Kennedy v. Sea-Land Service, Inc.
| Decision Date | 16 September 1991 |
| Docket Number | SEA-LAND,No. 25930-0-I,25930-0-I |
| Citation | 816 P.2d 75,62 Wn.App. 839 |
| Parties | Molly O. KENNEDY, as personal representative of the Estate of James R. Kennedy, Deceased, Appellant, v.SERVICE, INC., Respondent. |
| Court | Washington Court of Appeals |
Roger Davidheiser, Vashon, Vincent Larson, Riddell Williams, Ivie Bullitt & Walkinshaw, Seattle, for respondent.
Appellant Molly O. Kennedy challenges the trial court's summary dismissal of her negligence action against respondent Sea-Land Service, Inc. ("Sea-Land"). Appellant's decedent, James Kennedy ("Kennedy") was employed by Container Stevedoring Company ("Container Stevedoring"), a subcontractor employed by Sea-Land. Kennedy was killed on the job. We find that there are genuine issues of material fact which, if resolved in appellant's favor, would establish that Sea-Land retained sufficient control over the workplace to give rise to a higher duty of care for the safety of the employees of the independent contractor than would otherwise exist; that there also are genuine issues of material fact as to whether the duty of care was breached; and that there are genuine issues of material fact as to whether any such breach proximately caused the death of Kennedy. Accordingly we reverse the summary judgment of dismissal and remand for trial.
On the morning of October 18, 1984, Kennedy was run over and killed by a toploader, a piece of heavy machinery, while in the course of his employment by Container Stevedoring. On the day of his death Kennedy was working as a "tag-checker."
Sea-Land leases land from the Port of Seattle, Marine Terminal 5, on the Seattle waterfront. On this property Sea-Land maintains a storage yard where large containers are stored prior to being loaded onto vessels, or after being offloaded from vessels berthed adjacent to the terminal.
Sea-Land's usual preferred mode of container storage was to place the containers on wheeled semi-truck chassis for easy movement. However, on some occasions the containers would be placed directly on the pavement of the storage yard and stacked one on top of another. From time to time these "grounded" containers were moved in the course of Sea-Land's business operations. In order to move the containers Sea-Land owned a large toploader manufactured by Clark Equipment Company. The toploader was used to pick up the grounded containers and place them on semi-truck chassis for movement to another location.
Container Stevedoring was the independent contractor employed by Sea-Land to move the containers. The independent contractor provided a driver for Sea-Land's toploader, a foreman who directed the moving operation, several longshoremen who strapped the containers onto the wheeled chassis, and, on the day of his death, Kennedy. Kennedy's job was to tag the containers after they were loaded onto the chassis. These tags provided the routing information for the containers. After the loaded containers were tagged, Kennedy would check them off on a computerized list. Sea-Land maintained a computer system to keep track of the location and destination of its containers. Sea-Land employed storage coordinators who worked the computers and planned the loading and On the day of the accident, the toploader was being used to pick up the containers from the grounded stacks. The driver would then back up and load the containers onto wheeled chassis. He would then drive forward again to pick up another container. The toploader was designed in such a manner that the driver had better visibility while backing up than while moving forward.
unloading of vessels. Sea-Land also employed seven stevedore managers whose duty it was to supervise where the grounded containers would be stacked and when and to where they would be moved. Mr. Mooney, Sea-Land's marine manager, had the overall supervisory responsibility to preplan the movement of containers within the yard. He also had the overall responsibility for the safety of the moving operations. He gave the orders to Container Stevedoring, who in turn performed the actual work of loading the grounded containers onto the chassis, strapping them down and tagging them
The toploader was moving in the same general pattern as it had been all that morning. Kennedy was hit while moving from right to left in front of the loader as it moved forward to pick up another container. The attention of the driver was focused on the stack of containers ahead of him. By the time he noticed Kennedy it was too late for him to stop. It is unclear why Kennedy walked in front of the forward moving toploader. There is evidence that Kennedy was not required to cross the path of the moving toploader in order to tag the loaded containers. There is circumstantial evidence that Kennedy may have "pre-tagged" an awaiting empty chassis. There is also evidence in the record that Sea-Land's workers were waiting to use the toploader for another purpose and there is at least an inference that someone at Sea-Land was in a hurry to obtain access to the toploader. The record also reflects that a contributing cause of the accident was that "everyone was in a hurry" (deposition testimony of Mr. Marshall, the foreman who had been hired by Container Sea-Land provided not only the toploader but also all of the safety equipment and a safety manual for use by the independent contractor. The independent contractor's management attended Sea-Land's monthly safety meetings. The safety equipment consisted of cones which were used to designate the loading areas, brightly-colored safety vests for the workers (Kennedy was not wearing a safety vest) and portable two-way radios. However, radios were not in use in the toploader, or by the loading crew, or by Kennedy.
Stevedoring on that particular day). Kennedy was seen running at one point, sometime previous to the accident
The evidence is disputed as to whose responsibility it was to determine whether the use of radios was reasonably necessary and if so, to see that radios were used. Sea-Land's witnesses claimed that duty rested with the independent contractor. Appellant's witnesses claimed that duty rested with Sea-Land.
The fatality occurred in an area bisected by a painted pedestrian walkway. The walkway led from an employee parking lot to the main operations building. Because of the location of the grounded containers, the toploader was being moved backward and forward across the pedestrian walkway. There was no stop sign at the walkway; nor was the toploader required to stop before crossing the walkway. Kennedy was not struck in the pedestrian walkway but rather some 14 feet from it. It is undisputed that the walkway was for the use of persons going from the parking lot to the operations building, rather than having any purpose related to the loading operation. However, there is at least an inference that a requirement that the toploader stop before crossing the walkway, even if intended for the safety of others than Kennedy, may have enabled the driver to see Kennedy before it was too late.
Sea-Land performed certain modifications on the toploader prior to the accident, principally the installation of an audible backup signal. The evidence is disputed as to whether the toploader was equipped with a forward- Container Stevedoring has only one employer, Sea-Land. Sea-Land and Container Stevedoring are each subsidiaries of a parent corporation. Container Stevedoring has only three full-time employees, one of whom is a secretary. Container Stevedoring hires laborers as needed from local union halls.
signal. Sea-Land claims there was a forward-moving alarm or signal. Appellant's expert witness claimed there was no such signal. Appellant claims that Sea-Land negligently failed to equip the toploader with a two-way radio and with an auditory and visual signal for the forward movement of the vehicle. A mirror intended to enhance the driver's forward visibility was placed in such a manner that the driver was required to turn his head 90 degrees in order to utilize the mirror. 1
In 1970 Sea-Land and Container Stevedoring entered into a written contract which provides in relevant part:
1. Services. Sea-Land hereby contracts with contractor to perform certain functions as described herein and contractor agrees to perform such services, which services include, but are not limited to the following; (a) the employment and supervision of stevedore labor, subject always to direction and supervision of Sea-Land, necessary to the performance of contractor's obligations hereunder ...
. . . . .
9. Status of Party. In performing any of the services called for under this agreement, contractor shall operate as an independent contractor, maintaining its own organization as a distinct and separate legal entity from Sea-Land and performance hereunder shall be subject entirely to the internal direction and control of contractor and none of its employees shall be, or be deemed to be, employees of Sea-Land for any purpose whatsoever ... Contractor agrees, however, to abide by the policies, rules, and procedures which Sea-Land may from time to time establish pertaining to the operation and maintenance of Sea-Land terminals. (Emphasis added).
Appellant argues that Sea-Land contractually reserved sufficient control over the independent contractor to give rise to a common-law duty of care as to the safety of the employees of the independent contractor and that Sea-Land breached its duty of care by (1) selecting an unsafe jobsite for the grounding operations; (2) failing to adequately pre-plan the operation and the jobsite; (3) providing an unsafe Sea-Land owned toploader for use by the independent contractor; and (4) failing to install or require use of adequate safety warning devices and radio communication equipment.
Respondent argues that the contract provides that the...
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