Afoa v. Port of Seattle, 94525-0

• Citation: 421 P.3d 903
• Decision Date: 19 July 2018
• Docket Number: No. 94525-0,94525-0
• Court: United States State Supreme Court of Washington
• Parties: Brandon Apela AFOA, Respondent/Cross-Petitioner, v. PORT OF SEATTLE, Petitioner/Cross-Respondent.

421 P.3d 903

Brandon Apela AFOA, Respondent/Cross-Petitioner,

v.PORT OF SEATTLE, Petitioner/Cross-Respondent.

No. 94525-0

Supreme Court of Washington.

Argued January 18, 2018

Filed JULY 19, 2018

Mark Steven Northcraft, Andrew Thomas Biggs, Northcraft Bigby & Biggs PC, 819 Virginia St. Ste. C2, Seattle, WA, 98101-4433, Pamela A. Okano, Marilee C. Erickson, Reed McClure, 1215 4th Ave. Ste. 1700, Seattle, WA, 98161-1087, Mark Dombroff, LeClairRyan, 2318 Mill Road, Suite 1100, Alexandria, VA, 22314, Mark E. Mckinnon, LeClairRyan, 815 Connecticut Avenue Nw. Suite 620, Washington, DC, 20006, for Petitioner.

Raymond Everett Sean Bishop, Derek K Moore, Bishop Legal, 19743 1st Ave. S., Normandy Park, WA, 98148-2401, Michael T. Schein, Sullivan Law Firm, 701 5th Ave. Ste. 4600, Seattle, WA, 98104-7068, for Respondent.

Dmitri L. Iglitzin, Schwerin Campbell Barnard Iglitzin & Lav, 18 W. Mercer St. Ste. 400, Seattle, WA, 98119-3971, for Amicus Curiae on behalf of Washington State Labor Council.

Eileen I. Mckillop, Selman Breitman LLP, 600 University St. Ste. 1800, Seattle, WA, 98101-4129, Jaime Faye Becker, Osborne Construction, 10602 Ne. 38th Pl. Ste. 100, Kirkland, WA, 98033-7947, for Amicus Curiae on behalf of Associated General Contractors of Washington.

Valerie Davis McOmie, Attorney at Law, 4549 Nw. Aspen St., Camas, WA, 98607-8302, Daniel Edward Huntington, Richter-Wimberley PS, 422 W. Riverside Ave. Ste. 1300, Spokane, WA, 99201-0305, for Amicus Curiae on behalf of Washington State Association for Justice Foundation.

GONZÁLEZ, J.

¶ 1 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 work. 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. In 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’ 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.

¶ 2 Afoa’s suit was initially dismissed on summary judgment, but in Afoa v. Port of Seattle, 176 Wash.2d 460, 296 P.3d 800 (2013) ( AfoaI ), we reversed and remanded. In the meantime, Afoa 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.

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

¶ 4 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 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 AfoaI , 176 Wash.2d at 495, 296 P.3d 800. We reverse the Court of Appeals and affirm the trial court.

BACKGROUND

¶ 5 Afoa worked as a baggage handler at the Seattle-Tacoma International 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 4.22.070.²

¶ 6 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 its nondelegable duties under the Washington Industrial 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 I , 176 Wash.2d at 481, 296 P.3d 800. We were not asked to rule on whether the Port was potentially subject to joint and several liability with nonparty airlines.

¶ 7 After we decided AfoaI , 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.

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

¶ 9 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.

¶ 10 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.

¶ 11 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. Afoa v. Port of Seattle, 198 Wash. App. 206, 234, 393 P.3d 802 (2017) ( AfoaII ). 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 the trial court erred because the Port was bound by the federal court’s summary judgment ruling in favor of the airlines.³ 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 defense.⁴

ANALYSIS

I. Allocation of Fault and Nondelegable Duties

¶ 12 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 of law de novo. Jongeward v. BNSF Ry. Co., 174 Wash.2d 586, 592, 278 P.3d 157 (2012) (citing State v. Breazeale, 144 Wash.2d 829, 837, 31 P.3d 1155 (2001) ).

¶ 13 In 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." Kottler v. State, 136 Wash.2d 437, 443, 963 P.2d 834 (1998). " 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." Id.

¶ 14 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"). In 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. Mailloux v. State Farm Mut. Auto. Ins. Co., 76 Wash. App. 507, 514-15, 887 P.2d 449 (1995) ; see...