Wilcox fell 50 feet through an open catwalk hatch onto a
concrete floor. Having sustained severe injuries, he sued the
on-site safety planner, Steven Basehore, for negligent
planning causing the fall; Wilcox also named the safety
planner's employer, Bartlett Services, Inc. (Bartlett),
and an intermediary company, ELR Consulting, Inc. (ELR), in
respondeat superior. Before trial, the court granted ELR
judgment as a matter of law. At trial, the court instructed
the jury on the borrowed servant doctrine, an extension of
respondeat superior. Wilcox appealed both decisions. The
Court of Appeals, in a published decision, affirmed.
Wilcox v. Basehore, 189 Wn.App. 63, 356 P.3d 736
affirm. We hold that the borrowed servant doctrine is
properly a question for the jury where complete control is a
disputed fact. Whether the servant is loaned through an
intermediary does not preclude application of the doctrine.
We decline to consider the implications of Wilcox's
indemnification argument because it was raised as a jury
instruction challenge for the first time on appeal. We
further hold that judgment as a matter of law was properly
granted in favor of ELR because no reasonable jury could find
that ELR had a right to control Basehore's conduct.
case stems from a workplace injury and the dismantling of a
nuclear facility. The United States Department of
Energy's (DOE) Hanford site in southeastern Washington
produced nuclear weaponry (specifically plutonium) from 1943
until its closure in 1987. The site itself is vast, covering 586
square miles, and is further surrounded by the Hanford Reach
National Monument-land long used to buffer the site's
toxic emissions. After decades of plutonium production, the
toxic waste clean-up efforts have been similarly substantial:
since 1989, thousands of workers have been involved as
facilities are "deactivated, decommissioned,
decontaminated, and demolished."
Closure Hanford LLC (WCH) was a "prime contractor"
involved in this cleanup. As demolition work involves many
short-term and specialized tasks, WCH used many temporary
workers, acquired through "staff augmentation"
partners. This case specifically concerns the demolition of
"Building 336" at the Hanford site. Wilcox, a
millwright, was one of WCH's permanent employees.
Basehore, a professional work control planner, was hired as
an independent contractor.
Work Control Planning
control planners help ensure on-site safety by compiling
"work packages." These work packages guide on-site
work procedures by noting the tasks to be done, detailing
their proper sequence, and, critically, identifying potential
hazards. Work packages are developed by teams of
workers, specialists, and engineers; the work control planner
then collects information from the entire work team and puts
it in a comprehensive work document.
Basehore was one of approximately six people involved in
preparing the work package for Building 336 and the only
person who was not a WCH employee.The person with comprehensive
oversight of the work package was a WCH manager.
employer, Bartlett, is a Massachusetts corporation providing
short-term professional and technical staff to federal
government contractors. Bartlett frequently provided WCH with
temporary, specialized workers. After confirming
Basehore's suitability and availability, WCH contracted
with a third company, ELR, which in turn procured
acted as an intermediary between WCH and Bartlett, according
to ELR, "only to trigger" extra federal payments
for WCH. ELR qualifies, for purposes of federal government
contracts, as a service-disabled veteran-owned small
business. According to ELR, WCH's contract with the DOE
required that three percent of subcontracting dollars go to
service-disabled veteran-owned small businesses, or else WCH
would forgo an additional $9 million payment. ELR received a
relatively small payment in exchange for acting, according to
ELR's counsel, as a "conduit."
ELR as an intermediary, the parties then used a two-step
contracting process. Basehore's services were conveyed
from Bartlett to ELR by means of one contract (ELR-Bartlett
Contract). Ex. 222 at BSI-1. Then Basehore's services
were conveyed from ELR to WCH by a second contract (WCH-ELR
Contract). Ex. 34 at ELR 000462. By tunneling Basehore's
services through ELR, WCH counted the contract in its tally
of subcontracts with service-disabled veteran-owned small
contracts characterized Basehore as an independent
contractor. Ex. 222 at BSI-1; ex. 34 at ELR 000466. The
ELR-Bartlett Contract, while not signed by WCH, was created
"in support of" WCH. Ex. 222 at BSI-1. The contract
established a maximum payment value "for this work from
WCH, " id., and incorporated by reference
exhibits A ("General Conditions") and B
("Special Conditions") of the WCH-ELR Contract,
id. at BSI-2.
WCH-ELR Contract includes both general and special
conditions, with the special taking precedence over the
general. Ex. 34 at ELR 000466 ("Order of
Precedence"). General condition (GC) 19 is a
comprehensive indemnification provision. Id. at ELR
000470. Most relevant is GC 2, which provided that ELR would
"maintain complete control over its employees and all
of its lower-tier suppliers and subcontractors, " which
included Basehore. Id. at ELR 000466.
the contract's special conditions characterize the
situation differently: special condition (SC) 13 designates
Kim Koegler of WCH as the party with "ultimate authority
over the technical aspects" of Basehore's
work. Id. at ELR 000486. These
technical aspects included preparation of the work package,
which Wilcox alleges was negligently prepared.
parties agree as to the subsequent unfolding of events: On
July 1, 2009, Wilcox was among those working on a catwalk in
Building 336, preparing it for demolition. The work package
guiding that day's work was developed by Basehore. During
his inspection of Building 336, Basehore had failed to
realize that the catwalk was accessed via a hatch that lacked
protective guard chains. While Wilcox was still working, some
other workers descended; they left the access hatch open with
the expectation that the remaining workers would soon follow.
Before Wilcox could also descend, he and another worker were
asked to finish an additional task. While doing so, Wilcox
stepped through the open catwalk hatch, falling 50 feet to
the concrete floor below.
survived the fall, sustaining serious injuries to his legs
and spine. Wilcox alleges that Basehore's negligent
development of the work package and safety protocols led to
his fall and resulting injuries.
filed suit against Basehore, Bartlett, and ELR for
negligence. Wilcox later voluntarily dismissed Basehore from
the suit. The remaining parties filed cross motions for
summary judgment, which were denied. ELR later filed a second
motion for summary judgment, which was also denied. At the
close of evidence, ELR brought a CR 50 motion for judgment as
a matter of law, which was granted. The remaining claims
against Bartlett proceeded to trial.
trial, Wilcox strongly disputed the jury instructions
proposed by Bartlett and ELR. Two instructions in particular,
instruction 12 and instruction 13, directed the jury to
consider the "borrowed servant doctrine." These
instructions were as follows:
INSTRUCTION NO. 12
[I]f... the defendant proves that Steve Basehore was a
borrowed servant of Washington Closure Hanford, your verdict
should be for the defendant.
INSTRUCTION NO. 13
Under the borrowed servant doctrine, a worker in the general
employ and pay of one employer may be loaned to another. If
an employer meets its burden of proving by a preponderance of
the evidence that the worker is a "borrowing
servant" that employer is not liable for the
In order for a person to be a "borrowed servant",
the general employer must surrender, and the borrowing
employer must assume, exclusive supervision and control over
the worker. Exclusive control for all purposes is not
required. Rather, the question is whether the borrowing
employer has exclusive ...