The Washington State Supreme Court issued its long awaited decision in Afoa v. Port of Seattle today. The Court rejected a lower court decision that had the effect of making an airport automatically liable for the negligence of an airline’s contractors, such as ground handlers. LeClairRyan Aviation attorneys were called in after the unfavorable result in the Court of Appeals and counsel worked on, with the assistance of the preexisting counsel, the appeal before the Washington Supreme Court. Mark Dombroff executed the oral argument.
The Plaintiff, an employee of a ground handling company that had contracted with four airlines for ground handling services, was injured when the brakes failed on a tug he was driving due to the negligence of his employer. The Plaintiff brought suit in federal court against the four airlines, arguing that they all owed him a non-delegable duty to provide a safe workplace. Plaintiff lost that suit. Plaintiff also brought suit against the Port of Seattle on the same grounds in Washington state court. At trial, the court permitted the Port of Seattle to pursue an “empty chair” defense, and asked the jury to determine what fault, if any, should be allocated to the airlines as well as the Port of Seattle. The jury found the plaintiff suffered $40 million in damages and apportioned fault to the parties: 25 percent to the Port, 0.2 percent to Plaintiff, and equally divided the remaining 74.8 percent among the airlines. Based on this fault allocation, the trial court entered judgment against the Port for 25 percent of the judgment.
The Plaintiff appealed, claiming that the Port was automatically liable for the share of the fault allocated to the airlines because its duty to provide a safe workplace was non-delegable. The Court of Appeals agreed, and found that the Port was 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.
The Port appealed this ruling to the Washington Supreme Court, arguing that vicarious liability does not automatically attach simply because the Port owed a non-delegable duty. Plaintiff countered by claiming that, because the Port was the “entity best able to control safety” at the airport, it should not be able to “shift any part of its nondelegable duty to the airlines.”
The Washington Supreme Court held that Washington has abolished joint and several liability for concurrent negligence; with only a few narrow exceptions defined by statute. The fact that the Port’s duty was non-delegable only means that the Port cannot escape liability for its own negligence, it does not mean that the Port automatically adopts the responsibility for the negligence of third parties, in this case the four airlines, particularly since the airlines also owe a concurrent non-delegable duty of workplace safety to the Plaintiff.
The Court went on to clarify that a party can still be vicariously liable for the negligence of another under common law principles, such as agency, but those are factual issues that have to be resolved by a jury. The Plaintiff’s counsel never asked the jury to make the required finding, and only raised arguments that the Port controlled the actions of the airlines for the first time on appeal. The Court found that Plaintiff’s claims were made too late in the process, calling the Plaintiff’s counsel’s failure to submit the issue to the jury an “unsuccessful litigation tactic.” Accordingly, the Court reversed the ruling by the Court of Appeals, and reinstated the trial Court’s original judgment for 25 percent of the damages, rather than 99.8 percent.
This decision has far reaching implications under Washington law. It ensures that a large property owner, such as the Port of Seattle, is not automatically vicariously liable for work performed by subcontractors of tenants. If the Court of Appeal’s ruling had been allowed to stand, it would have had far reaching implications, essentially requiring the airport to be constantly involved in all aspects of the operations of an airline’s contractors and subcontractors down to the level of whether a tug has enough brake fluid, as was the case here.