Under Washington common law, property owners owe a duty of reasonable care to “invitees” (essentially, persons invited onto the land by the owner), which requires owners to inspect for dangerous conditions and to make such repair, safeguards, or warnings as may be reasonably necessary for the protection of invitees under the circumstances. On December 7, 2023, in the case Eylander v. Prologis Targeted U.S. Logistics Fund, LP, the Washington Supreme Court held that a property owner can contractually delegate such duty of care to its contractor controlling a construction project site on the property. The Court’s ruling underscores the importance of the safety protocol provisions often found in construction contracts, and the reasonable delegation of the Owner’s duty of care to the contractor.

Prologis Targeted U.S. Logistics Fund and Management LLC (collectively, “Prologis”) retained a roofing contractor, Commercial Industrial Roofing Inc. (“CIR”) to perform roofing maintenance and repair work on the roof of Prologis’s warehouse. The Court noted that Prologis selected CIR based on a positive recommendation from another property manager, and that CIR held itself out as a roofing company with the appropriate expertise, including compliance with safety laws and standards.

In the roofing contract between Prologis and CIR, CIR agreed to comply with laws requiring safety precautions, to provide CIR’s own safety program specific to the job site, and to post the safety plan on-site before performing the roofing work. CIR complied with its contractual safety plan and posting requirements. Because the roofing contract provided that CIR had discretion concerning its safety plan, CIR did not share the safety plan with Prologis. CIR did, however, share the plan with its employees. Jeffry Eylander (“Eylander”) was an employee of CIR who signed off on the CIR safety plan.

Eylander had a fatal accident when he was cleaning the edge of the roof at the Prologis job site. His CIR foreman warned him that he was getting too close to an unguarded sky light on the roof. Unfortunately, however, Eylander tripped and fell through the skylight while walking backward. Eylander fell 30 feet to the concrete floor and died as a result of the impact. The personal representative of Eylander’s estate (“Eylander’s Estate”) sued Prologis for wrongful death.

Eylander’s Estate argued that Prologis’s sole basis of liability arose from a landowner’s common law duty of reasonable care to “invitees,” as described above. The Washington Supreme Court held that Prologis satisfied its duty of care to Eylander by reasonably delegating its landowner duty of care regarding the roofing area to CIR.

There are two components of the Court’s ruling. For the first component, the Court reasoned that Prologis’s duty to render the roof area safe was expressly delegated to CIR under the roofing contract, which specifically required CIR to solely manage its own safety program. For the second component, the Court held that Prologis exercised reasonable care in making that delegation, by selecting a competent contractor that held itself out as having the requisite experience to manage the dangers posed by the roofing job site.

The outcome may have been different if CIR did not present itself as a safe roofing contractor, or if the contract provisions did not so expressly delegate the duty of care to CIR, or if the accident had happened to someone who was not employed by CIR and, therefore, may not have been covered by the safety plan.

Regardless of other possible outcomes under different hypothetical scenarios, the Eylander decision underscores the importance of construction contract provisions that relate to safety programs. Owners and contractors should consider whether to include provisions in the contract that obligate the contractor to become familiar with the laws and regulations regarding safety requirements, visit the jobsite and determine potential dangers, address potential dangers in safety programs, distribute and post the safety programs for all affected workers, and coordinate with other contractor trades as necessary.