In our continuing coverage of the ill-conceived opinions of Justice Jim Johnson, we bring you not one, not two, but four opinions. Why four? Because The Prof is taking a much-deserved vacation in the Methow Valley. This of course meant a day of just relaxing in Leavenworth, whereby I discovered the joy that is the Big Boy Brat. Throw some stone ground mustard and some sauerkraut on that bad boy and call it good.
Anyhow, here’s a few opinion for your perusal:
The first of the day: Davis v. Baugh, where, according to Jim, even though outdated precedent had run its course, had grown out of line with the statutory scheme, and shielded subcontractors no matter how badly they were negligent:
Date: July 23, 2010
Contact: Brendan Williams, (360) 791-3979
In 2007′s Davis v. Baugh, the Court got right to the heart of the matter: a man was killed due to the negligence of a company. Our judicial system is based upon the idea that punishing that kind of wrongdoing is not only fair, it is the only way to create a deterrent that helps prevent future criminal behavior. This point—that the court has a purpose in crafting strong language in the public interest—is critical to understanding the lengths Johnson was willing to go in his dissent, using dense legal language in an attempt to keep the company off the hook.
Baugh was a subcontractor who completed a subterranean pipe network for Glacier Northwest on a larger project. Glacier employed Alan Davis, who was sent to inspect the pipes when it was noticed, after installation, that they were leaking. As he was doing this, two ton-and-a-half portions of the pipe fell on him, crushing and killing him.
The portion of the pipes that failed was found to be structurally unsound. But for Baugh’s failure to recognize this before providing the pipes for installation, resulting in the predictable failure, Davis would still be alive.
His tragedy is easy enough to understand. What is not as easy to understand is the conflict that was created in the law when Alan Davis’s family sought justice in the courts. Most perplexing of all was Johnsons’ refusal to help clarify the law in a way that gives working people like Alan Davis the protections they are entitled to in a situation like this.
The laws protecting victims from injury caused by another party’s negligence come to us from England centuries ago. They are called ‘common law’, and which is refined and updated by judges over the years. One such common law element at play in this case was the doctrine of completion and acceptance.
Completion and acceptance meant that once an independent contractor finished their work and it was accepted by the owner, liability for injuries ends. This cutoff occurs no matter how negligently the work was performed. The court rejected this doctrine as “outmoded, incorrect, and harmful.”
Prior to this case, the Court hadn’t addressed the completion and acceptance issue for 40 years. In that 40 years our Legislature passed statutes which govern construction liability and created workplace safety regulations for the benefit of all working people. The very common law foundations of the completion and acceptance doctrine had been abandoned by the court, and the doctrine itself was rejected in 37 other states. With the range of materials used and complexity of construction projects greatly expanded, the number and importance of subcontractors had steadily increased over the years. The very nature of the construction industry had changed.
That is why under modern law construction contractors are liable for injury or damage due to negligence after acceptance as long as it is reasonably foreseeable that the injury could occur.
Washington’s Supreme Court agreed, saying, “We have put the source of the obligation where it ought to be.”
It was necessary to place the obligation of responsibility for injury on negligent subcontractors to protect injured workers, bystanders, and other construction companies. The ancient legal scheme had run its course, and was superceded by new statutes and the development of the common law. But Johnson, per usual, sides with the negligent wrongdoers, not the victims or good public policy.
That part is expected. What is ironic is his sudden (misguided) concern about judicial activism. In his defense of keeping the company unaccountable for the death of Davis, Johnson argues that “without the stabilizing effect of stare decisis, “law could become subject to … the whims of current holders of judicial office.”
True, except for the fact that this decision moves Washington law in line with common sense, public interest, already changed legal precedent, and legislative updates. And unlike the manytimes Johnson has been accused of judicial activism, the Court here is advancing its own common law, not manipulating the intent of statutes created by the Legislature.
In an effort to fairly portray his position, it should be clear that Johnson also tries to make this case about “allow[ing] private contracting parties to continue to craft mutually beneficial and voluntary contract agreements for construction.” Of course, the majority takes the time to remind him this case is about tort law, not contract law, writing, “Thus, we respectfully disagree with the dissent that this case implicates any questions regarding contract interpretation in any way.”
But in the end, despite all the legal posturing, this case is very simply about preventing companies from negligently killing people with no accountability. The Supreme Court stood up and said it was wrong. Justice Johnson dissented.
His reason? “This rewriting of our law will cost consumers in the long run.” This is debatable, but before this, companies were allowed to kill people like Alan Davis for free.
For the opinions in this case, visit http://scholar.google.com/scholar_case?case=11653189741185350761&hl=en&as_sdt=2&as_vis=1&oi=scholarr