Adamson et al v. Port of Bellingham

Filing 65

ORDER by Judge Marsha J. Pechman denying Defendant's 54 Motion for Summary Judgment. Defendant's motion to strike the statements of Plaintiffs' experts is also denied. (PM)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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SHANNON C. ADAMSON, et al.,

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Plaintiffs,
v.

CASE NO. C14-1804 MJP
ORDER ON DEFENDANT’S
MOTION FOR SUMMARY
JUDGMENT

PORT OF BELLINGHAM,
Defendant.

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The Court, having received and reviewed:

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1. Port of Bellingham’s Motion for Summary Judgment Pursuant to FRCP 56

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Dismissing State Law Claims (Dkt. No. 54),
2. Plaintiffs’ Opposition to the Defendant’s Motion for Summary Judgment Pursuant to
FRCP 56 Dismissing State Law Claims (Dkt. No. 56),

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3. Port of Bellingham’s Reply to Plaintiffs’ Response to the Defendant’s Motion for

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Summary Judgment Pursuant to FRCP 56 Dismissing State Law Claims (Dkt. No.

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59),

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ORDER ON DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT- 1

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4. Plaintiffs’ Surreply in Opposition to the Defendant’s Motion for Summary Judgment
Pursuant to FRCP 56 Dismissing State Law Claims (Dkt. No. 64)

3 and all attached declarations and exhibits, makes the following ruling:
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IT IS ORDERED that the motion for summary judgment is DENIED.

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IT IS FURTHER ORDERED that Def’s motion to strike portions of the declarations of

6 Plaintiffs’ experts is DENIED.
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Background
The Court will spend little time on the details of the accident at issue here; those facts

9 have been thoroughly covered in previous orders. In summary: Plaintiff, an Alaska ferry
10 employee, was injured while standing on the passenger loading ramp at Defendant’s terminal and
11 attempting to lower it mechanically to the vessel. The ramp was released before the cables
12 holding it were taut, resulting in the ramp dropping 10-12 feet and injuring Plaintiff. The facts at
13 issue in this motion concern the history of the relationship between Defendant and Alaska
14 Marine Highway System (“AMHS”) – the entity which operates ferries which use the Port and
15 employed Plaintiff – including a prior accident similar to the one at issue in this case.
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The contractual relationship between the Port and AMHS dates back to 1989, when the

17 two parties signed a 20-year lease to allow AMHS to use a terminal in the Port facilities. For the
18 first twelve years, line-handling and ramp-tending duties were handled by the Port; following
19 that period, those duties were handled by a combination of AMHS crewmembers and other
20 shipyard employees.
21 2008 Incident
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On October 24, 2008, an incident nearly identical to Plaintiff’s accident occurred; the

23 main difference being that, in this first incident, the ramp only dropped 1-2 feet (as opposed to
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ORDER ON DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT- 2

1 the 10-12 feet it dropped in Plaintiff’s mishap). 1 The Port terminal manager notified AMHS
2 about the incident on the day it occurred and also advised them that incorrectly operating the
3 Passenger Ramp could create a safety risk. AMHS responded by acknowledging the seriousness
4 of safety risk and requesting a set of operating instructions for the ramp. In the aftermath,
5 AMHS requested that the Port take over operation of the ramps (vehicle and passenger), but no
6 agreement to that effect was ever reached and a combination of AMHS crewmembers and Puglia
7 Engineering employees operated the ramp from that point forward.
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The Port commissioned an engineering study of the damage to the ramp and on

9 November 19, 2008, the Geiger Report was released – the report estimated the damages and the
10 cost of repair and warned that an even more serious accident was possible if the situation
11 recurred. The author of the report predicted that the support cables could snap under certain
12 conditions (Ex. 2, Waugh Depo 54:19 – 60:17), and recommended modifying the gangway
13 controls so that the support pins could not be released if there was slack in the support cables.
14 (Ex. 3, Geiger Report, p. 2.) A copy of the report was sent to the State of Alaska, Risk
15 Management Division, but allegedly never sent to AMHS. The Port did not adopt the report’s
16 recommendation, and the control panel was not modified until after Plaintiff’s accident.
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In 2009, the Port created a set of operating instructions for the Passenger Ramp which

18 was posted by the ramp’s control panel. Defendant never developed a training protocol for ramp
19 operation, did not supervise the operation of the ramp and had no system in place to determine
20 who was qualified to operate the ramp.
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The hazard at issue here consists of the fact that, if an operator removes the “locking pins” on the

23 Passenger Ramp while there is still slack in the suspension cables, the ramp will go into freefall until the cables are
taut. Plaintiff asserts (and Def does not contest) that a person standing on the Passenger Ramp operating the

24 controls for the ramp cannot see if the cables are slack or not.
ORDER ON DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT- 3

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2 2009 Lease
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When the lease was renegotiated in 2009, AMHS retained its status as a “priority user” of

4 Defendant’s Marine Facilities (which included the Passenger Ramp and the Vehicle/Passenger
5 Ramp. (Dkt. No. 24-1, Ex. G, § 1.2.) “Priority use” meant that Defendant could enter into
6 contracts with other ferry/vessel operators, but that those agreements would always be
7 subordinate to AMHS’s right to use the facilities. Plaintiff does not dispute Defendant’s
8 allegation that no other agreements were entered into and AMHS has been the only user of the
9 premises. Since 2009, the Passenger Ramp has been operated by (1) the Bellingham Stevedore
10 Co. (“BSC”), which operates under contract with Defendant; (2) AMHS employees; or (3)
11 Puglia Engineering, which contracts directly with AMHS.
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The lease imposes on Defendant a number of duties, including (1) keeping the premises

13 in “good repair and tenantable condition” (Dkt. No. 24-1, Ex. G, § 4.1); (2) keeping the premises
14 “in good and substantial repair and condition;” (Dkt. No. 24-1, Ex. G, § 4.1(a)); and (3)
15 warranting that the premises “are tenantable” and paying to correct any violations of law cited by
16 a regulatory agency. (Dkt. No. 24-1, Ex. G, § 4.9.)
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Defendant asserts, without contradiction, that the Passenger Ramp was inspected

18 annually by the Washington Department of Labor and Industries Division of Occupational Safety
19 and Health and passed every year from September 2006 through September 2012. (Warter Decl.
20 at ¶ 23 and Ex. F.) Plaintiff also does not contest Defendant’s allegation that, in negotiating the
21 new lease, AMHS requested no new terms relative to modification of the Passenger Ramp.
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Two other sections of the lease are relevant to this litigation (and not mentioned in

23 Defendant’s briefing):
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ORDER ON DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT- 4

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Section 4.5 – Operations Manuals: The Lessor will ensure Lessee has full, true and

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complete copies of the Car and Passenger Ramp operations manuals on or before the

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renewal date of this lease.

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Section 4.7 – Accident Hazards: The Lessor will maintain the leased premises free of

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structural or mechanical hazards …

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Analysis
Defendant states that, regarding the remaining state claims of negligence, Plaintiff can

9 prevail only on three possible theories. Plaintiff argues that there is a fourth which will be
10 discussed at the end of this order.
11 Defendant’s proposed theories of negligence
12 Owner liability
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Defendant argues that the common law doctrine requiring a property owner to maintain a

14 “safe workplace” (and embodied in the Washington Industrial Health and Safety Act -- RCW
15 49.17 et seq.;“WISHA”) does not apply to the Port because the doctrine requires that it exercise
16 “significant control” over the workplace in order for the duty to arise.
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The seminal case in Washington is Afoa v. Port of Seattle, 176 Wn.2d 460 (2013), which

18 upheld the right of an airport worker (not employed by the airport itself) to sue for injuries
19 sustained due to unsafe conditions over which the airport had control. The operative language as
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[I]t is settled law that jobsite owners have a specific duty to comply with WISHA
regulations if they retain control over the manner and instrumentalities of work being
done on the jobsite. Further, this duty extends to all workers on the jobsite that may be
harmed by WISHA violations.
***

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ORDER ON DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT- 5

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[T]he specific duty to prevent WISHA violations does not run only to the principal’s
employees, but to all workers on the work site who may be harmed by WISHA
violations.
Id. at 472 (emphasis supplied).
Defendant makes much of the fact that it had no control over the AMHS employees,
including Plaintiff. In the Court’s opinion, this misses the point of Afoa and ignores both some
critical WAC regulations and the intent of WISHA. The Afoa court found that WISHA applied
to any jobsite owner who “retain[ed] control over the manner and instrumentalities of work
being done on the jobsite.” The Passenger Ramp is an “instrumentality” of the work being done
on the Port worksite, and several factors point to the control retained by Defendant in this case.
In the 2009 lease, Defendant warranted
Section 4.7 – Accident Hazards: The Lessor will maintain the leased premises free of
structural or mechanical hazards …
There is a colorable argument that the Passenger Ramp constituted a “mechanical hazard” and
one of which Defendant (by virtue of the 2008 incident and the Geiger Report) was well aware.
If it was a mechanical hazard, Defendant retained control over it by virtue of its contractual
commitment to keep its premises free of such dangers.
Furthermore, the WACs regarding safety standards for “waterfront related operations”
(promulgated pursuant to WISHA), state
Only those employees determined by the employer to be competent by reason of training
or experience, who understand the signs, notices, and operating instructions and are
familiar with the signal code in use shall be permitted to operate a crane, winch or other
power-operated cargo handling apparatus.

22 WAC § 296-56-60006(1)(a).
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ORDER ON DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT- 6

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And also

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(1) An accident prevention program, which provides equitable management-employee
participation, shall be established in all establishments, industrial plants and
operations.
(2) It shall be the responsibility of the employer to initiate and maintain the accident
prevention program necessary to comply with this section.

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5 WAC § 296-56-60009.
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It remains an open question whether the Passenger Ramp constituted a “cargo handling

7 apparatus” for purposes of these regulations – the parties did not brief the question. There is no
8 question that the Port did not have in place a program to qualify persons to operate the ramp.
9 Nor is there is a question that Def had not “initiate[d] and maintain[ed] [an] accident prevention
10 program” at the time of Plaintiff’s accident.
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The Afoa court which held the Port of Seattle potentially liable for injuries to an

12 employee who did not work for them (“An employer who… creates a workplace safety hazard
13 may be liable under OSHA even if the injured employees work only for a different employer;”
14 176 Wn.2d at 472) was doing so under the federal “multi-employer workplace rule.” (See
15 Martinez Melgoza & Assocs. V. Dept. of Labor & Indus., 125 Wn.App. 843, 848-49 (2005).)
16 Defendant attempts to argue that the Port was not a “multi-employer worksite,” but the Court is
17 not persuaded. In addition to the Port’s own employees, the briefing mentions workers
18 employed by AMHS, BSC and Puglia Engineering. Defendant has failed to cite to any case law
19 under which that kind of environment would not qualify as a “multi-employer worksite.”
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Nor does the fact that Defendant could not actually supervise the work of the AMHS

21 employees alter the reality that, in the area of the safe operation of Passenger Ramp, the Port had
22 the right (and the obligation) to maintain the device in safe condition and ensure that whoever
23 operated it was qualified to do so in a safe manner. This satisfies the threshold requirements for
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ORDER ON DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT- 7

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Defendant attempts to sidestep this obligation by pointing fingers at AMHS – pointing

2 out, among other things, that the agency never requested a modification of the Passenger Ramp
3 in the renegotiated lease, and that they never requested a training program or protocol from the
4 Port. This does not relieve the Port of their affirmative responsibility -- the duty is the Port’s to
5 fulfill and the fact that the users of the premises did not insist that they do so does not relieve
6 Defendant of the obligation.
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The only way in which Defendant did attempt to fulfill this responsibility was to generate

8 – at the request of AMHS – a set of operating instructions for the gangway controls. (Plaintiff.
9 Ex. 8.) But, in addition to containing no warning of the danger of ramp collapse, the instructions
10 were (according to Plaintiff’s expert) “poorly written,” “grossly deficient [and] misleading.”
11 (See Schaefer Decl. ¶ 11.) The Court finds that there is an issue of material fact whether the
12 instructions were sufficient to discharge Defendant’s duty; even the Port’s terminal manager
13 acknowledged in an email Defendant’s duty to provide AMHS, not with a set of operating
14 instructions, but with full operation manuals for the equipment. (Plaintiff. Ex. 18.2)
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The Court finds that Defendant is not entitled to summary judgment of dismissal on an

16 “owner liability” theory of negligence.
17 Premises liability
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Defendant’s potential liability under this theory turns on whether Plaintiff can properly be

19 considered a “business invitee.” If she was, the Port (as owner of the premises onto which she
20 was invited) owed her a duty of reasonable care to inspect for dangerous conditions and make
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The terminal manager asserts in the email that this was done in 1988, while admitting that he is “sure that

23 those would not be adequate for a person in the field to read and understand when the ramp needs to be adjusted
now.”

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ORDER ON DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT- 8

1 whatever repairs and warnings or install whatever safeguards were necessary to protect the
2 invitee. Tincani v. Inland Empire Zoological Soc., 124 Wn.2d 121, 139 (1994).
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Defendant disputes Plaintiff’s status as a “business invitee” on the basis that, if

4 “exclusive control” of the premises has passed to the tenant, the landlord no longer owes a duty
5 to licensees or invitees. Regan v. City of Seattle, 76 Wn.2d 501, 504 (1969). The Port makes
6 two related arguments in this regard:
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(1) That AMHS’s “priority use” privileges, coupled with the fact that the Port never
issued “subordinate” leases to any other user, is the equivalent of “exclusive control.”

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(2) That the fact that, when AMHS was using the terminal, they had absolute right to
access of that part of the facility was sufficiently “exclusive use” to relieve the Port of
any duty to business invitees.

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The Court is not convinced by Defendant’s position. The power to issue subordinate leases was
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entirely within Defendant’s discretion. The fact that it chose not to exercise that discretion does
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not render AMHS the “exclusive user” of their facilities; i.e., “only user” does not equal
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“exclusive user” under these circumstances. Similarly, the fact that the lease gave AMHS
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“priority use” of the facility when its vessels were docked does not equate to “exclusive use” –
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presumably any vessel which docked at the terminal would have had sole access to the Passenger
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Ramp during the period it was moored. Defendant certainly presents no evidence that any other
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vessel could have physically connected with the ramp when another vessel was moored there.
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Plaintiff again cites to Afoa in regard to this issue, arguing that her position is analogous
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to that of Afoa (whom the Washington court found to be a business invitee). The factors cited by
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the Afoa court:
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(1) That Plaintiff was on the Port’s premises for reasons related to business dealings with
the Port of Seattle, and

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ORDER ON DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT- 9

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(2) That there was a “mutuality of interest” between the Port, Plaintiff and Plaintiff’s
employer (i.e., that the Port had an interest in Plaintiff doing his job because it served
the Port’s business purpose and Plaintiff had an interest in helping the Port’s business
because it meant continued employment)

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(176 Wn.2d at 469) are applicable to Ms. Adamson and her employer, as well as to the Port of
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Bellingham.
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Defendant attempts to distinguish Afoa in terms of its “premises liability” analysis
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because, unlike Afoa’s employer, Plaintiff’s employer is a tenant of the Port. It argues that “the
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rules of premises liability are inapplicable to a landlord who has conveyed exclusive possession
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of the leased premises to a tenant,” (Mtn at p. 18, citing Sunde v. Tollett, 2 Wn.2d 640, 642
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(1970)), but this position runs afoul of the same problems as their “exclusive control” argument
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above. The Court does not find that, as a matter of law, the Port has established that the “priority
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use” rights granted by their lease with AMHS are the legal equivalent of “exclusive control” or
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“exclusive possession.”
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Having found that Defendant has not shed its duties under premises liability, there also
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remains a disputed issue of material whether the Port’s providing the Geiger Report to the
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Alaska State Office of Risk Management (and not to AMHS) violated their duty to provide
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adequate warnings of hazardous conditions to its business invitees. Defendant does not dispute
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that Risk Management did not inform AMHS of the contents of the report. Nor does the fact that
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AMHS was aware of the 2008 incident overcome the potential liability associated with their not
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being told exactly how serious the mechanical defect was. Plaintiff goes to some lengths to
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demonstrate the personnel from both sides (the Port and AMHS) were largely unaware of the
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ORDER ON DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT- 10

1 Geiger Report’s conclusion that, under the right circumstances, the ramp could collapse entirely.
2 (Plaintiff Response at 6-7.) 3
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The Court finds that Defendant has not established a right to dismissal of the negligence

4 claim against it on a premises liability theory.
5 Landlord liability
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In general terms, the duty of a landlord to the employees of its tenant does not extend

7 beyond the duty to the tenant (Baker v. Moeller, 52 Wn. 605, 608 (1909)) and the landlord is
8 liable to its tenant only for known latent defects which are not likely to be discovered by the
9 tenant. (Charlton v. Day Island Marina, Inc., 46 Wn.App. 784, 788 (1987); Aspon v. Loomis, 62
10 Wn.App. 818, 826-27 (1991).) Defendant argues that it warned AMHS of the hazard in 2008
11 (right after the first accident), and then further cautioned them by sending a copy of the Geiger
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There are two disputed areas of material fact that preclude summary judgment on this

14 basis. The first is: was the information contained in the emails following the 2008 incident (see
15 Defendant. Exs. A and C) adequate to apprise AMHS of the nature of the danger posed by
16 improper operation of the Passenger Ramp? Viewing all evidence in the light most favorable to
17 the non-moving party, there is a colorable argument that what happened in Plaintiff’s accident
18 was of such a greater magnitude than the 2008 event that simply issuing an admonition intended
19 to prevent a repeat of the 2008 mishap was inadequate warning for what happened in 2012.
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The second has been discussed supra: whether providing the Geiger Report (which did

21 warn of the potential for a more serious event) to the Alaska State Office of Risk Management
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Including a deposition excerpt from the head of the Port’s Safety Committee wherein she asserts that

24 there was no need to warn AMHS of the potential collapse danger of the ramp. (Ex. 6, Monahan Depo., 21:4-21.)
ORDER ON DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT- 11

1 constituted adequate warning to AMHS. Again, the parties disagree on the impact and
2 significance of this fact; the Court finds it is both disputed and material.
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Plaintiff also argues that landlords are responsible under Washington law for hazards in

4 “common areas” in the leased premises that result in harm to others. McCutcheon v. United
5 Homes Corp., 79 Wn.2d 443, 445 (1971). Plaintiff quotes Degel v. Majestic Mobile Manor, Inc.,
6 129 Wn.2d 43, 53 (1996) for the standard of care expected of landlords:
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[A tenant] “enters upon an implied representation or assurance that the land has been
prepared and made ready and safe for his reception. He is therefore entitled to expect
that the possessor will exercise reasonable care to make the land safe for his entry or for
his use for purposes of the invitation. He is entitled to expect… such repair, safeguards
or warning as may be reasonably necessary for his protection under the circumstances.”

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(citing Jarr v. Seeco Constr’n Co., 35 Wn.App. 324, 326 (1983) and RESTATEMENT
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(SECOND) OF TORTS, § 343.cmt b.)
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Defendant attacks the assertion that the Passenger Ramp was a “common area,” citing
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case law that the term refers to parts of the leased premises expressly or impliedly reserved for
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the use of all tenants (Anderson v. Reeder, 42 Wn.2d 45, 48 (1953)) and is usually thought to
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include “approaches, common passageways, stairways and other areas to be used in common by
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the owner and the tenants.” McCutcheon, 79 Wn.2d at 445. The Port again makes the argument
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that AMHS was the only tenant; that being the case, all that is needed to make the Passenger
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Ramp a “common area” was that both AMHS and the Port had access to it. This dual right to
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access is undoubtedly the case, as even Defendant admits that it had the right to access the
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gangway for inspection purposes.
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Additionally, it is clear from the evidence that employees of BSC and Puglia Engineering
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(who contracted with the landlord and the tenant, respectively) had access to the ramp.
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Furthermore, had the Port issued “subordinate leases” for use of the terminal, there is little doubt
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ORDER ON DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT- 12

1 that the subordinate lessees would have had the right to use the Passenger Ramp (subject to
2 AMHS’s “priority use”). The Court finds that it is at least a disputed question of material fact
3 (mixed with disputed issues of law) whether the gangway was a common area.
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The Port also argues, in regards to its duties as a landlord, that the duty to repair does not

5 equal the duty to upgrade (citing Prudential Ins. Co. of America v. L.A. Mart, 68 F.3d 370 (9th
6 Cir. 1995); i.e., it was obligated to fix anything that was wrong with the ramp in its current
7 condition, but not to improve it to the point where it was no longer dangerous. The Court again
8 refers to the lease provision requiring Defendant to maintain the premises free of “mechanical
9 hazards” in finding that Defendant does not prevail on this argument.
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The Court finds that (viewing all the evidence in the light most favorable to Plaintiff) the

11 Port is not entitled to summary judgment of dismissal here, either.
12 Plaintiff’s “fourth theory”: Direct negligence for deficient ramp instructions
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Plaintiff argues that there is a fourth basis for recovery which Defendant has not

14 addressed – the Port’s “direct negligence in producing misleading and grossly deficient ramp
15 instructions.” (Response at 13.)
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Plaintiff has failed to articulate a new, independent theory of liability: the Port has a duty

17 of care to Plaintiff as a landowner, a business invitor or a landlord, and Plaintiff cites no cases
18 involving a duty of care independent of any of these roles. If the instructions were negligently
19 created and tortiously deficient, Defendant’s liability for that is under one of the previous three
20 theories or not at all.
21 Motion to Strike
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Defendant moves to strike portions of the declarations of all of Plaintiffs’ experts (Reply

23 at 6-7, fn.19). Defendant expended very little effort in identifying the specifics of why the
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ORDER ON DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT- 13

1 experts’ statements should be stricken, outside of generically labeling them “impermissible legal
2 conclusions.” The Court will expend a similar amount of effort in denying the motion to strike.
3 The decisive issues in this motion were legal issues and the Court reaches those legal issues
4 without reference to the opinions of Plaintiffs’ experts. The motion to strike is DENIED.
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Conclusion
Defendant has failed to establish, as a matter of law, that it is entitled to summary

7 judgment of dismissal of the state law negligence claims remaining against it; Defendant’s
8 motion is therefore DENIED. Defendant’s motion to strike the statements of Plaintiffs’ experts
9 is also DENIED.
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The clerk is ordered to provide copies of this order to all counsel.

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Dated January 29, 2016.

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Marsha J. Pechman
United States District Judge

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ORDER ON DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT- 14