Afoa v. Port of Seattle

This opinion was filed for record

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IN THE SUPREME CGURT OF THE STATE OF WASHINGTON

BRANDON APELA AFOA, ) No. 94525-0
)
)
Respondent/Cross-Petitioner, )
)
v. ) En Banc
)
PORT OF SEATTLE, )
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Petitioner/Cross-Respondent. )
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GONZALEZ, J.-Brandon Afoa was severely injured in an accident while
working at the Port of Seattle (Port) for a cargo company He sued the Port on the
theory that it had retained sufficient control over his work to have a duty to provide
him a safe place to wor‘l<. Among other things, the Port argued that several airlines
that were not parties to the lawsuit were at fault. A jury found that Afoa suffered
$40 million in damages and apportioned fault between him, the Port, and the
airlines ln Washington, tortfeasors are usually liable only for their proportionate
share of the damages they cause. Afoa argues that the Port is liable for both its
portion and the airlines’ portion. The primary question for review is whether the

jury’s verdict warrants finding the Port is vicariously liable for the airlines’

Afocl v. Port ofSeattle, No. 94525~0

negligence, justifying the imposition of joint and several liability on the Port. We
hold that RCW 4.22.070(1)(a) does preserve joint and several liability when a
defendant is vicariously liable for another’s fault. Whether vicarious liability
exists, however, is a factual question Here, the jury’s findings do not support the
conclusion that the Port is vicariously liable for the airlines’ fault.

Afoa’s suit was initially dismissed on summary judgment, but in Afoa v.
Port ofSecth'le, 176 Wn,Zd 460, 296 P.3d 800 (2013) (Afoa I), we reversed and
remanded ln the meantime, Af`oa brought a separate action for the same injuries '
against several airlines, which a federal court dismissed on summary judgment
Afoa did not appeal the dismissal of that suit. Afoa’s original lawsuit against the
Port went to trial. Over Afoa’s objection, the airlines were named as nonparties,
and the Port asserted an “empty chair defense” blaming the airlines for Afoa’s
injuries. The jury returned a multimillion dollar verdict for Afoa and apportioned
fault among Afoa, the Port, and the nonparty airlines

We granted review to consider issues of allocation of fault to a nonparty and
the assertion of an empty chair defense

Afoa now argues that the Port and the airlines are jointly and severally liable
because the Port’s duty was nondelegable and the airlines were the Port’s agents
under RCW 4.22.070, even though the jury was not explicitly asked to make that

finding While the Port concedes that its duty to provide a safe workplace was

Afocl v. Port OfSeczttle, No. 94525-0

nondelegable it urges us to uphold the judgment because it contends it is not
responsible for the airlines’ fault. The airlines also had a duty to provide a safe
work site, and we assume, without deciding, that duty was also nondelegable See,
e.g., Clerk’s Papers (CP) at 4811 (jury instruction explaining airlines have “a duty
to ensure compliance with applicable safety regulations”); see also Afoa I, 176
Wn.2d at 495. We reverse the Court of Appeals and affirm the trial court.
BACKGROUND

Afoa worked as a baggage handler at the Seattle-Tacoma lnternational
Airport (Airport). Afoa was employed by Evergreen Aviation Ground Logistics
Enterprise Inc. (EAGLE), which contracted with four airlines to provide ground
services, such as loading and unloading cargo.1 While driving a luggage vehicle,
Afoa lost control and crashed into a piece of equipment that fell and severely
injured him. Afoa’s employer, EAGLE, was not “at fault” for purposes of RCW
4.22.0,70.2

After the accident, Afoa sued the Port. He alleged that the Port retained

control over EAGLE and was responsible for his injuries because the Port violated

' EAGLE contracted with China Airlines LTD, Hawaiian Airlines Inc., EVA Airways
Corporation, and British Airways PLC. The relationship between the Port and the airlines is
highly regulated under federal law, which makes these relationships different from most work
sites in the state In fact, the Port is prohibited from controlling certain aspects of airline
operations See, e.g., 14 C.F.R. pts. 139, 121.

2 Employers who are immune from liability under Washington’s lndustrial lnsurance Act are not
considered “at fault” for purposes of apportioning liability RCW 4.22.070(1) (“except entities
immune from liability to the claimant under Title 51 RCW”).

3

Afocz v. Port OfS€attle, No. 94525-0

its nondelegable duties under the Washington lndustrial Safety and Health Act of
1973 (WISHA), chapter 49.17 RCW, and the common law. The trial court granted
' summary judgment for the Port on the ground that Afoa was not the Port’s
employee Afoa appealed and also brought a separate lawsuit against the four
airlines that had contracted with EAGLE under the same theory he pursued against
the Port in the original case The separate action was removed to federal court and
stayed pending Afoa’s appeal in this court. We reversed summary judgment,
holding “that a jobsite owner who exercises pervasive control over a work site
should keep that work site safe for all workers.” Afoa l, 176 Wn.Zd at 481. We
were not asked to rule on whether the Port was potentially subject to joint and
several liability with nonparty airlines

After we decided Afoa I, Afoa moved to amend his complaint in federal
court against the airlines to add the Port as a defendant His motion was denied
Subsequently, the federal court granted the airlines’ motions for summary
judgment because Afoa failed to cite WISHA regulations applicable to the airlines
and to provide factual allegations sufficient to conclude the airlines retained
control over Afoa’s work.

On remand and over objection, the Port moved to amend its answer and
assert an empty chair defense that the airlines that contracted with Afoa’s employer

shared fault for Afoa’s injuries A jury found that the Port retained control over

Afoa v. Port OfSeczttle, No. 94525-0

the independent contractor EAGLE’s work, which gave rise to a duty of care to
Afoa.

The jury found Afoa suffered $40 million in damages and apportioned fault
to the parties: 25.0 percent to the Port, 0.2 percent to Afoa, and equally divided the
remaining 74.8 percent among the four airlines The trial court, pursuant to the
jury’s allocation, entered judgment against the Port for $10 million.

On review, Afoa raised three arguments to the Court of Appeals: first, that
the Port had a nondelegable duty to provide a safe workplace and thus no fault
allocation was permitted, and the Port was jointly and severally liable for the
judgment minus Afoa’s 0.2 percent of fault; second, that the trial court abused its
discretion in allowing the Port to assert an empty chair defense; and third, that the
dismissal of Afoa’s claims prevented the Port from claiming the air carriers were
responsible for the accident on a res judicata theory.

The Court of Appeals held that the Port had a nondelegable duty and was
therefore vicariously liable for the airlines’ fault. The Court of Appeals remanded
for the trial court to enter judgment against the Port for 99.8 percent of Afoa’s
damages Afocz v. Port OfSeczttle, 198 vWn. App. 206, 234, 393 P.3d 802 (2017)
(Afocz Il). Consequently, Afoa’s other arguments were not addressed The Port
appealed Afoa cross appealed, arguing the trial court abused its discretion under

CR 12(i) by allowing the Port to assert an empty chair defense late in the case and

Afaa v. Port afSeatz‘le, No. 94525-0

the trial court erred because the Port was bound by the federal court’s summary
judgment ruling in favor of the airlines3 We granted review of the issue of
allocation of fault to the nonparty airlines and Afoa’s contingent issues concerning
the Port’s assertion of an empty chair defense4
ANALYsls

l. Allocation OfFaulz‘ ana’ Nana'elegablc Dutz'es

The first question this court must answer is whether the trial court erred in
permitting the jury to allocate fault to the nonparty airlines Whether this was error
is a question of law. We review issues of statutory interpretation and alleged errors
oflaw de novo. Jongewarcl v. BNSF Ry. Ca., 174 Wn.2d 586, 592, 278 P.3d 157
(2012) (citing State v. Breazeale, 144 Wn.2d 829, 837, 31 P.3d 1155 (2001)).

ln the 1986 tort reform act, the legislature generally abrogated the common
law rule of joint and several liability See generally LAWS of 1986, ch. 305 ; RCW
4.22.030. The legislature left no doubt as to its intent-proportionate liability “has

now become the rule.” Kotrler v. State, 136 Wn.2d 437, 443, 963 P.2d 834 (1998).

Nonparty at Fault. Whenever a defendant . . . intends to claim for purposes of RCW
4.22.070(1) that a nonparty is at fault, such claim is an affirmative defense which shall be
affirmatively pleaded by the party making the claim. The identity of any nonparty
claimed to be at fault, if known to the party making the claim, shall also be affirmatively
pleaded

CR 12(i) (boldface omitted).

4 We did not grant review of issues related to federal preemption and the jury instructions’

statements of the law. Afoa Il, 198 Wn. App. at 216-29, review granted, 189 Wn.2d 1015 (2017).

6

Afoa v. Port ofSeattle, No. 94525-0

“RCW 4.22.070, the centerpiece of the 1986 amendatory package, requires all
liability be apportioned unless a listed exception applies in'which case joint and
several liability is retained.” Icl.

Under the rule of proportionate liability, fact finders assign percentages of
“fault” attributable to each party and relevant nonparty, including plaintiffs whose
negligence or certain other categories of culpable conduct constitutes a legal cause
of a plaintiff’ s injury. See RCW 4.22.015 (defining “fault”). ln cases where a
nonparty is allegedly at fault, the jury may be asked to allocate fault to the empty
chair at the trial court’s discretion CR 12(i). The burden of proving an empty
chair’s fault is on the party asserting the nonparty’s fault. Maz`lloax v. State Farm
Mal. Aulo. Ins '0., 76 Wn. App. 507, 514~15, 887 P.Zd 449 (1995); See also
Stewart A. Estes, The Short Happy Lz'fe ofLiligation Befween Torz‘f€asors.'
Contribatz`on, ]nclemnifz`catz`on and Subrogation After Washz`ngton ’s Tort Reform
Acrs, 21 SEATTLE U. L. REv. 69, 80 (1997). Here, at trial, the Port successfully met
its burden of proving the empty chair airlines’ partial responsibility for Afoa’s
injuries The trial court did not err in allowing the jury to allocate fault to the
nonparty airlines

Allocation of fault is an “inherently factual” question for the jury. Eclgar v.
Cz'zy ofTacoma, 129 Wn.2d 621, 627, 919 P.2d 1236 (1996). When thejury

apportions fault, “[t]he sum of the percentages of the total fault attributed to at-

Afaa v, Port afSeattle, No. 94525-0

fault entities shall equal one hundred percent.” RCW 4.22.070(1). The parties
bear the responsibility of paying for the damages in proportion to the fault
respectively assigned to them, unless an exception applies

Afoa argues that the Port should be responsible for the airlines’ apportioned
damages because the Port, “as the entity best able to control safety” at the Airport,
“cannot shift any part of its nondelegable duty to the airlines.” Supp’l Br. of
Resp’t at 16 n.43. When an exception to the general rule of proportionate liability
applies, joint and several liability is retained Kozrler, 136 Wn.2d at 443. Joint and
several liability may exist if multiple entities were acting in concert or if an entity
was “acting as an agent or servan ” of another entity RCW 4.22.070(1)(a), As
discussed below, Afoa did not raise the agency exception until it was too late5
Except in specifically recognized areas, joint and several liability does not apply
automatically-the RCW 4.22.070 exceptions must apply by operation of fact and

law.6

RCW 4.22.070 is clear and unambiguous Clark v. Pacz'fzcorp, 118 Wn.2d
167, 181, 822 P.2d 162 (1991). lt “had the effect of generally abolishing joint and

several liability for concurrent negligence.” Gz'lberr H. Maen Ca. v. Islancl Sz‘eel

5 Afoa has abandoned his argument that the Port and airlines were “acting in concert” under
RCW 4.22.070. Chapter 4.22 RCW does not define “acting in concert,” but we have held that
the legislature intended the term to mean two or more people consciously acting together in an
unlawful manner. Kol‘l‘ler, 136 Wn.2d at 448-49.

6 The statute excludes from its reach three causes of action not involved here RCW 4.22.070(3).

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Afoa v. Port of Sealtle, No. 94525-0

Ereorors, Inc., 128 Wn.2d 745, 760, 912 P.2d 472 (1996). We must determine if
joint and several liability attaches to a party violating its concurrent nondelegable
duty to maintain a safe work site for all workers under WISHA and common law.

A. The Port’s Nondelegable Dutv Did Not Give Rise to Joint and Several
Liability

Under some circumstances jobsite owners may have a duty of care
analogous to that of an employer or general contractor. See Kamla v. Space Needle
Corp., 147 Wn.2d 114, 123, 125, 52 P.3d 472 (2002); Kelley v. Howard S. Wriglzt
Constr. Co., 90 Wn.2d 323, 334, 582 P.2d 500 (1978). Ajobsite owner or general
contractor will have this duty only if it maintains a sufficient degree of control over
the work. Kamla, 147 Wn.2d at 123 (quoting Doss v. ITTRayonz'er lnc., 60 Wn.
App. 125, 127 n.2, 803 P.2d 4 (1991)). lfthe duty exists, it is nondelegable
Kelley, 90 Wn.2d at 334. lf the general contractor_-or by extension, jobsite
owner-has the right to exercise control, it also “has a duty, within the scope of
that control, to provide a safe place of work.” Id. at 330; accord RESTATEMENT
(SEcoND) oF ToRrs § 414 (AM. LAW INsT. 1965).

Afoa argues the Port’s nondelegable duty to provide a safe workplace under
WISHA and common law made it vicariously liable for the airlines’ fault. We

disagree The jury found that Afoa’s injuries were the result of both the Port and

Afoa v. Port ofSeaz‘rle, No. 94525-0

the airlines’ failure to ensure a safe workplace7 See generally Wez'nerzL v. Bronco
Nal’l Co., 58 Wn. App. 692, 795 P.2d 1167 (1990) (duty to comply with safety
regulations applies to any party with supervisory authority on a jobsite). But
neither has escaped its own liability by delegation to the other.

WISHA does not expressly provide for vicarious liability when employers
are concurrently negligent ln contrast, even though RCW 4.22.070 requires
proportionate liability, the legislature has expressly provided that a product seller
may have the liability of a manufacturer under certain circumstances RCW
7.72.040.8 WlSHA requires employers to “comply with the rules, regulations, and
orders promulgated under this chapter.” RCW 49.17.060(2). Nothing in chapter
49.17 RCW suggests that the legislature intended to impose joint and several
liability for WISHA violations

At the same time, liability for breach of a nondelegable duty does not

undermine the fault allocation under RCW 4.22.070. Lawmakers did not intend to

7 A,s a threshold matter, the Port urges us to reject Afoa’s arguments because they were not
preserved We disagree When the trial court interpreted RCW 4.22.070, it considered the
exceptions to proportionate liability that it contains See Washbarn v. Beatt Equz'p. Co. , 120
Wn.2d 246, 291, 840 P.2d 860 (1992) (we may consider new arguments when “the issue is
advanced below and the trial court has an opportunity to consider and rule on relevant authority.”
(citing Bennel'l‘ v. Hardy, 113 Wn.2d 912, 917, 784 P.2d 1258 (1990))). Thus, the issue was
adequately presented

8 The products liability act, under RCW 7.72.040(2), specifically states, “A product seller, other
than a manufacturer, shall have the liability of a manufacturer to the claimant.”

10

Afoa v. Port ofSeattle, No. 94525~0

minimize the responsibility of the nonparty airlines that had a concurrent
nondelegable duty

Principles of common law survive RCW 4.22.070, but there is no clearly
established common law right to hold tortfeasors with a nondelegable duty
vicariously liable for another entity’s breach of the same duty9 lt would be
difficult for such a situation to arise under common law. See Wenaz‘chee Wenolca
Growers Ass ’n v. Krack Corp., 89 Wn.2d 847, 849-50, 576 P.2d 388 (1978).
There was, however, a principle at common law that a defendant would not be
responsible for another’s independent tortious acts

The dissent correctly recognizes an exception to this independent contractor
rule: a nondelegable duty may result in vicarious liability10 That exception is
irrelevant here See Mz'llz`can v. N.A. Degerstrozn, Inc., 177 Wn. App. 881, 896-97,
313 P.3d 1215 (2013) (“‘ [A] “non-delegable duty” requires the person upon whom
it is imposed to answer for it that care is exercised by anyone . . . to whom the

performance of the duty is entrusted.”’ (qucting RESTATEMENT (SEcoND) oF ToRrs

9 Joint and several liability applied to concurrently negligent defendants between 1973 and 1986;
by operation of statute, the jury was not required to determine the fault of individual defendants
Edgar, 129 Wn.2d at 631 & n.6; see also Seal‘l'le~Fz`rst Naf’l Banlc v. Shoreline Concrele Co., 91
Wn.2d 230, 23 5~3 6, 588 P.2d 1308 (1978) (“liability at common law applies only to joint tort-
feasors,” not concurrent tortfeasors (emphasis added)).

10 See dissent at 5 & 9 n.2 (citing Kelley, 90 Wn,2d at 330). When an entity has a nondelegable
duty, it cannot escape liability by delegating its duty to another entity Millican v. N.A.
Degerslrom, Inc., 177 Wn. App, 881, 896-97, 313 P.3d 1215 (2013). Thus, the Port cannot
escape its proportionate share of responsibility under RCW 4.22.070 by delegation

11

Afoa v. Port ofSeatl'le, No. 94525-0

ch. 15 , topic 2, intro. note)). No delegation occurred here Simply because the
Port cannot delegate its responsibility does not mean it must adopt the
responsibility of another.

RCW 4.22.070 is consistent with the principle that a defendant with a
nondelegable duty cannot discharge its primary responsibility to ensure
compliance ln Mz'llz'can, the Court of Appeals reversed a trial court’s decision to
admit a contract delegating the defendant’s responsibility under WISHA because
the defendant argued another party had sole responsibility for work site safety
under the contract 177 Wn. App. at 890. A defendant may argue another entity
was the sole'proximate cause of an injury but cannot argue the other entity is the

979

sole proximate cause when it was “‘carrying out the defendant’s nondelegable
duty Id. at 896 (quoting RESTATEMENT (THIRD) oF ToR'rs: LrABrLrTY ron
PHYSICAL AND EMo'rroNAL HARM § 57 crnt. b (AM. LAW INsT. 2012)); see also
Wz`ggs v. Cz'ty of Phoenix, 198 Ariz. 367, 10 P.3d 625 (2000) (defendant city
remained vicariously liable for any percentage of fault allocated to the empty chair
company it contracted to maintain its streetlights because the city had a
nondelegable duty to maintain its streets in a reasonably safe condition). Mz'llz’can
does not stand for the proposition that another entity cannot be separately

responsible for work site saf`ety. An entity that delegates its nondelegable duty will

be vicariously liable for the negligence of the entity subject to its delegation, but an

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Afoa v. Port of Seaz‘z‘le, No. 94525-0

entity’s nondelegable duty cannot substitute for a factual determination of
vicarious liability when RCW 4.22.070(1) clearly requires apportionment to “every
entity which caused the claimant’s damages.”

The Port can still be vicariously liable for the airlines’ negligence if the jury
makes the necessary finding of control because RCW 4.22.070(1)(a) “explicitly
retains principles of common law vicarious liability” within its exceptions
Johnson v. Recreatz`onal Equip., Inc., 159 Wn. App. 939, 950, 247 P.3d 18 (2011).
Thus, we turn to whether Afoa proved an RCW 4.22.07 0 exception applied

B, The Nonparty Airlines Do Not Fall within the Agency Exception to
RCW 4.22.070 without the Required Factual Finding

Afoa did not ask the jury to find that the Port retained control over the
airlines or make any agency arguments until after the verdict The Port contends
that raising RCW 4.22,070’s agency exception now is too late We agree Agency
presents a question of fact that Afoa should have presented to the jury Travelers
Cas. & Sur. Co. v. Wash. Tr. Bank, 186 Wn,2d 921, 937, 383 P.3d 512 (2016)
(citing Unruh v. Cacohz'otti, 172 Wn.2d 98, 114, 257 P.3d 631 (2011)).

There is a long~standing common law duty to provide a safe workplace in
Washington, and the Port is directly liable in this case as a result; while the Port
could be vicariously liable for the airlines’ breach of their concurrent nondelegable
duties if a jury found that the Port retained control over the airlines, the jury was

not presented with the opportunity to do so. Afoa l, 176 Wn.2d at 475-76 (citing

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Afoa v. Port of Searrle, No. 94525-0

Kelley, 90 Wn.2d at 331-32); see also Unz`-Coln Nw., Ltd. v. Argas Pul)l’g Co., 47
Wn. App. 787, 796, 737 P.2d 304 (1987) (“The existence of a principal-agent
relationship is a question of fact unless the facts are undisputed”). The jury is
ultimately responsible for determining “the entity in the best position to ensure a
safe working environment.” Afoa l, 176 Wn.2d at 479 (citing Kelley, 90 Wn.2d at
331); Edgar, 129 Wn.2d at 627 (right to a jury trial includes right to have jury
determine allocation of fault (citing Sofze v. Fz`l)reboard Corp., 112 Wn.2d 636,
648-49, 771 P.2d 711, 780 P.2d 260 (1989))).

Notably, in Jolznson, the Court of Appeals could apply the agency principles
retained in RCW 4.22.070’s exceptions only because it was undisputed that the
product seller held itself out as the manufacturer by placing its brand on the
defective product 159 Wn. App. at 946. Similarly, in Yong T ao v. Heng Bin Lz', a
case involving an injured passenger in the second van of a three-van caravan,
brought against the lead driver, the Court of Appeals held that the material
question of control precluded summary judgment on the issue of joint and several
liability under RCW 4.22.070. 140 Wn. App. 825, 830-31, 166 P.3d 1263 (2007).
As in Yong Tao, the facts here are disputed and vicarious liability under the agency

exception remains unproved11

11 Afoa relied on Yong Tao in his initial briefing to the Court of Appeals in 2010, which led to
Afoa l, to argue that summary judgment should be reversed because the Port and airlines were

14

Afoa v. Port of Seattle, No. 94525-0

ln this case, Afoa now argues the agency exception applies despite his
failure to ask the jury to address the disputed facts For RCW 4.22.070’s agency
exception to apply, either the facts necessary to establish the agency exception had
to be undisputed or the jury was required to make a factual finding12 The burden
of establishing an agency relationship is on the party asserting it exists Hewson
Constr., Inc. v. Rez'nz‘ree Corp., 101 Wn.2d 819, 823, 685 P.2d 1062 (1984). The
traditional rules of agency apply here: “an agency relationship results from the
manifestation of consent by one person that another shall act on his behalf and
subject to his control, with a correlative manifestation of consent by the other party
to act on his behalf and subject to his control.” Moss v. Vadman, 77 Wn.2d 396,
402~03, 463 P.2d 159 (1969).

ln the context of the WISHA specific and common law duty to provide a
safe work site, control exists where “there is a retention of the right to direct the
manner in which the work is performed.” See Karnla, 147 Wn.2d at 121; see also
Carabba v. Anacortes Sch. Dist. No. 103, 72 Wn.2d 939, 956-58, 435 P.2d 936

(1967) (requiring actual evidence of delegation).

jointly and severally liable See Br. of Appellant, Afoa v. Port ofSeattle, No. 64545-5-1, at 33~34
(“Reasonable inferences from the record support fact questions . . . .” (citing RCW 4.22.070(a))).
12 While the term “acting as” in RCW 4.22.070(1)(a) may give plaintiffs leeway to argue that a
third-party was an ostensible agent or performing a task on the defendant’s behalf, it cannot be
inferred to mean that agency is established per se for all entities when a party retains control of a
specific entity See generally Malstnntlra v. Ez'lert, 74 Wn.2d 362, 368, 444 P.2d 806 (1968)
(“[A]gency does not come into existence out of thin air.” (citing RESTATEMENT (SECOND) OF
AGENCY § 1 (Ai\/r. LAW INsr. 1958))).

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Afoa v. Port ofSean‘le, No. 94525-0

The jury found only that the Port retained control over EAGLE. CP at 4839
(“[d]id the defendant [the Port] retain a right to control the manner in which the
plaintiffs employer, [EAGLE], . . . performed its work or maintained its
equipmentused to provide ground support”).13 There was no finding that the Port
retained control over the airlines Id. at 4780~834 (instructions), 4839-42 (special
verdict form). in Afoa l, we were required to assume that Afoa’s allegation that the
Port “exercise[d] nearly plenary control over Sea-Tac Airport and the manner in
which work is performed on the premises” was true because the case came to us on
summary judgment 176 Wn.2d at 478 (the Port argued that it simply issued
licenses)_. But at this stage, Afoa cannot prevail by making allegations about the
Port’s pervasive control when control was a question for the jury See id. at 472
(citing Karnla, 147 Wn.2d at 125). The jury must find that the defendant
controlled another entity before the defendant is vicariously liable for that other
entity’s negligence lt did not here

Finall_y, the dissent minimizes the airlines’ responsibility under our system
of comparative fault and makes up for Afoa’s unsuccessful litigation tactics That

the Port retained control of EAGLE did not change the airlines’ status to

13 We did not grant review of the Port’s contention that the verdict form was based on an
incorrect statement of the law; the Court of Appeals held that the verdict form permitted the Port
to argue its|the‘ory of the case Afoa 11, 198 Wn. App at 216-21. Specifically, the verdict form
allowed the Port to argue that the “airlines had control.” Id. at 220.

'16

Afoa v.` Port ofSeatrle, No.’ 94525~0
subcontractor or make the airlines’ duty subordinate (or vicariously liable) to the
Port’s duty Furthermore, special verdict or not, we cannot assume that the airlines
had no control over EAGLE given the jury’s apportionment of 74.8 percent of the
fault for Afoa’s injuries to the airlines.14 Dissent at 17 & 16 n.6. The jury finding
of retained control made it so the Port was directly liable for its share of the fault,
nothing more See Fhlllz`ps v. Kaz'serAlwn. & Clzeln. Corp., 74 Wn. App. 741,
750-51, 875 P.2d 1228 (1994) (citing Kelley, 90 Wn.2d at 330). Afoa proved the
Port was partially responsible for his injuries, but a full recovery under RCW
4.22.070 required Afoa to timely sue the Port and the airlines in one cause of
action or argue agency

The trial court did not err because a nondelegable duty does not supersede
fault allocation under RCW 4.22.070 and the jury did not find facts that would
justify applying RCW 4.22.070’s agency exception Since Afoa did not raise the

factual question of agency until after trial, he waived his opportunity to prove it.15

14 There is no other reasonable explanation for the jury’s allocation of fault. See Spokane &
Inland Elnpz're R.R. Co. v. Campbell, 241 U.S. 497, 502, 36 S. Ct. 683, 60 L. Ed. 1125 (1916)
(“where the general verdict and the special findings can be harmonized by taking into
consideration the entire record of the cause, including the evidence and the instructions to the
jury, and construing it liberally for that purpose it is the duty of the court to harmonize them”
(citing Pepperall v. Clly Park Transl'l‘ Co., 15 Wash. 176, 180, 183, 45 P. 743 (1896))). l\/lultiple
entities can retain “the right to direct the manner in which the work is performed.” Kamla, 147
Wn.2d at 121.l Holding otherwise would imply that finding the Port “retained control” meant the
c‘actual exercise of control over the manner in which the work is performed”-a requirement we
reject in this context Id.
15 We will not disturb the trial court’ s apportioned judgment award at this late stage for
additional fact-finding Cf. Hogan v. Sacred Hearl Med Ctr., 101 Wn App 43 55 2 P. 3d 968
(2000).

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Afoa v. Port ofSeaz‘tle, No. 94525-0

Therefore, we turn to the contingent issues raised by Afoa, which the Court of
Appeals did not address 1
ll. Elnply Chaz`r Defense and Issue Precltlsion

The trial court permitted the Port to make an empty chair defense under CR
12(i). Afoa contends the trial court abused its discretion because he was unfairly
surprised The trial court’s decision is reviewed for manifest abuse of discretion
Herron v. Trz'l)ane Pul)l’g Co., 108 Wn.2d 162, 165, 736 P.2d 249 (1987); see also
Srate v, Dye, 178 Wn.2d 541,, 548, 309 P.3d 1192 (2013). Afoa also argues the
trial court could not allocate fault to the empty chair airlines because a judgment in
a separate proceeding precluded allocation for the same issue The trial court’s
alleged errors of law are reviewed de novo. Jongeward, 174 Wn.2d at 592.

Afoa argues that the Port had a “full and fair opportunity . . . to litigate
airline liability” in federal court and successfully obtained a federal judgment v
finding no airline liability Supp’l Br. of Resp’t at 20. The Port, on the other
hand, argues that “[d]istilled to its essence, [Afoa] seeks to use his strategic error in
splitting his claims into two separate suits and his failure to_ prove his case in
federal court, as a sword against the Port to prevent it from receiving its day in
court.” Supp’l Br. ofPet’r at 19.

Nonparty fault must be affirmatively pleaded CR 12(1). The party claiming

another nonparty entity is at fault must also affirmatively plead the identity of that

18

1

Afoa v. P'orz‘ of Seattle, No. 94525-0 1:
nonparty Id. ln this case, the trial court allowed the Port to amend its answer 1
under CR 15(a) to assert the airlines’ fault. Before the amendment, the Port’s
answer raised the fault of other unidentified parties Afoa sued the airlines in a
separate proceeding years before the Port sought to amend its answer and assert its
affirmative defense

ln the suit removed to federal court, Afoa asserted essentially the same
claims against the airlines as he levied against the Port, The Port was not a party in
that suit. lt is undisputed that the Port and the airlines retained the same counsel to
defend the respective suits lt is also undisputed that the Port moved to amend its
answer early enough to allow Afoa to prepare his defense in this case The Port
and Afoa dispute three issues: (1) whether the Port’s representations prejudiced
Afoa, (2) whether the Port and the airlines were in privity, and (3) whether
collateral estoppel would work an injustice Afoa is not entitled to relief because
the trial court did not abuse its discretion and the Port was not equitably barred
from allocating fault to the nonparty airlines

A. The Trial Court Applied the Correct Legal Standard

Afoa argues that the Port’s late amendment prejudiced him because it
delayed identification of the airlines as empty chairs until the statute of limitations
res judicata, and collateral estoppel prevented Afoa from recovering against them.

Thereby, the Port deprived him the opportunity to decide all liability in a single

19

Afoa v. Port ofSeattle, No. 94525-0

proceeding and full compensation for his injuries But Afoa initiated the separate
proceeding and failed to ask the jury to find the Port vicariously liable for the
airlinesl’ fault by finding agency

None of Afoa’s arguments explain why the Port’s actions justified his
separate suit against the airlines By the time the Port amended its answer, Afoa
had already asserted the airlines were at fault in the federal suit. The Port told
Afoa that it was asserting the affirmative defense due to his claims against the
airlines in the federal suit Afoa argues that the Port was playing both sides and
that he was misled because the Port said it would make “a sole proximate cause
defense” See, e.g., CP at 5198. The Port did assert EAGLE and the vehicle’s
manufacturer were the sole proximate cause for Afoa’s injuries but the Port also
put Afoa on notice that other entities were responsible for the accident Afoa
learned about the specific nonparty airlines when the Port provided him with its
agreements with the airlines And Afoa was also able to sue the airlines in this suit
from the time of the accident until two years later when he filed his first appeal.

ln denying Afoa’s motion to strike the affirmative defense, ludge Allred
reasoned that if Afoa was barred from recovering full compensation, it was “the
consequence of [his] litigation choices (including the decision to sue the Port and

the Airlines separately).” ]d. at 9240. Similarly, in reaffirming that decision,

20

Afoa v. Port ofSeattle, No. 94525-0

ludge Ramseyer said, “[T]he decision of who to sue and when to sue them was
[Afoa’s].” Id. at 9199. We agree

ln his separate suit, Afoa alleged the airlines were liable for his injuries on
the same basis as the jury heard in the underlying personal injury action. ln that
separate suit, the airlines were granted summary judgment lt would be unjust to
hold the Port responsible for the negligence of the airlines in light of Afoa’s
separate suit

y Leave to amend a pleading “shall be freely given when justice so requires”

CR 15; Caraso v. Local Unz'on No. 690, 100 Wn.2d 343, 349, 670 P.2d 240 (1983).
Afoa’s separate lawsuit justified the Port’s amendment, and the Port was not the
only party from which Afoa could potentially recover. Therefore, Afoa cannot
show he wasunfairly surprised The trial court applied the correct legal standard

B. Afoa’s Federal Suit Did Not Bar the Port from Arguing the Airlines Were

nw

Fi_nally, Afoa argues that the equitable doctrines of res judicata and collateral
estoppel apply because the airlines cannot be at fault Res judicata prevents
relitigation of the same claim where a subsequent claim involves the same subject
matter, cause of action, persons and parties and quality of persons for or against
whom the claim is made Loveridge v. Fred Meyer, ]nc., 125 Wn.2d 759, 763, 887

P.2d 898 (1995)_w Collateral estoppel requires proof that (1) the issue in the prior

.21

Afoa v. Port ofSeatrle, No. 94525-0 j l

and current action is identical, (2) the prior action ended in a final judgment on the
merits (3) the party against whom collateral estoppel is asserted was a party or in
privity with a.party to the prior action, and (4) the application of collateral estoppel
would not work an injustice Chrz`stensen v. Granz‘ Counly Hosp. Dist. No. l , 152
Wn.2d 299, 326, 96 P.3d 957 (2004) (quoting Clark v. Baz'nes, 150 Wn.2d 905,
913, 84 P.3d 245 (2004)). Only two aspects of res judicata and collateral estoppel
are at issue in this case: privity and the injustice element of collateral estoppel.
Afoa argues that privity is established because the Port controlled the
defense of the airlines in federal court, port agents testified against airline liability
in the federal case, and the Port and the airlines have a common insurer. He
specifically points to a proposed stipulation that was rejected Afoa attempted to
have the Port stipulate to the dismissal of the airlines case in federal court, to
which the Portwas not a party, if the Port would agree that no fault shall be
apportioned to the airlines As the Port indicates it had no reason to sign and the
airlines could not sign because the airlines had no authority to waive the Port’s
defense “‘Pr_ivity does not arise from the mere fact that persons as litigants are
interested in the same question or in proving or disproving the same state [or set]
of facts.”’ Unz`ted Staz‘es v. Deaconess Med. Ctr., 140 Wn.2d 104, 111, 994 P.2d

830 (2000) (internal quotation marks omitted) (quoting Owens v. Kuro, 56 Wn.2d

22

Afoa v. Port ofSeattle, No. 94525-0

564, 568, 354 P.2d 696 (1960)); see also Marz‘in v. Al)bott Labs., 102 Wn,2d 581,
598, 689 P.2d 368 (1984) (imitative conduct is not concerted action).

“A person who is not a party to an action but who controls or substantially
participates in the control of the presentation on behalf of a party is bound by the
determination of issues decided as though he were a party.” RESTATEMENT
(SECoND) JUDGM_ENTS § 39 (AM. LAW INsT. 1982); see also Loveridge, 125 Wn.2d
at 764. lt is not at all clear that the Port controlled the airlines’ defense or that it
had authority to accept the stipulation The airlines asserted they were not at fault
in the federal suit, and the Port argued the airlines were at fault in the instant
action; any inconsistency can be explained by the fact that they are different
parties Further, the testimony by port employees was a result of their knowledge
about the facts of the case Afoa does not establish that sharing counsel or an
insurer establishes privity

Coll_ateral estoppel is inapplicable where it would work an injustice on the
party being estopped Chrz`stensen, 152 Wn.2d at 307. Here, that party is the Port.
Afoa requests that the Port be responsible for the airlines’ fault without a finding
that the airlines were the Port’s agent and in spite of the fact that Afoa sued the

airlines in a separate action16 The trial court correctly rejected Afoa’s arguments

16 ludge Allred explained that “it would be a misuse of the collateral estoppel and res judicata
doctrines to allow Afoa to vehemently assert Airline liability in the Airlines lawsuit, lose that

23

Afoa v. Port ofSeaz‘tle, No. 94525-0

CoNcLUsroN

Under RCW 4.22.070, the liability of defendants concurrently owing a
nondelegable duty with another entity is several unless an exception is found That
is, in this case, “[a] party shall be responsible for the fault of another person or for
payment of the proportionate share of another party where both were acting in
concert or when a person was acting as an agent or servant of the party” RCW
4.22.070(1)(a). Here, the Port was not vicariously liable for the airlines’
negligence because the jury was not asked to find if the Port retained control of the
airlines Further, the trial court did not abuse its discretion by permitting a CR
12(i) empty chair defense because Afoa was not unfairly surprised when the Port
named the airlines in its amended complaint Similarly, the federal court’s
summary judgment did not preclude the Port from making its empty chair defense
because the Port was not a party in the federal suit We reverse the Court of

Appeals and reinstate the trial court’s apportioned award

lawsuit, and then use that loss to obtain a ruling in this case-~as a matter of law_that the
Airlines bear no fault under RCW 4.22.070(1).” CP at 3179.

24

Afoa v. Port ofSeaz‘tle, No. 94525~0

WE CONCUR:

data lmra l . 610[ 4

nat
ya

25

Afoa v. Port ofSealtle
(Stephens, J., dissenting)

No. 94525-0

STEPHENS, J. (dissenting)-ln our first appeal in this case, we stated, “The
Port [of Seattle] is the only entity with sufficient supervisory and coordinating
authority to ensure safety in this complex, multiemployer work site lf the Port does
not keep Sea-Tac Airport safe for workers it is difficult to imagine who will.” Afoa
v. Port ofSeattle, 176 Wn.2d 460, 479, 296 P.3d 800 (2013) (Afoa l). A jury
subsequently found that the Port retained a right of control over Brandon Afoa’s
work conditions at Seattle-Tacoma lnternational Airport (Sea-Tac Airport), giving
rise to a nondelegable duty lt also found that the Port was negligent Respecting
the jury’s verdict, the Court of Appeals correctly held that the Port’s breach of its
nondelegable duty makes it jointly and severally liable for Afoa’s injuries arising

from work site safety breaches regardless of whether other entities are also liable

Afoa v. Port of Sealtle, 94525-0 (Stephens, J., dissenting)

Afoa v. Port ofSeatz‘le, 198 Wn. App. 206, 234, 393 P.3d 802 (2017) (Afoa ll). loint
and several liability in this context is integral to the nondelegable duty doctrine and
is fully consistent with RCW 4.22.070. Thus, the majority’s recognition that RCW
4.22.070(1)(a) preserves joint and several liability when a defendant owes a
nondelegable duty should end the matter. We should affirm the Court of Appeals.

The maj ority’s contrary holding renders the nondelegable duty doctrine
meaningless lts tangled discussion of how the Port and the airlines owed
concurrent, separate nondelegable duties cannot obscure the fact that unless the Port
is held vicariously liable for the safety breaches that caused Afoa’s injuries its duty
is no longer “nondelegable.” To quote the Arizona Supreme Court, “[H]ow can it
be that one can admit to the existence of a non~delegable duty, but then disclaim
liability for the non~performance of that duty? The concepts are mutually
exclusive.” Wiggs v. Cz'ly ofPhoenz'x, 198 Ariz. 367, 370, 10 P.3d 625 (2000). The
result of the majority’s decision will be to dramatically change the law and to
eviscerate the protections for workers at multiemployer work sites recognized under
the Washington lndustrial Safety and Health Act of 1973 (WISHA), ch. 49. 17 RCW,
and our precedent l respectfully dissent

l begin by looking closer at the history of the nondelegable duty doctrine,

which reflects a policy-based expansion of traditional vicarious liability principles

Afoa v. Port of Seaz‘tle, 94525-0 (Stephens, J., dissenting)

recognized in the “master-servan ” relationship in agency law. l then identify the
jury instructions and special verdict that make clear what the jury found in this case:
the Port breached its nondelegable duty to provide a safe workplace giving rise to
vicarious liability Finally, l consider RCW 4.22.07 0 and related statutory
provisions to show that joint and several liability remains intact in cases such as this
despite the general statutory preference for several liability among joint tortfeasors
As a result, the Port is vicariously liable for the share of fault the jury allocated to
the nonparty airlines
l. The Nondelegable Duty Doctrine lmposes Vicarious Liability on the Port for
the Airlines’ Negligence Because the Port Retained Control over Safety
Matters at Sea~Tac Airport
This case involves the nondelegable duty theory of vicarious liability, under
which a general contractor or owner is jointly and severally liable for failure to
maintain a reasonably safe workplace This theory of liability arose in the common
law as an exception to the general rule that one who engages an independent
contractor is not liable for injuries sustained by an independent contractor’s
employees lt is also specifically recognized under WISHA, which places the
primary duty for work site safety on a general contractor or employer with retained

control. Because nondelegable duties involve a form of vicarious liability, the

general contractor or owner is not only directly liable for breach of its own duty to

Afoa v. Port ofSeatlle, 94525-0 (Stephens, J., dissenting)

ensure a safe workplace but also vicariously liable for the failure of others to provide
a safe workplace

Afoa’s claims against the Port are premised on the nondelegable duty
doctrine Afoa l, 176 Wn.2d at 464 (recognizing Port’s potential liability under two
theories of liability previously applied in other multiemployer workplace cases: (1)
“the duty of a general contractor to maintain a safe common area for any employee
of subcontractors” and (2) “for breach of safety regulations under [WISHA]”).1 The
Port does not dispute that the jury found the Port retained control over the work of
Afoa’s employer, Evergreen Aviation Ground Logistics Enterprise lnc. (EAGLE),
giving rise to a nondelegable duty The Port insists however, that RCW 4.22.070
abrogated joint and several liability in the nondelegable duty context, and that
because the jury was never asked whether the Port retained control over the airlines
who hired EAGLE, there is no factual finding to support vicarious liability Suppl.
Br. of Pet’r/Cross-Resp’t at 6-8, 10. To understand why these arguments are wrong,
it is necessary to trace the history and purpose of the nondelegable duty doctrine,

both under the common law and under WISHA.

1 Afoa also brought a claim of premises liability, which this court recognized in Afoa
l. 176 Wn.2d at 467-69. The jury found in favor of the Port on the premises liability claim,
and it is no longer before us.

Afoa v. Port of Seattle, 94525-0 (Stephens, J., dissenting)

A. The Port Owes a Comlnon Law Nondelegable Duty To Maz'nlaz`n Safe
Common Work Areas

Afoa l recognizes that “[u]nder our common law safe workplace doctrine,
landowners and general contractors that retain control over a work site have a duty
to maintain safe common work areas.” 176 Wn.2d at 475. Our common law safe
workplace doctrine operates as an exception to the general rule, sometimes called
the “independent contractor rule,” that an employer who contracts with an
independent contractor is not liable for injuries sustained by the independent
contractor’s employees RESTATEMENT (SEcoND) oF ToRrs § 409 (AM. LAW INsr.
1 1965); Kelley v. Howard S. Wrz`ghz‘ Constr. Co., 90 Wn.2d 323, 330, 582 P.2d 500
(1978); State v. P.B.M.C., Inc., 114 Wn.2d 454, 460, 788 P.2d 545 (1990). Under
the safe workplace doctrine, if the employer retains control over some part of the
independent contractor’s work, the employer owes a nondelegable duty within the
scope of that control to provide a reasonably safe workplace Sz‘uz‘e, 114 Wn.2d at
460; Kennedy v. Sea-Land Serv., Inc., 62 Wn. App. 839, 851, 816 P.2d 75 (1991);
REsTATEMENT (SECOND) oF ToRrs § 414.

ln Afoa l, we described the origins of the common law safe workplace doctrine
as rooted in “master-servant” agency principles:

Historically, our common law workplace safety doctrine has its roots
in the master-servant relationship At common law, a “master” has a duty to
its “servant[s]” to maintain a reasonably safe place to work.

Afoa v. Port ofSeaz‘z‘le, 94525-0 (Stephens, J., dissenting)

Over time, we have expanded the doctrine beyond the narrow confines
of the master-servant relationship

176 Wn.2d at 475 (citation omitted) (citing Myers v. Lz`ttle Church by Side ofRd., 37
Wn.2d 897, 901-02, 227 P.2d 165 (1951)). To shed light on the doctrine’s evolution,
we discussed three key cases_Myers, Kelley, and Kamla v. Space Needle Corp.,
147 Wn.2d 114, 52 P.3d 472 (2002). ln Myers, a hotel contracted with an elevator
company to repair a defective elevator and make weekly service calls 37 Wn.2d at
900. An employee of the hotel was subsequently injured while operating the faulty
elevator. The employee sued the hotel to recover damages for his injuries and the
hotel sought to avoid liability by arguing that the employee’s injuries were caused
by the independent contractor’s negligence ln holding that the independent
contractor’s negligence was imputable to the hotel, the Myers court reasoned that
“[t]he master’s duty to provide the servant with a reasonably safe place to work is
nondelegable,” and therefore the hotel “cannot escape liability for the negligence of
the elevator company on the theory that the latter was an independent contractor.”
Id. at 904. lmportantly, the basis of the hotel’s liability was vicarious liability under
the nondelegable duty to provide a safe workplace not the hotel’s direct relationship
with the employee

Kelley and Kamla extended the Myers rule to general contractors and jobsite

owners ln Kelley, a general contractor argued that it had no duty to provide a safe

Afoa v. Port ofSeaz‘z‘le, 94525-0 (Stephens, J., dissenting)

workplace for the plaintiff, an employee of a subcontractor, because there was no
master-servant relationship between the parties 90 Wn.2d at 329. The general
contractor invoked the “independent contractor rule,” arguing that a principal who
hires an independent contractor is not liable for harm resulting from the contractor’s
work. We refused to so limit the doctrine to the master-servant relationship and
instead imposed a safe workplace duty on the general contractor irrespective of the
precise contractual relationship between the parties Id. at 330; see also Afoa l, 176
Wn.2d at 477 (“We held that the relevant inquiry is whether the principal retained
control over the work site, not whether there was a direct employment relationship
between the parties.” (describing the holding in Kelley)).

ln Kalnla, we considered whether the common law safe workplace doctrine
applied to a jobsite owner, just as it applied to the general contractor in Kelley. 147
Wn.2d at 119-20. We held that the doctrine was not strictly limited to general
contractors and that a jobsite owner could be liable under a common law safe
workplace theory if the jobsite owner retained the right to control the manner in
which the independent contractor completed its work. ld. at 121. Regarding the
issue of control, the Kamla decision clarified that the test is not whether there is an
actual exercise of control but, rather, whether the jobsite owner retains a right to

direct or interfere with the manner in which the work is performed Id. Because the

Afoa v. Port of Seatrle, 94525-0 (Stephens, J., dissenting)

jobsite owner in Kamla did not assume responsibility for worker safety or retain the
right to control or interfere in any way with the manner in which the independent
contractor and its employees worked, we held that the owner did not retain the
relevant control to support a nondelegable duty and was therefore not liable for the
employee’s injuries Id. at 121-22.

Kelley and Kamla stand for the proposition that “the existence of a safe
workplace duty depends on retained control over work, not on labels or contractual
designations such as ‘independent contractor’ or ‘ general contractor.”’ Afoa l, 176
Wn.2d at 477. We relied on that proposition in Afoa l to reject_the Port’s argument
that it owed no duty to Afoa under Kelley, which the Port contended applies only to
general contractors whereas the Port was a mere “licensor.” Id. at 478 (“Calling the
relationship a license does not change reality.”). We clarified that “Kelley does not
limit its application to a narrow variant of the employment relation. lt does not
require a ‘master’ or ‘servant,’ an ‘employer’ or ‘employee,’ or indeed any specific
combination of contractual relationships.” Id. To the contrary, Kelley and Kalnla
mandate that “when an entity (whether a general contractor or a jobsite owner)
retains control over the manner in which work is done on a work site,-that entity has
a duty to keep common work areas safe because it is best able to prevent harm to

workers.” Id. We explained in Afoa l how that duty applies in this case: “[W]here

Afoa v. Port ofSeaz‘z‘le, 94525-0 (Stephens J., dissenting)

a licensor undertakes to control worker safety in a large, complex work site like
Sea-Tac Airport and is in the best position to control safety, there is a duty to
maintain safe common work areas within the scope of retained control.” Id. at 481 .2

B. The Port Owes a Stalutory Nondelegal)le Daly To Ensare WISHA
Compliance

The Port owed Afoa not only a common law duty to provide a safe workplace
but also a nondelegable statutory duty to ensure compliance with WlSHA
regulations Our decision in Afoa l recognized that jobsite owners such as the Port,

owe a specific duty to prevent WlSHA violations when they retain control over work

2 The majority nonetheless insists “there is no clearly established common law right
to hold tortfeasors with a nondelegable duty vicariously liable for another entity’s breach
of the same duty.” l\/lajority at 11. For support, it cites only Wenarchee Wenoka Growers
Ass’n v. Krack Corp., 89 Wn.2d 847, 849-50, 576 P.2d 388 (1978), which has nothing to
do with vicarious liability for nondelegable duties but simply identifies the difference
between comparative negligence and contribution principles The majority erroneously
dismisses the nondelegable duty line of cases as irrelevant on the mistaken notion that they
require an actual delegation of nondelegable duties l\/lajority at 11-12 & n.10. But, as our
opinion in Afoa l makes clear, the retained right of control gives rise to the duty regardless
of whether aspects of the work are delegated, not because aspects of the work are delegated
The conclusion the majority draws_limiting liability for breach of a nondelegable duty to
the defendant’s “proportionate share of responsibility,” id. at 11 n.10_is undercut by the
very cases it relies on. See Mz'llz`can v. N.A. Degerstroln, Inc., 177 Wn. App. 881, 896-97,
313 P.3d 1215 (2013) (“‘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”’ (quoting RESTATEMENT
(SECOND) OF TORTS ch. 15, topic 2, intro. note at 394)); Wz'ggs, 198 Ariz. at 371
(recognizing nondelegable duty doctrine creates agency relationship “as a matter of law
. . . for purposes of applying the doctrine of respondeat saperz`or” and noting “it does not
make legal or tactical sense to name as a non-party at fault, the party whose conduct is
imputed to the employer, because the employer will be fully liable for that fault”).

_9_

Afoa v. Port of Seattle, 94525-0 (Stephens J., dissenting)

done on a jobsite Id. at 472-73. Under WlSHA, all employers must comply with
distinct duties arising from RCW 49.17.060’s two subsections Id. at 471 (citing
Goacher v. JR. Simplot Co. , 104 Wn.2d 662, 671, 709 P.2d 774 (1985)). Subsection

973

(1) creates a “‘ general duty for all employers to maintain a workplace free from

recognized hazards and this duty runs from an employer to its own employees ]d.

??9

Subsection (2) creates a separate “‘specific duty for employers to comply with
WISHA regulations Id. “Unlike the general duty, the specific duty runs to any
employee who may be harmed by the employer’s violation of the safety rules.” Id.

The Afoa l decision confirmed that a jobsite owner, such as the Port, is not
per se liable for all WlSHA violations at the work site Whereas general contractors
always have a duty to comply with WISHA regulations “jobsite owners have a duty
to comply with WISHA only if they retain control over the manner in which
contractors complete their work.” Id. at 472. lf a jobsite owner retains control over
“the manner and instrumentalities of work being done on the jobsite” the owner has
a nondelegable specific duty to comply with WISHA regulations and this duty
extends to all workers on the jobsite Id.; see also Stule, 114 Wn.2d at 464
(recognizing general contractor’s liability to subcontractor’s employee based on

violation of WlSHA and reasoning that a “general contractor should bear primary

responsibility for compliance with safety regulations because the general

_10_

Afoa v. Port of Seatz‘le, 94525-0 (Stephens J., dissenting)

contractor’s innate supervisory authority constitutes sufficient control over the
workplace”).

We held in Afoa l that if the jury determined the Port retained a right to control
the manner in which Afoa’s employer performed its work or maintained safe
conditions the Port owed a nondelegable specific duty under WlSHA. 176 Wn.2d
at 473-74. ln so holding, we flatly rejected the Port’s argument that it did not owe
Afoa a duty to comply with WlSHA regulations because the Port’s relationship with
EAGLE and Afoa was only that of licensor and licensee Id. at 473 (noting
WlSHA’s specific duty does not require a direct employment relationship). We
explained that reading the statute narrowly would “contravene both federal law and
WlSHA’s clearly articulated policy of protecting workplace safety.” Id.
Responding to the dissent’s view that WlSHA duties should be limited to either
direct employment or employer-subcontractor relationships we reiterated that we
had never so limited WlSHA duties and it would be improper to do so in this case:

The Port operates a major airport facility, is responsible for its own
employees and allows controlled access to thousands of employees of other
employers Under these circumstances the Port is closely analogous to a
general contractor.

Id. at 474.
As with the common law safe workplace doctrine liability under the WISHA

specific nondelegable duty doctrine results in vicarious liability This is because a

_11_

Afoa v. Port ofSeatz‘le, 94525-0 (Stephens J., dissenting)

control party, such as the Port, “bear[s] the primary responsibility for compliance
with safety regulations” Stare, 114 Wn.2d at 464. Though subcontractors and
others at the work site retain concurrent responsibility to meet workplace safety
standards “the primary employer, the general contractor, has as a matter of policy,
the duty to comply with or ensure compliance with WISHA and its regulations”
because the general contractor’s supervisory authority places it in the best position
to ensure WISHA compliance for the safety of all workers Id. at 463; Gilberl H.
Moen Co. v. Island Sreel Erectors, Inc., 128 Wn.2d 745, 756-58, 912 P.2d 472
(1996).

Consequently, a violation of WISHA by a subcontractor is not only
chargeable to the subcontractor but also chargeable to a general contractor_“the
primary employer,” whose supervisory authority puts it “in the best position to
ensure compliance with safety regulations.” State, 114 Wn.2d at 463; Mz'llz`can v.
N.A. Degerstrozn, lnc., 177 Wn. App. 881, 893, 313 P.3d 1215 (2013). As Professor
Prosser has explained, cases based on the nondelegable duty doctrine hold “the
employer liable for the negligence of the contractor, although he has himself done
everything that could reasonably be required of him. They are thus cases of vicarious

liability.” WiLLrAM L. PRossER, THE LAW oF ToRTs 470 (4th ed. 1971).

_12_

Afoa v. Port ofSeaz‘tle, 94525-0 (Stephens J., dissenting)

This is such a case Afoa’s theory of liability against the Port is premised on
his claim that the Port owed a nondelegable duty to ensure a safe work site at Sea-Tac
Airport, including safe maintenance of the vehicle he was driving when he was
injured The Port’s nondelegable duty arises under both the common law and
WISHA. To establish this duty, Afoa had to prove to the jury that the Port retained
a right of control over work site safety conditions Because Afoa worked for
EAGLE, the relevant control focused on EAGLE’s work site conditions This legal
framework provides the backdrop for properly assessing the import of the jury’s
verdict in this case

ll. The Jury lnstructions and the Verdict Establish that the Port Breached lts

Nondelegable Duty To Maintain a Safe Work Site and ls Vicariously Liable

for the Airlines’ Negligence

Following six weeks of trial, the jury rendered a verdict in favor of Afoa and
determined his damages totaled $40 million. Clerk’s Papers (CP) at 4841. The jury
found that the Port retained the right to control the manner in which Afoa’s
employer, EAGLE, performed its work and maintained its equipment, and also
found that the combined negligence of the Port, the nonparty airlines and Afoa
proximately caused Afoa’s injuries Id. at 4839-41. ln light of the jury instructions

and the special verdict form, the jury’s verdict is dispositive of three things: (1) the

Port retained a right of control to ensure compliance with safety standards in the

_13_

Afoa v. Port of Seattle, 94525-0 (Stephens J., dissenting)

workplace (2) the Port therefore owed a nondelegable common law and WISHA
specific duty to Afoa, and, as a result, (3) the Port is directly and vicariously liable
for Afoa’s injuries

The Port’s insistence that its liability must be separated from the airlines’
liability ignores the way this case was tried At trial, the Port argued that there was
no evidence “that says the Port of Seattle retains the right to control how the air
carriers do their work or maintain their equipment or how the ground support
providers do their work or maintain their equipment.” Verbatim Report of
Proceedings (Mar. 25, 2015) (VRP) at 3512; see also id. at 3514-15, 3520-21. To
support this position, the Port relied on “documentary evidence that the Port of
Seattle did not retain the right to control how the air carriers or its ground support
providers did their work,” which included (1) the Port’s signatory lease and
operating agreements (SLOAS), signed by each of the four nonparty airlines3 (2)

EAGLE’s ground service operating license agreement with the Port,4 and (3) the

3 Under the SLOAs, “[t]he Port owns and operates [the airport] and has the authority
to grant to Airline rights and privileges concerning the occupancy and use of the Airport.”
Def. Ex. 675, at 271; Def. Ex. 676, at 3459; Def. Ex. 677, at 3642; Def. Ex. 678, at 184.
Section 2.1 of the SLOAS states “The Port grants to Airline a nonexclusive license to use
the Airfield Area, in common with others subject at all times to the exclusive control and
management by the Port.” Def. Ex. 675, at 277; Def. Ex. 676, at 3465; Def. Ex. 677, at
3648; Def. Ex. 678, at 190 (emphasis added).

4 The licensing agreement required EAGLE to comply with all port rules and
regulations CP at 8377 (“Licensee shall comply with all Port regulations including the
Port’s SCHEDULE OF RULES AND REGULATIONS” for Sea-Tac Airport). Under the

_14_

Afoa v. Port ofSeattle, 94525-0 (Stephens J., dissenting)

Port’s rules and regulations5 Id. at 3514-20. The Port argued that this evidence
proved that the Port did not retain the right to control “how the ground support people
maintained their equipment, how the air carriers maintained their equipment, how
they did their job.” Id. at 3520-21.
The jury instructions defined the nature and scope of the Port’s liability First,
jury instruction 13 explained to the jury the bases of the Port’s alleged negligence
(a) The plaintiff claims the defendant retained the right to control the manner
in which the plaintiff’s employer, [EAGLE], performed its work and
maintained the equipment used by EAGLE to provide ground support for
the non-party air carriers . . . and failed to maintain a safe work site
(c) The plaintiff also claims that because defendant allegedly retained control
of the manner in which EAGLE employees performed their work and
maintained their equipment, the defendant had a duty to ensure

compliance with [WISHA] regulations related to that work, which it
failed to do.

CP at 4795 (omitting Afoa’s premises liability claim). The same instruction
explained the Port’s affirmative defense that the airlines were negligent for

Failing to comply with applicable safety regulations and/or
Failing to provide the plaintiff with a safe place to work.

licensing agreement “[a]s solely determined by the Port, equipment appearing to be unsafe
or unoperational is subject to towing, impoundment and storage charges.” ]d.

5 Under the Port’s general rules and regulations “[a]ll persons on the Airport
property shall be governed by the rules and regulations herein prescribed and by orders and
instructions of the Commission.” Def. Ex. 482, at 31. Additionally, a port rule states “No
person shall operate any . . . motorized equipment in the Air Operations Area of the Airport

unless such . . . motorized equipment is in a reasonably safe condition for such operation.”
Id. at 54.

_15_

Afoa v. Port ofSeattle, 94525-0 (Stephens J., dissenting)

CP at 4796.6
Jury instruction 23 told the jury that the Port had a nondelegable duty to
maintain a safe workplace

only if the landowner retains the right to control the manner and
instrumentalities by which the work is performed by that worker at the job
site

CP at 4807. Jury instruction 26 addressed the Port’s nondelegable statutory duty,
explaining that

[a] land owner, like the defendant has a duty to ensure compliance with
applicable safety regulations . . . only if the land owner retains the right to
control the manner and instrumentalities by which the work is performed by
that worker at the job site
CP at 4810. Finally, jury instruction 28 specifically addressed the retained control
test in the context of landowners such as the Port:
Authority to inspect work, order it stopped and Started, or require contract
compliance do not alone constitute retention of the right to control the
manner and instrumentalities by which a worker who is not directly
employed by a land owner performs work at a job site
CP at 4812. These jury instructions adhere to the nondelegable duty doctrine
described in Afoa l.

Question 1 on the special verdict form asked the jury whether the Port

“retain[ed] a right to control the manner in which the plaintiff s employer, [EAGLE],

6 The instruction also set forth the Port’s affirmative defense alleging that EAGLE
committed these same acts of negligence CP at 4796.

_16_

Afoa v. Port ofSeattle, 94525-0 (Stephens J., dissenting)

performed its work or maintained its equipment used to provide ground support work
for the non-party air carriers.” CP at 4839. This was the sole question concerning
retained control, and the Port argued to the jury:

These are the reasons why you must answer question number 1 “no.”
The Port did not retain the right to control how the ground support people
provided, maintained their aircraft -- excuse me how the ground support
people maintained their equipment how the air carriers maintained their
equipment how they did their job. The Port simply did not do that They
did not retain the right to control. The answer to that question is no.

VRP at 3520-21.

Underscoring that the key disputed issue was who was responsible for the
safety breaches that caused Afoa’s injuries the Port urged the jury to find that the
airlines not the Port retained control:

And if somebody was going to see a problem, it would have been the air
carrier. And if they saw, they had a duty to fix it. They had a duty to tell
EAGLE to fix that equipment That’s the right_that’s the control they
retained

VRP at 3530-31; see also id. at 3532-33 (“They have sued the wrong party, and the
Port of Seattle has been wrongly accused of doing something wrong.”).

Rejecting the Port’s argument the jury answered question 1, “Yes.” CP at
4839. lts affirmative answer conclusively establishes that the Port retained the
relevant right to control the manner and instrumentalities of Afoa’s work, as
described in jury instruction 28, relating directly to the circumstances of his injury

lt also establishes that the Port had a nondelegable common law duty to maintain a

_17_

Afoa v. Port ofSeattle, 94525-0 (Stephens J., dissenting)

safe work site at Sea-Tac Airport consistent with jury instruction 23, and a
nondelegable statutory specific duty to ensure WISHA compliance consistent with
jury instruction 26.

The jury’s verdict is dispositive that the Port’s control over the work site is
sufficiently analogous to that of a general contractor to support the nondelegable
duty theory of vicarious liability As a result, the Port no less than a general
contractor, is not only directly liable for its own negligence but also vicariously
liable for safety breaches by others

The majority misunderstands the import of the verdict when it insists that the
jury needed to separately find the Port exercised control over the air carriers in
addition to EAGLE. l\/lajority at 13. This was not even the Port’s theory7 As the
Port’s closing argument makes clear, the parties understood at trial that the special
verdict interrogatory fully covered the issue of the Port’s retained control over

Afoa’s work conditions by asking whether it controlled EAGLE’s manner of work.

7 The Port did argue that federal aviation law preempted claims based on retained
control at Sea-Tac Airport but we expressly declined to grant review of the preemption
issue as the majority recognizes See majority at 6 n.4. lt is therefore unclear why the
majority finds it significant that: “[t]he relationship between the Port and the airlines is
highly regulated under federal law, which makes these relationships different from most
worksites in the state ln fact the Port is prohibited from controlling certain aspects of
airline operations.” Id. at 3 n.l (citing 14 C.F.R. pts. 139 (Airport Certification), 121 (Air
Carrier Certification)). lf this is a veiled preemption argument it has no place in our
analysis of the Port’s conceded nondelegable duty

_13_

Afoa v. Port ofSeattle, 94525-0 (Stephens J., dissenting)

No one advanced the agency theory of “entity control” that the majority insists on.
See majority at 15 & n.12 (citing Moss v. Vadman, 77 Wn.2d 396, 402-03, 463 P.2d
159 (1969); Matsumura v. Etlert, 74 Wn.2d 362, 368, 444 P.2d 806 (1968)). And
there is no case that supports the maj ority’s fiction of multiple nondelegable duties

To support its view that the Port and the airlines each breached independent
nondelegable duties the majority attaches great significance to the jury’s finding
that the airlines were negligent ]d. at 9-10, 17. This is not a reasonable reading of
the verdict As noted, there is no jury finding that the airlines retained control over
Afoa’s work conditions only a finding that the Port retained control. The jury’s
verdict logically rests on its finding that the airlines failed to comply with safety
regulations or maintain a safe work site with respect to matters under their direct
control, as the Port alleged See CP at 4796 (jury instruction 13), 4806 (jury
instruction 22). Simply put they were also at fault for the safety breaches that caused
Afoa’s injury But this does not mean they breached a nondelegable duty For
reasons already discussed, the presence of concurrent duties at a multiemployer work
site is unremarkable of course a landowner and a contractor have concurrent duties
under WlSl-IA and the common law. ln light of its retained control, however, the
Port’s workplace safety duty is seen as “prime” or “primary.” Moen, 128 Wn.2d at

757. As we explained in Afoa l, only the Port “operates a major airport facility, is

_19_

Afoa v. Port ofSeattle, 94525-0 (Stephens J., dissenting)

responsible for its own employees and allows controlled access to thousands of
employees of other employers” 176 Wn.2d at 474. Under these circumstances
only the Port is analogous to a general contractor and owes a nondelegable duty.

Under the nondelegable duty doctrine the test of control is the right to
exercise control over the manner of work and, more specifically under WlSHA,
compliance with safety standards Here the jury determined that the Port retained
the requisite control at Sea-Tac Airport including with respect to the maintenance
of EAGLE’s equipment directly relating to Afoa’s injury lt therefore had a common
law and statutory specific duty to maintain workplace safety without regard to
whether others at the work site including the,airlines also owed a duty Because
the nondelegable duty doctrine is a form of vicarious liability, the Port is responsible
for the airlines’ negligence just as it would have been for EAGLE’s negligence had
the employer not been immune under Title 51 RCW. There was no need for any
separate factual finding of retained control directly over the airlines The maj ority’s
analysis misses the very point of the nondelegable duty doctrine_vicarious
liability_and therefore fails to give proper effect to the jury’s verdict

Given the jury’s clear finding that the Port breached its nondelegable duty, the
only basis for relieving the Port of its liability for the airlines’ share of the allocated

fault is if RCW 4.22.070 abrogated vicarious liability in this instance As explained

_2()_

Afoa v. Port ofSeattle, 94525-0 (Stephens J., dissenting)

below, the statute did no such thing. To the contrary, the legislature fully preserved
joint and several liability under agency principles that subsume the nondelegable
duty doctrine

lll. RCW 4.22.070 Preserves loint and Several Liability for Defendants with
Vicarious Liability under the Nondelegable Duty Doctrine

RCW 4.22.070 generally abolished joint and several liability among
concurrent tortfeasors preferring several liability based on proportionate fault
Moen, 128 Wn.2d at 760. The legislature recognized, however, that joint and several
liability remains appropriate in narrow circumstances Kottler v. State, 136 Wn.2d
437, 444, 963 P.2d 834 (1_998). lt therefore retained common law joint and several
liability in situations where the defendant has traditionally been vicariously liable
for the acts of another by virtue of an agency status or relationship Under RCW
4.22.070(1)(a),

[a] party shall be responsible for the fault of another person or for payment
of the proportionate share of another party where both were acting in concert
or when a person was acting as an agent or servant of the party

The question in this case is whether RCW 4.22.070(1)(a) provides for joint and
several liability when vicarious liability is based on the common law nondelegable
duty doctrine Stated differently we must consider whether the phrase “acting as an
agent or servant” encompasses the historical development of agency law beyond the

simple “master-servant” context to include the nondelegable duty See Afoa l, 176

_21_

Afoa v. Port ofSeattle, 94525-0 (Stephens J., dissenting)

Wn.2d at 475 (recognizing the nondelegable duty doctrine is an “expansion” of the
master-servant relationship).

The Port urges a stingy reading of the statutory language lt insists that the
plain language of RCW 4.22.070(1)(a) preserves joint and several liability only in
master-servant or principal-agent relationships by not mentioning the nondelegable
duty doctrine the Port argues the legislature effectively abrogated it, or at least the
doctrine’s effect of creating vicarious liability Pet. for Review at 18-19. This
argument allows the Port to concede that the jury verdict establishes its breach of a
nondelegable duty, but without its usual effect of incurring joint and several liability

Significantly, the majority rejects the Port’s literalistic interpretation of RCW
4.22.070(1)(a), though it ultimately agrees with the Port in result The majority
recognizes that RCW 4.22.070(1)(a) retains common law vicarious liability in
nondelegable duty situations l\/lajority at 12-13. However, the majority also insists
that joint and several liability premised on the WISHA specific or common law
nondelegable duty to provide a safe workplace requires proof of a direct agency
relationship See id. at 16 (“The jury must find that the defendant controlled another
entity before the defendant is vicariously liable for that other entity’s negligence”).
This notion of direct entity control is antithetical to the nondelegable duty doctrine

which was developed to expand vicarious liability beyond the narrow principal-

_22_

Afoa v. Port ofSeattle, 94525-0 (Stephens l., dissenting)

agent master-servant relationship The key to finding a nondelegable duty is not
entity control, but the right to control the manner of work at a multiemployer work
site The jury’s verdict plainly establishes that the Port had such work site control
at Sea-Tac Airport v

RCW 4.22.070(1)(a) is properly understood to embrace the nondelegable duty
doctrine as a form of vicarious liability in agency law, without regard to direct entity
control. As the majority concedes RCW 4.22.070(1)(a) preserves common law
vicarious liability in agency law. Id. at 13 (“RCW 4.22.070(1)(a) ‘explicitly retains
principles of common law vicarious liability’ within its exceptions” (quoting
Johnson v. Recreational Equip., Inc., 159 Wn. App. 939, 950, 247 P.3d 18 (2011)).8
Vicarious liability under the nondelegable duty doctrine arises from the very same
principles as vicarious liability in the more traditional agency relationships the
doctrine expands on. See RESTATEMENT (SECOND) OF TORTS ch. 15 , topic 2, intro.
note at 394 (nondelegability rules which arise out of some relation toward the public
or the particular plaintiff, “are rules of vicarious liability, making the employer liable

for the negligence of the independent contractor, irrespective of whether the

8 See also Kottler, 136 Wn.2d at 446 (noting RCW 4.22.070’s preservation of
traditional vicarious liability in agency law); RESTATEMENT (THIRD) OF TORTS:
APPoRrroNr\/IENT oF LiABrerY § 13 cmt. b reporters’ note at 115 (AM. LAw INsT. 2000)
(citing RCW 4.22.070(1)(a) as an example of a statute that “state[s] explicitly that
vicariously liable parties remain jointly and severally liable”).

_23_

Afoa v. Port ofSeattle, 94525-0 (Stephens J., dissenting)

employer has himself been at fault”). Because “nondelegable” means that the
control party may delegate the work but not the liability, the liability imposed under
the nondelegable duty doctrine has long been described as “closely analogous to that
of a master for the negligence of his servant.” Id. A finding of a nondelegable duty
is sufficient to establish vicarious liability

While the Port is correct that RCW 4.22.070(11)(a) references only “agen ”
and “servant,” this particular choice of words alone does not evidence the
legislature’s intent to abrogate the nondelegable duty doctrine The doctrine
operates exactly the same as other rules of vicarious liability lndeed, it was intended
to expand beyond traditional principal-agent relationships so that those with control
over complex work sites could no longer avoid liability by using “independent
contractors” rather than direct agents See RESTATEMENT (THIRD) OF TORTS:
LrABrerY FoR PHYsrCAL AND EMorroNAL HARM § 57 cmt. b (AM. LAW INsT. 2012)
(“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 (SECOND) OF TORTS ch. 15, topic 2, intro.

note at 394 (nondelegable duties “arise in situations in which, for reasons of policy,

_24_

Afoa v. Port of Seattle, 94525-0 (Stephens J., dissenting)

the employer is not permitted to shift the responsibility for the proper conduct of the
work to the contractor”).

ln sum, RCW 4.22.070(1)(a) preserves joint and several liability in vicarious
liability contexts recognized in agency law. The nondelegable duty doctrine as a
form of vicarious liability recognized in agency law, is therefore encompassed
within the traditional joint and several liability retained in RCW 4.22.070(1)(a).
Consistent with the Port’s nondelegable duty, the Court of Appeals properly held
that the Port is vicariously liable for the airlines’ breach of the duty to provide a safe
workplace and was not entitled to reduce its liability based on an allocation of fault
to the nonparty airlines Afoa ll, 198 Wn. App. at 234. Regardless of whether it was
appropriate under RCW 4.22.070 to allow the airlines to be listed as “empty chairs”
in the first instance the Port is jointly and severally liable for breach of both its own
duty and the airlines’ duty to maintain a safe workplace The trial court should have
entered judgment against the Port for the airlines’ assigned fault as well as for the

Port’s assigned fault9

9 The majority mischaracterizes the Port’s nondelegable duty as “minimiz[ing] the
airlines’ responsibility under our system of comparative fault.” Majority at 16 (emphasis
' added). Again, the majority misses the very point of the nondelegable duty doctrine as a
theory of vicarious liability-the Port as a jobsite owner with retained control over a
multiemployer work site retains legal responsibility for the safety breaches by others on
the jobsite

_25_

Afoa v. Port ofSeattle, 94525-0 (Stephens J., dissenting)

lV. The l\/lajority’s lnflexible lnterpretation of RCW 4.22.070(1)(a) Essentially
Destroys the Safe Workplace Doctrine and Undermines WlSHA

The majority’s interpretation of RCW 4.22.070(1)(a) as requiring a factual
showing of a principal-agent or master-servant relationship essentially destroys the
workplace safety doctrine and will result in general contractors and jobsite owners
passing off liability to subcontractors and others who commit safety breaches lt
represents a step backward from our recognition in Afoa l that vicarious liability
under the nondelegable duty doctrine is intended “to place the safety burden on the
entity in the best position to ensure a safe working environment.” 176 Wn.2d at 479.
The majority retreats to labels-“agent” and “servant”_despite the recognition in
Afoa l that we must “look[] beyond mere labels and consider[] the principles and
policies that underlie our doctrine.” ld. at 475. “The common law owes its glory to
its ability to cope with new situations and its principles are not mere printed fiats
but living tools to be used in solving emergent problems.” Id. at 480.

lnterpreting RCW 4.22.070 to abrogate vicarious liability under the
nondelegable duty doctrine not only disregards the evolution of our common law but
also creates a conflict between two statutes WlSHA and RCW 4.22.070. Under
WlSHA’s specific duty, though a general contractor and a subcontractor have a
shared duty to ensure WlSHA compliance the general contractor has the primary

responsibility to ensure the safety of all workers on the jobsite The subcontractor

_26_

Afoa v. Port of Seattle, 94525-0 (Stephens J., dissenting)

retains concurrent responsibility to meet workplace safety standards in performing
its work. Here it is undisputed that the airlines no less than Afoa’s employer,
EAGLE, had a duty to maintain workplace safety But their duty is limited to the
scope of their work because unlike a general contractor or owner, subcontractors do
not have innate supervisory authority over the jobsite Stute, 114 Wn.2d at 463.
Because the general contractor has the primary duty to ensure WlSHA compliance
a subcontractor’s violation of WlSHA is chargeable to both the subcontractor and
the general contractor. The majority’s holding creates a direct conflict between
RCW 4.22.070 and WlSHA.

ln creating this false conflict the majority decision renders meaningless
statutorily recognized indemnity rights Chapter 4.22 RCW preserves contractual
indemnity rights between responsible parties because they are jointly and severally
liable See RCW 4.22.040(1) (recognizing right of contribution among joint
tortfeasors). “lf a general contractor and a subcontractor are severally liable to an
injured employee there would be no need for an indemnification agreement at all
on any project.” Moen, 128 Wn.2d at 760. The majority’s decision conflicts with
Moen by failing to appreciate that any concurrent negligence by the airlines remains
chargeable to the Port in the first instance precisely because its duty to Afoa is a

nondelegable duty Even if the airlines could be described as owing separate

_27_

Afoa v. Port of Seattle, 94525-0 (Stephens J., dissenting)

concurrent nondelegable duties-_which they cannot be in the absence of any jury
finding of workplace control-the liability between the Port and the airlines would
remain joint and several. Moen could not be clearer about this point Id. at 761-64.
The Port remains vicariously liable for the airlines’ negligence without regard to
whether the contracting parties might have independent indemnification rights to
“settle up” their relative responsibilities.10
CONCLUSION

The Court of Appeals correctly recognized the consequence of the Port’s
breach of its nondelegable duty to provide a safe workplace to Afoa: the Port is
liable for its own negligence and vicariously liable for negligence of others at the
work site including the airlines Because RCW 4.22.070 preserves vicarious
liability under the nondelegable duty doctrine the trial court should have entered

judgment holding the Port jointly and severally liable for the proportionate share of

10 Unsurprisingly, the Port’s lease agreement with each airline contains an
indemnification clause for this exact purpose The airlines have a duty to indemnify the
Port for all liability arising from injuries sustained by any person directly or indirectly
employed by the airlines including c‘subcontractors” like Afoa. See CP at 8148. Under
the indemnification clause “[a]ny final judgment rendered against the Port for any cause
for which Airline is liable hereunder shall be conclusive against Airline as to liability.” ]d.
As in other multiemployer contexts the Port may shift liability to the airlines using the
indemnification agreement lt is the indemnification agreement that “ensure[s] a party
generally will not have to bear financial responsibility for the fault of another.” Moen, 128
Wn.2d at 761. The majority needlessly dismantles the nondelegable duty doctrine and
RCW 4.22.070 in order to solve a perceived unfairness that does not exist

_23_

Afoa v. Port ofSeattle, 94525-0 (Stephens J., dissenting)

fault assigned to the airlines l would remand for entry of a corrected judgment

against the Port.

_29_

Afoa v. Port ofSeattle, 94525-0 (Stephens J., dissenting)

30