Hiring An Outside Contractor? You're On the Hook
Jany K. Jacob
(Reprinted from Seattle Daily Journal of Commerce)

        According to a recent Washington Court of Appeals case, an employer may be held liable for the acts of an independent contractor hired to dispose of environmental wastes when the independent contractor’s improper disposal causes injury to another party. In Hickle v. Whitney Farms, Inc., two food corporations operating industrial factories in Prosser, Washington hired an independent contractor, Whitney Farms, to haul away and dispose of wastes from their factories. The wastes—including fruit pomace and spent diatomaceous earth—were the by-products of fruit juice production. Fruit pomace refers to stems, seeds and other fruit waste; diatomaceous earth is used to filter out items smaller than stems and seeds in fruit juice.

        The facts as reported in the opinion are as follows. Whitney Farms first contracted with one of the two corporations in 1973 and with the other in 1989. The contracts executed between the parties required Whitney Farms to comply with all applicable laws and regulations governing the hauling away and disposal of the wastes. Whitney Farms’ employees illegally buried the two corporations’ wastes in a large pit on a farm in Benton County, Washington belonging to Whitney Farms and covered the pit with soil. This dump site was unlicensed and violated statutes and regulations pertaining to the disposal of wastes. The fruit pomace in combination with the diatomaceous earth subsequently underwent the process of spontaneous combustion and resulted in a burning covered pit on the independent contractor’s land. The temperature of the burning waste materials and ash in the smoldering pit exceeded 500 degrees Fahrenheit. The contractor also did not post a warning sign at the dump site or in any way identify the covered pit as a dump site for environmental wastes. The Whitney Farms’ property also did not display any “No Hunting” or “No Trespassing” signs.

        On October 26, 1996, Phillip Hickle, a minor, was hunting on the Whitney Farms’ property. He stepped onto the covered pit which then collapsed and caused him to fall into the pit that was on fire. The boy was severely burned and lost both of his legs below the knee and partial use of one of his hands. His parents sued the independent contractor and the two corporations that hired the independent contractor for injuries sustained by their son.

        The general rule under Washington law is that the employer of an independent contractor is not liable for the acts of the contractor. However, the Court of Appeals stated that there are exceptions to this general rule. One such exception is that an employer may be liable for the acts of an independent contractor if the employer either causes or sanctions the independent contractor’s illegal conduct. A second exception is that the employer may be liable for the acts of an independent contractor if a statute or regulation requires the employer to implement specific safeguards for the safety of other parties and the employer fails to do so. The Appeals Court then pointed out that statutory and regulatory guidelines impose such a nondelegable duty on the corporations for “dangerous wastes” under RCW Chapter 70.105, Washington’s Hazardous Waste Management Act.

        The Court of Appeals sent the case back to the trial court to determine from the evidence in the record whether the corporations knew that the independent contractor was illegally dumping the corporations’ waste on the Whitney Farms property, and, if they knew, whether they sanctioned the illegal dumping. There was some evidence introduced into the record that state governmental agencies had repeated informed the corporations that their wastes were not being dumped in a licensed landfill and further evidence of complaints by neighbors of smoke coming from the Whitney Farms property.

        The Court of Appeals also directed the trial court to take expert testimony to determine whether the fruit pomace and spent diatomaceous earth constitute “dangerous wastes.” RCW 70.105.010(5) defines “dangerous wastes” to include “any discarded. . .substances. . .which are disposed of in such quantity or concentration as to pose a substantial present or potential hazard to human health. . .because [of] such wastes or constituents or combinations of such wastes.” Also, “ignitability” is a characteristic of a dangerous waste under the statute. The wastes in the Hickle v. Whitney Farms, Inc. case had clearly ignited. The court also pointed out that there was expert testimony in the record that one of the characteristics of fruit pomace and diatomaceous earth is spontaneous combustion.

        The policy behind the court’s decision to not let the employer off the hook on summary judgment is the same policy advanced in many of the environmental cases in our state. The Appellate Court has made it clear that, under Washington law, corporations will not be able to insulate themselves from liability by handing over undesirable tasks to independent contractors. Environmental waste contractors, thus, should expect more involvement by the corporations that they contract with as a result of this decision and the contract language used may become more comprehensive.