In a case of first impression in Washington, the Washington State Supreme Court held that a landowner may satisfy its duty to guard an invitee “against known or obvious dangers on the premises by delegating the duty of protection to an independent contractor.”  Eylander v. Prologis Targeted U.S. Logistics Fund, LP, 539 P.3d 376, 384 (Wash. 2023) (emphasis added). The landowner may so delegate if: (1) the delegation is explicit in nature and the scope requires the independent contractor to assume the duty of exercising reasonable care to make the land safe for entry, meaning the delegation anticipates the harm of known or obvious dangers; and (2) the landowner exercises reasonable care in selecting a competent contractor with the proper experience and capacity to work in the presence of a known or obvious danger. Id. (citation omitted). 

Historically, in Washington, a landowner’s duty of care differs depending on the type of visitor on their property:  invitee, licensee, or trespasser.   An independent contractor’s employees are considered invitees. A landowner can be liable to such invitees if the landowner:

(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.

For a construction project, in particular, there can be a large number of both known hazards and invitees on the site, potentially exposing the landowner to substantial liability, a risk mitigated if the landowner properly delegates its duties to the prime contractor. In Eylander, the estate of Jeffry Eylander sued a landowner for wrongful death. The landowner had hired an independent contractor to perform roof maintenance. Mr. Eylander was an employee of the contractor and died after falling off the roof. The landowner conceded it owed Mr. Eylander the aforementioned duty of reasonable care because he was an invitee but argued it had delegated such duty to the roofing contractor. The estate argued the duty was nondelegable. The Court agreed with the landowner, holding that it had properly delegated its duty through a written contract and careful selection of the contractor.   

The Court cautioned, however, that a landowner may still face liability for jobsite injuries if it retains control over the work. Under the so-called retained control doctrine, a landowner “who exercises pervasive control over a work site” has a nondelegable duty to keep that work site reasonably safe for all workers. Therefore, by requiring certain safety protocols to be followed and exercising control over the site in an effort to protect workers, a landowner may actually unintentionally create liability for worker safety. Landowners should therefore be intentional in not only how they select their contractors and contract with them, but in exercising control over the jobsite.