Dec 17, 2018

A Matter of Fact: Supreme Court Clarifies Law Regarding Vicarious Liability for Concurrent Breaches of Nondelegable Duties

Written by Evan A. Brown

This article originally appeared in the Fall 2018 issue of Construction Law, the newsletter of the WSBA Construction Law Section.

In Afoa v. Port of Seattle (Afoa II), 421 P.3d 903, 2018 WL 3469072 (2018), the Washington Supreme Court considered whether the Port of Seattle was vicariously liable for breaches of a nondelegable duty by certain airlines on account of its own breach of the same nondelegable duty. The Court held in a 5-4 decision that the Port was not vicariously liable merely because it breached a concurrent nondelegable duty under the Washington Industrial Safety and Health Act (WISHA), Chapter 49.17 RCW, to maintain a safe workplace.  For joint and several liability to attach under the circumstances, the plaintiff needed to prove that the Port exercised control over the airlines.

Plaintiff Afoa, a baggage handler at SeaTac Airport, was gravely injured when a piece of equipment fell on him.  421 P.3d at 907.  Afoa sued the Port in state court, alleging the Port violated its nondelegable duty to ensure safe working conditions, both as a matter of common law and under WISHA.  Id.  Separately, Afoa sued the airlines involved in the incident in federal court.  Id.  Both the state and federal suits were dismissed on summary judgment.  Id.  Our Supreme Court reversed summary judgment of Afoa’s state case and remanded, holding that the Port could be held legally responsible for Afoa’s safety even though he was not a Port employee because “a jobsite owner who exercises pervasive control over a work site should keep that work site safe for all workers.”  Id. (quoting Afoa v. Port of Seattle (Afoa I), 176 Wn.2d 460, 481, 296 P.3d 800 (2013)).

The Port then asserted an “empty chair” defense at trial, arguing that the nonparty airlines were at fault.  Id. at *1.  The jury awarded Afoa $40 million, assigning 25% responsibility to the Port, 0.2% to Afoa, and the remaining 74.8% apportioned among the four airlines.  Id. at 908.  On review, Afoa argued that the Port was jointly and severally liable for the entire judgment, minus the 0.2% of fault assigned to Afoa, in light of the Port’s nondelegable duty to ensure safe working conditions at SeaTac.  Id.

The Court began its analysis by noting that RCW 4.22.070 imposes several liability as a general rule in cases of concurrent negligence, subject to enumerated exceptions.  Id. at 909.  However, other statutes or the common law may impose vicarious liability, creating joint and several liability among concurrently negligent parties.

The Court noted that under WISHA both the Port and the airlines owed a nondelegable duty of care to Afoa, based on their rights to exercise control over the jobsite.  Id. at 909.  However, the Court determined that neither WISHA nor the common law impose vicarious liability for concurrent breaches of a nondelegable duty by others.  Id. at 910.  The Court then explained that while delegation of a nondelegable duty may give rise to vicarious liability, a concurrent breach of that nondelegable duty by a party independent subject to it does not.  Id.  “An entity that delegates its nondelegable duty will be vicariously liable for the negligence of the entity subject to its delegation, but an 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.’”  Id. at 910–11.

The Court then addressed whether any exception to the general rule of several liability under RCW 4.22.070 applied to Afoa’s case.  One such exception exists where one concurrently negligent party acted as the “agent or servant” of another concurrently negligent party.  RCW 4.22.070(1)(b).  The Court expressed that if Afoa had proved to the jury that the Port retained sufficient control over the airlines to qualify them as its agents, the Port would have been vicariously liable for the airlines’ breaches.  Afoa II, 421 P.3d at 906.  However, because Afoa did not argue the issue at trial, “the jury findings [did] not support the conclusion that the Port [was] vicariously liable for the airlines’ fault.” Id. at 906.

Writing in dissent, Justice Stephens argued that the majority decision was contrary to the court’s decision in Afoa I, effectively rendering the nondelegable duty doctrine “meaningless.” Id. at 915.  Justice Stephens found the Afoa I holding that the Port retained requisite control over the site to impose a duty to provide a safe work place sufficient for a finding of vicarious liability in this case.  Id.  Justice Stephens found the majority’s emphasis on the airlines’ concurrent duties to preserve workplace safety misplaced.  In her view, because the Port retained control over the site, its nondelegable duty should give rise to liability not limited by the concurrent breaches of others.

General contractors and/or project owners often have nondelegable duties under WISHA to maintain a safe jobsite, and Afoa II clarifies a point of law that may apply when injuries occur on complex, multiparty projects.  The Court’s holding regarding vicarious liability makes it clear that plaintiffs seeking joint and several liability against multiple entities that concurrently breached nondelegable duties of care under WISHA must pull their cases within the ambit of an exception to RCW 4.22.070’s general rule of proportionate liability.  This is especially important where nonparties with nondelegable duties may be at fault.  Concurrent breach of a nondelegable duty by one party is not sufficient to impose joint and several liability as a matter of law for the breaches of other entities subject to that duty.