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Bill Christenson is a Case Manager for CDR covering residential and commercial construction, analyzing building systems and specializing in concrete issues.

Bryce Given is Vice President of Operations for CDR.  He is also certified by RCI, Inc. as a Registered Roof Observer.

Mike Showalter is the founder and President of CDR.  He is also a licensed real estate broker and a former general contractor.

The CDR Bulletin

Articles on best-practices, safety, contractor responsibilities, and other issues important to the construction industry.

Tuesday
Jan172017

WISHA Compliance Extended to Homeowners

In 1990, the Washington Supreme Court held in Stute v. PBMC1 that a general contractor could be held liable for an injury to a subcontractor's employee that occurred as a result of a WISHA violation committed by that employee.  This rule (WRD 27.00) was subsequently extended to include any upper-tier subcontractor who, like a general contractor, has a non-delegable, specific duty to ensure compliance with all applicable WISHA regulations for “every employee on the jobsite,” not just its own employees.[1]  A general or upper-tier contractor is deemed responsible for protecting workers on the jobsite, including “any employee who may be harmed by the employer’s violation of the safety rules.” [2]

Subsequent lawsuits since 1990 have worked vigorously to extend this duty also to owner/developers, landowners whose independent contractors fail to comply with safety and health regulations, and now property owners and other employers, depending on the degree of control exercised and whether they control or create a hazard.  Examples of criteria for determining that a property owner falls under these regulations are:

  1. The essence of the contract with the contractor (whether written or verbal) is the contractor’s personal labor
  2. The homeowner is in some manner controlling or directing the contractor’s day-to-day activities such as:
  • Directing and/or supervising the contractor on how to do the work
  • Setting specific work hours, like workday start and end times, or lunch or rest breaks
  • Controlling how payment occurs, whether monetary or another form of compensation
  • Supplying materials, tools or equipment required to complete work activities.

On October 30, 2016, The Department of Labor and Industries expanded WRD 27.00. The basis for this expansive duty to ensure safety for all employees and non-employees on the jobsite arises from the top entity’s (general contractor, upper-tier contractor, owner, developer, landowner, etc.) “ innate supervisory authority,” which “constitutes sufficient control over the workplace.”[3]  The law determines that this entity is in the best position, financially and structurally, to ensure WISHA compliance.  Because this entity has authority to direct the working conditions on a construction site, they have ultimate responsibility under WISHA for job safety and health at the job site.

The general contractor (or any entity of similar position and authority) must demonstrate that it is meeting these responsibilities by fulfilling the following:

  1. must contractually require its subcontractors to provide all safety equipment required to do the job, or furnish the required safety equipment
  2. develop and implement an Accident Prevention Program
  3. develop a written site specific Safety Plan that addresses and coordinates the safety issues of all its subcontractors at the site
  4. require that a site specific Safety Plan is developed in a manner consistent with the relevant WAC regulations
  5. require its subcontractors to have Accident Prevention Programs and site specific plans consistent with the relevant WAC regulations
  6. develop a management plan
  7. make the Accident Prevention Program and all site-specific safety plans available and accessible
  8. develop a plan that will reasonably discover violations of its Accident Prevention Program or Safety Plan
  9. must show it has effectively enforced in practice its Accident Prevention Program and/or Safety Plan
  10. must provide contractual language that requires its subcontractors to comply with all safety rules
  11. must require its subcontractors to have and enforce a disciplinary schedule that will be followed by its subcontractors
  12. must include a method of documenting safety violations, as well as a method of recording what, if any, appropriate disciplinary action is taken

The extended reach of this ruling should especially alert homeowners because now they also can be issued citations for violating safety and health requirements if it is determined that they are acting as general contractors.  A citation raises the question of liability, which leads to the possibility of a lawsuit where the homeowner will have to defend himself against the claims being made.  If found liable, the financial implications can be huge.  Be informed before taking on this role!

 


[1] Stute, 114 Wn.2d at 456, 463-64; accord Kamla, 147 Wn.2d at 122 

[2] Afoa v. Port of Seattle, 176 Wn.2d 460, 471, 296 P.3d 800 (2013)

[3] Stute, 114 Wn.2d at 464

Tuesday
Sep202016

Ladders on the Job Site

September 2016

by Bill Christenson

We have all been around and used portable ladders on project job sites but have we been doing so in a safe and code compliant manner?  Ladder safety violations are one of the top ten cited rule violations during L&I inspections.  As an employer, one must have a competent person train all employees in the proper use of ladders.  Commercially purchased ladders (which should have a label indicating ANSI compliance) as well as field built ladders must meet the design and construction requirements of ANSI A14 ladder standards.

Ladders must be inspected by a competent person when first put into service and periodically thereafter.  Any structural damage to ladder components such as bent, broken, or split side rails and/or rungs renders the ladder as unusable.  Note that a damaged or defective side rail of a commercially manufactured ladder cannot be repaired by the user.

Proper selection of a ladder for intended use is required.  Nonconductive type ladders need to be used where exposed electrical hazards exist.  Stepladders are to be used only in the fully opened position and not as a non-self-supporting portable single ladder.  Setup of ladders is to be on firm and level support or the ladder must be secured to prevent displacement.  Ladders are not to be placed on other objects to gain additional height.  When using a ladder to access an upper level, the ladder must extend three feet above the landing surface. 

When climbing and descending ladders, the user must face the ladder and have both hands free to hold onto the ladder.  Working from a ladder requires the ladder to be secured at the top and bottom.  Fall protection must be provided when work on a ladder requires use of both hands and is more than 25 feet above the ground.

Ensure that ladders are properly and safely used on project sites by reviewing the full text of Washington State ladder requirements at www.lni.wa.gov/safety/rules/chapter/876/WAC296-876.pdfb .

Friday
Dec182015

Sidewalk Maintenance and Repair

December 2015

by Bill Christenson

Many of our residential neighborhoods and most municipal business districts have sidewalks along public right-of-ways providing public access throughout our communities.  Commonly, sidewalks are constructed with public funding by municipalities or as part of private site developments.  The general perception may be that maintenance and repair of these sidewalks is the responsibility of the city in which they are located, though this is not necessarily the case. 

The Revised Code of Washington (RCW) Chapter 35.69 allows city councils to place the duty, burden, and expense of sidewalk maintenance and repair upon the property owner directly abutting the improvement.  Several of our local cities including Seattle and Tacoma have adopted resolutions that require property owners to maintain sidewalks fit and safe for public travel.  The Seattle Department of Transportation and Tacoma Public Works Department identify several conditions for sidewalk repairs including:

·        Height differential or separation greater than ½”
·        Cracks, separation, or hole greater than 1” in width
·        Any piece of sidewalk that can be moved with ordinary foot pressure
·        Undermined sidewalks

Sidewalk repairs may include concrete grinding, slab jacking, filling of cracks and holes, tree root maintenance with an authorized arborist, or complete removal/replacement of damaged walks.  Repairs must also be performed in accordance with city current standards.  Most repairs will necessitate hiring a competent concrete contractor.

Typically sidewalk damages caused by city trees are the responsibility of the city.  The City of Seattle maintains an inventory of “city” trees that can be viewed at http://www.seattle.gov/transportation/treeinventory.htm.  Sidewalk damage caused by private trees may be the responsibility of the property owner.

Be aware that as an owner of commercial or residential property in Washington State, you may be responsible to keep the adjacent sidewalk properly maintained and repaired.  Check with your local municipality regarding sidewalk maintenance and repair requirements in your city.

 

Tuesday
Oct272015

Marijuana - Washington's Initiative 502

October 2015

by Mike Showalter

Washington is one of four States that allows recreational possession and use of marijuana. However under Federal law, marijuana remains a Schedule 1 substance under the Controlled Substances Act. That means that marijuana is in the same Schedule 1 category as Heroin, LSD, Mescaline, MDMA (ecstasy), GHB (date rape drug), and Quaaludes.  In Washington, distribution of marijuana remains a federal offense. Additionally, civil asset forfeiture laws allow the Federal government to seize property allowing illegal activity.

Under Recreational Marijuana Initiative 502, only licensed growers can cultivate marijuana and create edible marijuana products. Therefore it is illegal for anyone under the age of 21 to possess or use marijuana, or for anyone 21 years or older to possess or use publicly or to cultivate marijuana even for their own use.

Nondisclosure in real estate transactions can result in civil litigation and result in monetary damages or rescission of sale.  The Northwest multiple listing service (NW MLS) Seller Disclosure Form 17 # 7(J) asks “Has the property been used as an illegal drug manufacturing site?”  Homeowners and landlords should be strongly cautioned as to how they allow or restrict recreational marijuana possession and use.  Similarly, as condominium homeowners associations establish language governing recreational marijuana possession and use within their complexes, certainly it appears wise to prohibit cultivation.

For real estate Brokers, RCW 18.86.030 discusses Duties of a Broker: “(d) To disclose all existing material facts known by the broker and not apparent or readily ascertainable to a party; provided that this subsection shall not be construed to imply any duty to investigate matters that the broker has not agreed to investigate;”  Brokers who are aware that the tenants or sellers cultivated or possessed marijuana in excess of what is allowed in Initiative 502 may also have some liability should that disclosure not be made in Form 17 or separately by the Broker.

Wednesday
Jul012015

Cool Roofing

July 2015

by Bryce Given

Choosing a roofing type specifically for a flat roof is not an easy task for the uninformed. Over the past several years, there has been a push for lighter colored (cool) roofing.  Cool roofing is a hot topic when it comes to designing or replacing your home’s or commercial building’s roofing.  It is often considered because:

  •       designers and owners like the many color options beyond dark colored asphalt roofs
  •       many quality cool roofing products are offered
  •       ease of installation
  •       easily repaired
  •       long term material warranties
  •       relief of heat island effect above roofs

So, what is not so cool about cool roofing?  Through testing, field observations and published articles, roofing consultants and manufacturers are aware of a higher probability of condensation as a result of greater air temperature differences between joist cavities and the surface of the roofing.    Under these conditions there is an increased and prolonged ability for moisture to form under the roofing and in joist cavities.

Articles on roofing instruct that solar radiation is partially deflected from roofing surfaces, with the remaining radiation being absorbed into the roof and structure. With darker roofing, more heat is retained and greater drying in the joist cavity can occur.  Under cool roofing, less heat accumulates from absorption in the joist cavity.  This lower heat retention in the cavity space may lead to less drying and over time could cause greater buildup of moist air, which in turn condenses when it contacts a cooler surface such as the cool roofing or cooler roof sheathing.  Sufficient ventilation is critical to roofing and roof design, along with selection of the appropriate materials for the project.

The negative effects of cool roofing are most often seen on older buildings with insufficient roof ventilation, but can also be an issue in new construction if its unique properties are not properly taken into account in the design.  The roof membrane and underlayment are often specified along with building ventilation requirements, durability and aesthetic considerations. As a critical component of an integrated building system, roofing must meet building code and manufacturer specifications.