Massey v. Tube Art Display, Inc.
15 Wash. App. 782, 1976 Wash. App. LEXIS 1478, 551 P.2d 1387 (1976)
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Rule of Law:
An employer has a non-delegable duty to take precautions against harm when engaging in inherently dangerous activities and is vicariously liable for a worker's negligence if the employer retains the right to control the specific instrumental acts that caused the injury, even if other factors suggest the worker is an independent contractor.
Facts:
- Tube Art Display, Inc. (Tube Art) contracted to reinstall a large sign for a realty company at a new location.
- Tube Art obtained a city permit for the installation.
- A Tube Art employee marked a 4-by-4-foot square on the asphalt surface of a parking lot and indicated a required depth of 6 feet for the excavation.
- Tube Art hired Richard F. Redford, a backhoe operator, to dig the hole at the precise location and to the exact dimensions specified.
- On the evening of February 16, 1972, while excavating, Redford's backhoe struck a natural gas pipeline.
- Redford inspected the pipe, concluded it was not in use as he saw no signs of a leak, and left the site without reporting the incident.
- Several hours later, in the early morning of February 17, 1972, a gas explosion and fire occurred in the adjacent building serviced by the pipeline.
- The explosion and fire killed two people and destroyed property belonging to tenants, including John Massey.
Procedural Posture:
- John Massey, a tenant, sued Tube Art, Richard Redford, and others in a state trial court for the destruction of his property.
- The trial judge ordered a bifurcated trial, separating the issues of liability and damages.
- The jury returned a verdict on the liability issue in favor of Massey and against both Tube Art and Redford.
- After a trial on damages, the jury awarded Massey $143,000.
- The trial court entered a judgment on the verdict and denied Tube Art's motion for a judgment notwithstanding the verdict (n.o.v.) or for a new trial.
- Tube Art, as appellant, appealed the judgment to the Washington Court of Appeals, with Massey as the appellee. Redford did not appeal.
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Issue:
Does an agency relationship exist, making a principal vicariously liable for a worker's negligence, when the principal specifies the precise location and dimensions of an excavation but does not control other aspects of the work?
Opinions:
Majority - Swanson, J.
Yes. An agency relationship exists because the principal's right to control the worker's physical conduct is the essential factor in determining vicarious liability. The court found that while Redford possessed many characteristics of an independent contractor (owned his own equipment, set his own hours, was paid by the job), Tube Art retained and exercised control over the most critical and hazardous aspects of the work: the precise location and dimensions of the excavation. Redford had no discretion regarding these elements. This right of control over the specific activity that led to the negligence was sufficient to establish an agency relationship and impose vicarious liability on Tube Art. Furthermore, the court offered an alternative basis for liability, holding that even if Redford were an independent contractor, excavation with a backhoe near a commercial building is an inherently dangerous activity. This creates a non-delegable duty for the employer, Tube Art, to ensure proper precautions are taken, a duty it cannot escape by hiring a third party.
Analysis:
This case clarifies that the 'right of control' test for agency can be satisfied by controlling the specific, risk-creating activity, even if general control over the worker is lacking. It significantly limits an employer's ability to avoid liability by classifying a worker as an independent contractor when the employer dictates the most hazardous details of the job. Additionally, by invoking the non-delegable duty for inherently dangerous activities as an alternative holding, the court provides a powerful secondary legal theory for holding employers accountable for high-risk work they commission, thereby strengthening protections for third parties injured by such operations.
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