an absolute right for a case of this nature to be heard by the Supreme Court, and due to the volume of cases decided in the various divisions of the Court of Appeals, the Supreme Court historically accepts only one in about every fifty petitions for review. Fortunately for Andre Stute, the Supreme Court took an interest in his case and was concerned that perhaps the lower courts who had reviewed legal principals in two different divisions of the Court of Appeals had misinterpreted the applicable statutes, and for this reason, the Court elected to allow Andre Stute to pursue his case before the Supreme Court.

The case was argued before the Washington State Supreme Court in September 1989.

In a stunning decision that sent shock waves through the construction industry, the Supreme Court issued a unanimous decision on March 29, 1990, reversing all of the lower court decisions in Andre’s case, and allowing him to go back to Superior Court for a trial on his claim for damages. In reversing the lower courts, the Supreme Court ruled that the applicable statute, RCW 49.17.060, had been misconstrued by the lower courts and that the statute was intended by the Legislature to provide protection for employees on a job site. The statute in question provides:

Each employer:

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

The Supreme Court referred to a decision that had been announced some years prior, holding that the statute imposes two separate classes of duty. Subsection (1) imposed what was called a “general duty” on employers to protect only the employer’s own employees from recognized hazards not covered by specific safety regulations. The key to Andre Stute’s case is that the Court recognized the fact that subsection (2) does not include the limiting language that applied to “his employees” and that the protection was much broader. The Court said that subsection (2) of the statute imposes a “specific duty” to comply with WISHA regulations, and that the duty extends to not just the employer’s own employees, but to employees working on the site who could be harmed by violation of safety regulations.  Applying this rule to Andre’s worksite in 1983, the result is that PBMC, Inc., owed a general duty only to its own employees to provide a safe workplace, and owed a specific duty to comply with safety regulations for the benefit of all employees. PBMC, Inc., had a duty to Andre and his co-workers to follow all applicable safety regulations. Since the Court recognized that PBMC owed a duty to Andre Stute as an employee of a subcontractor, liability for his injuries could then be established by proving that the duty had been violated when PBMC, Inc. failed to provide any safety equipment on the site and that Andre had been harmed as a direct result of the violation of that duty.

Almost seven years after he had been injured, Andre was finally allowed to present his case to a jury in King County Superior Court. After relatively short deliberations, the jury returned a verdict in Andre’s favor, awarding him all of his medical expenses, compensation for the loss of income he had suffered, and general damages for the physical pain and emotional suffering he had endured in the years since his fall. The jury did take note of the fact that Andre had made the decision to work on the roof without using a safety line he could have obtained from his own employer, and the total verdict was reduced under the doctrine of comparative fault.

The Washington Supreme Court decision in Andre Stute’s case sent shockwaves through the construction and insurance industries. General contractors are now on notice that they may be held legally liable for damages in a civil lawsuit if employees of subcontractors are allowed to perform their work without necessary safety equipment, or in any manner which violates the requirements of administrative regulations promulgated under the authority of the Washington Industrial Safety and Health Act. The result has been a greatly heightened awareness of safety in the construction industry, and more stringent oversight by those who are in the best position to control the worksite, i.e., the general contractors. A general contractor in Washington who does not have a strong working knowledge of applicable safety regulations, and who fails to provide safety equipment and rigorously enforce regulations, faces the very strong likelihood of a civil lawsuit for damages in the event of the accidental injury or death of a worker in the employ of any other contractor on the job site.