Washington Supreme Court Addresses Joint and Several Liability for Vicariously Liable Defendants
September 1st, 2018
Under Washington law, when a plaintiff sues multiple defendants in tort, the fault of each defendant is determined and each defendant is normally liable only for its proportionate share of the plaintiff’s damages. RCW 4.22.070(1). Several liability is thus the default, with joint and several liability being the exception. Recently, in Afoa v. Port of Seattle, No. 94525-0 (July 19, 2018), the Washington Supreme Court narrowly held (in a 5-4 decision) that the exception to several liability found in RCW 4.22.070(1)(a) applies so that a defendant vicariously liable for another defendant’s fault can be found jointly and severally liable. But because the jury in Afoa had not entered a specific factual finding of vicarious liability, the Court refused to apply the exception to the rule.
Plaintiff Afoa was severely injured on the job while working for an independent contractor that contracts with airlines to provide ground services such as loading and unloading at Sea-Tac International Airport. Afoa sued a number of airlines for his injuries, but the suit was dismissed. In a separate lawsuit, Afoa sued the Port of Seattle, which operates the airport. The airlines were not party to that suit. At trial, this afforded the Port an “empty chair” argument, whereby it argued the truly at-fault parties were the airlines that were not parties to the lawsuit.
The jury found the Port retained a sufficient level of control over Afoa’s employer such that the Port owed Afoa a duty of care and awarded Afoa $40 Million in damages; however, the jury apportioned only 25% of the fault to the Port, apportioning the bulk of the remaining fault to the non-party airlines from whom Afoa could not collect. The jury was not asked to find, nor did it find, that the airlines were acting as “agents” of the Port. Afoa filed an appeal, arguing the Port owed him a nondelegable duty to ensure a safe working environment and was thus vicariously liable for the airlines’ portion of the damages. Afoa cited RCW 4.22.070(1)(a), which allows for joint and several liability where defendants either “act in concert” or where a defendant-principal is liable for a defendant-agent’s actions.
The Supreme Court of Washington disagreed that RCW 4.22.070(1)(a) supported a finding of joint and several liability by the Port under the facts presented. While the Court acknowledged RCW 4.22.070(1)(a) does allow for a finding of joint and several liability by a defendant-principal for a defendant-agent’s fault, it declined to apply the statutory exception to several liability to the facts of Afoa’s case. This is because the jury had not made a specific factual finding that the airlines were the agents of the Port and thus had not found the Port vicariously liable for the airlines’ actions. As such, the statutory exception to several liability was not triggered.
But in a case where a jury finds one defendant was, in fact, the agent of another defendant and both defendants are allocated some percentage of fault for a plaintiff’s injuries, Afoa holds the defendant-principal will be jointly and severally liable for the defendant-agent’s portion of fault.