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January, 2018
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 dont 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. Macys 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 up escalator connecting the ground floor entrance to Macys 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 daughter.

The Knutsons later filed a damages suit in King County Superior Court against Macys West Stores, Inc., the owner of the Macys 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.

Macys 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 Macys filed a third party complaint against both Kemper and Schindler.

So whats 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 escalators skirt panel 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 DLIs chief elevator inspector, the malfunction resulted from a lack of maintenance and inaccurate escalator safety testing procedures.

The finger-pointing at Schindler didnt end there, as an engineering firm hired by Kemper agreed with the conclusions reached by DLIs top gun. As for the Knutsons, their independent expert (Stephen Carr) opined that the accident took place because Schindler didnt recognize obvious equipment defects ones that would have been apparent to any reasonably trained escalator mechanic.

In short, it was essentially undisputed that Schindlers negligent maintenance of the escalator had caused the plaintiffs injuries.

But while the case against Schindler may have been a slam dunk, the trial court found no clear culpability on the part of either Macys 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 didnt 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 Macys and Kemper was that they couldnt be held vicariously liable for Schindlers 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 214 (1958):

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, Macys 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 boys shoe got wedged in the side. Apparently, there had been four similar instances within the last year where childrens footwear got caught in the sides of the escalator. Given these facts, the plaintiffs 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 Macys and Kemper, the emphasized portion of this instruction showed that they couldnt 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.

Andrew Bergh, 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.