A commercial building does not have sufficient anchors for window washing equipment, and the employee of a window washing contractor tragically falls to his death. Is that situation the building owner’s problem or the contractor’s problem? A California appeals court has held that the building owner was not liable, as the contractor had responsibility for safety, and there was no “affirmative conduct” of the owner contributing to the accident.

It appears that the window washing crew attached a primary line to an angle iron support for a rooftop HVAC unit, and did not attach any secondary safety line (contrary to the contractor’s own safety policies). The angle iron gave way, allowing the worker to fall.

There are regulations governing building owner duties and obligations, and the plaintiffs pointed to one provision in particular. California Code of Regulations Section 3282(p)(1)(A) states in relevant part: “Building owners shall provide the employer written assurance, before use, that all their building's safety devices and equipment meet the provisions of these orders. The written assurance shall consider, but not be limited to: window anchors and fittings . . .”

Per the court, the building owner did nothing more than provide access to the roof, and allow the contractor to determine how the window washing work was to be performed. Further, the appellate court held that, assuming the owner failed to provide safety devices meeting the building code, it had not directed the contractor to use those devices:

Although plaintiffs concede that [the contractor] had exclusive control over how the window washing would be done, they urge that [the building owner] nonetheless is liable because it affirmatively contributed to decedent's injuries "not [by] active conduct but . . . in the form of an omission to act." Although it is undeniable that [the building owner]'s failure to equip its building with roof anchors contributed to decedent's death, [prior California case law precedent] does not support plaintiffs' suggestion that a passive omission of this type is actionable.

Some prior cases involved situations where the building owner provided equipment to be used, such as forklifts, and the California court distinguished those fact patterns from the current situation. When the contractor proceeded with what turned out to be inadequate anchors, without any direction or input from the building owner, it became the contractor’s responsibility to ensure the work could be conducted safely. And the building owner was not liable for the tragic outcome.

The case is Delgadillo v. Television Center, Inc., 2018 Cal. App. Unpub. LEXIS 790 (Feb. 2, 2018).