421 P.3d 903
Wash.2018Background
- Brandon Afoa, an EAGLE employee, was severely injured at Sea‑Tac while driving baggage equipment; he sued the Port of Seattle claiming the Port retained sufficient control to have a nondelegable duty to provide a safe workplace.
- A jury found $40 million in damages and apportioned fault: Port 25.0%, Afoa 0.2%, and four nonparty airlines 74.8% (evenly divided); the trial court entered judgment against the Port for its apportioned share only.
- Afoa had separately sued the airlines in federal court; that suit was dismissed on summary judgment and he did not appeal.
- The Port asserted an empty‑chair defense under CR 12(i) at trial, prompting the jury to allocate fault to the nonparty airlines; Afoa later argued the Port should be jointly and severally liable for the airlines’ share because of a nondelegable duty and vicarious liability.
- The Washington Supreme Court granted review to decide whether RCW 4.22.070 preserves joint and several liability when a defendant is vicariously liable and whether the jury’s findings support vicarious liability of the Port for the airlines.
- The Court held RCW 4.22.070(1)(a) preserves joint and several liability when a defendant is vicariously liable, but here the jury did not make the factual finding necessary to impose vicarious liability for the airlines, so the Port is liable only for its apportioned share.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether jury could allocate fault to nonparty airlines via empty‑chair defense | Afoa: empty‑chair allocation improper because Port’s nondelegable duty makes it jointly and severally liable for all safety failures | Port: permitted to plead nonparty fault under CR 12(i); empty‑chair allocation appropriate | Trial court did not err; jury could allocate fault to nonparties and Port properly pled nonparty fault |
| Whether a nondelegable duty converts concurrent fault into joint and several liability under RCW 4.22.070 | Afoa: Port’s nondelegable duty (common law and WISHA) means it cannot shift airlines’ fault and must be vicariously liable for airlines | Port: nondelegable duty does not automatically create vicarious liability for airlines absent factual finding of control over those airlines | RCW 4.22.070 preserves joint and several liability for vicarious liability, but vicarious liability is a factual question the jury must decide; jury did not find Port controlled the airlines, so no joint and several liability here |
| Whether plaintiff’s failure to present agency/vicarious‑liability theory to jury waived that argument | Afoa: suffices to show Port’s pervasive control; agency theory implicit | Port: plaintiff waived agency argument by not asking jury to find control over airlines | Held: agency is a factual question; Afoa waived the opportunity by not presenting it to the jury |
| Whether federal court dismissal of airlines precluded Port from asserting airlines’ fault (issue preclusion/res judicata) | Afoa: federal summary judgment forecloses finding airlines at fault here | Port: it was not a party to federal case; Afoa voluntarily split claims; Port can assert empty‑chair defense | Held: res judicata/collateral estoppel do not bar Port; Port was not in privity in the federal suit and no injustice found in allowing empty‑chair defense |
Key Cases Cited
- Afoa v. Port of Seattle, 176 Wash.2d 460 (Wash. 2013) (prior appeal recognizing jobsite owner may owe nondelegable duty when it retains right to control)
- Kottler v. State, 136 Wash.2d 437 (Wash. 1998) (RCW 4.22.070 generally abolished joint and several liability; exceptions preserved)
- Kamla v. Space Needle Corp., 147 Wash.2d 114 (Wash. 2002) (nondelegable duty depends on retained right to control manner of work)
- Kelley v. Howard S. Wright Constr. Co., 90 Wash.2d 323 (Wash. 1978) (general contractor duty to provide safe place of work where control exists)
- Moen v. Island Steel Erectors, 128 Wash.2d 745 (Wash. 1996) (RCW 4.22.070 removed joint and several liability as the rule; narrow exceptions remain)
- Edgar v. City of Tacoma, 129 Wash.2d 621 (Wash. 1996) (allocation of fault is a factual question for the jury)