Afoa v. Port of Seattle

• Decision Date: 22 February 2011
• Docket Number: No. 64545–5–I.,64545–5–I.
• Citation: 247 P.3d 482,160 Wash.App. 234
• Court: Washington Court of Appeals
• Parties: Brandon Apela AFOA, Appellant/Cross–Respondent,v.PORT OF SEATTLE, Respondent/Cross–Appellant.

160 Wash.App. 234

247 P.3d 482

Brandon Apela AFOA, Appellant/Cross–Respondent,

v.PORT OF SEATTLE, Respondent/Cross–Appellant.

No. 64545–5–I.

Court of Appeals of Washington, Division 1.

Feb. 22, 2011.

Raymond Everett Sean Bishop, Derek K. Moore, Bishop Law Offices PS, Normandy Park, WA, Michael T. Schein, Sullivan & Thoreson, Seattle, WA, for Appellant/Cross–Respondent.Mark Steven Northcraft, Northcraft Bigby & Biggs PC, Seattle, WA, for Respondent/Cross–Appellant.SPEARMAN, J.

[160 Wash.App. 236] ¶ 1 In general, one who employs an independent contractor is not liable for injuries sustained by an independent contractor's employees. But a well established exception to the general rule is where an employer of an independent contractor retains control over some part of the work, in which case, the employer has a duty within the scope of that control to provide a safe place to work. At issue in this case is whether these same rules apply where the contract between the Port and appellant Brandon Afoa's employer is a “license agreement.” We hold that they do and that questions of fact exist as to whether the Port retained sufficient supervisory authority over the manner in which Afoa performed his work. Accordingly, we reverse summary judgment and remand for further proceedings.

FACTS

¶ 2 Brandon Afoa was injured as a result of collision while he was operating a powered industrial vehicle on the airplane ramp at Seattle–Tacoma International Airport, which is owned and operated by the Port of Seattle. Mr. Afoa worked for Evergreen Aviation Ground Logistics Enterprises, Inc. (“EAGLE”). EAGLE provided “aircraft ground handling services” at the airport, including aircraft movement and loading and unloading aircraft cargo and baggage, under a “license agreement” with the Port. Afoa claims the brakes and steering on the vehicle failed while he was operating it, causing him to collide with a broken piece of equipment that had been left on the tarmac. The piece of equipment fell on him, crushing his spine and leaving him paraplegic. Afoa sued the Port, alleging it breached common law and statutory duties by failing to provide him with a safe workplace.

¶ 3 The Port moved for summary judgment, arguing that Afoa's suit was barred by the public duty doctrine, and that the Port did not owe any duty of care to the employees of EAGLE, because EAGLE was not an independent contractor with the Port and because the Port had no authority or control over EAGLE's work. The Port also argued that it owed no duty to Afoa under the Washington Industrial Safety and Health Act (“WISHA”) because it is not an “employer,” and Afoa is not an “employee” as those terms are defined in the statute. In addition, the Port sought sanctions against Afoa under CR 11. The trial court granted the motion for summary judgment, but denied the request for sanctions. Afoa appeals and the Port cross-appeals the denial of sanctions.

DISCUSSION

Standard of Review

¶ 4 When reviewing a motion for summary judgment, we engage in the same inquiry as the trial court. Marks v. Wash. Ins. Guar. Ass'n, 123 Wash.App. 274, 277, 94 P.3d 352 (2004). Summary judgment is appropriate if the pleadings, depositions, and affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c). “Like the trial court, we consider facts submitted and all reasonable inferences from those facts in the light most favorable to the nonmoving party.” Marks, 123 Wash.App. at 277, 94 P.3d 352. Summary judgment is appropriate only if, from all the evidence, reasonable persons could reach but one conclusion. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982). The existence of a legal duty is generally a question of law. Degel v. Majestic Mobile Manor, Inc., 129 Wash.2d 43, 48, 914 P.2d 728 (1996). But where duty depends on proof of certain facts that may be disputed, summary judgment is inappropriate. Sjogren v. Props. of the Pac. N.W., LLC, 118 Wash.App. 144, 148, 75 P.3d 592 (2003).

Common Law Duty

¶ 5 Afoa argues there are material questions of fact regarding whether the Port owed him a common law duty to provide a safe workplace in the same manner as a general contractor that has control over the way in which jobs are performed at a construction site. The Port contends that summary judgment was proper because its actions were strictly limited to ensuring compliance with what it refers to as a simple “license agreement” with Afoa's employer, EAGLE. We agree with Afoa for the reasons described herein.

¶ 6 In general, an employer who contracts with an independent contractor is not liable for injuries sustained by an independent contractor's employees. Restatement (Second) of Torts § 409 (1965); Kelley v. Howard S. Wright Constr. Co., 90 Wash.2d 323, 330, 582 P.2d 500 (1978); Stute v. P.B.M.C., Inc., 114 Wash.2d 454, 460, 788 P.2d 545 (1990). But where the employer retains control over some part of the independent contractor's work, the employer has a duty within the scope of that control to provide a safe place to work. Stute, 114 Wash.2d at 460, 788 P.2d 545; Kennedy v. Sea–Land Serv., Inc., 62 Wash.App. 839, 851, 816 P.2d 75 (1991); Restatement (Second) TortsS § 414 (1965). In Kamla v. Space Needle Corp., 147 Wash.2d 114, 119, 52 P.3d 472 (2002), the Supreme Court explained the rationale for holding employers who retain control over a jobsite liable for injuries incurred by employees of independent contractors:

Employers are not liable for injuries incurred by independent contractors because employers cannot control the manner in which the independent contractor works. Conversely, employers are liable for injuries incurred by employees precisely because the employer retains control over the manner in which the employee works.

Kamla, 147 Wash.2d at 119, 52 P.3d 472.

¶ 7 Regarding the issue of control, the test is not simply whether there is an actual exercise of control; rather, the test is whether the employer contracting with independent contractor retains a right to direct the manner in which the work is performed. Kamla, 147 Wash.2d at 121, 52 P.3d 472. Indeed, the right to control can exist even where the employer does not actually interfere with the independent contractor's work. Phillips v. Kaiser Aluminum & Chem. Corp., 74 Wash.App. 741, 750, 875 P.2d 1228 (1994). “Whether a right to control has been retained depends on the parties' contract, the parties' conduct, and other relevant factors.” Id.

[160 Wash.App. 240] ¶ 8 Washington courts have recognized a difference between merely overseeing contract compliance and becoming involved in the manner in which the contractual obligations are performed. For example, “ ‘[t]he retention of the right to inspect and supervise to insure the proper completion of the contract does not vitiate the independent contractor relationship.’ ” Hennig v. Crosby Group, Inc., 116 Wash.2d 131, 134, 802 P.2d 790 (1991) (quoting Epperly v. Seattle, 65 Wash.2d 777, 785, 399 P.2d 591 (1965)). Instead, an employer must have retained a right “to so involve oneself in the performance of the work as to undertake responsibility for the safety of the independent contractor's employees.” Id. The Restatement (Second) TortsSS § 414 (1965) cmt. c. is instructive on this issue:

It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.

¶ 9 In Kamla, the Space Needle hired an independent contractor to install a fireworks display on the Space Needle. Kamla, an employee of the independent contractor, was injured when his safety line snagged on a moving elevator and dragged him through the elevator shaft. Kamla, 147 Wash.2d at 118, 52 P.3d 472. He argued that the Space Needle was liable as a jobsite owner under the retained control exception. The Supreme Court disagreed, noting that the Space Needle did not assume responsibility for worker safety or retain the right to control or interfere with the manner in which the independent contractor and its employees set up the fireworks. Id. at 121–22, 52 P.3d 472. Instead, the Space Needle merely agreed to provide access to the display site, crowd control, firefighters, permit fees, technical assistance, security, and public relations. Id.

[160 Wash.App. 241] ¶ 10 Similarly, in Hennig, the Supreme Court held that a contract authorizing the Port of Seattle to inspect an independent contractor's work to ensure contract compliance did not impose liability on the Port:

It is one thing to retain a right to oversee compliance with contract provisions and a different matter to so involve oneself in the performance of the work as to undertake responsibility for the safety of the independent contractor's employees.

Hennig, 116 Wash.2d at 134, 802 P.2d 790.

¶ 11 By contrast, in Kelley, the general contractor expressly assumed responsibility for “supervising and coordinating all aspects of the work” and “agreed to be responsible for ‘initiating, maintaining and supervising all safety precautions and programs in connection with the work[.]’ ” Kelley, 90 Wash.2d at 327, 582 P.2d 500. As such, the Supreme Court held that the exception applied and the general contractor's contractual duty of care to the employees of its subcontractors was nondelegable. Id. at 333–34, 582 P.2d 500. The Court thus affirmed the judgment against the general contractor.

¶ 12 Afoa argues this case is more like Kelley than Kamla or Hennig. We agree. The Port's argument that it...