No. 3018S-I-III 


Millican v. NA. Degerstrom, Inc. 


estate and claiming rights as a statutory beneficiary, she brought a wrongful death action 

against the general contractor, N.A. Degerstrom Inc., and others. The jury returned a 

defense verdict from which Ms. Millican appeals. 

Ms. Millican contends on behalf of her son's estate that the trial court erred in (1) 

admitting evidence that Degerstrom contractually delegated sole responsibility for the 

safety of employees to its subcontractors, (2) denying the estate's motion for a new trial, 

and (3) refusing to instruct the jury that Degerstrom owed a duty to the public traveling 

through the construction site. She argues individually that the court erred in dismissing 

her claims on the basis that she did not qualifY as a statutory beneficiary. 

We conclude that it was an abuse ofdiscretion for the trial court to deny the 

estate's motion seeking to limit Degerstrom's evidence and argument that it required Mr. 

Lafayette's employer to assume sole responsibility for the protection and safety of its 

own employees. Degerstrom's mischaracterization to this effect pervaded its 

presentation and could not be cured by the concluding instructions to the jury. The estate 

and Ms. Millican fail to demonstrate any other error, however. 

We affirm the trial court's dismissal of Ms. Millican's individual claim but reverse 

the judgment on the jury's verdict and remand for a retrial ofthe estate's claims. 

FACTS AND PROCEDURAL BACKGROUND 

In April 2005, the United States Department of Transportation Federal Highway 

Administration awarded N.A. Degerstrom Inc. a contract to improve a five-mile stretch 

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Millican v. NA. Degerstrom, Inc. 


ofFlowery Trail Road. Degerstrom subcontracted with Sharp-Line Industries Inc. to 

install signs and paint road stripes. The subcontract agreement required Sharp-Line to 

indemnity Degerstrom from any liability it suffered as a result ofSharp-Line's 

negligence. The subcontract also contained the following provision imposing 

responsibility on Sharp-Line for work site safety: 

Subcontractor accepts responsibility to prevent accidents to any person who 

may be close enough to its operation to be exposed to Subcontractor's 

work-related hazards. Subcontractor shall be solely responsible for the 

protection and safety of its employees, for final selection of additional 

safety methods and means, and for daily inspection of its work area and 

safety equipment. Failure on the part ofContractor to stop unsafe 

Subcontractor practices shall in no way relieve Subcontractor of its 

responsibility hereunder. Subcontractor shall conform to Contractor's sitespecific safety planes) and policies as directed by Contractor in writing or 

by Contractor's project supervisor. 

Clerk's Papers (CP) at 3227. 

One ofSharp-Line's vehicles used on the Flowery Road project was a 1978 

Chevrolet auger truck used to drill holes in the ground for sign posts. The truck was 

equipped with outriggers, which were extended to stabilize it while the auger was being 

used, and a hydraulic tamper that compacted soil around the sign posts. The auger and 

tamper were powered by a device that used the truck's transmission to transmit power 

from the engine. To engage the device, the truck's engine had to be running and the 

transmission had to be in neutral. 

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Millican v. N.A. Degerstrom, Inc. 


On the day Mr. Lafayette was killed, he and Sharp-Line's crew foreman, William 

Wright, were installing highway signs. Toward the end ofthe day, Mr. Wright parked 

the auger truck facing downhill and Mr. Lafayette and Mr. Wright began installing the 

last sign. Another subcontractor had set up traffic control with pilot cars because the 

auger truck encroached on the roadway. Mr. Wright put the truck in the parking gear, left 

the engine on, and engaged a supplemental brake device called a lever lock, which locks 

hydraulic fluid in the braking system. He did not, however, set the emergency brake or 

chock the tires. The men walked around behind the truck and Mr. Wright deployed the 

outriggers as he drilled a hole for the sign post. Mr. Wright then retracted the outriggers 

while the two men installed the sign post and began compacting soil around the post with 

the hydraulic tamper. 

As he worked, Mr. Wright saw Mr. Lafayette suddenly drop the tamper and begin 

running after the truck, which was rolling across the road. Mr. Lafayette managed to pull 

himself into the cab and steer the truck away from a line ofvehicles following a pilot car 

in the opposite lane. One of the drivers of the vehicles later testified that a collision 

seemed inevitable until Mr. Lafayette turned the wheels. Apparently the brakes had 

failed, because Mr. Lafayette was unable to slow or stop the truck. The truck continued 

to accelerate as Mr. Lafayette steered it down the hill where it unavoidably crashed, 

causing his death. 

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Dorothy Millican was appointed the personal representative of her son's estate 

and, on behalfofthe estate, sued Degerstrom, Mico Inc. (the manufacturer ofthe lever 

lock), and James and Jane Doe Bonner d/b/a Industrial Power Brake (who had done 

maintenance and repair ofthe auger truck) for damages for wrongful death. She asserted 

an individual cause of action as well, "as a statutory beneficiary defined in RCW 

4.20.020," a provision ofthe wrongful death statute. CP at 8. 

In suing Degerstrom, she alleged that it had a nondelegable duty as general 

contractor to ensure Sharp-Line's compliance with health and safety regulations and 

contractual safety duties, had allowed "illegal, unsafe, ultra-hazardous practices resulting 

in an unsafe work place," CP at 20, and had thereby proximately caused her son's death. 

Before trial, the court granted the defendants' joint motion for partial summary 

judgment dismissing Ms. Millican's individual wrongful death claim. It found no 

evidence creating a genuine issue of fact that she was dependent on her son for support 

qualifying her as a beneficiary under RCW 4.20.020. It denied the estate's motion in 

limine to exclude evidence or argument by Degerstrom that it did not exercise or retain 

supervisory control or authority over Sharp-Line during construction operations. At the 

conclusion of a three-week trial, the jury found none ofthe defendants liable. The trial 

court denied the estate's motion for a new trial against Degerstrom and Mr. Bonner. The 

estate and Ms. Millican appealed. 

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Millican v. NA. Degerstrom, Inc. 


ANALYSIS 

Ms. Millican, on behalf of the estate and individually, makes four assignments of 

error. In the published portion ofthis opinion, we address the estate's assignment of 

error to the trial court's refusal to exclude evidence that Degerstrom delegated sole 

responsibility for the safety ofSharp-Line's employees to Sharp-Line. 

In the unpublished portion, we address the estate's assignment of error to the trial 

court's denial of its motion for judgment as a matter of law, its refusal to instruct the jury 

that Degerstrom owed a duty to the public traveling through the construction site, and 

Ms. Millican's assignment of error to dismissal of her individual claim. 

Refusal to limit evidence and argument 

ofdelegated responsibility for safety. 

Early in the proceedings below, Degerstrom moved for summary judgment, 

arguing that Sharp-Line had assumed the contractual obligation to comply with all safety 

laws and plans. The trial court denied the motion on the basis of Degerstrom's 

nondelegable duty to ensure a safe work environment. In its motions in limine, the estate 

reminded the trial court ofDegerstrom's legal position, which it characterized as 

"factually inaccurate, legally misleading ... , and inconsistent with [the] court's prior 

denials of its motions for summary judgment." CP at 1549. It asked the court to exclude 

evidence or argument by Degerstrom that it did not exercise or retain supervisory control 

or authority over Sharp-Line during construction operations. 

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Millican v. N.A. Degerstrom, Inc. 


In orally ruling on the motion, the trial court observed that "the factual issues ... 

are all going to get in front ofthe jury" and that it viewed the parties' disagreement over 

Degerstrom's legal duty as an instructional matter. Report of Proceedings (RP) at 2. 

Critically, when the estate then sought to clarifY whether, in light of that reasoning, its 

motion to exclude evidence and argument about duty was granted, denied, or reserved for 

later rulings, the trial court responded that the motion was denied. RP at 6. The estate's 

motion in limine was sufficient to raise and preserve its objection. State v. McDaniel, 

155 Wn. App. 829, 853 n.l8, 230 P.3d 245 (2010) (because the purpose ofa motion in 

limine is to resolve legal issues outside the presence of the jury, a trial court's ruling 

denying a motion in limine is final and the moving party has a standing objection).} 

At trial, Degerstrom presented extensive evidence and argument on duty, 

informing the jury in opening statement, through evidence, and in closing argument that 

it is "typical," "reasonable," "industry standard," and most important, "appropriate" and 

"allowable under Washington law" for a general contractor like Degerstrom to delegate 

its responsibilities, and for subcontractors like Sharp-Line to agree, by contract, to 

} Degerstrom argues that the estate waived its objection by later questioning 

witnesses about the contract and its delegation provision. But once the evidence was 

permitted, it was not a waiver for the estate to try to tum the evidence to its advantage to 

any extent possible. 

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No.30185-1-III 


Millican v. N.A. Degerstrom, Inc. 


assume sole responsibility for the protection and safety ofits own employees. RP at 40­

54,845-47.2 

The general rule in Washington is that a principal is not liable for injuries caused 

by an independent contractor whose services are engaged by the principal. Stout v. 

Warren, 176 Wn.2d 263,269,290 P.3d 972 (2012); RESTATEMENT (SECOND) OF TORTS 

§ 409 (1965). Two categories of exceptions to this rule exist at common law, the first 

being exceptions that subject the principal to liability for its own negligence and the 

second being exceptions that subject the principal to liability for its contractor's tortious 

conduct even ifthe principal has itself exercised reasonable care. Compare 

RESTATEMENT (SECOND) §§ 410-415 (direct liability) with §§ 416-429 (vicarious 

liability). The latter category of exceptions giving rise to vicarious liability comprise 

duties said to be nondelegable, as explained by the Restatement: 

The rules ... do not rest upon any personal negligence ofthe 

employer. They are rules of vicarious liability, making the employer liable 

for the negligence ofthe independent contractor, irrespective ofwhether the 

employer has himself been at fault. They arise in situations in which, for 

reasons ofpolicy, the employer is not permitted to shift the responsibility 

for the proper conduct ofthe work to the contractor. The liability imposed 

is closely analogous to that of a master for the negligence of his servant. 

The statement commonly made in such cases is that the employer is 

under a duty which he is not free to delegate to the contractor. Such a 

"non-delegable duty" requires the person upon whom it is imposed to 

answer for it that care is exercised by anyone, even though he be an 

independent contractor, to whom the performance of the duty is entrusted. 

2 Relevant portions ofDeger strom's opening statement and closing argument are 

included in an appendix to this published portion ofthe opinion. 

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Millican v. NA. Degerstrom, Inc. 


RESTATEMENT (SECOND) ch. 15, topic 2 introductory note. Circumstances that give rise 

to a principal's nondelegable duty include precautions required by statute or regulation. 

Tauscher v. Puget Sound Power & Light Co., 96 Wn.2d 274,283,635 P.2d 426 (1981) 

(citing Kelley v. Howard S. Wright Constr. Co., 90 Wn.2d 323,582 P.2d 500 (1978»; 

RESTATEMENT (SECOND) § 424; Pettit v. Dwoskin, 116 Wn. App. 466, 472 n.l7, 68 P.3d 

1088 (2003) (observing that while § 424 has not been formally adopted in Washington, 

"[i]t has, however, been frequently discussed and relied upon,,). 3 

Even where an exception to the general rule of nonliability applies, a principal 

ordinarily owes its duty to only third parties other than the employees of its independent 

contractors. Stout, 176 Wn.2d at 276 (quoting Epperly v. City ofSeattle, 65 Wn.2d 777, 

783,399 P.2d 591 (1965) for its recognition of "'the distinction between the level of duty 

to members of the public and the duty ofthe owner to one engaged to work upon the 

project as the employee of an independent contractor' "); Tauscher, 96 Wn.2d at 281. 

The policy considerations that are said to support excluding an independent contractor's 

employees from the protected class are found in the workers' compensation systems in 

place in most states. The reasoning is that by making contract payments to an 

3 RESTATEMENT (SECOND) § 424 provides: 

"One who by statute or by administrative regulation is under a duty to provide 

specified safeguards or precautions for the safety of others is subject to liability to the 

others for whose protection the duty is imposed for harm caused by the failure of a 

contractor employed by him to provide such safeguards or precautions." 

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No.30185-1-III 


Millican v. NA. Degerstrom, Inc . 


. independent contractor that presumably include workers' compensation premiums as 

overhead, the principal has already assumed some financial responsibility for the safety 

of its employees. Id. at 281-82; Stout, 176 Wn.2d at 276-77. 

The prevailing common law on these matters notwithstanding, Washington has 

long refused to exclude a subcontractor's employees from a general contractor's duty of 

care on either a "no duty" or "no duty to independent contractor employees" rationale. It 

has instead found nondelegable duties on the part ofthe general contractor, meaning that 

the general contractor is "[held] liable ... although he has himself done everything that 

could reasonably be required of him." W. PAGE KEETON ET AL., PROSSER AND KEETON 

ON THE LAW OF TORTS 511 (5th ed.1984)). Prosser observes that it is difficult to suggest 

the criterion by which the nondelegable character of a duty may be determined, "other 

than the conclusion ofthe courts that the responsibility is so important to the community 

that the employer [here, the general contractor] should not be permitted to transfer it to 

another." Id. at 512. 

Before the enactment and effectiveness ofthe Washington Industrial Safety and 

Health Act of 1973 (WISHA), chapter 49.17 RCW, our Supreme Court held that a 

general contractor had a duty to provide adequate safety precautions for its 

subcontractors' employees under exceptions from the general rule of liability based in 

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No.30185-1-III 

Millican v. NA. Degerstrom, Inc. 

common law, statute, and contractual assumption of duty. Kelley, 90 Wn.2d at 330.4 The 

common law basis ofthe duty cited by Kelley is the duty, within the scope ofa 

principal's retained control, to provide a safe place ofwork. The test of control is not 

actual interference with the work ofthe subcontractor, but the right to exercise such 

control. Id. at 330-31 (citing, among other authority, Restatement (Second) § 414). The 

statutory basis ofthe duty cited in Kelley was former RCW 49.16.030 (1919), which 

imposed a duty on all employers to furnish a reasonably safe place ofwork, with 

reasonable safety devices, and to comply with state safety regulations. Id. at 333. Kelley 

held that the statute created a "nondelegable duty" on the part ofthe general contractor. 

Id. 

With WISHA, the legislature revised the statutory duty, providing that "[ e ]ach 

employer ... shall comply with the rules, regulations, and orders promulgated under 

[chapter 49.17 RCW]." RCW 49.17.060(2). This specific duty to comply with WISHA 

regulations is owed to all ofthe employees at work on the job site as members ofthe 

protected class. Goucher v. J.R. Simp/ot Co., 104 Wn.2d 662,673, 709 P.2d 774 (1985). 

In Stute v. P.E.MC, Inc., 114 Wn.2d 454,463-64, 788 P.2d 545 (1990), the Supreme 

Court noted that WISHA's predecessor statute created a nondelegable duty on general 

contractors to provide a safe place to work for employees ofsubcontractors and that 

4 The accident and injury in Kelley took place in December 1972, prior to 

WISHA's effective date ofJune 7, 1973. LAWS OF 1973, at ii; 90 Wn.2d at 326. 

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Millican v. NA. Degerstrom, Inc. 


"[t]he policy reasons behind the court's holdings have not changed and give added force 

to the language of WISHA." It characterized the general contractor's responsibility, 

being concurrent with that of its subcontractors but primary, as a duty to "ensure 

compliance with WISHA and its regulations." Id. at 463. 

In Washington, then, a general contractor not only has direct liability for a breach 

of its common law duties arising from retained control, but when it comes to violations of 

WISHA, vicarious liability for breach of a duty that is nondelegable. A violation of 

WISHA by a subcontractor's employee is therefore not only chargeable to the 

subcontractor, it is also chargeable to a general contractor-"the primary employer," 

whose supervisory authority "places the general in the best position to ensure compliance 

with safety regulations." Id. 

The specific duty clause of RCW 49.17.060 is not the only statute reflecting the 

legislature's intent that a general contractor's duty for WISHA compliance runs to its 

subcontractors' employees. The legislature has also authorized contractual risk-sharing 

of damages and defense costs by general contractors who face such workplace injury 

claims. RCW 4.24.115 declares certain indemnification agreements to be valid and 

enforceable including, in the construction context, an agreement by a subcontractor to 

indemnify a general contractor against liability for damages caused by the negligence of 

the subcontractor or its agents or employees. Gilbert H Moen Co. v. Island Steel 

Erectors, Inc., 128 Wn.2d 745,759-60,912 P.2d 472 (1996). The subcontractor is only 

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Millican v. N.A. Degerstrom, Inc. 


permitted to indemnify the general contractor to the extent of the subcontractor's 

negligence. The statute thereby implicitly recognizes that a general contractor may be 

concurrently liable for its subcontractor's act or omission. And the statute anticipates 

claims against a general contractor for workplace injury to a subcontractor's employee: it 

provides that an indemnitor may waive its immunity under industrial insurance, 

something that would be unnecessary except in the case of a claim by an indemnitor's 

employee. RCW 4.24.115(1)(b). 

Given this statutory authorization of indemnification agreements, the 

Degerstrom/Sharp-Line contract may well have been "typical" and "industry standard," 

as Degerstrom drove home during the trial, but not with the legal effect that Degerstrom 

then suggested to the jury. Indemnification provisions enable the general contractor, if 

liable to the employee, to recover its defense costs and judgment liability from the 

culpable subcontractor. They do not enable the general contractor to disavow its primary 

responsibility for WISHA compliance. See Moen, 128 Wn.2d at 753 (enforcing 

indemnification "allows contractors to allocate 'responsibility to purchase insurance' 

according to their negotiated allocation of risk and potential liabilities," and set their fees 

'" founded on their expected liability exposure as bargained and provided for in the 

contract''' (quoting McDowell v. Austin Co., 105 Wn.2d 48,54, 710 P.2d 192 (1985); 

BerschauerlPhillips Constr. Co. v. Seattle Sch. Dist. No.1, 124 Wn.2d 816, 826-27, 881 

P.2d 986 (1994))). 

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Millican v. NA. Degerstrom, Inc. 


The facts ofMoen illustrate the proper role and relevance of delegation and 

indemnification agreements. The plaintiff in that case was an ironworker, severely 

injured when he fell from a beam. The Department ofLabor and Industries attributed the 

accident to a lack of safety equipment. It cited the plaintiffs employer, Island Steel 

Erectors, which it concluded was responsible for providing fall protection equipment. 

Given Island's immunity from suit for the workplace injury, the plaintiff sued the general 

contractor-Moen-and others. 

Moen had entered into an agreement with Island that required Island to comply 

with laws, regulations, and the provisions ofMoen's contract with the owner, including 

to comply with safety regulations. The Moen/Island agreement also included an 

indemnification. addendum under which Island agreed to indemnify Moen for damages 

resulting from any concurrent negligence of Moen and Island resulting from the 

negligence ofIsland and its employees. 

Moen did not rely on its agreement with Island to argue (as Degerstrom does) that 

it fulfilled its duty for WISHA compliance by delegating responsibility to Island. 

Instead, it settled with the plaintiff and sued Island for indemnification. The court held 

that the indemnification contract was valid and enforceable to the extent ofMoen's and 

Island's concurrent liability for the negligence of Island. In remanding, it pointed out that 

what remained to be determined were (1) whether Moen and Island were concurrently 

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No.30185-1-III 


Millican v. NA. Degerstrom, Inc. 


negligent and (2) the extent ofIsland's negligence for which Moen had been required to 

pay, but as to which it was entitled to be indemnified by Island. 

Sharp-Line's agreement to assume sole responsibility and indemnifY Degerstrom 

has no more and no less significance here. If it complies with statute, then as between 

Sharp-Line and Degerstrom the agreement is controlling. As between Mr. Lafayette and 

Degerstrom, for any WISHA violation established by the evidence, it is irrelevant. 

Degerstrom nonetheless argues that our decision should turn on the statement in 

the penultimate paragraph ofStute that "[i]t is the general contractor's responsibility to 

furnish safety equipment or to contractually require subcontractors to furnish adequate 

safety equipment relevant to their responsibilities." 114 Wn.2d at 464 (emphasis added). 

From this, it argues that the general contractor's duty for WISHA compliance 

characterized as nondelegable elsewhere in Stute can, in fact, be delegated. In 

proceedings below, the trial court found the quoted statement from Stute to be 

contradictory.5 The same statement was the basis for the conclusion ofthe majority in 

Degroot that a subcontractor's contractual undertaking for safety "appears designed to 

5 The trial court commented, "[I]fyou say there is a non-delegable, well, Stute 

says you can enter into a contract with your subcontractor to deal with the safety issues. 

Then we have the case law that says it is non-delegable. And I understand what Judge 

Sweeney is talking about [in Degroot v. Berkley Constr., Inc., 83 Wn. App. 125, 133,920 

P.2d 619 (1996) (Sweeney, C.J., concurring)], because it seems like there is a 

contradiction here." RP at 2. 

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Millican v. NA. Degerstrom, Inc. 


meet the duty of care outlined in Stute." Degroot v. Berkley Constr., Inc., 83 Wn. App. 

125, 129,920 P.2d 619 (1996). 

The statement from Stute relied upon by Degerstrom cannot reasonably be read to 

negate Stute's otherwise clear holding that the general contractor's "primary" 

"nondelegable" duty is to "ensure compliance" with WISHA, however. Read in the 

context ofthe entire opinion, the statement conveys only that a general contractor's 

efforts to ensure compliance with WISHA may include, and in many cases will 

necessarily include, requiring subcontractors to comply with WISHA. "The label 

'nondelegable duty' does not mean that an actor is not permitted to delegate the activity 

to an independent contractor. Rather, the term signals that the actor will be vicariously 

liable for the contractor's tortious conduct in the course of carrying out the activity." 

RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM § 57 

cmt. b (2012). Stated differently, "a 'non-delegable duty' requires the person upon whom 

it is imposed to answer for it that care is exercised by anyone, even though he be an 

independent contractor, to whom the performance ofthe duty is entrusted." 

RESTATEMENT (SECOND) ch. 15, topic 2 introductory note. Here, the quotation from 

Stute supports the fact that Degerstrom could enter into its agreement with Sharp-Line 

and rely on Sharp-Line's compliance with WISHA regulations as satisfYing its own 

duty-not that it could discharge its primary responsibility for WISHA compliance by the 

mere act of entering into the agreement. 

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No. 30185-1-111 


Millican v. NA. Degerstrom, Inc. 


We review a trial court's evidentiary rulings for an abuse of discretion. A trial 

court abuses its discretion if its evidentiary ruling is manifestly unreasonable or is 

exercised on untenable grounds or for untenable reasons. Here, the trial court recognized 

that Degerstrom had previously advanced a legal position as to the duty of a general 

contractor that was questionable and it recognized that legal duty should be a matter of 

instruction. It nonetheless denied the motion in limine. The evidence on duty that 

Degerstrom chose to offer after the motion was denied did not tend to "make the 

existence of any fact that is of consequence to the determination ofthe action more 

probable or less probable than it would be without the evidence." ER 401 (emphasis 

added). More importantly, Degerstrom's evidence and argument that the contract 

effectively shifted the duty it owed Mr. Lafayette from it, to Sharp-Line, was legally 

wrong and likely misled and confused the jury. See Degroot, 83 Wn. App. at 133 

(Sweeney, C.J., concurring). The mischaracterization pervaded Degerstrom's 

presentation and could not be cured by the concluding instructions to the jury. 

The denial of the motion in limine was therefore an abuse of discretion and 

requires reversal of the judgment and remand for a new trial of the estate's claims. 

For this reason and the reasons set forth in the unpublished portion ofthis opinion, 

we affirm the trial court's dismissal ofMs. Millican's individual claim, reverse the 

dismissal ofthe estate's claim, and remand for a new trial consistent with this opinion. 

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APPENDIX 

Degerstrom's opening statement included the following preview of the evidence it 

would thereafter present: 

Now, NA Degerstrom's specialty is earth work. They don't carry 

specialties in other things like ... signage and striping on the road. So 

what did they do? They hired specialty subcontractors who have the 

equipment and the knowledge to do this installation .... 

There's also gonna be a lot of discussion in this case about NA 

Degerstrom's contract with Sharp-Line. And as I talked to you earlier, 

there were several subcontractors on this job, and these subcontractors were 

was [sic] known as specialty subcontractors. They did work that Sharpexcuse me, that NA Degerstrom did not qave the expertise to perform. So 

what they do, typically any sort ofjob like, this you subcontract it out to 

those people that are experts in their field .... 

Part of their subcontract agreement, Sharp-Line agreed to comply 

with all laws and regulations that are applicable to their work with regard to 

what was being performed at the Flowery Trail Road project. And then I'm 

gonna show you several safety provisions. 

RP at 40-46. Degerstrom's lawyer then made a brief reference to jury instructions that 

would be given at the end of the case addressing what was allowable under Washington 

law with regard to delegating duties and regard to safety on the work site. She continued: 

[W]hat I'm going to be providing you today are the several contract 

provisions that discuss safety between Sharp-Line and NA Degerstrom. 

And I will again, like Mr. Stocker says, I will be showing you that all these 

provisions are appropriate and allowable under Washington law, and that 

safety is allowed to be with regard to a specialty subcontractor, NA 

Degerstrom could delegate those responsibilities. 

And the reason that you're able-the reason it makes sense as far as 

delegating these responsibilities, again NA Degerstrom is not all knowing 

and not knowledgeable about everything that's done on this project. It's 

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No. 30185-1-111 


Millican v. NA. Degerstrom, Inc. 


appropriate, it's standard in the industry that you hire specialty 

subcontractors who have expertise in their field. So they have expertise 

with regard to preventing accidents regarding their work, and that's what 

the contract requested. 

They also have-we requested that Sharp-Line be solely responsible 

for providing protection and safety ofits employees, again because it 

knows what the hazards are with regard to its job. They had the 

responsibility for final selection ofthe safety methods and means. That 

means how to--how that safety would be conducted on the project. And 

then finally they had the responsibility for doing daily inspections on their 

own work area and safety equipment because Degerstrom doesn't know 

what their equipment is, how it's specialized. There's been plenty of 

testimony today about this auger truck and how it was a very specialized 

piece of equipment. But NA Degerstrom certainly doesn't know, have the 

expertise to run, or would even be responsible ifthey ran it. 

Another safety provision talked about the site specific safety plans 

the accident prevention plan that NA Degerstrom had, in fact, for that 

project, and how Sharp-Line had to comply with those safety requirements. 

And finally Sharp-Line agreed that they would have a written safety plan 

for this project, an accident prevention plan, and any other documents with' 

regard to safety that were required for this project. 

You're gonna be hearing testimony from a gentleman by the name of 

Mike Craig. Now, Mike Craig is the president of Sharp-Line, and he's 

been the president of Sharp-Line since its inception in 1987. Mr. Craig will 

be testifYing that he signed this contract, and that he understood these 

contract provisions, and that he understood that Sharp-Line was required to 

furnish their own safety equipment and perform their work under this 

contract, and that type ofsafety equipment also included chocks. You'll 

also be provided testimony that the provisions with regard to safety that 

were in the [Degerstrom] contract with Sharp-Line, they are typical and 

they are standard in the industry because, again, ifyou're a specialty 

subcontractor, you're the one who's gonna know your equipment and know 

how to safely operate it. 

RP at 46-48. Later in opening statement, Degerstrom's lawyer told the jury: 

You'll hear how Coit Wright was the employee responsible for the 

truck that day for Sharp-Line .... You'll hear how Mr. Wright was a 

laborer, that he did not have training on this equipment, that he was not the 

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Millican v. NA. Degerstrom, Inc. 


employee responsible in the operation of this truck. You'll hear how Mr. 

Wright made several poor choices that were in contradiction to the training 

that he received from Sharp-Line, and that at the end of this workday that 

caused that truck to start rolling. 

So what did Mr. Wright fail to do? Mr. Wright provided a statement 

to the Department of Labor & Industries, and then he also was interviewed 

by the Department ofLabor & Industries. That information he provided to 

the Department of Labor & Industries, you'll hear testimony about. You'll 

hear testimony that Mr. Wright failed to set the truck's parking brake. 

You'll hear testimony that Mr. Wright failed to tum those wheels into the 

downward slope or the shoulder ofthe road. You'll hear how Mr. Wright 

deployed the outriggers, but then for whatever reason brought them back in. 

You'll also hear that, although it was not required because the truck 

was attended-both Mr. Wright and Mr. Lafayette were there and the 

engine was running-that Coit Wright could have used readily available 

chocks. 

RP at 52-53. 

In closing and summarizing the evidence that it had presented, Degerstrom's 

lawyer argued: 

Now, general contractors, as you know, owe a duty to provide all workers a 

safe worksite and to ensure safety regulations are complied with. Now 

Degerstrom, in no way, disputes this .... 

. . . [O]ne of the ways that Degerstrom and all general contractors 

ensure a safe worksite is they have their subcontractors-they have their 

subcontractors, under contract, furnish the safety equipment. And why is 

that? There's been a lot of discussion. Because subcontractors are the 

experts in their field, not Degerstrom. They're the ones who know what the 

hazards are. They're using their equipment, they know what is hazardous 

and how to protect their employees. Degerstrom's duty is analogous to a 

forest. Think of the project as being a forest and think of the subcontractors 

being the trees in that forest. And the subcontractors being responsible for 

the leaves on those trees, their equipment, their workers, all the things in 

order to do their job safely as it's contractually required that they do. Now, 

a general contractor is not able to see all those trees in the forest at one 

20 

No. 30185-1-111 

Millican v. N.A. Degerstrom, Inc. 

time. Nor can it see any of the leaves at any given moment. But it's the 

subcontractors that have agreed to take care ofthose leaves. 

Recall the testimony ofMark Lawless, that was plaintiff's site safety 

expert. Both he and Mr. Stranne stated it's not reasonable, or industry 

standard, to expect a general contractor to follow each subcontractor each 

and every moment to ensure that subcontractors are performing this [sic] 

jobs safely and correctly. Therefore general contractors are allowed, under 

the law, to contractually require their subcontractors furnish safety 

equipment related to their work. 

Ladies and gentlemen ofthe jury, I'm gonna ask that you look at 

Exhibit DI03 and that safety provision that's cited in that contract. And 1 

want you to look, instead of at the second paragraph, look at that first 

paragraph on that page, because that talks about the safety requirements and 

that Sharp-Line was solely responsible for the protection and safety of its 

employees, for the final selection of additional safety means and methods, 

and for daily inspection of its work area and safety equipment. It 

specifically says safety equipment. And as you know from the testimony of 

Mr. Craig, they agreed to be solely responsible for these items. And all 

witnesses in this case, from Mr. Craig to Mr. Stranne to Mr. Lawless, all 

testified this is a typical provision in a subcontract agreement. 

RP at 845-47. 

The remainder ofthis opinion has no precedential value. Therefore, it will be filed 

for public record in accordance with the rules governing unpublished opinions. RCW 

2.06.040. 

Denial ofthe estate's motion for judgment 

on liability as a matter oflaw. 

The estate seeks more on appeal than reversal and remand; it asks that we find that 

the trial court should have granted its posttrial motion for a new trial. The new trial it 

sought, though, would be limited to damages-the estate wanted the court to instruct the 

jury that Degerstrom was negligent and its negligence was a proximate cause ofMr. 

21 

No. 30185-1-111 

Millican v. NA. Degerstrom, Inc. 

Lafayette's death. On appeal, it characterizes its posttrial motion as implicitly one for 

judgment as a matter oflaw on the issue ofliability. It argues that the court erred in 

denying it. 

The estate did not move for judgment as a matter of law at the close of the 

evidence as contemplated by CR 50(b). In authorizing postverdict motions for judgment 

as a matter oflaw, CR 50(b) speaks only of renewing an equivalent motion made under 

CR 50(a) before the case was submitted to the jury. The estate argues that it was excused 

from moving for the relief at the close ofthe evidence, however, because the motion 

would have been futile in light ofthe trial court's denial of its motion in limine. It cites 

Kaplan v. N W Mut. Life Ins. Co., 115 Wn. App. 791, 804 n.6, 65 P.3d 16 (2003) in 

support. 

Degerstrom's response makes a one-sentence mention of the estate's alleged 

waiver of its right to move for judgment as a matter oflaw. Br. of Resp't at 6. But it 

does not dispute the estate's argument that its posttrial motion was implicitly a CR 50(b) 

motion or provide any authority or argument in opposition to the estate's claimed excuse 

of futility. Absent any authority or argument in opposition, we assume without deciding 

that the estate's posttrial motion was, in part, a motion for judgment as a matter of law 

and that its failure to move for such relief at the close ofthe evidence is excused. See 

RAP 10.3(a)(6) and (b) (a respondent's brief, like the appellant's, must include argument 

on the issues presented for decision along with citations to legal authority). 

22 
No.30185-1-III 


Millican v. N.A. Degerstrom, Inc. 


Citing Pudmaroffv. Allen, 138 Wn.2d 55, 68, 977 P.2d 574 (1999), the estate 

contends that while violation of a controlling statute or regulation is not negligence per 

se, evidence of such a violation can be conclusive if the violator fails to present any 

evidence of excuse or justification. It argues that it presented evidence of WISHA 

violations for which Degerstrom presented no excuse or justification. It focuses on 

regulations imposing a requirement to chock a vehicle's tires in certain situations 

because, it argues, "there is no dispute that the auger truck would never have rolled away 

had the wheels been chocked." Br. ofAppellant at 31. If a requirement for chocking was 

breached it argues that the "breach was, as a matter of law, a proximate cause of [Mr.] 

Lafayette's death." Id. 

The principal WISHA regulation that Degerstrom alleges was not enforced is 

WAC 296-1 55-6 1 O(2)(b) (entitled "Motor Vehicles on Construction Sites"), which 

provides: 

(b) Before leaving a motor vehicle unattended: 

(i) The motor must be stopped. 

(ii) The parking brake must be engaged and the wheels turned into 

curb or berm when parked on an incline. 

(iii) Ifparking on an incline and there is no curb or berm, the wheels 

must be chocked or otherwise secured. 

Citing evidence that Degerstrom did not require Sharp-Line to use chocks and did not 

inspect Sharp-Line's vehicles for chock usage, the estate contends that Degerstrom 

undisputedly violated this WISHA regulation. 

23 

No. 30185-1-111 


Millican v. NA. Degerstrom, Inc. 


Degerstrom's position at trial and on appeal is that the auger truck in which Mr. 

Lafayette died was not "unattended" and therefore the regulation did not apply. 

Degerstrom's first argument that the truck was not unattended before beginning to 

roll down the incline is a logicalry fallacious one: Degerstrom argues that "[t]he 

Washington Administrative Code requires a vehicle's motor to be stopped in order for it 

to be considered 'unattended.'" Br. ofResp't at 38 (footnote omitted). It infers this 

proposition from the regulatory language, "Before leaving a motor vehicle unattended: (i) 

The motor must be stopped." Its construction misconstrues this language as saying 

something about what makes a motor vehicle "unattended," when it is instead saying 

something about what operators are required to do when they leave a, motor vehicle 

unattended. Were Degerstrom's construction correct, then the WAC would also require a 

vehicle's parking brake to be engaged for it to be considered "unattended." For that 

matter, the wheels would have to be turned into a curb or berm when parked on an incline 

for it to be considered "unattended." And a motor vehicle left remotely overnight, with 

no operator anywhere in the vicinity, would be considered "attended," rather than 

"unattended," as long as its motor was running, the parking brake was engaged, or its 

wheels were turned into a curb or berm and it was parked on an incline. Clearly the 

regulation is not describing what makes a vehicle "unattended" but only the safety 

measures that must be taken when it is left unattended. 

24 
No.30185-1-III 


Millican v. NA. Degerstrom, Inc. 


Elsewhere, Degerstrom's position that a vehicle's motor must be stopped in order 

for it to be considered "unattended" appears to be based on the fact that the auger and 

tamper used by Mr. Lafayette and his supervisor were operated using a power take-off 

(PTO) from the truck's transmission~requiring that the motor be running. Degerstrom 

considers it obvious that "unattended" cannot include times when the operator of a truck 

has stepped outside of its cab to operate a PTO-powered piece of equipment. But 

WISHA regulations are construed liberally to achieve their purpose of providing safe 

working conditions. Pate/co, Inc. v. Dep'tofLabor & Indus., 166 Wn. App. 647, 653, 

272 P.3d 262 (2012). It is not obvious that the Department ofLabor and Industries would 

be unconcerned that the motor was running, the cab was unattended, and the only 

potential operators in the vicinity ofthis truck (pointed downhill), were engaged in other 

work that could distract their attention or prevent them from reaching the cab in the event 

of some hazard. The department might well require that a vehicle in this situation be 

attended by an employee in the cab or one who was not engaged in operating PTO 

equipment. What we do know from the record (although the evidence appears not to 

have been admitted at trial) was that the department did cite Sharp-Line for a violation of 

WAC 296-155-610(2)(b). 

The meaning of "unattended" that Degerstrom urges is unambiguous (parked, with 

the motor stopped, and the operators no longer in the vicinity) is contrary to any meaning 

25 

No. 30185-1-111 


Millican v. NA. Degerstrom, Inc. 


attached to the term under OSHA. 6 In interpreting our WISHA regulations in the absence 

ofstate decisions, we may look to OSHA regulations and consistent federal decisions. 

Wash. Cedar & Supply Co. v. Dep't ofLabor & Indus., 137 Wn. App. 592,604, 154 P.3d 

287 (2007) (citing Adkins v. Aluminum Co. ofAm., 110 Wn.2d 128, 147, 750 P.2d 1257, 

756 P.2d 142 (1988)). OSHA's construction of "unattended" has not been uniform, 

varies depending upon the context, and recognizes that a vehicle that is left running may 

be considered "unattended." See, e.g., 29 C.F.R. 1910.178(m)(5); Letter from Russell B. 

Swanson, Director, Directorate ofConstruction, to Peter Kuchinsky II, Safety 

Trainer/Consultant, Construction Building Analysts (May 11, 2005), available at 

http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIO 

NS&p_id=25067; Letter from Russell B. Swanson, Director, Directorate ofConstruction, 

to Paul Hayes, Safety Manager, Skanska (Jan. 14,2004), available at 

http://www.osha.gov/pls/oshaweb/owadisp.show_ document?p _table=INTERPRET ATIO 

NS&pjd=24723 (stating that "when [a construction vehicle is] left unattended and 

running, the parking brake must be set, and ifthe vehicle is on an incline, in addition to 

setting the brake, the wheels must be chocked" (emphasis added)).7 

6 Occupational Safety and Health Act of 1970,29 U.S.C. §§ 651-678. 

7 Although only briefly reviewed, OSHA regulations include a definition and 

requirements for industrial trucks used in general industry (not construction): 

(ii) A powered industrial truck is unattended when the operator is 25 

ft. or more away from the vehicle which remains in his view, or whenever 

26 

No. 30185-1-111 


Millican v. N.A. Degerstrom, Inc. 


The estate argues for the first time in its reply briefthat "[w]hether a safety 

regulati~n applies on a particular job site is a question of law for the court." Reply Br. at 

20 (citing Manson v. Foutch-Miller, 38 Wn. App. 898,902,691 P.2d 236 (1984)); see 

also Ball v. Smith, 87 Wn.2d 717, 722-25, 556 P.2d 936 (1976) (it is the province ofthe 

trial court, not an expert witness, to interpret a statute or ordinance and determine 

whether it applies to a party). Its argument that the trial court should have determined 

whether WAC 296-155-61O(2)(b) applied, or at least instructed the jury on a meaning for 

"unattended," appears worthy of briefing and consideration in the retrial. We will not 

consider it in this appeal, however, for two reasons: it was not raised in the trial court and 

the operator leaves the vehicle and it is not in his view. 

(iii) When the operator of an industrial truck is dismounted and 

within 25 ft. ofthe truck still in his view, the load engaging means shall be 

fully lowered, controls neutralized, and the brakes set to prevent movement. 

29 C.F.R. 1910.l78(m)(5). In a May 11,2005 interpretation letter addressed to Peter 

Kuchinsky II, OSHA referred to this industrial truck regulation in addressing a question 

about construction equipment, stating: 

Although these provisions do not apply to construction or earthmoving equipment, they address some ofthe same type of hazards. After 

considering the approach that was taken in § 191 0.178(m)(5) and the 

hazards associated with construction equipment, we have determined that, 

for construction equipment such as bobcats, backhoes, and trenchers, 

leaving the motor running with the operator away from the controls will be 

considered a de minimis violation of §1926.600(a)(3) where all ofthe 

following are met: the attachment is lowered, the controls are in the neutral 

position, the brakes are set, all manufacturer provided and recommended 

safety measures are utilized, and the operator is within 25 feet (and still in· 

view) ofthe equipment. 

Letter to Paul Kuchinsky II, supra (footnote omitted). 

27 

No. 30185-1·111 


Millican v. NA. Degerstrom, Inc. 


was raised for the first time in the estate's reply brief. RAP 2.5(a) (appellate courts need 

not entertain issues not raised in the trial court); Cowiche Canyon Conservancy v. Bosley, 

118 Wn.2d 801, 809, 828 P .2d 549 (1992) (issue raised for the first time in a reply brief is 

too late to warrant consideration). 

In the trial court, the estate was content to have the jury decide whether the 

regulation applied. While we reject the two principal arguments Degerstrom offers on 

appeal as to why its construction of the regulation is correct, the fact remains that the 

estate allowed the meaning and application of the regulation to be decided by the jury. 

Both parties' witnesses offered their views as to whether the auger truck was 

"unattended" when the auger was being operated; the estate's witnesses said that it was 

unattended and Degerstrom' s witnesses testified that it was attended, not unattended. As 

the case was tried, and viewed in the light most favorable to Degerstrom, the evidence 

could support a jury determination that the auger truck was not unattended at the time it 

began rolling down the incline. Cj Wieder v. Towmotor Corp., 568 F. Supp. 1058, 1063 

(E.D. Pa. 1983) (experts' conflicting opinions as to whether forklift was left "unattended" 

when driver dismounted were submitted to the jury for its determination), aff'd, 734 F.2d 

9 (3d Cir. 1984). 

While placing principal reliance on WAC 296-155-61 0(2)(b), the estate points to 

evidence it presented of other alleged violations of WISHA regulations by Degerstrom as 

well. But that evidence was similarly disputed by Degerstrom's employees and experts at 

28 

No. 30185-I-III 


Millican v. N.A. Degerstrom, Inc. 


trial. And with respect to some of the WISHA regulations the estate argued were violated 

by Degerstrom, the estate did not conclusively demonstrate that any violation was a 

proximate cause of Mr. Lafayette's death. 

The trial court did not err in denying the estate's motion for judgment as a matter 

of law on liability and a new trial limited to the issue of damages. 

Refusal to instruct on a duty owed to the public. 

The estate next appeals the trial court's refusal to instruct the jury that the general 

contractor on a highway construction project has a duty to exercise ordinary care to 

protect the traveling public from dangerous conditions that may arise within a 

construction zone. It claims to have relied on an alternative theory of liability that 

Degerstrom's negligent omissions created a peril to the motorists on Flowery Trail Road 

who were in the path of the auger truck as it rolled downhill. Its breach of that duty owed 

the public created liability to anyone injured in a reasonable attempt to rescue the 

imperiled motorists-in this case, the rescuer happened to be the employee of a 

subcontractor. See McCoy v. Am. Suzuki Motor Corp., 136 Wn.2d 350, 355, 961 P.2d 

952 (1998) (rescue doctrines allows an injured rescuer to sue the party that caused the 

8 A plaintiff relying on the rescue doctrine must prove that (1) the defendant was 

negligent to the person rescued and that negligence created an appearance that the person 

rescued was in peril, (2) the peril or appearance of peril was imminent, (3) a reasonably 

prudent person would have concluded that the peril existed, and (4) the rescuer acted with 

reasonable care. McCoy, 136 Wn.2d at 355-56. 

29 

No. 30185-1-111 

Millican v. N.A. Degerstrom, Inc. 

danger that required the rescue). It contends that the court's refusal to give the requested 

instruction prevented it from arguing this separate theory of negligence. 

Jury instructions must allow the parties to argue their theories of the case, must not 

mislead the jury, and must as a whole inform the jury of the applicable law. Thompson v. 

King Feed & Nutrition Serv., Inc., 153 Wn.2d 447,453, 105 P.3d 378 (2005). "Failure to 

permit instructions on a party's theory of the case, where there is evidence supporting the 

theory, is reversible error." Barrett v. Lucky Seven Saloon, Inc., 152 Wn.2d 259, 266-67, 

96 P.3d 386 (2004). "As with a trial court's instruction misstating the applicable law, a 

court's omission of a proposed statement of the governing law will be 'reversible error 

where it prejudices a party.'" Id. at 267 (quoting Hue v. Farmboy Spray Co., 127 Wn.2d 

67,92,896 P.2d 682 (1995)). On appeal, errors oflaw injury instructions are reviewed 

de novo. Hue, 127 Wn.2d at 92. 

The estate's proposed instruction was not a Washington pattern jury instruction; 

the authority it cited in proposing the instruction was Smith v. Acme Paving Co., 16 Wn. 

App. 389, 558 P.2d 811 (1976) and Cummins v. Rachner, 257 N.W.2d 808 (Minn. 1977). 

On appeal, it cites Argus v. Peter Kiewit Sons' Co., 49 Wn.2d 853, 307 P.2d 261 (1957) 

as additional authority. Degerstrom argues that all three cases involved distinguishable 

facts: a contractor engaged in road construction who created a hazard in or on the 

physical roadway being constructed. We agree; the duty of the contractor in each case 

was identified as being to maintain the streets in a reasonably safe condition and to guard 

30 

No.30185-1-III 


Millican v. N.A. Degerstrom, Inc. 


drivers from reasonably anticipated hazards. Argus, 49 Wn.2d at 856; Smith, 16 Wn. 

App. at 393; Cummins, 257 N.W.2d at 813. As stated in Smith, 16 Wn. App. at 393-94, 

this duty "is particularly applicable where the conditions complained of arise out of the 

actual construction, repair, and maintenance of the roadway." Degerstrom is not accused 

of creating a hazard, but of failing to safeguard against it. 

Nonetheless, other evidence presented at trial supported a broader duty owed by 

Degerstrom to the public. Degerstrom's agreement in its accident prevention program to 

reasonably ensure that parked, unattended vehicles were chocked on inclines apparently 

was intended to protect the public as well as employees from hazardous runaway 

vehicles. The reference in WISHA regulations to vehicles parked at night, after work 

hours, proves this intent. WAC 296-1 55-605(1)(a). Degerstrom also agreed to safeguard 

the public from its operations and to provide adequate warnings of hazards for workers 

and the public. 

This scope of Deger strom's duty was reflected in other instructions given by the 

trial court, however, from which the estate could argue that Degerstrom breached a duty 

of care to the public by failing to require Sharp-Line to use chocks on the auger trucks. 

The trial court's instructions informed the jury that negligence includes "the failure to do 

some act that a reasonably careful person would have done under the same or similar 

circumstances," CP at 3179, and that a violation of a WISHA regulation is evidence of 

negligence. The estate elicited testimony from several witnesses that it would have been 

31 

No. 30185-1-111 

Millican v. N.A. Degerstrom, Inc. 

safer to use chocks under the circumstances ofthe accident, and argued that the failure to 

use chocks was both unreasonable and a violation of WISHA safety regulations, creating 

an imminent threat to the pUblic. 

The instructions given enabled the estate to argue a negligent breach of duty to the 

public. The trial court's refusal to give a more specific instruction was therefore not 

reversible error. 

Dismissal ofMs. Millican's individual claim. 

Ms. Millican sued not only as the personal representative of Mr. Lafayette's estate 

but also individually, as a statutory beneficiary. RCW 4.20.020 identifies a first and 

second tier of beneficiaries who may recover damages for wrongful death. Armantrout v. 

Carlson, 166 Wn.2d 931, 935, 214 P.3d 914 (2009). The first tier includes a decedent's 

wife, husband, or registered domestic partner, and any children or stepchildren. Ifthere 

are no first tier beneficiaries, as in the case of 19-year-old Mr. Lafayette, a wrongful 

death suit may be maintained for the benefit ofsecond tier beneficiaries, including 

parents or siblings "who may be dependent upon the deceased person for support." RCW 

4.20.020; Armantrout, 166 Wn.2d at 935. 

The statute does not define "dependent" or "support." It has long been construed 

to require that second tier beneficiaries prove '''substantial dependency'" and a 

recognition by the child ofthe parent's '''necessitous want. '" Id. at 936 (quoting Bortle 

v. N. Pac. Ry., 60 Wash. 552, 554, III P. 788 (1910)). The substantial dependency must 

32 

No. 30185-1-111 


Millican v. NA. Degerstrom, Inc. 


be based on the situation existing at the time ofthe decedent's death, not on a promise of 

future contributions. Id. Emotional dependency alone will not qualify parents for 

second-tier beneficiary status. Id. In Armantrout, the Washington Supreme Court held 

that the trier of fact may consider services provided by the deceased that had a monetary 

value for which the parents would not otherwise have been able to pay. It may not, 

however, consider "everyday services a child would routinely provide." Id. at 940. 

The defendants moved for summary judgment dismissing Ms. Millican's 

individual claim, arguing that there was no genuine issue that she was dependent on her 

son for support. It was undisputed that Mr. Lafayette had moved out of his mother's 

home four months before the accident and had been living independently. The 

defendants submitted Ms. Millican's deposition in support of their motion, summarizing 

material concessions made in the deposition as follows: 

Mrs. Millican does not have debilitating health problems requiring 

necessary care and assistance from her family members. She had a 

pulmonary embolism nearly twenty years ago and now has hypertension, 

but she tries not to limit herself in activities. Mr. Lafayette did not offer 

any medical care to his mother. In fact, Ms. Millican is able to work at two 

jobs, the Riverside school district administration office and a foster home 

for at-risk youth. Currently, she is working about 35 hours per week at the 

school district and 35-40 hours per week at the foster home. Mr. Lafayette 

did not give his mother any [monetary] support. 

CP at 645-46 (footnotes omitted). 

In response, Ms. Millican submitted the declaration of her primary care physician 

that she has class IV pulmonary hypertension that causes shortness of breath with 

33 

No.30185-1-III 

Millican v. NA. Degerstrom, Inc. 

exertion and significantly limits her ability to do chores involving aerobic activity. She 

also submitted evidence that her son began working construction at age 12 and had 

become proficient at construction, household repair, and landscaping. She testified that 

during his teenage years he had regularly handled household repairs and maintenance and 

had undertaken a number of improvements to her home and the 10-acre parcel on which 

it is located. She argued that her physical limitations prevented her, personally, from 

performing the maintenance required on her home and property. 

She testified that her son planned to continue providing these and other 

maintenance, repair, and home improvement services in the future. In support of a 

motion for reconsideration she submitted a declaration stating conclusorily that she and 

her husband were financially unable to pay someone else to perform the tasks necessary 

for the maintenance and upkeep oftheir home. Because she and her husband could not 

keep up the property as well as Mr. Lafayette had, and it did not make sense for her to 

refinance a home that was losing value, she testified that she lost her home in foreclosure. 

Our review of an order ofsummary judgment is de novo, considering the facts and 

reasonable inferences in the light most favorable to the nonmoving party. Beggs v. Dep't 

o/Soc. & Health Servs., 171Wn.2d 69, 75, 247 P.3d 421 (2011); Right-Price Recreation, 

LLC v. Connells Prairie Cmty. Council, 146 Wn.2d 370,381,46 P.3d 789 (2002). 

Summary judgment is proper ifthe pleadings and accompanying documentary evidence 

show that there is no genuine issue ofmaterial fact and that the moving party is entitled 

34 

No.30185-1-III 

Millican v. N.A. Degerstrom, Inc. 

to judgment as a matter oflaw. Phillips v. King County, 136 Wn.2d 946,956,968 P.2d 

871 (1998); CR 56(c). 

Viewing the evidence in the light most favorable to Ms. Millican, the services Mr. 

Lafayette provided are different from the type ofsupport services discussed in 

Armantrout that make a parent "dependent ... for support" within the meaning ofRCW 

4.20.020. In that case, the 18-year-old decedent had lived with her mother, who had 

diabetes and was blind. She acted as her mother's driver and administered her mother's 

glucose tests and insulin injections. The decedent had contributed her monthly disability 

benefit checks to the household. Armantrout held that these services were the kind for 

which an economic value could be determined. At the same time, it endorsed the trial 

court's instruction to the jury that the financial dependence required excluded the 

everyday services a child would routinely provide. 166 Wn.2d at 939. 

Ms. Millican's evidence responding to the summary judgment motion failed to 

demonstrate a genuine issue of material fact. Mr. Lafayette provided no medical care or 

monetary support to his mother, who was able to get around on her own and hold more 

than full-time employment. Some services provided by Mr. Lafayette, such as snow 

plowing and yard maintenance, were in the nature of everyday services a child would 

routinely provide. Extensive future home and landscaping improvements accounted for a 

35 

No. 30185-1-111 


Millican v. N.A. Degerstrom, Inc. 


large part ofher damage claim9 but they were both hoped-for contributions and not the 

degree of dependency contemplated by the statute, which "must be real and substantial 

and will not arise from occasional gifts or gratuities." Beggs, 171 Wn.2d at 82 n.12. 

Finally, with respect to any assistance she had been receiving from Mr. Lafayette that 

Ms. Millican might legitimately argue was nonroutine and responded to a real and 

substantial need, she made no showing of financial dependence on that assistance. 

The trial court properly granted the defendants' motion for partial summary 

judgment dismissing Ms. Millican's individual claim. 

We affirm the trial court's dismissal of Ms. Millican's individual claim, reverse 

the dismissal ofthe estate's claim, and remand for a new trial consistent with this 

OpInIOn. 

Siddoway, A.C.J. 

I CONCUR: 

9 Summarized at CP 782-87, Ms. Millican's damage claim included the value of 

the following improvements to her home that she had hoped Mr. Lafayette would 

undertake in the future: construction of a new two-car garage with studio apartment; a 

two-story addition to the home; a kitchen remodel; and new lawn, sprinkler, and drip 

irrigation systems. 

36 
No. 30185-1-111 

BROWN, J., (concurring in part, dissenting in part) - I agree the trial court correctly 

dismissed Dorothy Millican's individual claim. But in my view under existing law, the 

trial court did not abuse its discretion and err in admitting the subcontract between N.A. 

Degerstrom (NAD) and Sharp-line Industries, Inc. Pretrial, the Estate of Daren 

Lafayette (Estate) unsuccessfully moved to exclude any U[a]rgument or inference that 

Degerstrom did not retain control or exercise supervision over [Sharp-line's] work," 

citing ER 401,402, and 403 and Stute v. P.B.M.G., Inc., 114 Wn.2d 454,788 P.2d 545 

(1990). Clerk's Papers (CP) at 1549. Attached to the motion was the subcontract 

between NAD and Sharp-line, which specified in one provision that Sharp-Line 

accepts responsibility to prevent accidents to any person who may be 

close enough to its operations to be exposed to Subcontractor's workrelated hazards. Subcontractor shall be solely responsible for the 

protection and safety of its employees, for final selection of additional 

safety methods and means, and for daily inspection of its work area and 

safety equipment. 

CP at 3227. The Estate mistakenly contends this provision impermissibly delegated 

NAD's responsibility to ensure compliance with the safety regulations of the Washington 

Industrial Safety and Health Act of 1973 (WISHA), chapter 49.17 RCW. 
No. 30185·1·111 

Millican v. Degerstrom, Inc. - concurrence/dissent 

Evidence must be relevant to be admissible, meaning "it must tend to make the 

existence of any fact of consequence to the action more or less probable." Degroot v. 

Berkley Constr., Inc., 83 Wn. App. 125, 128,920 P.2d 619 (1996). Even relevant 

evidence may be excluded if its probative value is outweighed by the likelihood that it 

will mislead the jury. Id. The trial court's balancing of probative value versus prejudicial 

effect is entitled to great deference. Id. 

The subcontract's safety provision was relevant to NAD's defense that it took all 

reasonable steps to comply with WISHA regulations. Under RCW 49.17.060, each 

employer 

(1) Shall furnish to each of his or her employees a place of 

employment free from recognized hazards that are causing or likely to 

cause serious injury or death to his or her employees ... ; and 

(2) Shall comply with the rules, regulations, and orders 


promulgated under this chapter. 


This statute is mirrored in WAC 296-155·040, which states in part: 

(1) Each employer shall furnish to each employee a place of 

employment 'free 'from recognized hazards that are causing or likely to 

cause serious injury or death to employees. 

(2) Every employer shall require safety devices, furnish safeguards, 

and shall adopt and use practices, methods, operations, and processes 

which are reasonably adequate to render such employment and place of 

employment safe. Every employer shall do everything reasonably 

necessary to protect the life and safety of employees. 

See Stute, 114 Wn.2d at 457,459-60. Stute held RCW 49.17.060 and WAC 291·155· 

040 create a two·fold duty for general contractors. Id. at 457. Subsection (1) of the 

statute and regulation imposes a general duty on employers to protect solely their own 

employees from "recognized hazards not covered by specific safety regulations." Id. 

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Subsection (2) of the statute and regulation, however, "imposes a specific duty to 

comply with WISHA regulations." Id. This specific duty extends to the employees of 

subcontractors. Id. at 458. Thus, a general contractor has a nondelegable duty to 

ensure compliance with safety regulations for the safety of a subcontractor's 

employees. Id. at 463-64. 

In Stute, P.B.M.C., Inc., a general contractor, subcontracted with S &S Gutters 

to install gutters on a condominium complex. Mr. Stute, an employee of S & S Gutters, 

fell while installing gutters and was injured. The record showed P.B.M.C. knew the 

employees of S & S Gutters were working on the roof without safety devices. Id. at 456. 

Mr. Stute sued P.B.M.C., alleging the general contractor owed a duty to provide 

necessary safety devices on the work site. Citing RCW 49.17.060, WAC 296-155-040, 

and the general contractor's "innate supervisory authority," Stute, 114 Wn.2d at 464, the 

Supreme Court held a general contractor had a specific duty as a matter of law to 

supply safety equipment for all employees on a work site or to contractually require 

subcontractors to provide adequate safety equipment relevant to their responsibilities. 

Stute, 114 Wn.2d at 464. 

Here, the trial court correctly reasoned Stute allowed a general contractor to 

contractually require subcontractors to furnish adequate safety equipment. Id. Thus, in 

my view, the trial court correctly admitted the subcontract with the understanding it 

would deal with the legal issues in the jury instructions. 

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In Degroot, a subcontractor's employee was injured while working on a job site 

and sued the general contractors for negligence and WISHA violations. Before trial, the 

employee moved to exclude a subcontract safety provision that arguably gave the 

subcontractor sole responsibility for the safety of its employees: 

"Subcontractor shall, at its own cost and expense, protect its own 

employees, employees of Contractor, and all other persons from risk of 

death, injury or bodily harm arising out of or in any way connected with the 

work to be performed under this Subcontract. 

"Subcontractor shall strictly comply with all safety orders, rules, 

regulations or requirements of all federal, state and local government 

agencies, exercising safety jurisdiction over said work including, but not 

limited to, federal OSHA [Occupational Safey and Health Act of 1970,29 

U.S.C. §§ 651-678] and state occupational safety and health regulations." 

Degroot, 83 Wn. App. at 128. The employee contended that because the safety 

provision gave the impression that the general contractors had delegated to the 

subcontractor the duty to furnish a relatively safe working environment, the safety 

provision was irrelevant and misleading. Id. at 127. 

In affirming the trial court's admission of the evidence, the Degroot court found 

the boilerplate language in the safety provision appeared to be designed to meet the 

duty of care outlined in Stute, particularly the general contractor's duty to "'furnish safety 

equipment or to contractually require subcontractors to furnish adequate safety 

equipment.'" Id. at 129 (quoting Stute, 114 Wn.2d at 464). Consequently, the safety 

provision was "at least relevant to whether [the general contractors] fulfilled their WISHA 

responsibility for the safety of all employees on the work site." Id. The Degroot court 

concluded the safety provision was not misleading, because the general contractors 

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No. 30185-1-111 

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agreed at trial they had a nondelegable duty to comply with WISHA safety regulations, 

never argued the subcontract delegated this duty to the subcontractor, and submitted 

the safety provision solely as "evidence of their attempt to exercise reasonable care to 

enforce safety regulations on the work site." Id. at 131. The trial court in Degroot 

instructed the jury that the provision was not evidence that the general contractors had 

delegated their WISHA duties to the subcontractor and that the general contractors 

were required to exercise ordinary care to ensure compliance with safety regulations on 

the work site. Id. 

Under Degroot, subcontract safety provisions may be admissible as evidence of 

the steps the general contractor took to comply with WISHA safety regulations, but the 

provisions are not admissible to show the general contractor delegated its responsibility 

for compliance with the safety regulations to the subcontractor. Id. at 129. As in 

Degroot, the subcontract safety provision here is relevant to whether NAD met its duty 

to ensure compliance with WISHA safety regulations at the work site. Id.; Stute, 114 

Wn.2d at 464; WAC 296-155-040(2). 

The trial court found the relevance of the subcontract safety provision here 

outweighed the possibility that it might mislead the jury regarding the general 

contractor's nondelegable duty to comply with WISHA safety regulations. Although the 

subcontract states Sharp-Line is "solely responsible for the protection and safety of its 

employees," CP at 3227, NAD acknowledged in its opening and closing statements that 

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No. 30185-1-111 

Millican v. Degerstrom, Inc. - concurrence/dissent 

general contractors have a legal duty to provide a safe work site for all employees. No 

objection was noted to NAO's arguments in the briefing. 

In terms of a fair trial, NAO employees testified that the general contractor 

retained the ultimate responsibility for work site safety. Additionally, NAO provided 

evidence it had a site specific accident prevention plan, it had a foreman and 

superintendent performing oversight at the job site daily, as well as a safety director 

who checked in on occasion, and it ran weekly safety meetings that were required for all 

workers on the site. NAO's closing statement explained that as the general contractor, 

it was required to take reasonable steps to ensure the safety of the work site, including 

contractually requiring its subcontractors to furnish any safety equipment related to their 

work. The trial court was in the best position to rule on any objections, if they had been 

made. 

Importantly, the jury was instructed that a general contractor has a nondelegable 

responsibility to ensure the safety of all employees on the work site: 

Under Washington law, a general contractor on a construction 

project owes a duty to every employee at the job site, including employees 

of subcontractors, to ensure that it and its subcontractors comply with all 

applicable safety regulations. The general contractor is the party with 

innate supervisory authority and per se control over the job site, so it 

bears the primary, non-delegable duty to provide a safe workplace for 

subcontractor employees. 

In Washington, all general contractors have a non-delegable 

specific duty to ensure compliance with all Washington state construction 

safety regulations. 

CP at 3182. We assume juries follow the instructions. Degroot, 83 Wn. App. at 131. 

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Accordingly, I concur in affirming the trial court's dismissal of Ms. Millican's 

individual claim, but because I would affirm the trial court's judgment on the jury's 

verdict, I respectfully dissent. 

Brown, J. 

7