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Millican v. N.A. Degerstrom, Inc.

Court of Appeals of Washington, Division 3

November 15, 2013

Dorothy A. MILLICAN, as Personal Representative of the Estate of Daren M. Lafayette, and on her own behalf as statutory beneficiary, Appellant,
v.
N.A. DEGERSTROM, INC., a Washington corporation, Respondent, MICO, Incorporated, a Minnesota corporation; James R. Bonner and Jane Doe Bonner, husband and wife and the marital community comprised thereof, d/b/a Industrial Power Brake Company; John Doe Manufacturer, 1 through 10; John Doe Corporations, 1 through 10, Defendants.

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[Copyrighted Material Omitted]

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Roger A. Felice, Michael vs Felice, Felice Law Offices PS, Spokane, WA, Jason Wayne Anderson, Carney Badley Spellman PS, Seattle, WA, for Appellant.

Steven Robert Stocker, Stocker, Smith, Luciani & Staub PLLC, Spokane, WA, Edward G. Johnson, Law Offices of Raymond Schutts, Liberty Lake, WA, for Defendants.

Lori Kay O'tool, Megan Maria Coluccio, Earl Maier Sutherland, Preg O'Donnell & Gillett, Seattle, WA, for Respondent.

Douglas R. Roach Ahlers & Cressman PLLC Seattle, WA, Amicus Curiae on behalf of Associated General Contractors of Washington.

SIDDOWAY, A.C.J.

[177 Wn.App. 885] ¶ 1 Dorothy Millican's 19-year-old son, Daren Lafayette, was killed in a job related accident while working construction on the Flowery Trail Road, located in Stevens and Pend Oreille counties. As personal representative of her son's estate and claiming rights as a statutory beneficiary, she brought a wrongful death action against the general contractor, N.A. Degerstrom Inc., and others. The jury returned a defense verdict from which Ms. Millican appeals.

¶ 2 Ms. Millican contends on behalf of her son's estate that the trial court erred in (1) admitting evidence that Degerstrom contractually delegated sole responsibility for the safety of employees to its subcontractors, (2) denying the estate's motion for a new trial, and (3) refusing to instruct the jury that Degerstrom owed a duty to the public traveling through the construction site. She argues individually that the court erred in dismissing her claims on the basis that she did not qualify as a statutory beneficiary.

¶ 3 We conclude that it was an abuse of discretion for the trial court to deny the estate's motion seeking to limit Degerstrom's evidence and argument that it required Mr. Lafayette's employer to assume sole responsibility for the protection and safety of its own employees. [177 Wn.App. 886] Degerstrom's mischaracterization to this effect pervaded its presentation and could not be cured by the concluding instructions to the jury. The estate and Ms. Millican fail to demonstrate any other error, however.

¶ 4 We affirm the trial court's dismissal of Ms. Millican's individual claim but reverse the judgment on the jury's verdict and remand for a retrial of the estate's claims.

FACTS AND PROCEDURAL BACKGROUND

¶ 5 In April 2005, the United States Department of Transportation Federal Highway Administration awarded N.A. Degerstrom Inc. a contract to improve a five-mile stretch of Flowery Trail Road. Degerstrom subcontracted with Sharp-Line Industries Inc. to install signs and paint road stripes. The subcontract agreement required Sharp-Line to indemnify Degerstrom from any liability it suffered as a result of Sharp-Line's negligence. The subcontract also contained the following provision imposing responsibility on Sharp-Line for work site safety:

Subcontractor accepts responsibility to prevent accidents to any person who may be close enough to its operation to be exposed to Subcontractor's work-related hazards. Subcontractor shall be solely responsible for the protection and safety of its employees, for final selection of additional safety methods and means, and for daily inspection of its work area and safety equipment. Failure on the part of Contractor to stop unsafe Subcontractor practices shall in no way relieve Subcontractor of its responsibility hereunder. Subcontractor shall conform to Contractor's site-specific safety plan(s) and policies as directed

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by Contractor in writing or by Contractor's project supervisor.

Clerk's Papers (CP) at 3227.

¶ 6 One of Sharp-Line's vehicles used on the Flowery Road project was a 1978 Chevrolet auger truck used to drill holes in the ground for sign posts. The truck was equipped with outriggers, which were extended to stabilize it while the auger was being used, and a hydraulic tamper that [177 Wn.App. 887] compacted soil around the sign posts. The auger and tamper were powered by a device that used the truck's transmission to transmit power from the engine. To engage the device, the truck's engine had to be running and the transmission had to be in neutral.

¶ 7 On the day Mr. Lafayette was killed, he and Sharp-Line's crew foreman, William Wright, were installing highway signs. Toward the end of the day, Mr. Wright parked the auger truck facing downhill and Mr. Lafayette and Mr. Wright began installing the last sign. Another subcontractor had set up traffic control with pilot cars because the auger truck encroached on the roadway. Mr. Wright put the truck in the parking gear, left the engine on, and engaged a supplemental brake device called a lever lock, which locks hydraulic fluid in the braking system. He did not, however, set the emergency brake or chock the tires. The men walked around behind the truck and Mr. Wright deployed the outriggers as he drilled a hole for the sign post. Mr. Wright then retracted the outriggers while the two men installed the sign post and began compacting soil around the post with the hydraulic tamper.

¶ 8 As he worked, Mr. Wright saw Mr. Lafayette suddenly drop the tamper and begin running after the truck, which was rolling across the road. Mr. Lafayette managed to pull himself into the cab and steer the truck away from a line of vehicles following a pilot car in the opposite lane. One of the drivers of the vehicles later testified that a collision seemed inevitable until Mr. Lafayette turned the wheels. Apparently the brakes had failed, because Mr. Lafayette was unable to slow or stop the truck. The truck continued to accelerate as Mr. Lafayette steered it down the hill where it unavoidably crashed, causing his death.

¶ 9 Dorothy Millican was appointed the personal representative of her son's estate and, on behalf of the estate, sued Degerstrom, Mico Inc. (the manufacturer of the lever lock), and James and Jane Doe Bonner d/b/a Industrial Power Brake (who had done maintenance and repair of the [177 Wn.App. 888] auger truck) for damages for wrongful death. She asserted an individual cause of action as well, " as a statutory beneficiary defined in RCW 4.20.020," a provision of the wrongful death statute. CP at 8.

¶ 10 In suing Degerstrom, she alleged that it had a nondelegable duty as general contractor to ensure Sharp-Line's compliance with health and safety regulations and contractual safety duties, had allowed " illegal, unsafe, ultra-hazardous practices resulting in an unsafe work place," CP at 20, and had thereby proximately caused her son's death.

¶ 11 Before trial, the court granted the defendants' joint motion for partial summary judgment dismissing Ms. Millican's individual wrongful death claim. It found no evidence creating a genuine issue of fact that she was dependent on her son for support qualifying her as a beneficiary under RCW 4.20.020. It denied the estate's motion in limine to exclude evidence or argument by Degerstrom that it did not exercise or retain supervisory control or authority over Sharp-Line during construction operations. At the conclusion of a three-week trial, the jury found none of the defendants liable. The trial court denied the estate's motion for a new trial against Degerstrom and Mr. Bonner. The estate and Ms. Millican appealed.

ANALYSIS

¶ 12 Ms. Millican, on behalf of the estate and individually, makes four assignments of error. In the published portion of this opinion, we address the estate's assignment of error to the trial court's refusal to exclude evidence that Degerstrom delegated sole responsibility for the safety of Sharp-Line's employees to Sharp-Line.

¶ 13 In the unpublished portion, we address the estate's assignment of error to the

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trial court's denial of its motion for judgment as a matter of law, its refusal to instruct the jury that Degerstrom owed a duty to the public traveling through the construction site, and Ms. Millican's assignment of error to dismissal of her individual claim.

[177 Wn.App. 889] Refusal to limit evidence and argument of delegated responsibility for safety.

¶ 14 Early in the proceedings below, Degerstrom moved for summary judgment, arguing that Sharp-Line had assumed the contractual obligation to comply with all safety laws and plans. The trial court denied the motion on the basis of Degerstrom's nondelegable duty to ensure a safe work environment. In its motions in limine, the estate reminded the trial court of Degerstrom's legal position, which it characterized as " factually inaccurate, legally misleading ..., and inconsistent with [the] court's prior denials of its motions for summary judgment." CP at 1549. It asked the court to exclude evidence or argument by Degerstrom that it did not exercise or retain supervisory control or authority over Sharp-Line during construction operations.

¶ 15 In orally ruling on the motion, the trial court observed that " the factual issues ... are all going to get in front of the jury" and that it viewed the parties' disagreement over Degerstrom's legal duty as an instructional matter. Report of Proceedings (RP) at 2. Critically, when the estate then sought to clarify whether, in light of that reasoning, its motion to exclude evidence and argument about duty was granted, denied, or reserved for later rulings, the trial court responded that the motion was denied. RP at 6. The estate's motion in limine was sufficient to raise and preserve its objection. State v. McDaniel, 155 Wash.App. 829, 853 n. 18, 230 P.3d 245 (2010) (because the purpose of a motion in limine is to resolve legal issues outside the presence of the jury, a trial court's ruling denying a motion in limine is final and the moving party has a standing objection).[1]

[177 Wn.App. 890] ¶ 16 At trial, Degerstrom presented extensive evidence and argument on duty, informing the jury in opening statement, through evidence, and in closing argument that it is " typical," " reasonable," " industry standard," and most important, " appropriate" and " allowable under Washington law" for a general contractor like Degerstrom to delegate its responsibilities, and for subcontractors like Sharp-Line to agree, by contract, to assume sole responsibility for the protection and safety of its own employees. RP at 40-54, 845-47.[2]

¶ 17 The general rule in Washington is that a principal is not liable for injuries caused by an independent contractor whose services are engaged by the principal. Stout v. Warren, 176 Wash.2d 263, 269, 290 P.3d 972 (2012); RESTATEMENT (SECOND) OF TORTS § 409 (1965). Two categories of exceptions to this rule exist at common law, the first being exceptions that subject the principal to liability for its own negligence and the second being exceptions that subject the principal to liability for its contractor's tortious conduct even if the principal has itself exercised reasonable care. Compare RESTATEMENT (SECOND) §§ 410-415 (direct liability) with §§ 416-429 (vicarious liability). The latter category of exceptions giving rise to vicarious liability comprise duties said to be nondelegable, as explained by the Restatement:

The rales ... do not rest upon any personal negligence of the employer. They are rules of vicarious liability, making the employer liable for the negligence of the independent contractor, irrespective of whether the employer has himself been at fault. They arise in situations in which, for reasons of policy, the employer is not permitted to shift the responsibility for the proper conduct of the work to the contractor. The liability imposed is closely analogous

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to that of a master for the negligence of ...

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