Afoa was severely injured in an accident while working at the
Port of Seattle (Port) for a cargo company. He sued the Port
on the theory that it had retained sufficient control over
his work to have a duty to provide him a safe place to work.
Among other things, the Port argued that several airlines
that were not parties to the lawsuit were at fault. A jury
found that Afoa suffered $40 million in damages and
apportioned fault between him, the Port, and the airlines. In
Washington, tortfeasors are usually liable only for their
proportionate share of the damages they cause. Afoa argues
that the Port is liable for both its portion and the
airlines' portion. The primary question for review is
whether the jury's verdict warrants finding the Port is
vicariously liable for the airlines' negligence,
justifying the imposition of joint and several liability on
the Port. We hold that RCW 4.22.070(1)(a) does preserve joint
and several liability when a defendant is vicariously liable
for another's fault. Whether vicarious liability exists,
however, is a factual question. Here, the jury's findings
do not support the conclusion that the Port is vicariously
liable for the airlines' fault.
suit was initially dismissed on summary judgment, but in
Afoa v. Port of Seattle, 176 Wn.2d 460, 296 P.3d 800
(2013) (Afoa I), we reversed and remanded. In the
meantime, Afoa brought a separate action for the same
injuries against several airlines, which a federal court
dismissed on summary judgment. Afoa did not appeal the
dismissal of that suit. Afoa's original lawsuit against
the Port went to trial. Over Afoa's objection, the
airlines were named as nonparties, and the Port asserted an
"empty chair defense" blaming the airlines for
Afoa's injuries. The jury returned a multimillion dollar
verdict for Afoa and apportioned fault among Afoa, the Port,
and the nonparty airlines.
granted review to consider issues of allocation of fault to a
nonparty and the assertion of an empty chair defense.
now argues that the Port and the airlines are jointly and
severally liable because the Port's duty was nondelegable
and the airlines were the Port's agents under RCW
4.22.070, even though the jury was not explicitly asked to
make that finding. While the Port concedes that its duty to
provide a safe workplace was nondelegable, it urges us to
uphold the judgment because it contends it is not responsible
for the airlines' fault. The airlines also had a duty to
provide a safe work site, and we assume, without deciding,
that duty was also nondelegable. See, e.g.,
Clerk's Papers (CP) at 4811 (jury instruction explaining
airlines have "a duty to ensure compliance with
applicable safety regulations"); see also Afoa
I, 176 Wn.2d at 495. We reverse the Court of Appeals and
affirm the trial court.
worked as a baggage handler at the Seattle-Tacoma
International Airport (Airport). Afoa was employed by
Evergreen Aviation Ground Logistics Enterprise Inc. (EAGLE),
which contracted with four airlines to provide ground
services, such as loading and unloading cargo. While driving
a luggage vehicle, Afoa lost control and crashed into a piece
of equipment that fell and severely injured him. Afoa's
employer, EAGLE, was not "at fault" for purposes of
the accident, Afoa sued the Port. He alleged that the Port
retained control over EAGLE and was responsible for his
injuries because the Port violated its nondelegable duties
under the Washington Industrial Safety and Health Act of 1973
(WISHA), chapter 49.17 RCW, and the common law. The trial
court granted summary judgment for the Port on the ground
that Afoa was not the Port's employee. Afoa appealed and
also brought a separate lawsuit against the four airlines
that had contracted with EAGLE under the same theory he
pursued against the Port in the original case. The separate
action was removed to federal court and stayed pending
Afoa's appeal in this court. We reversed summary
judgment, holding "that a jobsite owner who exercises
pervasive control over a work site should keep that work site
safe for all workers." Afoa I, 176 Wn, 2d at
481. We were not asked to rule on whether the Port was
potentially subject to joint and several liability with
we decided Afoa I, Afoa moved to amend his complaint
in federal court against the airlines to add the Port as a
defendant. His motion was denied. Subsequently, the federal
court granted the airlines' motions for summary judgment
because Afoa failed to cite WISHA regulations applicable to
the airlines and to provide factual allegations sufficient to
conclude the airlines retained control over Afoa's work.
remand and over objection, the Port moved to amend its answer
and assert an empty chair defense that the airlines that
contracted with Afoa's employer shared fault for
Afoa's injuries. A jury found that the Port retained
control over the independent contractor EAGLE's work,
which gave rise to a duty of care to Afoa.
jury found Afoa suffered $40 million in damages and
apportioned fault to the parties: 25.0 percent to the Port,
0.2 percent to Afoa, and equally divided the remaining 74.8
percent among the four airlines. The trial court, pursuant to
the jury's allocation, entered judgment against the Port
for $10 million.
review, Afoa raised three arguments to the Court of Appeals:
first, that the Port had a nondelegable duty to provide a
safe workplace, and thus no fault allocation was permitted,
and the Port was jointly and severally liable for the
judgment minus Afoa's 0.2 percent of fault; second, that
the trial court abused its discretion in allowing the Port to
assert an empty chair defense; and third, that the dismissal
of Afoa's claims prevented the Port from claiming the air
carriers were responsible for the accident on a res judicata
Court of Appeals held that the Port had a nondelegable duty
and was therefore vicariously liable for the airlines'
fault. The Court of Appeals remanded for the trial court to
enter judgment against the Port for 99.8 percent of
Afoa's damages. Afoa v. Port of Seattle, 198
Wn.App. 206, 234, 393 P.3d 802 (2017) (Afoa II).
Consequently, Afoa's other arguments were not addressed.
The Port appealed. Afoa cross appealed, arguing the trial
court abused its discretion under CR l2(i) by allowing the
Port to assert an empty chair defense late in the case and
the trial court erred because the Port was bound by the
federal court's summary judgment ruling in favor of the
airlines. We granted review of the issue of
allocation of fault to the nonparty airlines and Afoa's
contingent issues concerning the Port's assertion of an
empty chair defense.
Allocation of Fault and Nondelegable Duties
first question this court must answer is whether the trial
court erred in permitting the jury to allocate fault to the
nonparty airlines. Whether this was error is a question of
law. We review issues of statutory interpretation and alleged
errors of law de novo. Jongeward v. BNSF Ry. Co.,
174 Wn.2d 586, 592, 278 P.3d 157 (2012) (citing State v.
Breazeale, 144 Wn.2d 829, 837, 31 P.3d 1155 (2001)).
1986 tort reform act, the legislature generally abrogated the
common law rule of joint and several liability. See
generally LAWS of 1986, ch. 305; RCW 4.22.030. The
legislature left no doubt as to its intent-proportionate
liability "has now become the rule." Kottler v.
State, 136 Wn.2d 437, 443, 963 P.2d 834 (1998).
"RCW 4.22.070, the centerpiece of the 1986 amendatory
package, requires all liability be apportioned unless a
listed exception applies in which case joint and several
liability is retained." Id.
the rule of proportionate liability, fact finders assign
percentages of "fault" attributable to each party
and relevant nonparty, including plaintiffs, whose negligence
or certain other categories of culpable conduct constitutes a
legal cause of a plaintiff s injury. See RCW
4.22.015 (defining "fault"). In cases where a
nonparty is allegedly at fault, the jury may be asked to
allocate fault to the empty chair at the trial court's
discretion. CR l2(i). The burden of proving an empty
chair's fault is on the party asserting the
nonparty's fault. Mailloux v. State Farm Mut. Auto.
Ins. Co., 76 Wn.App. 507, 514-15, 887 P.2d 449 (1995);
see also Stewart A. Estes, The Short Happy Life
of Litigation Between Tortfeasors: Contribution,
Indemnification and Subrogation After Washington's Tort
Reform Acts, 21 Seattle U. L. Rev. 69, 80 (1997). Here,
at trial, the Port successfully met its burden of proving the
empty chair airlines' partial responsibility for
Afoa's injuries. The trial court did not err in allowing
the jury to allocate fault to the nonparty airlines.
of fault is an "inherently factual" question for
the jury. Edgar v. City of Tacoma, 129 Wn.2d 621,
627, 919 P.2d 1236 (1996). When the jury apportions fault,
"[t]he sum of the percentages of the total fault
attributed to at- fault entities shall equal one hundred
percent." RCW 4.22.070(1). The parties bear the
responsibility of paying for the damages in proportion to the
fault respectively assigned to them, unless an exception
argues that the Port should be responsible for the
airlines' apportioned damages because the Port, "as
the entity best able to control safety" at the Airport,
"cannot shift any part of its nondelegable duty to the
airlines." Supp'l Br. of Resp't at 16 n.43. When
an exception to the general rule of proportionate liability
applies, joint and several liability is retained,
Kottler, 136 Wn.2d at 443. Joint and several
liability may exist if multiple entities were acting in
concert or if an entity was "acting as an agent or
servant" of another entity. RCW 4.22.070(1)(a). As
discussed below, Afoa did not raise the agency exception
until it was too late.Except in specifically recognized
areas, joint and several liability does not apply
automatically-the RCW 4.22.070 exceptions must apply by
operation of fact and law.
4.22.070 is clear and unambiguous. Clark v.
Pacificorp, 118 Wn.2d 167, 181, 822 P.2d 162 (1991). It
"had the effect of generally abolishing joint and
several liability for concurrent negligence."
Gilbert H. Moen Co. v. Island Steel Erectors, Inc.,
128 Wn.2d 745, 760, 912 P.2d 472 (1996). We must determine if
joint and several liability attaches to a party violating its
concurrent nondelegable duty to maintain a safe work site for
all workers under WISHA and common law.
The Port's Nondelegable Duty Did Not Give Rise to
Joint and Several Liability
some circumstances, jobsite owners may have a duty of care
analogous to that of an employer or general contractor.
See Kamla v. Space Needle Corp., 147 Wn.2d 114, 123,
125, 52 P.3d 472 (2002); Kelley v. Howards. Wright
Constr. Co., 90 Wn.2d 323, 334, 582 P.2d 500 (1978). A
jobsite owner or general contractor will have this duty only
if it maintains a sufficient degree of control over the work.
Kamla, 147 Wn.2d at 123 (quoting Doss v. ITT
Rayonier Inc., 60 Wn.App. 125, 127 n.2, 803 P.2d 4
(1991)). If the duty exists, it is nondelegable.
Kelley, 90 Wn.2d at 334. If the general
contractor-or by extension, jobsite owner-has the right to
exercise control, it also "has a duty, within the scope
of that control, to provide a safe place of work."
Id. at 330; accord RESTATEMENT (Second) of
Torts § 414 (Am. Law Inst. 1965).
argues the Port's nondelegable duty to provide a safe
workplace under WISHA and common law made it vicariously
liable for the airlines' fault. We disagree. The jury
found that Afoa's injuries were the result of both the
Port and the airlines' failure to ensure a safe
workplace. See generally Weinert v. Bronco
Nat'l Co., 58 Wn.App. 692, 795 P.2d 1167 (1990)
(duty to comply with safety regulations applies to any party
with supervisory authority on a jobsite). But neither has
escaped its own liability by delegation to the other.
does not expressly provide for vicarious liability when
employers are concurrently negligent. In contrast, even
though RCW 4.22.070 requires proportionate liability, the
legislature has expressly provided that a product seller may
have the liability of a manufacturer under certain
circumstances. RCW 7.72.040. WISHA requires employers
to "comply with the rules, regulations, and orders
promulgated under this chapter." RCW 49.17.060(2).
Nothing in chapter 49.17 RCW suggests that the legislature
intended to impose joint and several liability for WISHA
same time, liability for breach of a nondelegable duty does
not undermine the fault allocation under RCW 4.22.070.
Lawmakers did not intend to minimize the responsibility of
the nonparty airlines that had a concurrent nondelegable
of common law survive RCW 4.22.070, but there is no clearly
established common law right to hold tortfeasors with a
nondelegable duty vicariously liable for another entity's
breach of the same duty. It would be difficult for such a
situation to arise under common law. See Wenatchee Wenoka
Growers Ass 'n v. Krack Corp., 89 Wn.2d 847, 849-50,
576 P.2d 388 (1978). There was, however, a principle at
common law that a defendant would not be responsible for
another's independent tortious acts.
dissent correctly recognizes an exception to this independent
contractor rule: a nondelegable duty may result in vicarious
liability. That exception is irrelevant here.
See Millican v. N.A. Degerstrom, Inc., 177 Wn.App.
881, 896-97, 313 P.3d 1215 (2013) ('"[A]
"non-delegable duty" requires the person upon whom
it is imposed to answer for it that care is exercised by
anyone ... to whom the performance of the duty is
entrusted.'" (quoting Restatement (Second) of Torts
ch. 15, topic 2, intro. note)). No delegation occurred here.
Simply because the Port cannot delegate its responsibility
does not mean it must adopt the responsibility of another.
4.22.070 is consistent with the principle that a defendant
with a nondelegable duty cannot discharge its primary
responsibility to ensure compliance. In Millican,
the Court of Appeals reversed a trial court's decision to
admit a contract delegating the defendant's
responsibility under WISHA because the defendant argued
another party had sole responsibility for work site safety
under the contract. 177 Wn.App. at 890. A defendant may argue
another entity was the sole proximate cause of an injury but
cannot argue the other entity is the sole proximate cause
when it was '"carrying out'" the
defendant's nondelegable duty. Id. at 896
(quoting Restatement (Third) of Torts: Liability for Physical
and Emotional Harm § 57 cmt. b (Am. Law Inst. 2012));
see also Wiggs v. City of Phoenix, 198 Ariz. 367, 10
P.3d 625 (2000) (defendant city remained vicariously liable
for any percentage of fault allocated to the empty chair
company it contracted to maintain its streetlights because
the city had a nondelegable duty to maintain its streets in a
reasonably safe condition). Millican does not stand
for the proposition that another entity cannot be separately
responsible for work site safety. An entity that delegates
its nondelegable duty will be vicariously liable for the
negligence of the entity subject to its delegation, but an
entity's nondelegable duty cannot substitute for a
factual determination of vicarious liability when RCW 4, 22,
070(1) clearly requires apportionment to "every entity
which caused the claimant's damages."
Port can still be vicariously liable for the airlines'
negligence if the jury makes the necessary finding of control
because RCW 4.22.070(1)(a) "explicitly retains
principles of common law vicarious liability" within its
exceptions. Johnson v. Recreational Equip., Inc.,
159 Wn.App. 939, 950, 247 P.3d 18 (2011). Thus, we turn to
whether Afoa proved an RCW 4.22.070 exception applied.
The Nonparty Airlines Do Not Fall within the Agency
Exception to RCW 4, 22, 070 without the Required Factual
did not ask the jury to find that the Port retained control
over the airlines or make any agency arguments until after
the verdict. The Port contends that raising RCW
4.22.070's agency exception now is too late. We agree.
Agency presents a question of fact that Afoa should have
presented to the jury. Travelers Cas. & Sur. Co. v.
Wash. Tr. Bank, 186 Wn.2d 921, 937, 383 P.3d 512 (2016)
(citing Unruh v. Cacchiotti, 172 Wn.2d 98, 114, 257
P.3d 631 (2011)).
is a long-standing common law duty to provide a safe
workplace in Washington, and the Port is directly liable in
this case as a result; while the Port could be vicariously
liable for the airlines' breach of their concurrent
nondelegable duties if a jury found that the Port retained
control over the airlines, the jury was not presented with
the opportunity to do so. Afoa I, 176 Wn.2d at
475-76 (citing Kelley, 90 Wn.2d at 331-32); see
also Uni-Com Nw., Ltd. v. Argus Publ'g Co., 47
Wn.App. 787, 796, 737 P.2d 304 (1987) ("The existence of
a principal-agent relationship is a question of fact unless
the facts are undisputed."). The jury is ultimately
responsible for determining "the entity in the best
position to ensure a safe working environment."
Afoa I, 176 Wn.2d at 479 (citing Kelley, 90
Wn.2d at 331); Edgar, 129 Wn.2d at 627 (right to a
jury trial includes right to have jury determine allocation
of fault (citing Sofie v. Fibreboard Corp., 112
Wn.2d 636, 648-49, 771 P.2d 711, 780 P.2d 260 (1989))).
in Johnson, the Court of Appeals could apply the
agency principles retained in RCW 4.22.070's exceptions
only because it was undisputed that the product seller held
itself out as the manufacturer by placing its brand on the
defective product. 159 Wn.App. at 946. Similarly, in Yong
Tao v. Heng Bin Li, a case involving an injured
passenger in the second van of a three-van caravan, brought
against the lead driver, the Court of Appeals held that the
material question of control precluded summary judgment on
the issue of joint and several liability under RCW 4.22.070.
140 Wn.App. 825, 830-31, l66P.3d 1263 (2007). As in Yong
Tao, the facts here are disputed and vicarious liability
under the agency exception remains unproved.
case, Afoa now argues the agency exception applies despite
his failure to ask the jury to address the disputed facts.
For RCW 4.22.070's agency exception to apply, either the
facts necessary to establish the agency exception had to be
undisputed or the jury was required to make a factual
finding. The burden of establishing an agency
relationship is on the party asserting it exists. Hewson
Constr., Inc. v. Reintree Corp., 101 Wn.2d 819, 823, 685
P.2d 1062 (1984). The traditional rules of agency apply here:
"an agency relationship results from the manifestation
of consent by one person that another shall act on his behalf
and subject to his control, with a correlative manifestation
of consent by the other party to act on his behalf and
subject to his control." Moss v. Vadman, 77
Wn.2d 396, 402-03, 463 P.2d 159 (1969).
context of the WISHA specific and common law duty to provide
a safe work site, control exists where "there is a
retention of the right to direct the manner in which the work
is performed." See Kamla, 147 Wn.2d at 121;
see also Carabba v. Anacortes Sch. Dist. No. 103, 72
Wn.2d 939, 956-58, 435 P.2d 936 (1967) (requiring actual
evidence of delegation).
jury found only that the Port retained control over EAGLE. CP
at 4839 ("[d]id the defendant [the Port] retain a right
to control the manner in which the plaintiffs employer,
[EAGLE], . . . performed its work or maintained its equipment
used to provide ground support"). There was no
finding that the Port retained control over the airlines.
Id. at 4780-834 (instructions), 4839-42 (special
verdict form). In Afoa I, we were required to assume
that Afoa's allegation that the Port "exercise[d]
nearly plenary control over Sea-Tac Airport and the manner in
which work is performed on the premises" was true
because the case came to us on summary judgment. 176 Wn.2d at
478 (the Port argued that it simply issued licenses). But at
this stage, Afoa cannot prevail by making allegations about
the Port's pervasive control when control was a question
for the jury. See id. at 472 (citing
Karnla, 147 Wn.2d at 125). The jury must find that
the defendant controlled another entity before the defendant
is vicariously liable for that other entity's negligence.
It did not here.
the dissent minimizes the airlines' responsibility under
our system of comparative fault and makes up for Afoa's
unsuccessful litigation tactics. That the Port retained
control of EAGLE did not change the airlines' status to
subcontractor or make the airlines' duty subordinate (or
vicariously liable) to the Port's duty. Furthermore,
special verdict or not, we cannot assume that the airlines
had no control over EAGLE given the jury's apportionment
of 74.8 percent of the fault for Afoa's injuries to the
airlines. Dissent at 17 & 16 n.6. The jury
finding of retained control made it so the Port was directly
liable for its share of the fault, nothing more. See
Phillips v. Kaiser Alum. & Chem. Corp., 74 Wn.App.
741, 750-51, 875 P.2d 1228 (1994) (citing Kelley, 90
Wn.2d at 330). Afoa proved the Port was partially responsible
for his injuries, but a full recovery under RCW 4.22.070
required Afoa to timely sue the Port and the airlines in one
cause of action or argue agency.
trial court did not err because a nondelegable duty does not
supersede fault allocation under RCW 4.22.070 and the jury
did not find facts that would justify applying RCW
4.22.070's agency exception. Since Afoa did not raise the
factual question of agency until after trial, he waived his
opportunity to prove it. Therefore, we turn to the
contingent issues raised by Afoa, which the Court of Appeals
did not address.
Empty Chair Defense and Issue Preclusion
trial court permitted the Port to make an empty chair defense
under CR l2(i). Afoa contends the trial court abused its
discretion because he was unfairly surprised. The trial
court's decision is reviewed for manifest abuse of
discretion. Herron v. Tribune Publ'g Co., 108
Wn.2d 162, 165, 736 P.2d 249 (1987); see also State v.
Dye, 178 Wn.2d 541, 548, 309 P.3d 1192 (2013). Afoa also
argues the trial court could not allocate fault to the empty
chair airlines because a judgment in a separate proceeding
precluded allocation for the same issue. The trial
court's alleged errors of law are reviewed de novo.
Jongeward, 174 Wn.2d at 592.
argues that the Port had a "full and fair opportunity
... to litigate airline liability" in federal court and
successfully obtained a federal judgment finding no airline
liability. Supp'l Br. of Resp't at 20. The Port, on
the other hand, argues that "[d]istilled to its essence,
[Afoa] seeks to use his strategic error in splitting his
claims into two separate suits and his failure to prove his
case in federal court, as a sword against the Port to prevent
it from receiving its day in court." Supp'l Br. of
Pet'r at 19.
fault must be affirmatively pleaded. CR 12(i). The party
claiming another nonparty entity is at fault must also
affirmatively plead the identity of that nonparty.
Id. In this case, the trial court allowed the Port
to amend its answer under CR 15(a) to assert the
airlines' fault. Before the amendment, the Port's
answer raised the fault of other unidentified parties. Afoa
sued the airlines in a separate proceeding years before the
Port sought to amend its answer and assert its affirmative
suit removed to federal court, Afoa asserted essentially the
same claims against the airlines as he levied against the
Port. The Port was not a party in that suit. It is undisputed
that the Port and the airlines retained the same counsel to
defend the respective suits. It is also undisputed that the
Port moved to amend its answer early enough to allow Afoa to
prepare his defense in this case. The Port and Afoa dispute
three issues: (1) whether the Port's representations
prejudiced Afoa, (2) whether the Port and the airlines were
in privity, and (3) whether collateral estoppel would work an
injustice. Afoa is not entitled to relief because the trial
court did not abuse its discretion and the Port was not
equitably barred from allocating fault to the nonparty
The Trial Court Applied the Correct Legal Standard
argues that the Port's late amendment prejudiced him
because it delayed identification of the airlines as empty
chairs until the statute of limitations, res judicata, and
collateral estoppel prevented Afoa from recovering against
them. Thereby, the Port deprived him the opportunity to
decide all liability in a single proceeding and full
compensation for his injuries. But Afoa initiated the