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    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II

IGNACIO CANO-GARCIA           and MARIBEL                        No.  41765-1-II
CANO, husband and wife, and the marital 
community comprised thereof,

                             Appellant,

       v.

KING COUNTY,           Washington, a local                  PUBLISHED OPINION
government entity in the state of Washington, 
and JACOBS CIVIL INCORPORATED, a 
Missouri Corporation,

                             Respondents.

       Penoyar, C.J.  --  Ignacio Cano-Garcia and Maribel Cano appeal the summary judgment

order dismissing their claims based on Cano-Garcia's1 workplace injury against King County and 

Jacobs Civil, Inc. (Jacobs).  Cano-Garcia was injured while working for the general contractor on 

a project King County owned and Jacobs monitored.  Cano-Garcia argues that he could establish 

facts at trial showing that King County and Jacobs each had a duty to protect him from injury.  

Considering the relevant contracts, the jobsite activities, and King County's ownership of the 

land, we conclude that neither King County nor Jacobs is liable to Cano-Garcia for his injuries.  

We affirm. 

                                            FACTS

       King County retained Kenny/Shea/Traylor ("KST") to be the general contractor on one 

phase of a multi-billion dollar regional wastewater treatment facility construction project called 

1 Ignacio Cano-Garcia and his wife, Maribel Cano, are both appellants in this case.  For clarity, we 
refer to the claims of the injured worker, Cano-Garcia, unless otherwise stated.   

41765-1-II

"Brightwater."  Because KST was one of approximately eight general contractors working on 

different aspects of the project, King County hired Jacobs, an engineering and construction 

management firm, to monitor several of the general contractors and to  make sure each one 

complied with the terms of their contracts with King County.  

       On December 5, 2008, Cano-Garcia suffered injuries while working for KST on the 

Brightwater project.   That day, KST transferred Cano-Garcia from another activity to the task of 

working on the concrete pour, which required wading in a mixture of concrete and water.  KST 

equipped Cano-Garcia with 15-inch-high boots and rain pants.  KST employee Joe Romo 

supervised Cano-Garcia at the concrete pour and gave him instructions.  Cano-Garcia, along with 

his coworker Mark Pointer, asked Romo for hip waders.  Romo told Cano-Garcia and Pointer 

that he did not have a key to the room where the waders were stored.  Cano-Garcia then used 

duct tape to tape his pants to his boots.  Romo assured Cano-Garcia that the height of the 

concrete would be between 3 inches to a little less than 15 inches.  Romo then left the area.  

       Cano-Garcia began working on the concrete pour around noon.  He worked until 

approximately 5:30 p.m.  The depth of the concrete mixture unexpectedly exceeded the height of 

his boots.  At some point, the duct tape system failed and the concrete mixture entered his boots, 

although he did not realize it until the end of his shift when he removed his clothes.  When Cano-

Garcia arrived at home, he called KST's safety manager.  The next day, when Cano-Garcia 

arrived at the jobsite, a KST employee took Cano-Garcia to seek medical attention.  Cano-Garcia 

eventually required skin graft surgery.  

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41765-1-II

       Cano-Garcia's employer, KST, is immune from suit under Washington's Industrial 

Insurance Act, RCW 51.04.010 et seq.2,  3    Cano-Garcia sued both King County and Jacobs, 

alleging that King County and Jacobs performed the functions of a general contractor and retained 

the right to control the manner in which KST's employees completed their work and, therefore, 

King County and/or Jacobs were liable for violating the Washington Industrial Safety and Health 

Act of 1973, chapter 49.17 RCW (WISHA), regulations and for common law negligence.  Cano-

Garcia sought past and future medical expenses, wage loss, general damages, and other expenses.  

Maribel Cano alleged loss of spousal consortium, emotional distress, general damages, and other 

expenses.  

       King County and Jacobs each moved for summary judgment.  The trial court entered 

orders granting King County's and Jacobs's summary judgment and dismissing all claims.  Cano-

Garcia appeals.

                                          ANALYSIS

I.     Standard of Review

       In an action for negligence, a plaintiff must prove the existence of a duty, breach of that 

duty, resulting injury, and proximate causation.  Alhadeff v. Meridian on Bainbridge Island, LLC, 

2 "Washington State has abolished workplace injury torts and established Title 51 RCW, the 
workers' compensation statutes.  RCW 51.04.010.  Under the statutes, an injured worker 
generally may not sue in tort, but is instead limited to recovering workers' compensation benefits 
from the Department [of Labor and Industries]."  Tobin v. Dep't of Labor & Indus., 169 Wn.2d 
396, 400, 239 P.3d 544 (2010).

3 Cano-Garcia received worker's compensation payments through the Washington Department of 
Labor and Industries in the amount of $27,571.64 for medical aid and $13,416.30 for time loss.  
The Department has filed a notice of statutory interest in  recovery in this case, notifying the 
parties of its right to be reimbursed.  
                                               3 

41765-1-II

167 Wn.2d 601, 618, 220 P.3d 1214 (2009).  Whether a duty exists in the negligence context is a 

question of law that we review de novo.  Aba Sheikh v. Choe, 156 Wn.2d 441, 448, 128 P.3d 574 

(2006).

       On appeal of a summary judgment order, we review the decision de novo, performing the 

same inquiry as the trial court.  Bostain v. Food Express, Inc., 159 Wn.2d 700, 708, 153 P.3d 846 

(2007); Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P.3d 1068 (2002).  Summary 

judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on 

file, together with the affidavits, if any, show that there is no genuine issue as to any material fact 

and that the moving party is entitled to a judgment as a matter of law." CR 56(c).  We consider 

all facts in the light most favorable to the nonmoving party.  Jones, 146 Wn.2d at 300.  Summary 

judgment is proper only if reasonable persons could reach but one conclusion from the evidence 

presented.  Bostain, 159 Wn.2d at 708.  The moving party bears the initial burden of showing the 

absence of an issue of material fact.  Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 

182 (1989).  The nonmoving party cannot merely claim contrary facts and may not rely on 

speculation, argumentative assertions that unresolved factual issues remain, or on affidavits 

considered at face value.  Meyer v. Univ. of Wash., 105 Wn.2d 847, 852, 719 P.2d 98 (1986).

II.    Statutory Duty

       Cano-Garcia argues that King County and Jacobs owed him a statutory duty of care under 

WISHA.  Appellant's Br. at 26.  We disagree.

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       A.     Cano-Garcia Must Show that King County and/or Jacobs Retained Sufficient 
              Control to Show Liability for Statutory Violations

       RCW 49.17.060(2)4 imposes a nondelegable duty on all general contractors to ensure 

compliance with WISHA regulations.  Kamla v. Space Needle Corp., 147 Wn.2d 114, 122, 52 

P.3d 472 (2002) (citing Stute v. P.B.M.C., Inc., 114 Wn.2d 454, 464, 788 P.2d 545 (1990)).  The 

Supreme Court in Stute imposed primary responsibility for compliance with WISHA regulations 

on the general contractor because it is an "employer" under WISHA and because its  "innate 

supervisory authority constitutes sufficient control over the workplace."  Stute, 114 Wn.2d at 457-

58, 464.

       Courts have extended the rule in Stute to jobsite owners who maintain sufficient control 

over the workplace or the work to justify imposing statutory liability.  See, e.g., Kamla, 147 

Wn.2d 114; Afoa v. Port of Seattle, 160 Wn. App. 234, 247 P.3d 482, review granted, 171 

Wn.2d 1031 (2011); Neil v. NWCC Inves., LLC, 155 Wn. App. 119, 128, 229 P.3d 837, review 

denied, 169 Wn.2d 1018 (2010); Doss v. ITT Rayonier, Inc., 60 Wn. App. 125, 803 P.2d 4 

(1991); Weinert v. Bronco Nat'l Co., 58 Wn. App. 692, 795 P.2d 1167 (1990).  Our review of 

this case law shows that liability flows to those who are in a position to control the actual 

implementation of safety standards in the workplace.

4 RCW 49.17.060(2) provides that each employer "[s]hall comply with the rules, regulations, and 
orders promulgated under this chapter."
                                               5 

41765-1-II

       In Weinert,5 the court held that the duty announced in Stute applied not only to general 

contractors, but also to jobsite owners who retain control or supervisory authority over the 

performance of a subcontractor's work. 58 Wn. App. at 696.  Similarly, in Doss, an employee of 

an independent contractor hired by ITT Rayonier was killed in an accident at the jobsite. 60 Wn. 

App. 126.  The estate alleged that ITT Rayonier violated a specific WISHA provision.  Doss, 60 

Wn. App. at 126-27.  The court noted ITT Rayonier was a jobsite owner and not a general 

contractor but, under the facts there, found "no significant difference . . . between an owner-

independent contractor relationship and a general contractor-subcontractor relationship."  Doss, 

60 Wn. App. at 127 n.2.  

       Most recently, in Afoa, another division of this court held that genuine material factual 

issues existed as to whether the Port of Seattle retained liability-creating control over an 

independent contractor that provided aircraft ground handling services.  160 Wn. App. at 236-37.  

Afoa was injured when a vehicle he was operating failed and he collided with a broken piece of 

equipment on the tarmac at Seattle-Tacoma International Airport.  Afoa, 160 Wn. App. at 237.  

The Afoa court was presented with evidence showing that the Port retained sufficient control to 

create a duty on the Port to make the work area safe.  Afoa, 160 Wn. App. at 244.  The Port's 

contrary evidence, at best, created a material factual dispute and did not entitle it to summary 

judgment.   Afoa, 160 Wn. App. at 244.

5 King County argues that Kamla  implicitly overruled  Weinert  to any extent  Weinert  is 
inconsistent with Kamla.  In its opinion, the Weinert court did not specify the details of the 
owner/developer's supervisory authority or activities in the workplace so it is impossible for us to 
discern whether that opinion is inconsistent with the rule we apply from Kamla to determine 
whether King County or Jacobs retained "control over the manner in which an independent 
contractor completes its work" sufficient to owe a duty to enforce safety rules on the jobsite.  
Kamla, 147 Wn.2d at 125.  
                                               6 

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       In contrast, the Supreme Court in Kamla held that under the facts of that case, the Space 

Needle's relationship with an independent contractor who installed a fireworks display did not 

justify imposing a nondelegable duty to ensure WISHA compliance.  Kamla, 147 Wn.2d at 

122 -- 24.  Kamla, an employee of the independent contractor, was injured when his safety line 

snagged on a moving elevator and dragged him through the elevator shaft.  Kamla, 147 Wn.2d at 

118.  The court reasoned that even though jobsite owners may have the authority to control 

jobsite work conditions, they may not have knowledge or expertise about WISHA regulations.  

Kamla, 147 Wn.2d at 124.  Because such jobsite owners cannot instruct contractors on how to 

work safely, they may rely on their contractors to ensure WISHA compliance.  Kamla, 147 

Wn.2d at 124 -- 25.  Accordingly, "[i]f a jobsite owner does not retain control over the manner in 

which an independent contractor completes its work, the jobsite owner does not have a duty 

under WISHA to 'comply with the rules, regulations, and orders promulgated under [chapter 

49.17 RCW].'" Kamla, 147 Wn.2d at 125 (alteration in original) (quoting RCW 49.17.060(2)).  

For this reason, the Supreme Court held that the Space Needle was not liable to the contractor's 

employee because it did not retain the right to control the manner in which the contractor and its 

employees accomplished their work.  Kamla, 147 Wn.2d at 125.  

       Similarly, in Neil, the court held that the jobsite owner was not liable to the injured 

employee where the owner only occasionally visited the jobsite, did not supervise the work being 

performed, did not have any experience or specialized training in construction or workplace 

safety, and did not provide instructions regarding safety or require certain safety procedures on 

the worksite.  155 Wn. App. at 128.  The court held that the duty in Stute "does not extend to 

owners that do not retain the right to control the manner in which the independent contractor and 

                                               7 

41765-1-II

its employees perform their work."  Neil, 155 Wn. App. at 127.  

       Notably, authority to merely inspect the work and demand contract compliance does not 

constitute "retained control." Kamla, 147 Wn.2d at 120 (quoting Hennig v. Crosby Grp., Inc., 

116 Wn.2d 131, 134, 802 P.2d 790 (1991)).  For example, in Hennig, our Supreme Court held 

that a contract authorizing the Port of Seattle to inspect an independent contractor's work to 

ensure contract compliance did not impose liability on the Port.  116 Wn.2d at 134.  Our Supreme 

Court stated, "'[t]he retention of the right to inspect and supervise to insure the proper 

completion of the contract does not vitiate the independent contractor relationship.'" Hennig, 116 

Wn.2d at 134 (quoting Epperly v. City of Seattle, 65 Wn.2d 777, 785, 399 P.2d 591 (1965)).  

Instead, an employer must have retained a right "to so involve oneself in the performance of the 

work as to undertake responsibility for the safety of the independent contractor's employees."  

Hennig, 116 Wn.2d at 134 (emphasis in original).  

       The Kamla court found the Restatement of Torts instructive on this issue:

              "[T]he employer must have retained at least some degree of control over 
       the manner in which the work is done.  It is not enough that he has merely a 
       general right to order the work stopped or resumed, to inspect its progress or to 
       receive reports, to make suggestions or recommendations which need not 
       necessarily be followed, or to prescribe alterations and deviations.  Such a general 
       right is usually reserved to employers, but it does not mean that the contractor is 
       controlled as to his methods of work, or as to operative detail.  There must be 
       such a retention of a right of supervision that the contractor is not entirely free to 
       do the work in his own way."

Kamla, 147 Wn.2d at 121 (quoting       Restatement (Second) of Torts § 414 cmt. c. (1965)) 

(alteration in Kamla); see also Arnold v. Saberhagen Holdings, Inc., 157 Wn. App. 649, 663, 240 

P.3d 162, review denied, 171 Wn.2d 1012, 249 P.3d 1029 (2010) ("The employer does not retain 

control by controlling the timing or order of work, by retaining the right to order the work 

                                               8 

41765-1-II

stopped, or by inspecting the contractor's work to ensure adequate progress."); Bozung v. Condo. 

Builders, Inc., 42 Wn. App. 442, 447, 711 P.2d 1090 (1985) ("[G]eneral contractual rights [such]

as the right to order the work stopped or to control the order of the work or the right to inspect 

the progress of the work do not mean that the general contractor controls the method of the 

subcontractor's work.").

       At the same time, evidence of actual control of the independent contractor by the jobsite 

owner is not necessary; rather, the test is whether the party contracting with the independent 

contractor retains a right to direct the manner in which the work is performed.  Kamla, 147 

Wn.2d at 121.  The right to control can exist even where the party does not actually interfere with 

the independent contractor's work.  Phillips v. Kaiser Aluminum & Chem. Corp., 74 Wn. App. 

741, 750, 875 P.2d 1228 (1994). 

       The dispositive question, then, is whether a material question of fact exists as to whether 

King County and Jacobs retained the right to control the manner in which KST and its employees 

performed their work such that King County and/or Jacobs were in a position to control the 

actual implementation of safety standards in the workplace.

       In evaluating this question, we must look beyond evidence of inspections, demands of 

contract compliance, suggestions or recommendations that did not necessarily need to be 

followed, prescriptions of alterations and deviations, receipt of reports, and authority to stop 

work or resume work.  The determination is fact-based and turns on factors such as whether, 

always viewing the evidence in a light most favorable to Cano-Garcia, King County and/or Jacobs 

retained control over the manner in which KST and its employees did their work, see Kamla, 147 

Wn.2d at 125; whether King County and/or Jacobs had "the greater practical opportunity and 

                                               9 

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ability to insure compliance with safety standards," Stute, 114 Wn.2d at 462 (internal quotations 

omitted); and whether the King County and/or Jacobs had "innate supervisory authority," Doss, 

60 Wn. App. at 128.  See also Afoa, 160 Wn. App. at 247 (discussing the above factors).  

Additionally, "[w]hether a right to control has been retained depends on the parties' contract, the 

parties' conduct, and other relevant factors."  Phillips, 74 Wn. App. at 750.  Finally, evidence of 

actual control can indicate retained control.  See Phillips, 74 Wn. App. at 750 ("One such factor 

is a principal/employer's interference in the work of the independent contractor; however, a right

to control can exist even in the absence of that factor.").   B.  Neither King County nor 

Jacobs Retained Control Sufficient to Impose Liability

              1.      The Contract Between KST and King County

       First, we look to the contract language to determine whether King County retained 

control over the safety of KST employees.  King County and Jacobs argue that the contract 

language makes it clear that KST had complete control over the manner in which it managed and 

supervised the day-to-day work of KST employees.  We agree.

       As a preliminary matter, Cano-Garcia argues that the disclaimers and indemnity provisions 

do not preclude liability because King County cannot disclaim nondelegable duties.  We agree that 

the contract language cannot defeat other evidence that shows retained control.  See, e.g., Afoa, 

160 Wn. App. at 241.  But we may review the contract language to determine the parties' intent 

regarding retained control.  Afoa, 160 Wn. App. at 241 ("The issue is whether the Port has a 

contractual relationship with [Afoa's employer] by which it retained control."); Phillips, 74 Wn. 

App. at 750 ("Whether a right to control has been retained depends on the parties' contract.").  

       Several contract provisions between King County and KST addressed control of the work 

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41765-1-II

and safety, generally ceding authority and responsibility for both to KST.  In section 1.09, "Job 

Site Safety," the contract specified that:

              The Contractor shall have the  "right to control" and bear the sole 
       responsibility for the job site conditions, and job site safety.  The Contractor shall 
       comply with all applicable federal, state, and local safety regulations governing the 
       job site, employees and subcontractors. 

Clerk's Papers (CP) at 113 (boldface original).  Other sections made similar pronouncements, 

such as section 3.1, "General Duties;" section 3.19, "Contractor's Overall Responsibility for 

Protection of Work, Property, and Persons;" and section 3.20, "Protection of Persons."      The 

contract also required that KST "take all reasonable precautions for the safety of all employees"

and to comply with OSHA and WISHA.  CP at 437.  In his deposition, Leon Maday,  King 

County's project representative for the contract with KST, confirmed, however, that King County 

had the authority to stop work for imminent hazards.  

       In section 4.6, "Tests, Inspections, and Access to the Work," the contract stated: "The 

County may, at any reasonable time and at its own cost, conduct inspections and tests as it deems 

necessary to ensure that the Work is in accordance with the Contract."   CP at 161-62.  But the 

contract noted that the inspections did not "[c]onstitute or imply acceptance." CP at 162.

       The contract required KST to prepare various safety plans and programs and keep the 

County apprised of those plans.  The County's role in these plans and their implementation was 

specifically limited: "The County's review of such programs shall not be deemed to constitute 

approval or acceptance thereof and shall not relieve or diminish the Contractor's sole 

responsibility for Site safety." CP at 160.  The Contract also stated, "It is not the intent of the 

County to develop, manage, direct, and administer the safety and health programs of contractors 

                                               11 

41765-1-II

or in any way assume the responsibility for the safety and health of their employees." CP at 440.  

       The contract did provide a role for King County and Jacobs in worksite safety and work 

inspection.  But this role was limited to obtaining and receiving information about KST's work 

and safety plans and their implementation.  And while King County could accept or reject plans 

and work and could even order that work be stopped for imminent hazards, King County had no 

authorityto tell KST how to perform its obligations under the contracts.  

       It is apparent that the parties' intent under the contractual language was that KST should 

have control over the workers' safety.  Although the contract language provided for inspections 

to ensure compliance with the contract and relevant laws and regulations and stop work authority 

if an imminent threat to safety arose, those powers alone are not enough to constitute retained 

control.  The limited general control Jacobs and King County retained in the contract did not 

create a duty on their part to inspect Cano-Garcia's protective clothing before he stepped into the 

concrete pour.  Next, we examine whether specific contract provisions Cano-Garcia identified 

change that result. 

              2.      Submittal Review Process

       Cano-Garcia contends that the submittal review process exhibits retained control.  We 

disagree.  

       The contract between King County and KST required that KST present several 

"submittals" for acceptance, including "all the technical submittals, all the method statements, 

[and] all the products they're going to use."   CP  at  304.   Several parties, including Jacobs, 

reviewed the submittals and made comments if necessary.  Jacobs could make recommendations 

to King County regarding whether the submittals met the state law requirements and otherwise 

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41765-1-II

complied with the contract.  King County could then choose to accept, ask for a revision, or 

reject the plan.  If King County accepted or made a note, work could proceed.  If King County 

asked for a revision or rejected the submittal, KST could not go forward without submitting a 

revised submittal.  

       King County's and Jacobs's employees testified that the purpose of the submittal review 

process was "simply to check that the contractor's plan includes the requirements of the contract"

and to "determine if [the submittal met] contract requirements." CP at 357, 303.  Jacobs's safety 

manager testified that Jacobs reviewed safety plans mainly for the purpose of ensuring the safety 

of Jacobs's employees while on site but that Jacobs could not tell KST to alter its safety plans.  

       The submittal review process does not constitute retained control.6 The process provided 

King County and Jacobs the opportunity to present comments and require revisions to the means 

and manner in which KST handled its work, including safety.  But neither King County nor Jacobs 

required a specific manner in which KST worked and ensured safety.  The submittal review 

process merely checked to make sure procedures KST used complied with the contract, including 

safety regulations, as well as other concerns such as timeliness and cost.  The submittal review 

process alone did not constitute retained control.

              3.      Safety Incentive Program

6 The submittal review process, along with all other communications between the various entities 
working on the Brightwater project, occurred on Autodesk's  "Constructware,"           a project 
management system used to store and access documents related to the project and all official 
communications regarding the project.  Cano-Garcia contends that the parties'            use of 
Constructware indicates that King County and Jacobs were acting as general contractors.  In fact, 
the Constructware program merely constituted a method of communication.  That King County 
and Jacobs used Constructware does not independently suggest any retention of control or 
inherent supervisory authority.  
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41765-1-II

       Cano-Garcia next argues that the mandatory safety incentive program constituted retained 

control.  We again disagree.

       The safety incentive program "specifie[d] a safety awareness program to encourage jobsite 

safety . . . based on certain performance criteria." CP at 219.  The program, administered by 

KST's Site Health and Safety Officer, set a goal "Project Incidence Rate"           and tracked 

"recordable" injuries.  CP at 219, 312.  The program also involved "Safety Evaluation Reports"

(SERs) every six months.  During a SER, an evaluating team made up of KST, King County, and 

Jacobs staff evaluated safety based on "efforts, implementation, effectiveness, and results." CP at 

219.  The SER team would look for "about 23 category items of all kinds of different things from 

maintenance to some paperwork to housekeeping to electrical items, fire protection items, all 

kinds of things like that." CP at 312.  KST could earn or lose money based on the results.  A 

corollary  "Employee Safety Incentive Program" encouraged employees to practice safety and 

required discipline of employees who did not report or pressured another employee not to report 

an accident or injury.  CP at 221.

       John Critchfield, Jacobs's project manager, testified that the SER process was merely 

"another way of checking compliance with the contract."     CP at 361.  We agree.  While the 

evaluating team completed the SERs in detail, including suggestions for improvements on safety, 

the safety incentive program intended only to encourage and enforce compliance with contract 

provisions relating to safety.  That alone does not constitute retained control.

              4.      Jacobs's Authority and Inspections

       Cano-Garcia next contends that Jacobs's contract with King County and the inspections 

Jacobs performed on behalf of King County constituted retained control.  Jacobs's duties included 

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41765-1-II

cost control and estimating, design review, community relations, schedule tracking, and contract 

and field inspection services.  

                                               15 

41765-1-II

       Subtask 151 of the contract between King County and Jacobs ("Safety Program 

(Revised)") stated:

       The construction contractors have responsibility for site safety per the construction 
       contract specifications.

              . . . .

       Health and Safety Program: For the Brightwater Conveyance project, the 
       [construction management (CM)] consultant's Safety Manager will provide a 
       written Health and Safety Program that identifies the requirements for construction 
       safety and the roles, responsibilities and authority for safety performance for the 
       CM.  The Safety Manager will provide recommendations to the CM and Project 
       Representative regarding review and approval of contractors' safety programs 
       (submittals).  The Safety Manager will be responsible to coordinate with all 
       contractor safety officers and safety officials representing emergency response 
       agencies, [OSHA] and [WISHA].  

CP at 229 (boldface original).  It continued, "The CM's safety expert will make periodic visits to 

project work sites, attend monthly safety meetings and work with the construction contractors'

safety staff to insure [sic] compliance with all safety requirements of the contracts." CP at 235.  

Jacobs also was required to ensure the safety of its own employees.  Also:

       The CM's safety expert will respond to safety issues that arise on the project and 
       coordinate emergency response planning with appropriate agencies.  The CM will 
       prepare monthly reports regarding the safety performance of the project, including 
       recommendations for improved procedures and methods to improve safety.

CP at 235.  Finally, "[t]he CM consultant staff has the authority to stop work immediately if they 

believe that the safety violation presents an immediate danger to life or health of the CM 

consultant staff or others on the construction site." CP at 235.  

       Jacobs's inspectors prepared "daily inspection report[s]." CP at 358.  The inspectors were 

also required to "note safety issues" and prepare "safety observation reports" if they noted lack of 

compliance with safety responsibilities under the contract.  CP at 358.  Jacobs's inspectors had 

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41765-1-II

authority to discuss safety problems with KST employees.  Normally a resolution would occur 

once the Jacobs inspector brought the safety issue to KST's attention.  

       Connie Krier, Jacobs's assistant safety manager when Cano-Garcia's injury occurred, 

testified that even if she saw a safety violation, she would "never tell them something needs to be 

done." CP at 347.  Instead, she would notify KST's safety manager of safety violations and "they 

would [make corrections] however they saw fit."      CP  at  347.  Critchfield,  Jacobs's project 

manager, similarly testified that Jacobs did not have authority to demand corrections, stating, "We 

have the authority to call to their attention something that does not [. . .] conform to the contract, 

and the County project representative would require the contractor to make that correction." CP 

at  369.  For example, a safety observation report noted unsafe conditions regarding KST 

employees again wearing rain gear duct taped to boots during a concrete pour after the incident.  

The "Immediate Corrective Action" notes stated:

              I called and spoke to Jack Finn and reminded him of past injuries that had 
       occured [sic] due to concrete pours.  Realizing he was not the general super at that
       time I refreshed his memory about KST's corrective measures of wearing Hip 
       wadders [sic] while working in concrete.  I explained [duct] tape around rainpants 
       onto boots was not proper protection.  I urged Jack to reconsider the PPE 
       [personal protective equipment] his employees were wearing today.  Jack said he 
       would have the employees wear hip wadders [sic].

CP at 280.  The contract language and testimony King County and Jacobs provided make it clear 

that Jacobs did not have authority to require that KST take certain actions.  

       The evidence Cano-Garcia presented is consistent with Jacobs's explanation of its limited 

authority during inspections.  Cano-Garcia's testimony suggested that Jacobs's inspectors 

interacted directly with KST employees to demand changes to behavior regarding safety.  

Specifically, Cano-Garcia testified that he had seen inspectors "mention[] something to someone 

                                               17 

41765-1-II

that was not wearing the protective eye gear." CP at 420.  But Cano-Garcia also testified "They 

did not give us any orders." CP at 420.  

       We note that Jacobs's inspectors were almost constantly present.  Critchfield testified that 

Jacobs's inspectors "track[ed] the activities of each shift in terms of what [was] occurring, more 

or less minute by minute throughout the course of the shift."  CP at 356.  Even taking this into 

consideration, however, Kamla  and the Restatement make it clear that inspecting, making 

suggestions or recommendations that need not necessarily be followed, and prescribing alterations 

and deviations is not enough to constitute retained control.  Just as a regulatory inspector who 

checks for compliance with safety regulations would not assume control for safety on the project, 

Jacobs's inspectors did not control the manner in which safety procedures were conducted.  

Evidence of inspections, daily reports, safety observation reports, and the safety evaluation 

scoring form are not sufficient to show a question of material fact as to retained control.

       We also note that the parties involved here were highly sophisticated and knowledgeable 

as to safety requirements and practices.  King County commonly handles complex construction 

projects.  Jacobs is a professional construction management firm with highly trained employees.  

King County and Jacobs had at least the same knowledge of WISHA standards and level of 

expertise as a general contractor.  But regardless of its level of sophistication, the type of 

authority granted to Jacobs would not be sufficient to actually ensure the protection of 

workers -- the authority to write a report that is then sent to King County for review that might 

result in a change does not have the same level of control as an employer who can demand 

immediate action to change unsafe habits.  Jacobs could intervene only when the situation 

involved imminent hazards.  Jacobs and King County did not actually ensure safety; they acted 

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only as a safety net to catch problems KST supervisors missed.  This alone cannot give rise to 

liability.

              5.      Other Conduct Indicating that King County Retained Control

       Cano-Garcia contends that several examples of project-wide coordination indicates that 

King County and Jacobs retained control.  Cano-Garcia also contends that an issue of material 

fact exists as to whether King County in fact acted as the general contractor on this project.  

       For example, Jacobs prepared a "Construction Management Organization" chart  that

tracked the interactions between King County, Jacobs, and KST.  Jacobs also prepared a "Project 

Master Schedule," which tracked the schedule of each aspect of the Brightwater project.  Maday, 

King County's project  representative,   testified that this schedule was an "overall project 

management tool for the county." CP at 320.  Maday testified "we work together and collaborate 

together to get the job done, which is to manage the KST contract and get the work completed 

per the contract." CP at 319.  Maday testified that Jacobs did not "schedule the work, they don't 

plan the work, they don't sequence the work, they don't do any of that.  That's for each 

individual contractor to meet his specific contract with the county." CP at 331.  Krier testified 

that the goal of sharing information is to "efficiently build the project as best that they are able."  

CP at 338.  

       Additionally, periodic progress and safety meetings were held that included representatives 

from King County, Jacobs, and KST.  Progress meetings involved discussions regarding the work, 

scheduling, and future work.  Safety meetings addressed safety issues.  Jacobs also held "team-

building workshops"    that included King County staff directly involved in construction 

management activities.  CP at 329.  Those workshops also included KST personnel.  "[T]he goal 

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of these meetings [was] to get all parties to function together as a team." CP at 329.

       Viewing the evidence in the light most favorable to Cano-Garcia, this evidence does not 

show that King County and Jacobs acted as a general contractor.  King County and Jacobs did 

not conduct certain activities generally done by a general contractor, including: provide 

equipment, schedule work, hire workers, provide procedures and rules, or require KST employees 

to comply with its rules.  For example, with the master schedule, Jacobs did not determine the 

schedule: it merely produced a schedule with information the general contractors provided in 

order to ensure communication and efficiency among the many parties working on this complex 

project.  

       A comparison to our opinion in Arnold is useful here.  In that case, we held that 

Lockheed, the jobsite owner in that case, acted as the general contractor:

              Lockheed constructed and outfitted naval ships at its Seattle shipyard in 
       accordance with the Navy's specifications. Lockheed employed its own workers 
       but also contracted out work to subcontractors. A 1968 contract between 
       Lockheed and Washington State Ferries designates Lockheed as "Contractor" and 
       states that Lockheed will complete work in accordance with stated specifications 
       while providing all "materials, labor, carriage, tools, [and] implements . . .  for 
       constructing and completing the work provided for in this contract."

Arnold, 157 Wn. App. at 662-63 (ellipses in Arnold, internal citations omitted).  Unlike the jobsite 

owner in Arnold, King County's and Jacobs's activities did not rise to the level of a general 

contractor. 

       Here, KST directed the day-to-day conduct on the jobsite.  For example, KST told Cano-

Garcia where to work each day.  KST told him what to do and how to do it.  KST also provided 

his personal protective equipment and his tools.  KST ran the "Take five" safety meetings that 

Cano-Garcia attended.  CP at 381.  KST employees would correct Cano-Garcia if they saw him 

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doing something unsafe.  KST employees would report safety issues to KST, not to Jacobs.  

       On the day of his injury, KST assigned Cano-Garcia to the concrete pour position.  KST 

transported him to that area.  KST's supervisor gave Cano-Garcia instructions.  Cano-Garcia 

requested waders from the KST supervisor.  A KST supervisor told him when he could stop for 

the day.  Cano-Garcia did see people standing from above the location of the pour, but he did not 

know who they were.  Cano-Garcia recognized that the KST supervisor "was the one in charge."  

CP at 376.

       Maday stated in his declaration, "[KST] has complete control over the manner in which it 

manages and accomplishes its work.  [KST] created the project schedule and supervises the day-

to-day work of its employees and subcontractors.  King County does not direct any of the day-to-

day work on the project, nor has it reserved the right to do so." CP at 149.  He continued:

              King County inspects [KST's] work for the sole purpose of ensuring 
       compliance with the contract.  King County contracted with Jacobs Civil, an 
       engineering and construction management firm, to inspect [KST's] work for the 
       sole purpose of ensuring compliance with the contract.  Neither King County nor 
       Jacobs Civil supervise [KST's] personnel or control the manner in which work is 
       accomplished -- they merely monitor the progress of the project to ensure that it is 
       proceeding as scheduled and conforms to the contract.

CP at 149.  He continued, "[KST] has sole responsibility for jobsite safety.  From time to time, 

the Jacobs' [sic] personnel might make general safety suggestions, but they are not safety 

monitors."   CP  at  149-50.  He also declared, "[KST] was responsible for acquiring and 

maintaining all materials, tools, and machinery necessary to execute and complete the project.  

King County has not provided any materials, tools, or machinery."     CP at 150.  Cano-Garcia 

testified that he did not know any King County employees involved in the project.  

       This evidence supports King County's and Jacobs's assertion that KST had complete 

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control over the implementation of safety plans.  KST acted as the general contractor.  Cano-

Garcia has presented no direct evidence, beyond his own conclusory testimony, that King County 

or Jacobs prescribed that KST complete the work in any particular way, except that it was 

required to do so safely and in compliance with all relevant laws.  Cano-Garcia has failed to show 

an issue of material fact as to whether King County and Jacobs retained the right to control the 

manner in which Cano-Garcia and his employer, KST, performed their work.  Therefore, the trial 

court did not err in granting summary judgment on these grounds. 

III.   Common Law Duty

       Cano-Garcia also argues there are material factual questions on whether King County and 

Jacobs owed him a common law duty to provide a safe workplace in the same manner as a general 

contractor that has control over the way in which jobs are performed at a construction site.  We 

disagree.

       In general, an employer who contracts with an independent contractor is not liable for 

injuries sustained by an independent contractor's employees.  Stute, 114 Wn.2d at 460; Kelley v. 

Howard S. Wright Constr. Co., 90 Wn.2d 323, 330, 582 P.2d 500 (1978); Restatement (Second) 

of Torts § 409 (1965). But where the employer retains control over some part of the independent 

contractor's work, the employer has a duty within the scope of that control to provide a safe 

place to work.  Stute, 114 Wn.2d at 460; Kennedy v. Sea -- Land Serv., Inc., 62 Wn. App. 839, 

851, 816 P.2d 75 (1991); Restatement (Second) of Torts § 414 (1965).  For example, in Kelley, 

the general contractor expressly assumed responsibility for "supervising and coordinating all 

aspects of the work" and "agreed to be responsible for 'initiating, maintaining and supervising all 

safety precautions and programs in connection with the work[.]'" 90 Wn.2d at 327.  As such, the 

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Supreme Court held that the exception applied and the general contractor's contractual duty of 

care to its subcontractor's employees was nondelegable.  Kelley, 90 Wn.2d at 333 -- 34.  

       Cano-Garcia argues this case is like Kelley and Afoa.  We disagree.  As discussed above, 

KST was an independent contractor.  King County and Jacobs did not retain the right to control 

the manner in which KST and its employees completed their work.  There is no issue of material 

fact as to the liability of King County and Jacobs and the trial court properly granted summary 

judgment on these grounds. 

IV.    Acting in Concert

       Cano-Garcia next argues that King County, Jacobs, and KST were acting in concert and 

therefore are each jointly liable for the negligence of any of the actors.  RCW 4.22.070(1) states in 

part:

       In all actions involving fault of more than one entity, the trier of fact shall 
       determine the percentage of the total fault which is attributable to every entity 
       which caused the claimant's damages except entities immune from liability to the 
       claimant under Title 51 RCW . . . .  (a) A party shall be responsible for the fault of 
       another person or for payment of the proportionate share of another party where 
       both were acting in concert or when a person was acting as an agent or servant of 
       the party.

(Emphasis added).  RCW 4.22.070 is not relevant here.  Application of that statute requires the 

fault of more than one entity.  "'Cooperation in a lawful enterprise, which results in harm to a 

third person through negligence, does not rise to the high level of concerted activity.'"  Gilbert H. 

Moen Co. v. Island Steel Erectors, Inc., 75 Wn. App. 480, 486, 878 P.2d 1246 (1994), rev'd on 

other grounds, 128 Wn.2d 745 (1996) (acting in concert involves an intentional combination of 

conduct and requires all tortfeasors to actively engage in the wrongful act) (quoting Gregory C. 

Sisk, Interpretation of the Statutory Modification of Joint and Several Liability: Resisting the 

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Deconstruction of Tort Reform, 16 U. Puget Sound L. Rev. 1, 107 (1992)) (emphasis omitted).  

Because Cano-Garcia has proven only that KST is at fault, no joint liability can arise under RCW 

4.22.070.7

VII.   Business Invitee Theory

       Cano-Garcia also argues that King County breached a duty of care it owed to him as a 

business invitee on the premises.  Because Cano-Garcia did not make this argument at the 

summary judgment stage, we decline to address it.  Cano-Garcia raised this claim in his complaint.  

Cano-Garcia did not, however, raise this issue in his pleadings in opposition to summary 

judgment, argue this theory at the hearing, submit evidence in support of this theory, or object to 

the trial court's order dismissing all claims.  Issues and contentions neither raised by the parties 

nor considered by the trial court when ruling on a motion for summary judgment may not be 

considered for the first time on appeal.  RAP 9.12; Green v. Normandy Park Riviera Section 

Cmty. Club, Inc., 137 Wn. App. 665, 687, 151 P.3d 1038 (2007) (contention that was pleaded, 

but not raised in opposition to summary judgment, cannot be considered for the first time on 

appeal).  Because he failed to raise this argument to the trial court at summary judgment, Cano-

Garcia failed to preserve this argument.8

VIII.  Consideration of Inadmissible Evidence

       Finally,  Cano-Garcia argues that the trial court improperly considered evidence of 

7 Cano-Garcia argues that Jacobs acted as King County's agent.  Because there is no basis for 
liability for King County, we decline to consider this argument. 

8 Cano-Garcia argues that Afoa, issued after the trial court's ruling on summary judgment, 
somehow revived his business invitee theory.  Cano-Garcia cites no authority for his argument 
that a subsequently-issued opinion on a similar issue should revive his abandoned argument and 
we reject it.  
                                               24 

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worker's compensation payments and the fault of the immune entity KST.  Here, the trial court 

raised the issue of Cano-Garcia's worker's compensation payments when discussing at the 

hearing whether granting summary judgment would undermine the purpose of the Stute rule, 

which is to encourage those in the best position to enforce compliance with safety regulations to 

do so in order to protect workers.  Stute, 114 Wn.2d at 464.  

       A trial court may not consider inadmissible evidence when ruling on a motion for summary 

judgment.  King County Fire Prot. Dist. No. 16, v. Hous. Auth., 123 Wn.2d 819, 826, 872 P.2d 

516 (1994).  We presume the trial court disregarded any inadmissible evidence.  See State v. 

Melton, 63 Wn. App. 63, 68, 817 P.2d 413 (1991) ("A trial judge is presumed to be able to 

disregard inadmissible evidence.").  Assuming without deciding that the contested evidence was 

not admissible and that this argument is properly preserved, that inadmissible evidence was 

presented to the trial court, without more, does not require reversal.  The record shows no 

improper reliance on inadmissible evidence.  No error resulted here.

       Affirmed.

                                                           Penoyar, C.J.

We concur:

       Armstrong, J.

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       Quinn-Brintnall, J.

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