JOSHUA K. KNUTSON and NATASHA KNUTSON, and the marital community composed thereof, and JOSHUA K. KNUTSON as Guardian Ad Litem for K.K., a minor child, Appellant,
MACY'S WEST STORES, INC., a foreign corporation; KEMPER DEVELOPMENT COMPANY, a Washington corporation; BELLEVUE SQUARE, LLC, a Washington limited liability company, Respondents. MACY'S WEST STORES, INC., an Ohio corporation, Third Party Plaintiff,
KEMPER DEVELOPMENT COMPANY, a Washington corporation; BELLEVUE SQUARE, LLC, a Washington limited liability company; SCHINDLER ELEVATOR CORPORATION, a Delaware corporation, Third Party Defendants.
owners and operators are common carriers who owe their
passengers a nondelegable duty to act with the highest degree
of care. When an escalator malfunctions due to negligent
maintenance and causes personal injury, the owner and
operator cannot escape liability on the theory that they
lacked notice of the problem. They are vicariously liable for
the negligence of the independent contractor hired to
maintain the escalator. The trial court erred by dismissing
the owner and operator on summary judgment.
Natasha Knutson and her husband and daughter were leaving a
holiday performance at the Bellevue Square Mall on December
6, 2012. They rode up an escalator located directly outside
of a Macy's department store. Knutson and her daughter
were among seven persons physically injured when one of the
escalator steps jammed. The escalator had several fail-safe
mechanisms designed to shut it off in this situation, but due
to poor maintenance, the fail-safes did not activate and the
escalator continued to run. According to witnesses, there was
a screeching noise, steps began piling up, and the escalator
collapsed within itself.
respondents in this appeal are the company that owns the
Macy's store and the companies that own the mall and
escalator: Macy's West Stores Inc, Kemper Development
Company, and Bellevue Square LLC. We will refer to them as
Macy's and Kemper. Macy's contracted with Schindler
Elevator Corporation to service and maintain the escalator.
Department of Labor and Industries investigated the incident.
An inspector found that screws, bolts, and brackets were
loose on the skirt panel, which caused the panel to get in
the way of the escalator steps. Schindler had failed to
maintain proper maintenance logs and had not performed
required maintenance for an extended period of time. Also,
the escalator had a history of mechanical issues such as
vibrating, shaking, and emitting grinding sounds and smoke.
Chief Elevator Inspector Jack Day concluded that a lack of
maintenance and inaccurate escalator safety testing
procedures led to the malfunction. His opinion was confirmed
by Lerch Bates, an engineering firm hired by Kemper to
conduct an independent investigation. Stephen Carr, an expert
witness retained by the Knutsons, similarly concluded that
the accident was caused by Schindler's failure to
recognize obvious equipment defects that "would have
been apparent to any reasonably trained escalator
mechanic." In short, it is undisputed that neglectful
maintenance of the escalator caused the injuries.
Knutsons sued Macy's and Kemper for damages. Macy's
and Kemper moved successfully for summary judgment. This
court reviews an order of summary judgment de novo,
considering the facts in the light most favorable to the
nonmoving party. Tinder v. Nordstrom. Inc., 84
Wn.App. 787, 791, 929 P.2d 1209 (1997).
common carrier owes the highest degree of care toward its
passengers commensurate with the practical operation of its
services at the time and place in question. Price v.
Kitsap Transit. 125 Wn.2d 456, 465, 886 P.2d 556 (1994).
Owners and operators of escalators are common carriers.
Dabroe v. Rhodes Co., 64 Wn.2d 431, 434, 392 P.2d
and Kemper contend they cannot be held vicariously liable for
negligent maintenance by Schindler because Schindler was an
independent contractor, not an employee. They are mistaken.
Delegating maintenance to an independent contractor does not
relieve owners and operators of escalators from the high
degree of care they, as common carriers, owe to their
passengers. Common carriers have historically been held
vicariously liable for injuries to their passengers based
upon a nondelegable duty of care. Niece v. Elmview Group
Home, 131 Wn.2d 39, 54, 59, 929 P.2d 420 (1997), citing
Marks v. Alaska S.S. Co., 71 Wash. 167, 127 P. 1101
Niece, 131 Wn.2d at 55, the court favorably quoted
the Restatement (Second) of Agency §
214 (1958), which states the vicarious liability that may
arise when a principal delegates the performance of its duty
of care to an agent:
"A master or other principal who is under a duty to
provide protection for or to have care used to protect others
or their property and who confides the performance of such
duty to a servant or other person is subject to liability to
such others for harm caused to them by the failure of such
agent to perform the duty."
principal's duty of care is nondelegable, it cannot be
satisfied merely by using due care in the selection of a
contractor. It is satisfied "if, and only if, the person
to whom the work of protection is delegated is careful in
giving the protection." Restatement (Second) of Agency
§ 214 cmt. a (1958). Thus, a nondelegable duty requires
the person upon whom it is imposed "'to answer for
it that care is exercised by anyone, even though he be an
independent contractor, to whom the performance of the duty
is entrusted.'" Millican v. N.A. Degerstrom.
Inc., 177 Wn.App. 881, 891, 896-97, 313 P.3d 1215
(2013), quoting Restatement (Second) of Torts, ch. 15, topic
2 introductory note (1965), review denied, 179 Wn.2d
1026 (2014). An actor who owes a nondelegable duty is
permitted to delegate the activity to an independent
contractor but will remain vicariously liable for the
contractor's tortious conduct in the course of carrying
out the activity. Millican, 177 Wn.App. at 896,
citing Restatement (Third) of Torts: Liability for Physical
and Emotional Harm § 57 cmt. b (2012).
to the argument of respondents, vicarious liability for the
negligence of a contractor is not strict liability. A
plaintiff who brings a negligence claim for injury on an
escalator must make a prima facie showing of negligence.
Tinder, 84 Wn.App. at 791. Summary judgment was
properly granted in Tinder when the plaintiff relied
solely on a theory of res ipsa loquitur to raise an inference
of negligence. In contrast, the Knutsons did make a prima
facie showing of negligence with their evidence that
Schindler's servicing of the escalator was shoddy. Thus,
the Knutsons are not seeking to have negligence presumed from
the mere happening of the malfunction.
and Kemper contend Dabroe limits their common
carrier duty to malfunctions or defects of which ...