No. 3018S-I-III
Millican v. NA. Degerstrom, Inc.
estate and claiming rights as a statutory beneficiary, she brought a wrongful death action
against the general contractor, N.A. Degerstrom Inc., and others. The jury returned a
defense verdict from which Ms. Millican appeals.
Ms. Millican contends on behalf of her son's estate that the trial court erred in (1)
admitting evidence that Degerstrom contractually delegated sole responsibility for the
safety of employees to its subcontractors, (2) denying the estate's motion for a new trial,
and (3) refusing to instruct the jury that Degerstrom owed a duty to the public traveling
through the construction site. She argues individually that the court erred in dismissing
her claims on the basis that she did not qualifY as a statutory beneficiary.
We conclude that it was an abuse of discretion for the trial court to deny the
estate's motion seeking to limit Degerstrom's evidence and argument that it required Mr.
Lafayette's employer to assume sole responsibility for the protection and safety of its
own employees. Degerstrom's mischaracterization to this effect pervaded its
presentation and could not be cured by the concluding instructions to the jury. The estate
and Ms. Millican fail to demonstrate any other error, however.
We affirm the trial court's dismissal of Ms. Millican's individual claim but reverse
the judgment on the jury's verdict and remand for a retrial of the estate's claims.
FACTS AND PROCEDURAL BACKGROUND
In April 2005, the United States Department of Transportation Federal Highway
Administration awarded N.A. Degerstrom Inc. a contract to improve a five-mile stretch
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Millican v. NA. Degerstrom, Inc.
of Flowery Trail Road. Degerstrom subcontracted with Sharp-Line Industries Inc. to
install signs and paint road stripes. The subcontract agreement required Sharp-Line to
indemnity Degerstrom from any liability it suffered as a result ofSharp-Line's
negligence. The subcontract also contained the following provision imposing
responsibility on Sharp-Line for work site safety:
Subcontractor accepts responsibility to prevent accidents to any person who
may be close enough to its operation to be exposed to Subcontractor's
work-related hazards. Subcontractor shall be solely responsible for the
protection and safety of its employees, for final selection of additional
safety methods and means, and for daily inspection of its work area and
safety equipment. Failure on the part of Contractor to stop unsafe
Subcontractor practices shall in no way relieve Subcontractor of its
responsibility hereunder. Subcontractor shall conform to Contractor's site
specific safety planes) and policies as directed by Contractor in writing or
by Contractor's project supervisor.
Clerk's Papers (CP) at 3227.
One ofSharp-Line's vehicles used on the Flowery Road project was a 1978
Chevrolet auger truck used to drill holes in the ground for sign posts. The truck was
equipped with outriggers, which were extended to stabilize it while the auger was being
used, and a hydraulic tamper that compacted soil around the sign posts. The auger and
tamper were powered by a device that used the truck's transmission to transmit power
from the engine. To engage the device, the truck's engine had to be running and the
transmission had to be in neutral.
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On the day Mr. Lafayette was killed, he and Sharp-Line's crew foreman, William
Wright, were installing highway signs. Toward the end of the day, Mr. Wright parked
the auger truck facing downhill and Mr. Lafayette and Mr. Wright began installing the
last sign. Another subcontractor had set up traffic control with pilot cars because the
auger truck encroached on the roadway. Mr. Wright put the truck in the parking gear, left
the engine on, and engaged a supplemental brake device called a lever lock, which locks
hydraulic fluid in the braking system. He did not, however, set the emergency brake or
chock the tires. The men walked around behind the truck and Mr. Wright deployed the
outriggers as he drilled a hole for the sign post. Mr. Wright then retracted the outriggers
while the two men installed the sign post and began compacting soil around the post with
the hydraulic tamper.
As he worked, Mr. Wright saw Mr. Lafayette suddenly drop the tamper and begin
running after the truck, which was rolling across the road. Mr. Lafayette managed to pull
himself into the cab and steer the truck away from a line of vehicles following a pilot car
in the opposite lane. One of the drivers of the vehicles later testified that a collision
seemed inevitable until Mr. Lafayette turned the wheels. Apparently the brakes had
failed, because Mr. Lafayette was unable to slow or stop the truck. The truck continued
to accelerate as Mr. Lafayette steered it down the hill where it unavoidably crashed,
causing his death.
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No. 30185-1-111
Millican v. NA. Degerstrom, Inc.
Dorothy Millican was appointed the personal representative of her son's estate
and, on behalf of the estate, sued Degerstrom, Mico Inc. (the manufacturer of the lever
lock), and James and Jane Doe Bonner d/b/a Industrial Power Brake (who had done
maintenance and repair ofthe auger truck) for damages for wrongful death. She asserted
an individual cause of action as well, "as a statutory beneficiary defined in RCW
4.20.020," a provision of the wrongful death statute. CP at 8.
In suing Degerstrom, she alleged that it had a nondelegable duty as general
contractor to ensure Sharp-Line's compliance with health and safety regulations and
contractual safety duties, had allowed "illegal, unsafe, ultra-hazardous practices resulting
in an unsafe work place," CP at 20, and had thereby proximately caused her son's death.
Before trial, the court granted the defendants' joint motion for partial summary
judgment dismissing Ms. Millican's individual wrongful death claim. It found no
evidence creating a genuine issue of fact that she was dependent on her son for support
qualifying her as a beneficiary under RCW 4.20.020. It denied the estate's motion in
limine to exclude evidence or argument by Degerstrom that it did not exercise or retain
supervisory control or authority over Sharp-Line during construction operations. At the
conclusion of a three-week trial, the jury found none of the defendants liable. The trial
court denied the estate's motion for a new trial against Degerstrom and Mr. Bonner. The
estate and Ms. Millican appealed.
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No. 30 ISS-I-III
Millican v. NA. Degerstrom, Inc.
ANALYSIS
Ms. Millican, on behalf of the estate and individually, makes four assignments of
error. In the published portion of this opinion, we address the estate's assignment of
error to the trial court's refusal to exclude evidence that Degerstrom delegated sole
responsibility for the safety ofSharp-Line's employees to Sharp-Line.
In the unpublished portion, we address the estate's assignment of error to the trial
court's denial of its motion for judgment as a matter of law, its refusal to instruct the jury
that Degerstrom owed a duty to the public traveling through the construction site, and
Ms. Millican's assignment of error to dismissal of her individual claim.
Refusal to limit evidence and argument
ofdelegated responsibility for safety.
Early in the proceedings below, Degerstrom moved for summary judgment,
arguing that Sharp-Line had assumed the contractual obligation to comply with all safety
laws and plans. The trial court denied the motion on the basis of Degerstrom's
nondelegable duty to ensure a safe work environment. In its motions in limine, the estate
reminded the trial court of Degerstrom's legal position, which it characterized as
"factually inaccurate, legally misleading ... , and inconsistent with [the] court's prior
denials of its motions for summary judgment." CP at 1549. It asked the court to exclude
evidence or argument by Degerstrom that it did not exercise or retain supervisory control
or authority over Sharp-Line during construction operations.
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No.30185-I-III
Millican v. N.A. Degerstrom, Inc.
In orally ruling on the motion, the trial court observed that "the factual issues ...
are all going to get in front of the jury" and that it viewed the parties' disagreement over
Degerstrom's legal duty as an instructional matter. Report of Proceedings (RP) at 2.
Critically, when the estate then sought to clarifY whether, in light of that reasoning, its
motion to exclude evidence and argument about duty was granted, denied, or reserved for
later rulings, the trial court responded that the motion was denied. RP at 6. The estate's
motion in limine was sufficient to raise and preserve its objection. State v. McDaniel,
155 Wn. App. 829, 853 n.l8, 230 P.3d 245 (2010) (because the purpose ofa motion in
limine is to resolve legal issues outside the presence of the jury, a trial court's ruling
denying a motion in limine is final and the moving party has a standing objection).}
At trial, Degerstrom presented extensive evidence and argument on duty,
informing the jury in opening statement, through evidence, and in closing argument that
it is "typical," "reasonable," "industry standard," and most important, "appropriate" and
"allowable under Washington law" for a general contractor like Degerstrom to delegate
its responsibilities, and for subcontractors like Sharp-Line to agree, by contract, to
} Degerstrom argues that the estate waived its objection by later questioning
witnesses about the contract and its delegation provision. But once the evidence was
permitted, it was not a waiver for the estate to try to tum the evidence to its advantage to
any extent possible.
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No.30185-1-III
Millican v. N.A. Degerstrom, Inc.
assume sole responsibility for the protection and safety of its own employees. RP at 40
54,845-47. 2
The general rule in Washington is that a principal is not liable for injuries caused
by an independent contractor whose services are engaged by the principal. Stout v.
Warren, 176 Wn.2d 263,269,290 P.3d 972 (2012); RESTATEMENT (SECOND) OF TORTS
§ 409 (1965). Two categories of exceptions to this rule exist at common law, the first
being exceptions that subject the principal to liability for its own negligence and the
second being exceptions that subject the principal to liability for its contractor's tortious
conduct even if the principal has itself exercised reasonable care. Compare
RESTATEMENT (SECOND) §§ 410-415 (direct liability) with §§ 416-429 (vicarious
liability). The latter category of exceptions giving rise to vicarious liability comprise
duties said to be nondelegable, as explained by the Restatement:
The rules ... do not rest upon any personal negligence of the
employer. They are rules of vicarious liability, making the employer liable
for the negligence ofthe independent contractor, irrespective of whether the
employer has himself been at fault. They arise in situations in which, for
reasons of policy, the employer is not permitted to shift the responsibility
for the proper conduct of the work to the contractor. The liability imposed
is closely analogous to that of a master for the negligence of his servant.
The statement commonly made in such cases is that the employer is
under a duty which he is not free to delegate to the contractor. Such a
"non-delegable duty" requires the person upon whom it is imposed to
answer for it that care is exercised by anyone, even though he be an
independent contractor, to whom the performance of the duty is entrusted.
2 Relevant portions of Degerstrom's opening statement and closing argument are
included in an appendix to this published portion of the opinion.
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No.30185-I-II1
Millican v. NA. Degerstrom, Inc.
RESTATEMENT (SECOND) ch. 15, topic 2 introductory note. Circumstances that give rise
to a principal's nondelegable duty include precautions required by statute or regulation.
Tauscher v. Puget Sound Power & Light Co., 96 Wn.2d 274,283,635 P.2d 426 (1981)
(citing Kelley v. Howard S. Wright Constr. Co., 90 Wn.2d 323,582 P.2d 500 (1978»;
RESTATEMENT (SECOND) § 424; Pettit v. Dwoskin, 116 Wn. App. 466, 472 n.l7, 68 P.3d
1088 (2003) (observing that while § 424 has not been formally adopted in Washington,
"[i]t has, however, been frequently discussed and relied upon,,). 3
Even where an exception to the general rule of nonliability applies, a principal
ordinarily owes its duty to only third parties other than the employees of its independent
contractors. Stout, 176 Wn.2d at 276 (quoting Epperly v. City ofSeattle, 65 Wn.2d 777,
783,399 P.2d 591 (1965) for its recognition of "'the distinction between the level of duty
to members of the public and the duty of the owner to one engaged to work upon the
project as the employee of an independent contractor' "); Tauscher, 96 Wn.2d at 281.
The policy considerations that are said to support excluding an independent contractor's
employees from the protected class are found in the workers' compensation systems in
place in most states. The reasoning is that by making contract payments to an
3 RESTATEMENT (SECOND) § 424 provides:
"One who by statute or by administrative regulation is under a duty to provide
specified safeguards or precautions for the safety of others is subject to liability to the
others for whose protection the duty is imposed for harm caused by the failure of a
contractor employed by him to provide such safeguards or precautions."
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No.30185-1-III
Millican v. NA. Degerstrom, Inc .
.
independent contractor that presumably include workers' compensation premiums as
overhead, the principal has already assumed some financial responsibility for the safety
of its employees. Id. at 281-82; Stout, 176 Wn.2d at 276-77.
The prevailing common law on these matters notwithstanding, Washington has
long refused to exclude a subcontractor's employees from a general contractor's duty of
care on either a "no duty" or "no duty to independent contractor employees" rationale. It
has instead found nondelegable duties on the part of the general contractor, meaning that
the general contractor is "[held] liable ... although he has himself done everything that
could reasonably be required of him." W. PAGE KEETON ET AL., PROSSER AND KEETON
ON THE LAW OF TORTS 511 (5th ed.1984)). Prosser observes that it is difficult to suggest
the criterion by which the nondelegable character of a duty may be determined, "other
than the conclusion of the courts that the responsibility is so important to the community
that the employer [here, the general contractor] should not be permitted to transfer it to
another." Id. at 512.
Before the enactment and effectiveness of the Washington Industrial Safety and
Health Act of 1973 (WISHA), chapter 49.17 RCW, our Supreme Court held that a
general contractor had a duty to provide adequate safety precautions for its
subcontractors' employees under exceptions from the general rule of liability based in
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No.30185-1-III
Millican v. NA. Degerstrom, Inc.
common law, statute, and contractual assumption of duty. Kelley, 90 Wn.2d at 330. 4 The
common law basis of the duty cited by Kelley is the duty, within the scope ofa
principal's retained control, to provide a safe place of work. The test of control is not
actual interference with the work of the subcontractor, but the right to exercise such
control. Id. at 330-31 (citing, among other authority, Restatement (Second) § 414). The
statutory basis of the duty cited in Kelley was former RCW 49.16.030 (1919), which
imposed a duty on all employers to furnish a reasonably safe place of work, with
reasonable safety devices, and to comply with state safety regulations. Id. at 333. Kelley
held that the statute created a "nondelegable duty" on the part of the general contractor.
Id.
With WISHA, the legislature revised the statutory duty, providing that "[e]ach
employer ... shall comply with the rules, regulations, and orders promulgated under
[chapter 49.17 RCW]." RCW 49.17.060(2). This specific duty to comply with WISHA
regulations is owed to all ofthe employees at work on the job site as members of the
protected class. Goucher v. J.R. Simp/ot Co., 104 Wn.2d 662,673, 709 P.2d 774 (1985).
In Stute v. P.E.MC, Inc., 114 Wn.2d 454,463-64, 788 P.2d 545 (1990), the Supreme
Court noted that WISHA's predecessor statute created a nondelegable duty on general
contractors to provide a safe place to work for employees of subcontractors and that
The accident and injury in Kelley took place in December 1972, prior to
4
WISHA's effective date of June 7, 1973. LAWS OF 1973, at ii; 90 Wn.2d at 326.
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No. 30185-1-111
Millican v. NA. Degerstrom, Inc.
"[t]he policy reasons behind the court's holdings have not changed and give added force
to the language of WISHA." It characterized the general contractor's responsibility,
being concurrent with that of its subcontractors but primary, as a duty to "ensure
compliance with WISHA and its regulations." Id. at 463.
In Washington, then, a general contractor not only has direct liability for a breach
of its common law duties arising from retained control, but when it comes to violations of
WISHA, vicarious liability for breach of a duty that is nondelegable. A violation of
WISHA by a subcontractor's employee is therefore not only chargeable to the
subcontractor, it is also chargeable to a general contractor-"the primary employer,"
whose supervisory authority "places the general in the best position to ensure compliance
with safety regulations." Id.
The specific duty clause of RCW 49.17.060 is not the only statute reflecting the
legislature's intent that a general contractor's duty for WISHA compliance runs to its
subcontractors' employees. The legislature has also authorized contractual risk-sharing
of damages and defense costs by general contractors who face such workplace injury
claims. RCW 4.24.115 declares certain indemnification agreements to be valid and
enforceable including, in the construction context, an agreement by a subcontractor to
indemnify a general contractor against liability for damages caused by the negligence of
the subcontractor or its agents or employees. Gilbert H Moen Co. v. Island Steel
Erectors, Inc., 128 Wn.2d 745,759-60,912 P.2d 472 (1996). The subcontractor is only
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No. 30185-1-111
Millican v. N.A. Degerstrom, Inc.
permitted to indemnify the general contractor to the extent of the subcontractor's
negligence. The statute thereby implicitly recognizes that a general contractor may be
concurrently liable for its subcontractor's act or omission. And the statute anticipates
claims against a general contractor for workplace injury to a subcontractor's employee: it
provides that an indemnitor may waive its immunity under industrial insurance,
something that would be unnecessary except in the case of a claim by an indemnitor's
employee. RCW 4.24.115(1)(b).
Given this statutory authorization of indemnification agreements, the
Degerstrom/Sharp-Line contract may well have been "typical" and "industry standard,"
as Degerstrom drove home during the trial, but not with the legal effect that Degerstrom
then suggested to the jury. Indemnification provisions enable the general contractor, if
liable to the employee, to recover its defense costs and judgment liability from the
culpable subcontractor. They do not enable the general contractor to disavow its primary
responsibility for WISHA compliance. See Moen, 128 Wn.2d at 753 (enforcing
indemnification "allows contractors to allocate 'responsibility to purchase insurance'
according to their negotiated allocation of risk and potential liabilities," and set their fees
'" founded on their expected liability exposure as bargained and provided for in the
contract''' (quoting McDowell v. Austin Co., 105 Wn.2d 48,54, 710 P.2d 192 (1985);
BerschauerlPhillips Constr. Co. v. Seattle Sch. Dist. No.1, 124 Wn.2d 816, 826-27, 881
P.2d 986 (1994))).
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No. 30185-1-111
Millican v. NA. Degerstrom, Inc.
The facts of Moen illustrate the proper role and relevance of delegation and
indemnification agreements. The plaintiff in that case was an ironworker, severely
injured when he fell from a beam. The Department of Labor and Industries attributed the
accident to a lack of safety equipment. It cited the plaintiffs employer, Island Steel
Erectors, which it concluded was responsible for providing fall protection equipment.
Given Island's immunity from suit for the workplace injury, the plaintiff sued the general
contractor-Moen-and others.
Moen had entered into an agreement with Island that required Island to comply
with laws, regulations, and the provisions of Moen's contract with the owner, including
to comply with safety regulations. The Moen/Island agreement also included an
indemnification. addendum under which Island agreed to indemnify Moen for damages
resulting from any concurrent negligence of Moen and Island resulting from the
negligence of Island and its employees.
Moen did not rely on its agreement with Island to argue (as Degerstrom does) that
it fulfilled its duty for WISHA compliance by delegating responsibility to Island.
Instead, it settled with the plaintiff and sued Island for indemnification. The court held
that the indemnification contract was valid and enforceable to the extent of Moen's and
Island's concurrent liability for the negligence of Island. In remanding, it pointed out that
what remained to be determined were (1) whether Moen and Island were concurrently
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No.30185-1-III
Millican v. NA. Degerstrom, Inc.
negligent and (2) the extent of Island's negligence for which Moen had been required to
pay, but as to which it was entitled to be indemnified by Island.
Sharp-Line's agreement to assume sole responsibility and indemnifY Degerstrom
has no more and no less significance here. If it complies with statute, then as between
Sharp-Line and Degerstrom the agreement is controlling. As between Mr. Lafayette and
Degerstrom, for any WISHA violation established by the evidence, it is irrelevant.
Degerstrom nonetheless argues that our decision should turn on the statement in
the penultimate paragraph of Stute that "[i]t is the general contractor's responsibility to
furnish safety equipment or to contractually require subcontractors to furnish adequate
safety equipment relevant to their responsibilities." 114 Wn.2d at 464 (emphasis added).
From this, it argues that the general contractor's duty for WISHA compliance
characterized as nondelegable elsewhere in Stute can, in fact, be delegated. In
proceedings below, the trial court found the quoted statement from Stute to be
contradictory.5 The same statement was the basis for the conclusion of the majority in
Degroot that a subcontractor's contractual undertaking for safety "appears designed to
5 The trial court commented, "[I]fyou say there is a non-delegable, well, Stute
says you can enter into a contract with your subcontractor to deal with the safety issues.
Then we have the case law that says it is non-delegable. And I understand what Judge
Sweeney is talking about [in Degroot v. Berkley Constr., Inc., 83 Wn. App. 125, 133,920
P.2d 619 (1996) (Sweeney, C.J., concurring)], because it seems like there is a
contradiction here." RP at 2.
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No. 30185-1-111
Millican v. NA. Degerstrom, Inc.
meet the duty of care outlined in Stute." Degroot v. Berkley Constr., Inc., 83 Wn. App.
125, 129,920 P.2d 619 (1996).
The statement from Stute relied upon by Degerstrom cannot reasonably be read to
negate Stute's otherwise clear holding that the general contractor's "primary"
"nondelegable" duty is to "ensure compliance" with WISHA, however. Read in the
context of the entire opinion, the statement conveys only that a general contractor's
efforts to ensure compliance with WISHA may include, and in many cases will
necessarily include, requiring subcontractors to comply with WISHA. "The label
'nondelegable duty' does not mean that an actor is not permitted to delegate the activity
to an independent contractor. Rather, the term signals that the actor will be vicariously
liable for the contractor's tortious conduct in the course of carrying out the activity."
RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM § 57
cmt. b (2012). Stated differently, "a 'non-delegable duty' requires the person upon whom
it is imposed to answer for it that care is exercised by anyone, even though he be an
independent contractor, to whom the performance of the duty is entrusted."
RESTATEMENT (SECOND) ch. 15, topic 2 introductory note. Here, the quotation from
Stute supports the fact that Degerstrom could enter into its agreement with Sharp-Line
and rely on Sharp-Line's compliance with WISHA regulations as satisfYing its own
duty-not that it could discharge its primary responsibility for WISHA compliance by the
mere act of entering into the agreement.
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No. 30185-1-111
Millican v. NA. Degerstrom, Inc.
We review a trial court's evidentiary rulings for an abuse of discretion. A trial
court abuses its discretion if its evidentiary ruling is manifestly unreasonable or is
exercised on untenable grounds or for untenable reasons. Here, the trial court recognized
that Degerstrom had previously advanced a legal position as to the duty of a general
contractor that was questionable and it recognized that legal duty should be a matter of
instruction. It nonetheless denied the motion in limine. The evidence on duty that
Degerstrom chose to offer after the motion was denied did not tend to "make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence." ER 401 (emphasis
added). More importantly, Degerstrom's evidence and argument that the contract
effectively shifted the duty it owed Mr. Lafayette from it, to Sharp-Line, was legally
wrong and likely misled and confused the jury. See Degroot, 83 Wn. App. at 133
(Sweeney, C.J., concurring). The mischaracterization pervaded Degerstrom's
presentation and could not be cured by the concluding instructions to the jury.
The denial of the motion in limine was therefore an abuse of discretion and
requires reversal of the judgment and remand for a new trial of the estate's claims.
For this reason and the reasons set forth in the unpublished portion of this opinion,
we affirm the trial court's dismissal of Ms. Millican's individual claim, reverse the
dismissal of the estate's claim, and remand for a new trial consistent with this opinion.
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No.30185-I-III
Millican v. NA. Degerstrom, Inc.
APPENDIX
Degerstrom's opening statement included the following preview of the evidence it
would thereafter present:
Now, NA Degerstrom's specialty is earth work. They don't carry
specialties in other things like ... signage and striping on the road. So
what did they do? They hired specialty subcontractors who have the
equipment and the knowledge to do this installation ....
There's also gonna be a lot of discussion in this case about NA
Degerstrom's contract with Sharp-Line. And as I talked to you earlier,
there were several subcontractors on this job, and these subcontractors were
was [sic] known as specialty subcontractors. They did work that Sharp
excuse me, that NA Degerstrom did not qave the expertise to perform. So
what they do, typically any sort ofjob like, this you subcontract it out to
those people that are experts in their field ....
Part of their subcontract agreement, Sharp-Line agreed to comply
with all laws and regulations that are applicable to their work with regard to
what was being performed at the Flowery Trail Road project. And then I'm
gonna show you several safety provisions.
RP at 40-46. Degerstrom's lawyer then made a brief reference to jury instructions that
would be given at the end of the case addressing what was allowable under Washington
law with regard to delegating duties and regard to safety on the work site. She continued:
[W]hat I'm going to be providing you today are the several contract
provisions that discuss safety between Sharp-Line and NA Degerstrom.
And I will again, like Mr. Stocker says, I will be showing you that all these
provisions are appropriate and allowable under Washington law, and that
safety is allowed to be with regard to a specialty subcontractor, NA
Degerstrom could delegate those responsibilities.
And the reason that you're able-the reason it makes sense as far as
delegating these responsibilities, again NA Degerstrom is not all knowing
and not knowledgeable about everything that's done on this project. It's
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No. 30185-1-111
Millican v. NA. Degerstrom, Inc.
appropriate, it's standard in the industry that you hire specialty
subcontractors who have expertise in their field. So they have expertise
with regard to preventing accidents regarding their work, and that's what
the contract requested.
They also have-we requested that Sharp-Line be solely responsible
for providing protection and safety of its employees, again because it
knows what the hazards are with regard to its job. They had the
responsibility for final selection of the safety methods and means. That
means how to--how that safety would be conducted on the project. And
then finally they had the responsibility for doing daily inspections on their
own work area and safety equipment because Degerstrom doesn't know
what their equipment is, how it's specialized. There's been plenty of
testimony today about this auger truck and how it was a very specialized
piece of equipment. But NA Degerstrom certainly doesn't know, have the
expertise to run, or would even be responsible if they ran it.
Another safety provision talked about the site specific safety plans
the accident prevention plan that NA Degerstrom had, in fact, for that
project, and how Sharp-Line had to comply with those safety requirements.
And finally Sharp-Line agreed that they would have a written safety plan
for this project, an accident prevention plan, and any other documents with'
regard to safety that were required for this project.
You're gonna be hearing testimony from a gentleman by the name of
Mike Craig. Now, Mike Craig is the president of Sharp-Line, and he's
been the president of Sharp-Line since its inception in 1987. Mr. Craig will
be testifYing that he signed this contract, and that he understood these
contract provisions, and that he understood that Sharp-Line was required to
furnish their own safety equipment and perform their work under this
contract, and that type of safety equipment also included chocks. You'll
also be provided testimony that the provisions with regard to safety that
were in the [Degerstrom] contract with Sharp-Line, they are typical and
they are standard in the industry because, again, if you're a specialty
subcontractor, you're the one who's gonna know your equipment and know
how to safely operate it.
RP at 46-48. Later in opening statement, Degerstrom's lawyer told the jury:
You'll hear how Coit Wright was the employee responsible for the
truck that day for Sharp-Line .... You'll hear how Mr. Wright was a
laborer, that he did not have training on this equipment, that he was not the
19
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No. 30185-1-111
Millican v. NA. Degerstrom, Inc.
employee responsible in the operation of this truck. You'll hear how Mr.
Wright made several poor choices that were in contradiction to the training
that he received from Sharp-Line, and that at the end of this workday that
caused that truck to start rolling.
So what did Mr. Wright fail to do? Mr. Wright provided a statement
to the Department of Labor & Industries, and then he also was interviewed
by the Department of Labor & Industries. That information he provided to
the Department of Labor & Industries, you'll hear testimony about. You'll
hear testimony that Mr. Wright failed to set the truck's parking brake.
You'll hear testimony that Mr. Wright failed to tum those wheels into the
downward slope or the shoulder of the road. You'll hear how Mr. Wright
deployed the outriggers, but then for whatever reason brought them back in.
You'll also hear that, although it was not required because the truck
was attended-both Mr. Wright and Mr. Lafayette were there and the
engine was running-that Coit Wright could have used readily available
chocks.
RP at 52-53.
In closing and summarizing the evidence that it had presented, Degerstrom's
lawyer argued:
Now, general contractors, as you know, owe a duty to provide all workers a
safe worksite and to ensure safety regulations are complied with. Now
Degerstrom, in no way, disputes this ....
. . . [O]ne of the ways that Degerstrom and all general contractors
ensure a safe worksite is they have their subcontractors-they have their
subcontractors, under contract, furnish the safety equipment. And why is
that? There's been a lot of discussion. Because subcontractors are the
experts in their field, not Degerstrom. They're the ones who know what the
hazards are. They're using their equipment, they know what is hazardous
and how to protect their employees. Degerstrom's duty is analogous to a
forest. Think of the project as being a forest and think of the subcontractors
being the trees in that forest. And the subcontractors being responsible for
the leaves on those trees, their equipment, their workers, all the things in
order to do their job safely as it's contractually required that they do. Now,
a general contractor is not able to see all those trees in the forest at one
20
No. 30185-1-111
Millican v. N.A. Degerstrom, Inc.
time. Nor can it see any of the leaves at any given moment. But it's the
subcontractors that have agreed to take care of those leaves.
Recall the testimony of Mark Lawless, that was plaintiff's site safety
expert. Both he and Mr. Stranne stated it's not reasonable, or industry
standard, to expect a general contractor to follow each subcontractor each
and every moment to ensure that subcontractors are performing this [sic]
jobs safely and correctly. Therefore general contractors are allowed, under
the law, to contractually require their subcontractors furnish safety
equipment related to their work.
Ladies and gentlemen of the jury, I'm gonna ask that you look at
Exhibit DI03 and that safety provision that's cited in that contract. And 1
want you to look, instead of at the second paragraph, look at that first
paragraph on that page, because that talks about the safety requirements and
that Sharp-Line was solely responsible for the protection and safety of its
employees, for the final selection of additional safety means and methods,
and for daily inspection of its work area and safety equipment. It
specifically says safety equipment. And as you know from the testimony of
Mr. Craig, they agreed to be solely responsible for these items. And all
witnesses in this case, from Mr. Craig to Mr. Stranne to Mr. Lawless, all
testified this is a typical provision in a subcontract agreement.
RP at 845-47.
The remainder of this opinion has no precedential value. Therefore, it will be filed
for public record in accordance with the rules governing unpublished opinions. RCW
2.06.040.
Denial ofthe estate's motion for judgment
on liability as a matter oflaw.
The estate seeks more on appeal than reversal and remand; it asks that we find that
the trial court should have granted its posttrial motion for a new trial. The new trial it
sought, though, would be limited to damages-the estate wanted the court to instruct the
jury that Degerstrom was negligent and its negligence was a proximate cause of Mr.
21
No. 30185-1-111
Millican v. NA. Degerstrom, Inc.
Lafayette's death. On appeal, it characterizes its posttrial motion as implicitly one for
judgment as a matter oflaw on the issue ofliability. It argues that the court erred in
denying it.
The estate did not move for judgment as a matter of law at the close of the
evidence as contemplated by CR 50(b). In authorizing postverdict motions for judgment
as a matter oflaw, CR 50(b) speaks only of renewing an equivalent motion made under
CR 50(a) before the case was submitted to the jury. The estate argues that it was excused
from moving for the relief at the close of the evidence, however, because the motion
would have been futile in light of the trial court's denial of its motion in limine. It cites
Kaplan v. N W Mut. Life Ins. Co., 115 Wn. App. 791, 804 n.6, 65 P.3d 16 (2003) in
support.
Degerstrom's response makes a one-sentence mention of the estate's alleged
waiver of its right to move for judgment as a matter oflaw. Br. of Resp't at 6. But it
does not dispute the estate's argument that its posttrial motion was implicitly a CR 50(b)
motion or provide any authority or argument in opposition to the estate's claimed excuse
of futility. Absent any authority or argument in opposition, we assume without deciding
that the estate's posttrial motion was, in part, a motion for judgment as a matter of law
and that its failure to move for such relief at the close of the evidence is excused. See
RAP 10.3(a)(6) and (b) (a respondent's brief, like the appellant's, must include argument
on the issues presented for decision along with citations to legal authority).
22
No.30185-1-III
Millican v. N.A. Degerstrom, Inc.
Citing Pudmaroffv. Allen, 138 Wn.2d 55, 68, 977 P.2d 574 (1999), the estate
contends that while violation of a controlling statute or regulation is not negligence per
se, evidence of such a violation can be conclusive if the violator fails to present any
evidence of excuse or justification. It argues that it presented evidence of WISHA
violations for which Degerstrom presented no excuse or justification. It focuses on
regulations imposing a requirement to chock a vehicle's tires in certain situations
because, it argues, "there is no dispute that the auger truck would never have rolled away
had the wheels been chocked." Br. of Appellant at 31. If a requirement for chocking was
breached it argues that the "breach was, as a matter of law, a proximate cause of [Mr.]
Lafayette's death." Id.
The principal WISHA regulation that Degerstrom alleges was not enforced is
WAC 296-1 55-6 1O(2)(b) (entitled "Motor Vehicles on Construction Sites"), which
provides:
(b) Before leaving a motor vehicle unattended:
(i) The motor must be stopped.
(ii) The parking brake must be engaged and the wheels turned into
curb or berm when parked on an incline.
(iii) If parking on an incline and there is no curb or berm, the wheels
must be chocked or otherwise secured.
Citing evidence that Degerstrom did not require Sharp-Line to use chocks and did not
inspect Sharp-Line's vehicles for chock usage, the estate contends that Degerstrom
undisputedly violated this WISHA regulation.
23
No. 30185-1-111
Millican v. NA. Degerstrom, Inc.
Degerstrom's position at trial and on appeal is that the auger truck in which Mr.
Lafayette died was not "unattended" and therefore the regulation did not apply.
Degerstrom's first argument that the truck was not unattended before beginning to
roll down the incline is a logicalry fallacious one: Degerstrom argues that "[t]he
Washington Administrative Code requires a vehicle's motor to be stopped in order for it
to be considered 'unattended.'" Br. of Resp't at 38 (footnote omitted). It infers this
proposition from the regulatory language, "Before leaving a motor vehicle unattended: (i)
The motor must be stopped." Its construction misconstrues this language as saying
something about what makes a motor vehicle "unattended," when it is instead saying
something about what operators are required to do when they leave a, motor vehicle
unattended. Were Degerstrom's construction correct, then the WAC would also require a
vehicle's parking brake to be engaged for it to be considered "unattended." For that
matter, the wheels would have to be turned into a curb or berm when parked on an incline
for it to be considered "unattended." And a motor vehicle left remotely overnight, with
no operator anywhere in the vicinity, would be considered "attended," rather than
"unattended," as long as its motor was running, the parking brake was engaged, or its
wheels were turned into a curb or berm and it was parked on an incline. Clearly the
regulation is not describing what makes a vehicle "unattended" but only the safety
measures that must be taken when it is left unattended.
24
No.30185-1-III
Millican v. NA. Degerstrom, Inc.
Elsewhere, Degerstrom's position that a vehicle's motor must be stopped in order
for it to be considered "unattended" appears to be based on the fact that the auger and
tamper used by Mr. Lafayette and his supervisor were operated using a power take-off
(PTO) from the truck's transmission~requiring that the motor be running. Degerstrom
considers it obvious that "unattended" cannot include times when the operator of a truck
has stepped outside of its cab to operate a PTO-powered piece of equipment. But
WISHA regulations are construed liberally to achieve their purpose of providing safe
working conditions. Pate/co, Inc. v. Dep'tofLabor & Indus., 166 Wn. App. 647, 653,
272 P.3d 262 (2012). It is not obvious that the Department of Labor and Industries would
be unconcerned that the motor was running, the cab was unattended, and the only
potential operators in the vicinity of this truck (pointed downhill), were engaged in other
work that could distract their attention or prevent them from reaching the cab in the event
of some hazard. The department might well require that a vehicle in this situation be
attended by an employee in the cab or one who was not engaged in operating PTO
equipment. What we do know from the record (although the evidence appears not to
have been admitted at trial) was that the department did cite Sharp-Line for a violation of
WAC 296-155-610(2)(b).
The meaning of "unattended" that Degerstrom urges is unambiguous (parked, with
the motor stopped, and the operators no longer in the vicinity) is contrary to any meaning
25
No. 30185-1-111
Millican v. NA. Degerstrom, Inc.
attached to the term under OSHA. 6 In interpreting our WISHA regulations in the absence
of state decisions, we may look to OSHA regulations and consistent federal decisions.
Wash. Cedar & Supply Co. v. Dep't ofLabor & Indus., 137 Wn. App. 592,604, 154 P.3d
287 (2007) (citing Adkins v. Aluminum Co. ofAm., 110 Wn.2d 128, 147, 750 P.2d 1257,
756 P.2d 142 (1988)). OSHA's construction of "unattended" has not been uniform,
varies depending upon the context, and recognizes that a vehicle that is left running may
be considered "unattended." See, e.g., 29 C.F.R. 1910.178(m)(5); Letter from Russell B.
Swanson, Director, Directorate of Construction, to Peter Kuchinsky II, Safety
Trainer/Consultant, Construction Building Analysts (May 11, 2005), available at
http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIO
NS&p_id=25067; Letter from Russell B. Swanson, Director, Directorate of Construction,
to Paul Hayes, Safety Manager, Skanska (Jan. 14,2004), available at
http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIO
NS&pjd=24723 (stating that "when [a construction vehicle is] left unattended and
running, the parking brake must be set, and ifthe vehicle is on an incline, in addition to
setting the brake, the wheels must be chocked" (emphasis added)).7
6 Occupational Safety and Health Act of 1970,29 U.S.C. §§ 651-678.
7 Although only briefly reviewed, OSHA regulations include a definition and
requirements for industrial trucks used in general industry (not construction):
(ii) A powered industrial truck is unattended when the operator is 25
ft. or more away from the vehicle which remains in his view, or whenever
26
No. 30185-1-111
Millican v. N.A. Degerstrom, Inc.
The estate argues for the first time in its reply brief that "[w]hether a safety
regulati~n applies on a particular job site is a question of law for the court." Reply Br. at
20 (citing Manson v. Foutch-Miller, 38 Wn. App. 898,902,691 P.2d 236 (1984)); see
also Ball v. Smith, 87 Wn.2d 717, 722-25, 556 P.2d 936 (1976) (it is the province of the
trial court, not an expert witness, to interpret a statute or ordinance and determine
whether it applies to a party). Its argument that the trial court should have determined
whether WAC 296-155-61O(2)(b) applied, or at least instructed the jury on a meaning for
"unattended," appears worthy of briefing and consideration in the retrial. We will not
consider it in this appeal, however, for two reasons: it was not raised in the trial court and
the operator leaves the vehicle and it is not in his view.
(iii) When the operator of an industrial truck is dismounted and
within 25 ft. of the truck still in his view, the load engaging means shall be
fully lowered, controls neutralized, and the brakes set to prevent movement.
29 C.F.R. 1910.l78(m)(5). In a May 11,2005 interpretation letter addressed to Peter
Kuchinsky II, OSHA referred to this industrial truck regulation in addressing a question
about construction equipment, stating:
Although these provisions do not apply to construction or earth
moving equipment, they address some of the same type of hazards. After
considering the approach that was taken in § 191 0.178(m)(5) and the
hazards associated with construction equipment, we have determined that,
for construction equipment such as bobcats, backhoes, and trenchers,
leaving the motor running with the operator away from the controls will be
considered a de minimis violation of §1926.600(a)(3) where all of the
following are met: the attachment is lowered, the controls are in the neutral
position, the brakes are set, all manufacturer provided and recommended
safety measures are utilized, and the operator is within 25 feet (and still in·
view) of the equipment.
Letter to Paul Kuchinsky II, supra (footnote omitted).
27
No. 30185-1·111
Millican v. NA. Degerstrom, Inc.
was raised for the first time in the estate's reply brief. RAP 2.5(a) (appellate courts need
not entertain issues not raised in the trial court); Cowiche Canyon Conservancy v. Bosley,
118 Wn.2d 801, 809, 828 P .2d 549 (1992) (issue raised for the first time in a reply brief is
too late to warrant consideration).
In the trial court, the estate was content to have the jury decide whether the
regulation applied. While we reject the two principal arguments Degerstrom offers on
appeal as to why its construction of the regulation is correct, the fact remains that the
estate allowed the meaning and application of the regulation to be decided by the jury.
Both parties' witnesses offered their views as to whether the auger truck was
"unattended" when the auger was being operated; the estate's witnesses said that it was
unattended and Degerstrom' s witnesses testified that it was attended, not unattended. As
the case was tried, and viewed in the light most favorable to Degerstrom, the evidence
could support a jury determination that the auger truck was not unattended at the time it
began rolling down the incline. Cj Wieder v. Towmotor Corp., 568 F. Supp. 1058, 1063
(E.D. Pa. 1983) (experts' conflicting opinions as to whether forklift was left "unattended"
when driver dismounted were submitted to the jury for its determination), aff'd, 734 F.2d
9 (3d Cir. 1984).
While placing principal reliance on WAC 296-155-61 0(2)(b), the estate points to
evidence it presented of other alleged violations of WISHA regulations by Degerstrom as
well. But that evidence was similarly disputed by Degerstrom's employees and experts at
28
No. 30185-I-III
Millican v. N.A. Degerstrom, Inc.
trial. And with respect to some of the WISHA regulations the estate argued were violated
by Degerstrom, the estate did not conclusively demonstrate that any violation was a
proximate cause of Mr. Lafayette's death.
The trial court did not err in denying the estate's motion for judgment as a matter
of law on liability and a new trial limited to the issue of damages.
Refusal to instruct on a duty owed to the public.
The estate next appeals the trial court's refusal to instruct the jury that the general
contractor on a highway construction project has a duty to exercise ordinary care to
protect the traveling public from dangerous conditions that may arise within a
construction zone. It claims to have relied on an alternative theory of liability that
Degerstrom's negligent omissions created a peril to the motorists on Flowery Trail Road
who were in the path of the auger truck as it rolled downhill. Its breach of that duty owed
the public created liability to anyone injured in a reasonable attempt to rescue the
imperiled motorists-in this case, the rescuer happened to be the employee of a
subcontractor. See McCoy v. Am. Suzuki Motor Corp., 136 Wn.2d 350, 355, 961 P.2d
952 (1998) (rescue doctrines allows an injured rescuer to sue the party that caused the
8A plaintiff relying on the rescue doctrine must prove that (1) the defendant was
negligent to the person rescued and that negligence created an appearance that the person
rescued was in peril, (2) the peril or appearance of peril was imminent, (3) a reasonably
prudent person would have concluded that the peril existed, and (4) the rescuer acted with
reasonable care. McCoy, 136 Wn.2d at 355-56.
29
No. 30185-1-111
Millican v. N.A. Degerstrom, Inc.
danger that required the rescue). It contends that the court's refusal to give the requested
instruction prevented it from arguing this separate theory of negligence.
Jury instructions must allow the parties to argue their theories of the case, must not
mislead the jury, and must as a whole inform the jury of the applicable law. Thompson v.
King Feed & Nutrition Serv., Inc., 153 Wn.2d 447,453, 105 P.3d 378 (2005). "Failure to
permit instructions on a party's theory of the case, where there is evidence supporting the
theory, is reversible error." Barrett v. Lucky Seven Saloon, Inc., 152 Wn.2d 259, 266-67,
96 P.3d 386 (2004). "As with a trial court's instruction misstating the applicable law, a
court's omission of a proposed statement of the governing law will be 'reversible error
where it prejudices a party.'" Id. at 267 (quoting Hue v. Farmboy Spray Co., 127 Wn.2d
67,92,896 P.2d 682 (1995)). On appeal, errors oflaw injury instructions are reviewed
de novo. Hue, 127 Wn.2d at 92.
The estate's proposed instruction was not a Washington pattern jury instruction;
the authority it cited in proposing the instruction was Smith v. Acme Paving Co., 16 Wn.
App. 389, 558 P.2d 811 (1976) and Cummins v. Rachner, 257 N.W.2d 808 (Minn. 1977).
On appeal, it cites Argus v. Peter Kiewit Sons' Co., 49 Wn.2d 853, 307 P.2d 261 (1957)
as additional authority. Degerstrom argues that all three cases involved distinguishable
facts: a contractor engaged in road construction who created a hazard in or on the
physical roadway being constructed. We agree; the duty of the contractor in each case
was identified as being to maintain the streets in a reasonably safe condition and to guard
30
No.30185-1-III
Millican v. N.A. Degerstrom, Inc.
drivers from reasonably anticipated hazards. Argus, 49 Wn.2d at 856; Smith, 16 Wn.
App. at 393; Cummins, 257 N.W.2d at 813. As stated in Smith, 16 Wn. App. at 393-94,
this duty "is particularly applicable where the conditions complained of arise out of the
actual construction, repair, and maintenance of the roadway." Degerstrom is not accused
of creating a hazard, but of failing to safeguard against it.
Nonetheless, other evidence presented at trial supported a broader duty owed by
Degerstrom to the public. Degerstrom's agreement in its accident prevention program to
reasonably ensure that parked, unattended vehicles were chocked on inclines apparently
was intended to protect the public as well as employees from hazardous runaway
vehicles. The reference in WISHA regulations to vehicles parked at night, after work
hours, proves this intent. WAC 296-1 55-605(1)(a). Degerstrom also agreed to safeguard
the public from its operations and to provide adequate warnings of hazards for workers
and the public.
This scope of Degerstrom's duty was reflected in other instructions given by the
trial court, however, from which the estate could argue that Degerstrom breached a duty
of care to the public by failing to require Sharp-Line to use chocks on the auger trucks.
The trial court's instructions informed the jury that negligence includes "the failure to do
some act that a reasonably careful person would have done under the same or similar
circumstances," CP at 3179, and that a violation of a WISHA regulation is evidence of
negligence. The estate elicited testimony from several witnesses that it would have been
31
No. 30185-1-111
Millican v. N.A. Degerstrom, Inc.
safer to use chocks under the circumstances ofthe accident, and argued that the failure to
use chocks was both unreasonable and a violation of WISHA safety regulations, creating
an imminent threat to the pUblic.
The instructions given enabled the estate to argue a negligent breach of duty to the
public. The trial court's refusal to give a more specific instruction was therefore not
reversible error.
Dismissal ofMs. Millican's individual claim.
Ms. Millican sued not only as the personal representative of Mr. Lafayette's estate
but also individually, as a statutory beneficiary. RCW 4.20.020 identifies a first and
second tier of beneficiaries who may recover damages for wrongful death. Armantrout v.
Carlson, 166 Wn.2d 931, 935, 214 P.3d 914 (2009). The first tier includes a decedent's
wife, husband, or registered domestic partner, and any children or stepchildren. Ifthere
are no first tier beneficiaries, as in the case of 19-year-old Mr. Lafayette, a wrongful
death suit may be maintained for the benefit of second tier beneficiaries, including
parents or siblings "who may be dependent upon the deceased person for support." RCW
4.20.020; Armantrout, 166 Wn.2d at 935.
The statute does not define "dependent" or "support." It has long been construed
to require that second tier beneficiaries prove '''substantial dependency'" and a
recognition by the child of the parent's '''necessitous want. '" Id. at 936 (quoting Bortle
v. N. Pac. Ry., 60 Wash. 552, 554, III P. 788 (1910)). The substantial dependency must
32
No. 30185-1-111
Millican v. NA. Degerstrom, Inc.
be based on the situation existing at the time of the decedent's death, not on a promise of
future contributions. Id. Emotional dependency alone will not qualify parents for
second-tier beneficiary status. Id. In Armantrout, the Washington Supreme Court held
that the trier of fact may consider services provided by the deceased that had a monetary
value for which the parents would not otherwise have been able to pay. It may not,
however, consider "everyday services a child would routinely provide." Id. at 940.
The defendants moved for summary judgment dismissing Ms. Millican's
individual claim, arguing that there was no genuine issue that she was dependent on her
son for support. It was undisputed that Mr. Lafayette had moved out of his mother's
home four months before the accident and had been living independently. The
defendants submitted Ms. Millican's deposition in support of their motion, summarizing
material concessions made in the deposition as follows:
Mrs. Millican does not have debilitating health problems requiring
necessary care and assistance from her family members. She had a
pulmonary embolism nearly twenty years ago and now has hypertension,
but she tries not to limit herself in activities. Mr. Lafayette did not offer
any medical care to his mother. In fact, Ms. Millican is able to work at two
jobs, the Riverside school district administration office and a foster home
for at-risk youth. Currently, she is working about 35 hours per week at the
school district and 35-40 hours per week at the foster home. Mr. Lafayette
did not give his mother any [monetary] support.
CP at 645-46 (footnotes omitted).
In response, Ms. Millican submitted the declaration of her primary care physician
that she has class IV pulmonary hypertension that causes shortness of breath with
33
No.30185-1-III
Millican v. NA. Degerstrom, Inc.
exertion and significantly limits her ability to do chores involving aerobic activity. She
also submitted evidence that her son began working construction at age 12 and had
become proficient at construction, household repair, and landscaping. She testified that
during his teenage years he had regularly handled household repairs and maintenance and
had undertaken a number of improvements to her home and the 10-acre parcel on which
it is located. She argued that her physical limitations prevented her, personally, from
performing the maintenance required on her home and property.
She testified that her son planned to continue providing these and other
maintenance, repair, and home improvement services in the future. In support of a
motion for reconsideration she submitted a declaration stating conclusorily that she and
her husband were financially unable to pay someone else to perform the tasks necessary
for the maintenance and upkeep of their home. Because she and her husband could not
keep up the property as well as Mr. Lafayette had, and it did not make sense for her to
refinance a home that was losing value, she testified that she lost her home in foreclosure.
Our review of an order of summary judgment is de novo, considering the facts and
reasonable inferences in the light most favorable to the nonmoving party. Beggs v. Dep't
o/Soc. & Health Servs., 171Wn.2d 69, 75, 247 P.3d 421 (2011); Right-Price Recreation,
LLC v. Connells Prairie Cmty. Council, 146 Wn.2d 370,381,46 P.3d 789 (2002).
Summary judgment is proper if the pleadings and accompanying documentary evidence
show that there is no genuine issue of material fact and that the moving party is entitled
34
No.30185-1-III
Millican v. N.A. Degerstrom, Inc.
to judgment as a matter oflaw. Phillips v. King County, 136 Wn.2d 946,956,968 P.2d
871 (1998); CR 56(c).
Viewing the evidence in the light most favorable to Ms. Millican, the services Mr.
Lafayette provided are different from the type of support services discussed in
Armantrout that make a parent "dependent ... for support" within the meaning ofRCW
4.20.020. In that case, the 18-year-old decedent had lived with her mother, who had
diabetes and was blind. She acted as her mother's driver and administered her mother's
glucose tests and insulin injections. The decedent had contributed her monthly disability
benefit checks to the household. Armantrout held that these services were the kind for
which an economic value could be determined. At the same time, it endorsed the trial
court's instruction to the jury that the financial dependence required excluded the
everyday services a child would routinely provide. 166 Wn.2d at 939.
Ms. Millican's evidence responding to the summary judgment motion failed to
demonstrate a genuine issue of material fact. Mr. Lafayette provided no medical care or
monetary support to his mother, who was able to get around on her own and hold more
than full-time employment. Some services provided by Mr. Lafayette, such as snow
plowing and yard maintenance, were in the nature of everyday services a child would
routinely provide. Extensive future home and landscaping improvements accounted for a
35
No. 30185-1-111
Millican v. N.A. Degerstrom, Inc.
large part of her damage claim 9 but they were both hoped-for contributions and not the
degree of dependency contemplated by the statute, which "must be real and substantial
and will not arise from occasional gifts or gratuities." Beggs, 171 Wn.2d at 82 n.12.
Finally, with respect to any assistance she had been receiving from Mr. Lafayette that
Ms. Millican might legitimately argue was nonroutine and responded to a real and
substantial need, she made no showing of financial dependence on that assistance.
The trial court properly granted the defendants' motion for partial summary
judgment dismissing Ms. Millican's individual claim.
We affirm the trial court's dismissal of Ms. Millican's individual claim, reverse
the dismissal of the estate's claim, and remand for a new trial consistent with this
OpInIOn.
Siddoway, A.C.J.
I CONCUR:
9 Summarized at CP 782-87, Ms. Millican's damage claim included the value of
the following improvements to her home that she had hoped Mr. Lafayette would
undertake in the future: construction of a new two-car garage with studio apartment; a
two-story addition to the home; a kitchen remodel; and new lawn, sprinkler, and drip
irrigation systems.
36
No. 30185-1-111
BROWN, J., (concurring in part, dissenting in part) - I agree the trial court correctly
dismissed Dorothy Millican's individual claim. But in my view under existing law, the
trial court did not abuse its discretion and err in admitting the subcontract between N.A.
Degerstrom (NAD) and Sharp-line Industries, Inc. Pretrial, the Estate of Daren
Lafayette (Estate) unsuccessfully moved to exclude any U[a]rgument or inference that
Degerstrom did not retain control or exercise supervision over [Sharp-line's] work,"
citing ER 401,402, and 403 and Stute v. P.B.M.G., Inc., 114 Wn.2d 454,788 P.2d 545
(1990). Clerk's Papers (CP) at 1549. Attached to the motion was the subcontract
between NAD and Sharp-line, which specified in one provision that Sharp-Line
accepts responsibility to prevent accidents to any person who may be
close enough to its operations to be exposed to Subcontractor's work
related hazards. Subcontractor shall be solely responsible for the
protection and safety of its employees, for final selection of additional
safety methods and means, and for daily inspection of its work area and
safety equipment.
CP at 3227. The Estate mistakenly contends this provision impermissibly delegated
NAD's responsibility to ensure compliance with the safety regulations of the Washington
Industrial Safety and Health Act of 1973 (WISHA), chapter 49.17 RCW.
No. 30185·1·111
Millican v. Degerstrom, Inc. - concurrence/dissent
Evidence must be relevant to be admissible, meaning "it must tend to make the
existence of any fact of consequence to the action more or less probable." Degroot v.
Berkley Constr., Inc., 83 Wn. App. 125, 128,920 P.2d 619 (1996). Even relevant
evidence may be excluded if its probative value is outweighed by the likelihood that it
will mislead the jury. Id. The trial court's balancing of probative value versus prejudicial
effect is entitled to great deference. Id.
The subcontract's safety provision was relevant to NAD's defense that it took all
reasonable steps to comply with WISHA regulations. Under RCW 49.17.060, each
employer
(1) Shall furnish to each of his or her employees a place of
employment free from recognized hazards that are causing or likely to
cause serious injury or death to his or her employees ... ; and
(2) Shall comply with the rules, regulations, and orders
promulgated under this chapter.
This statute is mirrored in WAC 296-155·040, which states in part:
(1) Each employer shall furnish to each employee a place of
employment 'free 'from recognized hazards that are causing or likely to
cause serious injury or death to employees.
(2) Every employer shall require safety devices, furnish safeguards,
and shall adopt and use practices, methods, operations, and processes
which are reasonably adequate to render such employment and place of
employment safe. Every employer shall do everything reasonably
necessary to protect the life and safety of employees.
See Stute, 114 Wn.2d at 457,459-60. Stute held RCW 49.17.060 and WAC 291·155·
040 create a two·fold duty for general contractors. Id. at 457. Subsection (1) of the
statute and regulation imposes a general duty on employers to protect solely their own
employees from "recognized hazards not covered by specific safety regulations." Id.
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Subsection (2) of the statute and regulation, however, "imposes a specific duty to
comply with WISHA regulations." Id. This specific duty extends to the employees of
subcontractors. Id. at 458. Thus, a general contractor has a nondelegable duty to
ensure compliance with safety regulations for the safety of a subcontractor's
employees. Id. at 463-64.
In Stute, P.B.M.C., Inc., a general contractor, subcontracted with S & S Gutters
to install gutters on a condominium complex. Mr. Stute, an employee of S & S Gutters,
fell while installing gutters and was injured. The record showed P.B.M.C. knew the
employees of S & S Gutters were working on the roof without safety devices. Id. at 456.
Mr. Stute sued P.B.M.C., alleging the general contractor owed a duty to provide
necessary safety devices on the work site. Citing RCW 49.17.060, WAC 296-155-040,
and the general contractor's "innate supervisory authority," Stute, 114 Wn.2d at 464, the
Supreme Court held a general contractor had a specific duty as a matter of law to
supply safety equipment for all employees on a work site or to contractually require
subcontractors to provide adequate safety equipment relevant to their responsibilities.
Stute, 114 Wn.2d at 464.
Here, the trial court correctly reasoned Stute allowed a general contractor to
contractually require subcontractors to furnish adequate safety equipment. Id. Thus, in
my view, the trial court correctly admitted the subcontract with the understanding it
would deal with the legal issues in the jury instructions.
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In Degroot, a subcontractor's employee was injured while working on a job site
and sued the general contractors for negligence and WISHA violations. Before trial, the
employee moved to exclude a subcontract safety provision that arguably gave the
subcontractor sole responsibility for the safety of its employees:
"Subcontractor shall, at its own cost and expense, protect its own
employees, employees of Contractor, and all other persons from risk of
death, injury or bodily harm arising out of or in any way connected with the
work to be performed under this Subcontract.
"Subcontractor shall strictly comply with all safety orders, rules,
regulations or requirements of all federal, state and local government
agencies, exercising safety jurisdiction over said work including, but not
limited to, federal OSHA [Occupational Safey and Health Act of 1970,29
U.S.C. §§ 651-678] and state occupational safety and health regulations."
Degroot, 83 Wn. App. at 128. The employee contended that because the safety
provision gave the impression that the general contractors had delegated to the
subcontractor the duty to furnish a relatively safe working environment, the safety
provision was irrelevant and misleading. Id. at 127.
In affirming the trial court's admission of the evidence, the Degroot court found
the boilerplate language in the safety provision appeared to be designed to meet the
duty of care outlined in Stute, particularly the general contractor's duty to "'furnish safety
equipment or to contractually require subcontractors to furnish adequate safety
equipment.'" Id. at 129 (quoting Stute, 114 Wn.2d at 464). Consequently, the safety
provision was "at least relevant to whether [the general contractors] fulfilled their WISHA
responsibility for the safety of all employees on the work site." Id. The Degroot court
concluded the safety provision was not misleading, because the general contractors
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agreed at trial they had a nondelegable duty to comply with WISHA safety regulations,
never argued the subcontract delegated this duty to the subcontractor, and submitted
the safety provision solely as "evidence of their attempt to exercise reasonable care to
enforce safety regulations on the work site." Id. at 131. The trial court in Degroot
instructed the jury that the provision was not evidence that the general contractors had
delegated their WISHA duties to the subcontractor and that the general contractors
were required to exercise ordinary care to ensure compliance with safety regulations on
the work site. Id.
Under Degroot, subcontract safety provisions may be admissible as evidence of
the steps the general contractor took to comply with WISHA safety regulations, but the
provisions are not admissible to show the general contractor delegated its responsibility
for compliance with the safety regulations to the subcontractor. Id. at 129. As in
Degroot, the subcontract safety provision here is relevant to whether NAD met its duty
to ensure compliance with WISHA safety regulations at the work site. Id.; Stute, 114
Wn.2d at 464; WAC 296-155-040(2).
The trial court found the relevance of the subcontract safety provision here
outweighed the possibility that it might mislead the jury regarding the general
contractor's nondelegable duty to comply with WISHA safety regulations. Although the
subcontract states Sharp-Line is "solely responsible for the protection and safety of its
employees," CP at 3227, NAD acknowledged in its opening and closing statements that
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general contractors have a legal duty to provide a safe work site for all employees. No
objection was noted to NAO's arguments in the briefing.
In terms of a fair trial, NAO employees testified that the general contractor
retained the ultimate responsibility for work site safety. Additionally, NAO provided
evidence it had a site specific accident prevention plan, it had a foreman and
superintendent performing oversight at the job site daily, as well as a safety director
who checked in on occasion, and it ran weekly safety meetings that were required for all
workers on the site. NAO's closing statement explained that as the general contractor,
it was required to take reasonable steps to ensure the safety of the work site, including
contractually requiring its subcontractors to furnish any safety equipment related to their
work. The trial court was in the best position to rule on any objections, if they had been
made.
Importantly, the jury was instructed that a general contractor has a nondelegable
responsibility to ensure the safety of all employees on the work site:
Under Washington law, a general contractor on a construction
project owes a duty to every employee at the job site, including employees
of subcontractors, to ensure that it and its subcontractors comply with all
applicable safety regulations. The general contractor is the party with
innate supervisory authority and per se control over the job site, so it
bears the primary, non-delegable duty to provide a safe workplace for
subcontractor employees.
In Washington, all general contractors have a non-delegable
specific duty to ensure compliance with all Washington state construction
safety regulations.
CP at 3182. We assume juries follow the instructions. Degroot, 83 Wn. App. at 131.
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Accordingly, I concur in affirming the trial court's dismissal of Ms. Millican's
individual claim, but because I would affirm the trial court's judgment on the jury's
verdict, I respectfully dissent.
Brown, J.
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