Afoa v. Port of Seattle

February 23, 2011 by Aric Bomsztyk

2011 WL 612716—February 23, 2011

Here, the Court of Appeals-Division I reversed the trial court’s dismissal of the Plaintiff’s case at summary judgment.   Mr. Afoa worked for EAGLE who provided “aircraft ground handling services” under a “license agreement” with the Port of Seattle (Port).  Mr. Afoa claimed that the brakes failed on the vehicle he was driving which caused him to collide with a broken piece of equipment.

The Court reaffirmed the rule that an employer who contracts with an independent contractor is not liable for injuries sustained by an independent contractor’s employees. However, where the employer retains control over some part of the independent contractor’s work, the employer has a duty within the scope of that control to provide a safe place to work.  The ultimate test is test is whether the employer contracting with independent contractor retains a right to direct the manner in which the work is performed. The right to control can exist even where the employer does not actually interfere with the independent contractor’s work.

The Court rejected the Port’s argument that EAGLE was a “licensee,” not an “independent contractor.”  The Court also found it salient that EAGLE’s license agreement mandated that EAGLE’s employees had to comply with the Port’s rules and regulations and any instructions given by Port employees.  EAGLE’s employees also had to undergo a Port administered driving test.  The Court found that enough existed to defeat the Port’s motion for summary judgment on the basis that the Port did not owe Mr. Afoa a common law duty to provide a safe workplace.  Similarly, for the same factual reasons, the Court also rejected the Port’s argument it had no statutory duty to ensure the safety of EAGLE’s employees under Washington’s Industrial Safety and Health Act (WISHA).

Finally, the Court strongly rejected the Port’s argument that Mr. Afoa was “licensee,” not an “invitee” because the Port claimed they never invited him onto the property.  The Court reaffirmed that the test was “to differentiate (1) an entry made for a business or economic purpose that benefits both entrant and occupier, from (2) an entry made for a purpose that either (a) benefits only the entrant or (b) is primarily familial or social.”  The Court found that Mr. Afoa was present on the Port’s property for a business purpose that benefitted both parties and therefore was a “business invitee.”  Thus, the Port was liable “for harm caused by an open and obvious danger if the landowner should have anticipated the harm, despite the open and obvious nature of the danger.”

Washington small businesses should take note of this decision because it may expand liability for independent contractors who come onto their property even if (1) the agreement is a “license agreement” so long as the small business requires the independent contractors to follow their rules and regulations and submit to the business’ directions and (2) the dangers are open and obvious.


Key Statutes and Cases: RCW 49.17.060, RCW 49.17.020, Kamla v. Space Needle Corp., 147 Wn.2d 114, 119, 52 P.3d 472 (2002), Stute v. P.B.M.C., Inc., 114 Wn.2d 454, 460, 788 P.2d 545 (1990), Beebe v. Moses, 113 Wn.App. 464, 467-68, 54 P.3d 188 (2002)

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