Appeals court says common carrier vicariously liable
for negligence of independent contractor
by Andrew Bergh
It is hornbook law that a common carrier owes the highest degree of
care to its passengers. For more specifics, see WPI 100.1 (“highest
degree of care consistent with the practical operation of its type of
transportation and its business”).
The phrase “common carrier”
clearly includes commercial entities who physically transport passengers
for hire from Point A to Point B by car, bus, train, plane or boat. But
there are other “people movers”
– specifically, elevators and
escalators – which also qualify as
common carriers even though they don’t
strictly meet the three-part test adopted years ago by our state Supreme
Court in McDonald v. Irby, 74 Wn.2d 431 (1968). One recent
example is Knutson v. Macy’s West
Stores, Inc., __ Wn. App. _ (2017), which involved the issue of
whether a common carrier is vicariously liable for the negligence of an
independent contractor hired to maintain its escalator.
On December 6, 2012, Natasha Knutson attended a holiday performance
with her husband and daughter at the Bellevue Square Mall in Bellevue,
WA. Once the festivities ended, they opted to ride an
escalator connecting the ground floor entrance to Macy’s
with the main floor of the department store.
As fate would have it, one of the escalator steps jammed before the
Knutson family got to the top. The escalator had several fail-safe
mechanisms which, if properly maintained, would have shut it off.
Instead, the escalator continued to run. After a loud screeching noise,
the metal steps began piling up at the top and then toppled backwards
down the escalator. Seven persons were hurt, including Knutson and her
The Knutsons later filed a damages suit in King County Superior Court
against Macy’s West Stores, Inc.,
the owner of the Macy’s store, and
two other entities, Kemper Development Company and Bellevue Square LLC,
who allegedly owned the mall and escalator. Following the Court of
Appeals’ lead, I will refer
collectively to the latter as “Kemper.”
Macy’s had contracted with
Schindler Elevator Corporation to service and maintain the escalator
that malfunctioned. For unclear reasons, the plaintiffs did not
name Schindler as a defendant in their complaint, although the case
caption indicates that Macy’s filed
a third party complaint against both Kemper and Schindler.
So what’s usually a blessing for
the plaintiff in a tort case? A free investigation courtesy of the
Department of Labor and Industries.
DLI minced no words in its report released five months after the
accident in April 2013. Among the highlights:
The inspection revealed that the escalator’s
had loose screws, bolts and brackets, thereby causing the panel to
interfere with the escalator steps.
Schindler had neither performed the requisite maintenance for an
extended period of time nor kept proper maintenance logs.
The escalator had a significant history of mechanical issues,
including “vibrating, shaking,
and emitting grinding sounds and smoke.”
According to DLI’s chief
elevator inspector, the malfunction resulted from a lack of
maintenance and inaccurate escalator safety testing procedures.
The finger-pointing at Schindler didn’t
end there, as an engineering firm hired by Kemper agreed with the
conclusions reached by DLI’s top
gun. As for the Knutsons, their independent expert (Stephen Carr) opined
that the accident took place because Schindler didn’t
recognize obvious equipment defects –
ones that “would have been apparent
to any reasonably trained escalator mechanic.”
In short, it was essentially undisputed that Schindler’s
negligent maintenance of the escalator had caused the plaintiffs’
But while the case against Schindler may have been a slam dunk, the
trial court found no clear culpability on the part of either Macy’s
or Kemper and granted their motions for summary judgment. (Sorry, but
Division One nowhere mentions the precise grounds of their motion in its
opinion.) The Knutsons timely appealed.
It didn’t take the Court of
Appeals very long – two sentences,
to be exact – to recite the relevant
black letter law on common carriers. The first proposition? That a
common carrier owes the highest degree of care towards its passengers
commensurate with the practical operation of its services at the time
and place in question. Citing Dabroe v. Rhodes Co., 64 Wn.2d 431
(1964), the Knutson court also noted how owners and operators of
escalators are common carriers under Washington law.
The first argument raised by Macy’s
and Kemper was that they couldn’t be
held vicariously liable for Schindler’s
negligent maintenance because Schindler was an independent contractor
versus an employee. Relying heavily on Niece v. Elmview Group Home,
131 Wn.2d 39 (1997), Division One rejected this claim out of hand:
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.
As our high court had done in Niece, supra, the Court
of Appeals favorably quoted the Restatement (Second) of Agency §
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.
The bottom line? Although a party owing a nondelegable duty may
delegate the activity to an independent contractor, said Division One,
the party will still be vicariously liable if the contractor negligently
carries it out.
Relying on Dabroe, supra, Macy’s
and Kemper also claimed their duty of care was limited to
“malfunctions or defects of which
they had notice.”
Dabroe had unusual facts. A woman riding a department store
escalator was hurt when the escalator suddenly stopped after the toe of
a small boy’s shoe got wedged in the
side. Apparently, there had been four similar instances within the last
year where children’s footwear got
caught in the sides of the escalator. Given these facts, the plaintiff’s
theory of the case was that the defendants had negligently failed to
post warning signs and to equip the escalator with a switch that would
produce a more gradual stop. Following a defense verdict the Washington
Supreme Court reversed, holding that the trial court had committed
prejudicial error by refusing to give the following instruction
requested by the plaintiffs:
It was the duty of the Defendants to exercise the highest degree
of care consistent with the practical operation of its escalator to
protect the passengers from the danger of injury from
malfunctions or defects of which they knew or should have
anticipated from facts and circumstances known to them.
According to Macy’s and Kemper,
the emphasized portion of this instruction showed that they couldn’t
be found liable if they had no notice or knowledge of any defects in the
escalator. But at the end of the day, the Court of Appeals ruled that
their reliance on Dabroe was misplaced:
What [defendants] overlook is that Dabroe did not involve
a claim of negligent maintenance performed by an agent. The
emphasized language was necessary in Dabroe to support the
plaintiffs’ theory in that
particular case – the defendants’
failure to warn passengers and properly equip the escalator. The
language requiring notice was not intended to be part of an
all-purpose instruction appropriate in every escalator case. It is
not appropriate in the present case. The plaintiffs’
theory is that the owner and operator breached their high duty of
care by failing to keep the escalator properly maintained. This
breach, though committed by an independent contractor, is imputed to
the owner and operator of the escalator.
So there you have it, a handy-dandy refresher course in Elevators &
Escalators 101. Not anything you think you will ever need or use?
Perhaps. But on the other hand, the Knutsons’
experience may not be as rare as you think
– not when some 16,600 escalators and elevators are reportedly
inspected each year by DLI and its team of 22 inspectors.
WSTLA EAGLE member, former prosecutor and insurance defense attorney, now limits his
practice to plaintiff's personal injury cases, including professional
liability and insurance bad faith.
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