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Apelaafoa v. Port of Seattle

Court of Appeals of Washington, Division 1

March 20, 2017

BRANDON APELAAFOA, Respondent/Cross Appellant,
v.
PORT OF SEATTLE, a local governmental entity in the state of Washington, Appellant/Cross Respondent.

          Verellen, C.J.

         Brandon Afoa was severely injured working for Evergreen Aviation Ground Logistics Enterprises, Inc. (EAGLE), providing ground services at Seattle-Tacoma International Airport (Sea-Tac Airport), which is owned and operated by the Port of Seattle (Port). Afoa sued the Port, alleging it failed to maintain safe premises and violated common law and statutory duties to maintain a safe workplace. The trial court dismissed Afoa's claims on summary judgment, but this court reversed, and our Supreme Court affirmed the reversal of summary judgment.[1] On remand, a jury rendered a verdict in favor of Afoa and determined his damages totaled $40 million. The jury allocated 25 percent fault to the Port and 18.7 percent fault to each of the four nonparty airlines that used EAGLE'S ground services. The trial court entered a judgment against the Port for $10 million.

         The Port appeals, focusing on the disjunctive phrasing of special verdict form question 1, which asked the jury whether the Port retained a right to control the manner in which EAGLE "performed its work or maintained its equipment used to provide ground work support.. .?"[2] Because both the common law theory of retained control and the Washington Industrial Safety and Health Act of 1973 (WISHA)[3] "specific duty" standard depend on control over the "manner of work" done on a work site, which necessarily encompasses control over the maintenance of instrumentalities used in performing that work, the special verdict did not misstate the law. While the special verdict should have used terms consistent with the other instructions, no relief is warranted because the Port was able to adequately argue its theory. The Port's other claims also fail.

         Afoa cross appeals, arguing that the jury should have been precluded from allocating fault to the four airlines because the Port had a nondelegable duty to maintain a safe workplace. We conclude the Port had a nondelegable duty to ensure a safe workplace, including safe equipment, and is vicariously liable for any breach of that duty. Consistent with the Port's vicarious liability, it is not entitled to allocate fault to the four nonparty airlines and proportionately reduce its liability.

         Therefore, we affirm the jury verdict as to the liability of the Port and remand for entry of an amended judgment.

          FACTS

         A. Afoa I

         Brandon Afoa was severely injured in 2007 as a result of a collision while he was driving a "pushback" vehicle on the airplane ramp at Sea-Tac Airport. Afoa worked for EAGLE, which contracts with airlines to provide ground services such as moving aircraft in the ramp area. The Port owns and operates the airport. It does not employ EAGLE or contract for its services, but EAGLE must obtain a license from the Port before it can work on the premises. As Afoa drove the pushback toward gate S-16, he lost control of the vehicle and crashed into a large piece of loading equipment that fell on him, leaving him paralyzed.

         Afoa sued the Port in February 2009, alleging it "failed to maintain safe premises and violated common law and statutory duties to maintain a safe workplace."[4] The Port moved for summary judgment, arguing none of Afoa's claims were viable because neither Afoa nor EAGLE was the Port's employee. The trial court granted the Port's motion, dismissing Afoa's claims. This court reversed, holding that Afoa's claims hinged on genuine issues of material fact and that summary judgment was inappropriate.[5] The Supreme Court granted review and affirmed this court's reversal of summary judgment, remanding the case to the trial court.[6]

          B. Afoa v. China Airlines, Hawaiian Airlines, British Airways, and Eva Air

         Afoa's prior appeal against the Port lasted over three years. In December 2010, during the pendency of the appeal, Afoa filed a "precautionary"[7] lawsuit against four airlines that used EAGLE's ground services. Ultimately, that lawsuit was removed to federal court, stayed pending Afoa I, and then dismissed after the federal court denied Afoa's motion to add the Port. The federal court concluded that Afoa failed to show the airlines were at fault and granted the airlines summary judgment in February and June 2014.

         C. Afoa v. Port of Seattle

          The Afoa I mandate issued February 27, 2013. On September 19, 2014, the Port moved to amend its affirmative defenses to identify the four airlines as potential nonparties at fault for purposes of RCW 4.22.070(1). Afoa opposed allocating fault to the airlines, arguing the Port's failure to amend earlier "made it impossible for Mr. Afoa to bring claims against the Airlines in the same action."[8] But the trial court found this was "the consequence of Afoa's litigation choices (including the decision to sue the Port and the Airlines separately)."[9] The court permitted the Port to amend its answer.

         At trial, Afoa presented evidence of the Port's control over Sea-Tac's airfield, where any activity is "subject at all times to the exclusive control and management by the Port."[10] Sea-Tac's airfield is divided into two parts, the "movement" and "nonmovement" areas.[11] While the Port and Federal Aviation Administration (FAA) share control over the movement area where planes take off, land, and taxi, the Port retains nearly total control over the nonmovement area, which includes the "ramp" where Afoa's injury occurred.[12] These two areas are divided by the "vehicle control line."[13] Different rules and different badges for access apply in the two different areas. The FAA airport tower controls movement in the movement area. The ramp tower, on the other hand, controls all movement on the ramp and is staffed by contractors hired by the Port. Afoa was licensed by the Port to drive exclusively in the ramp area.

         Afoa also presented evidence of the Port's control over the manner in which EAGLE performed ground service work through its "Ground Service Operator Licensing Agreement" (Licensing Agreement) with EAGLE, as well as its control over EAGLE'S conduct:

• The Licensing Agreement required EAGLE to comply with all Port rules.[14]
• Under EAGLE'S Licensing Agreement with the Port, "[a]s solely determined by the Port, equipment appearing to be unsafe or unoperational is subject to towing, impoundment and storage charges."[15]
• In addition to the Port rules, the airport director was specifically authorized "to issue such other instructions as may be deemed necessary for the safety and well-being of [a]irport users or otherwise in the best interests of the Port."[16]
• A Port rule states that "[n]o person shall operate any... motorized equipment in the Air Operations Area[17] unless such... motorized equipment is in a reasonably safe condition for such operation.[18] The Port had the authority to "red-tag" or impound any motorized equipment not in compliance so that it would have to be removed and/or repaired before it could be used again.
• EAGLE ramp supervisor Toiva Gaoa gave several examples of how the Port controlled the manner in which he conducted his work. According to Gaoa, the Port controls the S gates, near where Afoa's accident happened: "[T]hat's where they enplane all... the international flights, so they make a lot of money off of these flights. So ... it's always a ... juggling act of moving one aircraft to ... a gate to accommodate ... another aircraft.... [I]t was like a circus. And the ringmaster was the -the Port of Seattle, and they make sure that everything was - was run the way they wanted it. Put this plane here. Take that plane over there. And that's my experience with the ... S gates is that they control it.[19]

         A jury found that the Port controlled the manner of EAGLE's work at Sea-Tac and determined damages totaled $40 million. The jury allocated 25 percent fault to the Port and 18.7 percent fault to each of the nonparty airlines that used EAGLE's ground services.[20] Pursuant to the jury's fault allocation, the trial court entered judgment against the Port for $10 million.

         The Port appeals, and Afoa cross appeals.

          ANALYSIS

         I, Special Verdict Form Question 1

         The Port challenges the trial court's disjunctive phrasing of special verdict form question 1, which asked whether the Port retained "a right to control the manner in which the plaintiffs employer, [EAGLE], performed its work or maintained its equipment used to provide ground support work for the non-party air carriers .. .?"[21] The Port argues this verdict form is based on an incorrect statement of the law[22] and allowed the jury to find the Port liable without finding it had retained the requisite right to control the manner in which EAGLE maintained the pushback.

         We review a trial court's decision regarding a special verdict form under the same standard we apply to decisions regarding jury instructions.[23] Whether a jury instruction reflects an accurate statement of law is reviewed de novo.[24] Jury instructions are reviewed in their entirety and are sufficient if they permit each party to argue their theory of the case, are not misleading, and when read as a whole properly inform the jury of the applicable law.[25]

         a. No Misstatement of the Law

         The Port argues that special verdict form question one had to be phrased in the conjunctive. The Port's premise is that control over "manner of work" is a separate and discrete category from control over "maintaining instrumentalities."[26] But the Port misperceives both the common law theory of retained control and the WISHA specific duty standard.

         In Kelley v. Howard S. Wright Construction Co., our Supreme Court held that where a principal "retains control over some part of the work" completed by a worker at its site, the principal has a duty to maintain safe common workplaces for all workers on the site.[27] The Supreme Court based its holding on the Restatement (Second) of Torts §414(1965):

One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.[28]

         A decade later, in Stute v. P.B.M.C. Inc., our Supreme Court held that WISHA, in particular RCW 49.17.060(2), "imposes a specific duty" for employers "to comply with WISHA regulations."[29] This "specific duty does not create per se liability for anyone deemed an 'employer.'"[30] Rather, jobsite owners have a specific duty to comply with WISHA regulations "only if they retain control over the manner in which contractors complete their work."[31] In Afoa I, our Supreme Court held, based on Kelley and Stute, that a jobsite owner is only liable for a worker's injuries if it retains but fails to exercise control over the "work done" on a work site.[32]

         Both the common law theory of retained control based on the Restatement and the WISHA specific duty standard depend on control over the manner of work.[33]Control over the manner of work necessarily encompasses control over the maintenance of instrumentalities used in performing that work. "Manner of work" and "maintaining instrumentalities" are not mutually exclusive categories. Stated another way, a jobsite owner's control over maintaining instrumentalities is merely part of its control over the manner of work being performed on the jobsite.

         Although special verdict form question 1 is not a model, it is consistent with the underlying retained control theory of the Restatement and the WISHA specific duty standard. The special verdict does not misstate the law.

          b. Permitted the Port to Argue Its Theory of the Case

         The Port's theory was that control over the manner of work did not trigger common law or WISHA liability, rather, only operational-level control over the actual maintenance of the pushback could trigger such liability.[34] The record from closing argument makes clear that the Port extensively argued this theory.

         The Port began closing argument by stating the case was "very simple" because the "only evidence you need ... for deciding the liability issue is this: If EAGLE had properly maintained its equipment, Mr. Afoa's accident would not have happened."[35]Although the Supreme Court in Afoa I made clear that contractual formalities do not trump Washington courts' "well-established principles of workplace safety, "[36] the Port stressed that EAGLE promised in its licensing agreement with the Port that it would maintain its own equipment: "Had that happened, had EAGLE done its job, had it complied with its contract and its promises, this accident would never have happened."[37]

         The Port argued there was not "one single document in this case" that showed the Port retained the right to control how the airlines or ground support providers "do their work or maintain their equipment, " including under the Port rules.[38] It continued, "The Port does not get involved in ground support performance and how they complete their work or how they maintain their equipment."[39] The Port claimed it was concerned "that the equipment be maintained, ... but [not] how they maintain it, " and that the "exclusive control" provision in each airline's lease agreement "doesn't mean we intend to tell the air carriers how to do their work or maintain their equipment or, likewise, with the ground service equipment."[40]

The Port further argued the airlines had control:
We've heard evidence that the air carriers did, in fact, tell EAGLE how to do its job.... They told them how to load [equipment]... [and] how to move it. They even told them how to clean their ashtrays. That's control. That's the retention of the right to control, and that's what the air carriers did.[41]

         It continued: "[l]f somebody was going to see a problem, it would have been the air carriers. And if they saw, they had a duty to fix it. They had a duty to tell EAGLE to fix that equipment. That's the ... control they retained."[42] The Port argued to the jury that they must answer "no" to special verdict form question 1 because "the Port did not retain the right to control how the ground support people ... maintained their equipment, how the air carriers maintained their equipment, how they did their job."[43]

          The Port clearly presented its theory of the case to the jury in closing, emphasizing its lack of control over the precise method of maintaining the pushback. Because special verdict form question 1 was not inconsistent with the Port's theory and did not preclude or contradict that theory, we conclude the special verdict adequately allowed the Port to argue its theory.

         Further, the Port offers no alternative argument that the instruction, if misleading, caused actual prejudice.[44] It instead relies on the presumptive prejudice for an instruction that incorrectly states the law. Although special verdict form question 1 did not dovetail with other instructions given to the jury, [45] question 1 did not in and of itself misstate the law. While a special verdict form question should use terms consistent with the other instructions, the Port does not establish, or even argue, the special verdict form caused actual prejudice. Accordingly, we conclude the instructions including special verdict question 1 were sufficient.

         II, Substantial Evidence of Required Control

         The Port asserts that because a failure to maintain EAGLE's ground service equipment was the only theory advanced at trial, Afoa was required to produce evidence of the Port's authority to control how maintenance was conducted, not merely whether maintenance was performed. It contends that evidence of its specific control over the manner of making repairs to defective equipment is required for liability. The Port relies on case law that the authority to inspect work, order it stopped, or enforce compliance with a contract is an inadequate retention of the right to control.[46] But the retained control standard requires consideration of the entire context of control.[47]

         Our Supreme Court's analysis in Afoa I is instructive. There, the court rejected the Port's argument that the retained control doctrine did not apply to it because it was merely a licensor.[48] Noting that the Port made "this argument notwithstanding the fact that, if everything Afoa alleges is true, ... the Port appears to exercise nearly plenary control over Sea-Tac and the manner in which work is performed on the premises!, ]" the court determined, "when an entity ... retains control over the manner in which work is done on a work site, that entity has a duty to keep common work areas safe."[49] "Calling the relationship a license does not change reality. If a jury accepts Afoa's allegations, the Port controls the manner in which work is performed at Sea-Tac Airport, controls the instrumentalities of work, and controls workplace safety."[50]

         In arriving at this holding, the Supreme Court recognized that not every licensor or jobsite owner takes on a common law duty to maintain a safe workplace anytime it requires on-site workers to comply with safety rules and regulations: "But where a licensor undertakes to control worker safety in a large, complex work site like Sea-Tac Airport and is in the best position to control safety, there is a duty to maintain safe common work areas within the scope of retained control.[51] The court noted,

[T]his holding also recognizes what is fair: that a jobsite owner who exercises pervasive control over a work site should keep that work site safe for all workers, just as a general contractor is required to keep a construction site safe under Kelley, and just as a master is required to provide a safe workplace for its servants at common law.[52]

         The court's analysis in Afoa I is consistent with comment c to the Restatement (Second) of Torts § 414:

[T]he employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way[53]

         The holding in Afoa I is also consistent with the federal "multi-employer workplace doctrine." Under that doctrine, "an employer who controls or creates a workplace safety hazard may be liable under [federal law] even if the injured employees work only for a different employer."[54] And as this court has recognized, "the deciding factor in those [multi-employer] cases was not how much the employer participated in the planning or the execution of that plan, but how much supervisory control it had."[55]

         In Afoa I, the court described the evidence alleged by Afoa giving rise to questions of fact requiring trial:

Afoa alleges that the Port retains control over the Airfield Area and that any activity there is "subject at all times to the exclusive control and management by the Port." At oral argument, the Port's attorney conceded that the purpose of the Port's rules and regulations is to control the tarmac. Afoa also alleges the Port retains control through its license agreement with EAGLE, requiring EAGLE to abide by all Port rules and regulations and allowing the Port to inspect EAGLE'S work. Finally, Afoa alleges the Port retains control over EAGLE by conduct. He specifically claims that the Port continuously controls the actions of EAGLE and its employees and that they are subject at all times to the Port's pervasive and overriding supervision and control.
Viewing this evidence in the light most favorable to Afoa, a reasonable jury could conclude that the Port had sufficiently pervasive control over EAGLE and Afoa to create a duty to maintain a safe workplace.[56]

          At trial, Afoa provided evidence of all the examples of control approved in Afoa I, as well as evidence that

• EAGLE'S Licensing Agreement controls parking of ground service equipment not in use (such as the cargo loader Afoa hit). "Any equipment that hinders circulation or is stored in an unsafe or disorderly fashion, as determined solely by the Port, is subject to towing, impoundment and storage charges."[57]
• In 2006, a pushback experienced brake failure and crashed into a fence. The Port ramp patrol cited the driver for reckless driving, escorted him off the airfield, and conditioned his airfield driving privileges on repeating a Port training course. The Port Manager of Airport Certification requested emphasis briefing on vehicle inspections and safety and verification of "the complete repair of vehicle 300's brake system before it is put back in service on the AOA."[58]
• In August 2008, another pushback experienced brake failure, and the Port requested that "[b]y 1600 on the 6 of August please provide me with written confirmation that a complete equipment safety review has been complete.... Any equipment found non-functional in anyway [sic] will be removed from service until the equipment is properly repaired."[59]
• John Nance, a Sea-Tac-based airline pilot, aviation expert, and former Port spokesman, testified that "[s]omeone has to be responsible for the overall operation or you have a community that is in chaos, " and that "it is to the super authoritative source, which in this case is the Port of Seattle, that responsibility really does lie."[60] Nance testified that under the Port's airline and ground services contracts, and its rules, enforced by ramp patrol, Port police, and Port fire department, the Port controls the work on the ramp areas: "[T]hey control the means of work. They control the instrumentalities of ...

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