Brandon Apela Afoa, / Cross-app. v. Port Of Seattle, / Cross-res.
198 Wash. App. 206
| Wash. Ct. App. | 2017Background
- Brandon Afoa, an EAGLE (independent contractor) employee, was paralyzed in 2007 when his pushback vehicle collided with a loading device on the Sea‑Tac ramp; the Port of Seattle owns and operates the airport and licenses ground handlers like EAGLE.
- Afoa sued the Port alleging failure to maintain a safe workplace under common law retained‑control principles and WISHA; summary judgment for the Port was reversed by the Washington Supreme Court (Afoa I) and the case went to trial.
- At trial the jury found total damages of $40 million, allocated 25% fault to the Port, 18.7% to each of four nonparty airlines, and a small percentage to Afoa; the trial court entered judgment against the Port for $10 million.
- The Port appealed arguing, inter alia, the special verdict’s disjunctive wording ("performed its work or maintained its equipment") misstated law and that federal law preempted state claims; Afoa cross‑appealed arguing the Port had a nondelegable duty and could not shift fault to the airlines.
- The Court of Appeals affirmed Port liability (no reversible error in the verdict wording; substantial evidence of retained control) rejected preemption, but held the Port had a nondelegable duty and thus could not reduce its liability by allocating fault to the nonparty airlines — remanding for amended judgment.
Issues
| Issue | Afoa's Argument | Port's Argument | Held |
|---|---|---|---|
| Special verdict wording ("performed its work or maintained its equipment") | Wording accurately tracks retained control/WISHA theory and permits proof of control over manner of work. | Disjunctive phrasing allowed liability without proof Port controlled manner of maintaining the pushback; should have been conjunctive/limited. | No misstatement of law; "manner of work" includes control over maintaining instrumentalities; verdict form permitted Port to present its theory and caused no prejudice. |
| Sufficiency of evidence of retained control | Evidence (license agreement, ramp rules, inspection/red‑tag/impound authority, testimony) shows Port retained control over manner and instrumentalities on ramp. | Port lacked operational‑level control over maintenance methods; at most had inspection/stop/start rights insufficient for liability. | Substantial evidence supported jury finding Port retained right to control manner of EAGLE’s work (including equipment maintenance). |
| Federal preemption (Airline Deregulation Act / field or conflict preemption) | State tort/WISHA claims regulate safety and complement federal rules; no clear congressional intent to preempt; federal regs set a floor. | Federal law preempts state liability here because federal schemes regulate aviation safety and airport operations. | No preemption: ADA inapplicable; neither conflict nor field preemption shown; state tort remedies and WISHA standards may coexist with federal regulation. |
| Nondelegable duty and allocation of fault to nonparty airlines | Port, as jobsite owner exercising pervasive control, had a nondelegable duty and is vicariously liable; cannot proportionately reduce liability by allocating fault to nonparties. | Port contended comparative fault statute (RCW 4.22.070) required allocation to nonparty airlines; argued nondelegable duty applies only to general contractors. | Port had nondelegable duty akin to a general contractor and is vicariously liable; allocation of fault to the four airlines was improper — judgment remanded to eliminate that reduction. |
Key Cases Cited
- Kelley v. Howard S. Wright Constr. Co., 90 Wn.2d 323 (1978) (retained‑control by a principal creates duty to maintain safe workplace)
- Stute v. P.B.M.C., Inc., 114 Wn.2d 454 (1990) (WISHA creates a specific duty when owner retains control over manner of contractors’ work)
- Afoa v. Port of Seattle, 176 Wn.2d 460 (2013) (Supreme Court holding that jobsite owner liability depends on retained control over work)
- Kamla v. Space Needle Corp., 147 Wn.2d 114 (2002) (jobsite owners can have duties equivalent to general contractors depending on control)
- Gilbert H. Moen Co. v. Island Steel Erectors, Inc., 128 Wn.2d 745 (1996) (indemnity/contractual allocation principles do not eliminate general contractors’ independent safety duties)