No. 3018S-I-III 

### Millican 

### v. NA. Degerstrom, Inc.

estate and claiming rights as a statutory beneficiary, shebrought a wrongful death action against the general contractor, N.A. Degerstrom Inc., and others. Thejury returned a defense verdict from which Ms. Millican appeals. Ms. Millican contends on behalfofher son's estate that the trial court erred in (1) admitting evidence that Degerstrom contractually delegated sole responsibility for the safety ofemployees to its subcontractors, (2) denying the estate's motion for a newtrial, and (3) refusing to instructthejurythat Degerstrom owed a duty to the public traveling through the construction site. She argues individually thatthe 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 courtto deny the estate's motion seekingto limit Degerstrom's evidence and argumentthat it required Mr. Lafayette's employer to assume sole responsibility for the protection and safety ofits

own employees. Degerstrom's mischaracterization to this effectpervaded its presentation and could not be curedby the concluding instructions to thejury. The estate and Ms. Millican fail to demonstrate any other error, however. We affirm the trial court's dismissal ofMs. Millican's individual claim butreverse thejudgment on thejury'sverdict and remand for a retrial ofthe estate's claims. FACTS AND PROCEDURAL BACKGROUND In April 2005, the United States Department ofTransportation Federal Highway Administration awarded N.A. Degerstrom Inc. a contract to improve a five-mile stretch 

### 2No. 30I8S-I-III 

### Millican 

### v. NA. Degerstrom, Inc.

ofFlowery Trail Road. Degerstrom subcontractedwith Sharp-Line Industries Inc. to install signs andpaintroad stripes. The subcontract agreementrequired Sharp-Line to indemnity Degerstrom from any liability it suffered as a result ofSharp-Line's negligence. The subcontract also containedthe following provision imposing responsibility on Sharp-Line for work site safety: Subcontractor accepts responsibility to prevent accidents to any person who may be close enoughto its operationtobe exposedto Subcontractor's work-relatedhazards. Subcontractor shall be solely responsible for the protection and safety ofits employees, for final selection ofadditional safety methods and means, and for daily inspection ofits work area and safety equipment. Failure on the part ofContractorto stop unsafe Subcontractorpractices shall in no way relieve Subcontractor ofits responsibility hereunder. Subcontractor shall conformto 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'svehicles used onthe Flowery Roadprojectwas a 1978 Chevrolet augertruckused to drill holes in the ground for sign posts. The truck was equipped with outriggers, which were extendedto stabilize itwhile the augerwas being used, and a hydraulic tamperthat compacted soil around the sign posts. The auger and tamperwere powered by a device thatused the truck's transmission to transmitpower from the engine. To engage the device, the truck's engine had to be running and the transmission hadto be in neutral.

3

### No. 30185-1-111 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. Towardthe end ofthe day, Mr. Wrightparked the augertruck facing downhill andMr. Lafayette and Mr. Wright began installingthe last sign. Another subcontractorhad set up traffic control withpilot cars becausethe augertruck encroached onthe roadway. Mr. Wrightputthe truck in the parking gear, left the engine on, and engaged a supplemental brake device called a leverlock, which locks hydraulic fluid in thebraking system. He did not, however, set the emergency brake or chock the tires. The menwalked around behindthe truck and Mr. Wright deployed the outriggers as he drilled a hole for the signpost. Mr. Wrightthenretracted the outriggers while the two men installed the sign post andbegan compacting soil around the post with the hydraulic tamper. As he worked, Mr. Wright saw Mr. Lafayette suddenly drop the tamper and begin running afterthe truck, which was rolling across the road. Mr. Lafayette managed to pull himselfinto the cab and steerthe truck away from a line ofvehicles following a pilot car in the opposite lane. One ofthe drivers ofthe vehicles later testifiedthat a collision seemed inevitable until Mr. Lafayetteturnedthe 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.



### 4No. 30185-1-111 

### Millican v. 

### NA. Degerstrom, Inc. Dorothy Millican was appointed the personal representative ofher son's estate and, onbehalfofthe estate, sued Degerstrom, Mico Inc. (the manufacturer ofthe lever lock), and James and Jane Doe Bonnerd/b/a Industrial Power Brake (who had done maintenance and repair ofthe auger truck) for damages for wrongful death. She asserted

an individual cause ofaction as well, "as a statutorybeneficiary 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 anunsafe workplace," CP at 20, and had therebyproximately causedher son's death. Beforetrial, the court granted the defendants'jointmotion for partial summary judgmentdismissing Ms. Millican's individual wrongful death claim. It found no evidence creating a genuine issue offact that she was dependent on her son for support qualifying her as a beneficiary under RCW4.20.020. It denied the estate's motion in limineto exclude evidence or argumentby Degerstromthat it did not exercise orretain supervisory control or authority over Sharp-Line during construction operations. Atthe conclusion ofa three-weektrial, thejury 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.

5No. 30ISS-I-III Millican 

### v. NA. Degerstrom, Inc.
ANALYSIS Ms. Millican, on behalfofthe estate and individually, makes four assignments of

error. In thepublishedportion 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 oferrorto the trial court's denial ofits motion forjudgment as a matter oflaw, its refusal to instructthejury that Degerstrom owed a duty to the public traveling through the construction site, and Ms. Millican's assignment oferror to dismissal ofher individual claim. Refusal to limit evidence andargument

of delegatedresponsibility for safety. Early in the proceedings below, Degerstrom moved for summaryjudgment, arguing that Sharp-Linehad assumed the contractual obligation to comply with all safety laws and plans. The trial court denied the motion on the basis ofDegerstrom'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 inconsistentwith [the] court'sprior denials ofits motions for summaryjudgment." CP at 1549. It asked the courtto exclude evidence or argument by Degerstromthat it did not exercise orretain supervisory control

or authority over Sharp-Line during construction operations.

6

### No.30185-I-III 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 ofthejury" and that it viewed the parties' disagreement over Degerstrom's legalduty 

### as an instructional matter. Report ofProceedings (RP) at 2. Critically, when the estate then sought to clarifY whether, in light ofthat reasoning, its motion to exclude evidence and argument about duty 

### was granted, denied, orreserved for later rulings, the trial courtresponded 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 ofamotion in limine is to resolve legal issues outside the presence ofthejury, a trial court'sruling denying a motion in limine is final and the moving party has a standing objection).} Attrial, Degerstrompresented extensive evidence and argument on duty, informing thejury in opening statement, through evidence, and in closing argumentthat it is "typical," "reasonable," "industry standard," and most important, "appropriate" and "allowableunder Washington law" for a general contractor like Degerstromto 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 extentpossible. 7No.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) OFTORTS §409 (1965). Two categories ofexceptions to this rule exist at common law, the first being exceptions that subjectthe principal to liability for its own negligence and the second being exceptions that subjectthe principal to liability for its contractor's tortious conduct even ifthe principal has itselfexercisedreasonable care. Compare RESTATEMENT (SECOND) §§ 410-415 (direct liability) with §§ 416-429 (vicarious liability). The latter category ofexceptions giving rise to vicarious liability comprise duties said to be nondelegable, as explained by theRestatement: The rules

... do not rest upon any personal negligence ofthe employer. They are rules ofvicarious liability, making the employer liable for the negligence ofthe independent contractor, irrespective ofwhetherthe employer has himselfbeen at fault. They arise in situations in which, for reasons ofpolicy, the employer is notpermittedto shiftthe responsibility for the proper conduct ofthe workto the contractor. The liability imposed is closely analogous to that ofa master for the negligence ofhis servant. The statement commonly made in such cases is thatthe 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 itis 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.

2Relevantportions ofDegerstrom's opening statement and closing argument are included in an appendixtothis publishedportion ofthe opinion. 8

### No.30185-I-II1 Millican 

### v. NA. Degerstrom, Inc.

RESTATEMENT (SECOND)

### ch. 15, topic 2 introductory note. Circumstancesthat give rise to a principal's nondelegable duty include precautions required by statute orregulation. Tauscher v. PugetSoundPower & 

### 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]thas, however, been frequently discussed and relied upon,,). 3 

### Even where an exception to the general rule ofnonliability applies, a principal ordinarily owes its duty to only thirdparties other than the employees ofits independent contractors. Stout, 176 Wn.2d at 276 (quotingEpperly v. City of Seattle, 65 Wn.2d 777, 783,399 P.2d 591 (1965) for its recognition of"'the distinction betweenthe level ofduty to members ofthe public and the duty ofthe ownerto one engaged to work upon the projectas the employee ofan independent contractor'"); Tauscher, 96 Wn.2d at 281. Thepolicy 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. Thereasoning is that by making contractpayments to an

3 RESTATEMENT (SECOND) 

### §424 provides: "One who by statute or by administrative regulation is under a duty to provide specified safeguards orprecautions for the safety ofothers is subjectto liability to the others for whose protection the duty is imposed for harm causedby the failure ofa contractor employed by him to provide such safeguards orprecautions." 9No.30185-1-III 

### Millican v. 

### NA. Degerstrom, Inc
.



# . independent contractorthatpresumably include workers' compensationpremiums as overhead, the principal has already assumed some financial responsibility for the safety ofits 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 himselfdone everything that could reasonably be required ofhim." W. PAGE KEETON ET AL., PROSSERAND 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 ofa duty may be determined, "other than the conclusion ofthe courts thatthe responsibility is so important to the community thatthe employer [here, the general contractor] should notbe permitted to transfer it to another." 

### Id. at 512. Beforethe 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 ofliability based in

10No.30185-1-III 

### Millican v. 

### NA. Degerstrom, Inc.

common law, statute, and contractual assumption ofduty. 

### Kelley, 90 Wn.2d at 330.4 The

common law basis ofthe duty citedby 

### Kelley is the duty, within the scope ofa principal's retained control, to provide a safeplace ofwork. The test ofcontrol 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 statutorybasis 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, andto comply with state safety regulations. 

### Id. at 333. 

### Kelley heldthatthe statute created a "nondelegable duty" on the part ofthe general contractor. 

### Id. With WISHA, the legislature revised the statutory duty, providingthat "[e]ach employer

... shall comply with the rules, regulations, and orders promulgatedunder [chapter 49.17 RCW]." RCW 49.17.060(2). This specific duty to comply with WISHA regulations is owedto all ofthe employees at work onthejob 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 placeto work for employees ofsubcontractors and that

4 The accident and injury in

### Kelley took place in December 1972, priorto WISHA's effective date ofJune 7, 1973. LAWS OF 1973, at ii; 90 Wn.2d at 326. 11

### No. 30185-1-111 

### Millican v. 

### NA. Degerstrom, Inc. "[t]he policy reasons behind the court's holdings have not changed and give added force to the language ofWISHA." 

### It characterizedthe general contractor's responsibility, being concurrent with that ofits 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 ofits common law duties arising from retained control, but when it comes to violations of WISHA, vicarious liability for breach ofa 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-"theprimary employer," whose supervisory authority "places the general in the bestposition to ensure compliance with safety regulations." 

### Id. The specific duty clause ofRCW 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 ofdamages 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. 

### GilbertH Moen Co. v. 

### IslandSteel Erectors, Inc., 128 Wn.2d 745,759-60,912 P.2d 472 (1996). The subcontractor is only 12

### No. 30185-1-111 Millican v. 

### N.A. Degerstrom, Inc. permitted to indemnify the general contractor to the extent ofthe 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 ofa claim by an indemnitor's employee. RCW 4.24.115(1)(b). Given this statutory authorization ofindemnification 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 effectthat Degerstrom then suggested to thejury. Indemnification provisions enable the general contractor, if liable to the employee, to recover its defense costs andjudgment 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 ofrisk and potential liabilities," and set their fees '" founded ontheir expected liability exposure as bargained and provided for in the contract''' (quotingMcDowell 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))). 13

### No. 30185-1-111 Millican v. 

### NA. Degerstrom, Inc.
The facts of

### Moen illustrate the properrole and relevance ofdelegation and indemnification agreements. The plaintiffin that case was an ironworker, severely injured whenhe fell from a beam. The Department ofLabor and Industries attributedthe accidentto a lack ofsafety equipment. It cited the plaintiffsemployer, Island Steel Erectors, which itconcluded was responsible for providing fall protection equipment. Given Island's immunity from suit for the workplace injury, the plaintiffsued the general contractor-Moen-and others. Moen had entered into an agreementwith Islandthatrequired Island to comply with laws, regulations, andthe provisions ofMoen's contractwith 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 ofMoen and Islandresulting from the negligence ofIsland and its employees. Moen did notrely on its agreement with Islandto argue (as Degerstrom does) that it fulfilled its duty for WISHA compliance by delegating responsibility to Island. Instead, it settled with the plaintiffand sued Island for indemnification. The courtheld that the indemnification contractwas valid and enforceableto the extent ofMoen's and Island's concurrentliability for the negligence ofIsland. In remanding, it pointed out that whatremained to be determinedwere (1) whetherMoen and Island were concurrently

14No.30185-1-III Millican 

### v. NA. Degerstrom, Inc. negligent and (2) the extent ofIsland's negligence for which Moen hadbeenrequired to pay, butas to which it was entitledto be indemnifiedby Island. Sharp-Line's agreementto assume sole responsibility and indemnifY Degerstrom has no more and no less significance here. Ifit complies with statute, then as between Sharp-Line and Degerstrom the agreement is controlling. As betweenMr. Lafayette and Degerstrom, for any WISHA violation establishedby the evidence, it is irrelevant. Degerstrom nonetheless argues that our decision should turn on the statementin the penultimate paragraph ofStute that "[i]tis the general contractor's responsibility to furnish safety equipment or to contractually require subcontractors tofurnish adequate safety equipment relevant to their responsibilities." 114 Wn.2d at464 (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 Degrootthat a subcontractor's contractual undertaking for safety "appears designed to

5Thetrial court commented, "[I]fyou say there is a non-delegable, well, Stute says you can enter into a contract with your subcontractorto deal with the safety issues. Then we havethe case law that says it is non-delegable. And I understand whatJudge Sweeney is talking about [inDegrootv. 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. 15No. 30185-1-111 

### Millican 

### v. NA. Degerstrom, Inc.

meetthe duty ofcare 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 clearholdingthat 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 notpermittedto delegate the activity to an independent contractor. Rather, the term signals thatthe actor will bevicariously liable for the contractor's tortious conduct in the course ofcarrying outthe activity." RESTATEMENT (THIRD) OF TORTS: LIABILITY FORPHYSICALAND EMOTIONAL

### HARM 

### § 57 cmt. b (2012). Stated differently, "a 'non-delegable duty' requires theperson upon whom it is imposed to answer for it that care is exercisedby anyone, even though he be an independent contractor, to whomthe performance ofthe duty is entrusted." RESTATEMENT (SECOND) ch. 15, topic 2 introductory note. Here, the quotation from 

### Stute supports the fact thatDegerstrom couldenter into its agreement with Sharp-Line and rely on Sharp-Line's 

### compliance with WISHA regulations as satisfYing its own duty-notthat it could discharge its primary responsibility for WISHA complianceby the

mere act ofentering intothe agreement. 16

### No. 30185-1-111 Millican 

### v. NA. Degerstrom, Inc.

We review a trial court's evidentiary rulings for an abuse ofdiscretion. A trial court abuses its discretion ifits evidentiary ruling is manifestly unreasonable oris exercised on untenable grounds orfor untenable reasons. Here, the trial court recognized that Degerstrom hadpreviously advanced a legal position as to the duty ofa general contractorthat was questionable and itrecognizedthat legal duty shouldbe a matter of instruction. Itnonetheless denied the motion in limine. The evidence on duty that Degerstrom choseto offer afterthe motion was denied did nottend to "makethe existence ofany

### fact that is ofconsequence to the determination ofthe action more probable or less probablethan it would be withoutthe evidence." ER

### 401 (emphasis added). More importantly, Degerstrom's evidence and argumentthatthe contract effectively shifted the duty it owedMr. Lafayette from it, to Sharp-Line, was legally wrong and likely misled and confusedthejury. 

### See Degroot, 

### 83 Wn. App. at 

### 133 (Sweeney, C.J., concurring). The mischaracterizationpervadedDegerstrom's presentation and could not be cured by the concluding instructions to thejury. The denial ofthe motion in limine was therefore an abuse ofdiscretion and requires reversal ofthejudgment and remand for a new trial ofthe estate's claims. Forthis reason and the reasons set forth in the unpublishedportion 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 newtrial consistentwiththis opinion.

17

### No.30185-I-III 

### Millican v. 

### NA. Degerstrom, Inc.

APPENDIX Degerstrom's opening statement included the following preview ofthe 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 ofdiscussion in this case about NA Degerstrom's contract with Sharp-Line. And as I talked to you earlier, there were several subcontractors on thisjob, and these subcontractors were was [sic] known as specialty subcontractors. They did work that Sharpexcuse me, thatNA Degerstrom did not qave the expertise to perform. So what they do, typically any sort of job like, this you subcontract it out to those people that are experts in their field

.... Part oftheir subcontract agreement, Sharp-Line agreed to comply with all laws and regulations that are applicable to their work with regard to whatwas beingperformed 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 briefreference tojury instructions that would be given at the end ofthe 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-thereason it makes sense as far as delegating these responsibilities, again NADegerstrom is not all knowing and not knowledgeable about everything that's done on this project. It's 18No. 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 regardto preventing accidents regarding their work, andthat's what the contractrequested. They also have-werequested that Sharp-Line be solely responsible for providing protection and safety ofits employees, again because it knows what the hazards are with regard to itsjob. They hadthe responsibility for final selection ofthe safety methods and means. That means howto--howthat 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 equipmentbecause Degerstrom doesn't know whattheir equipment is, how it's specialized. There's been plenty of testimony today aboutthis augertruck and how it was a very specialized piece ofequipment. But NADegerstrom certainly doesn'tknow, have the expertise to run, or would evenbe responsible ifthey ran it. Another safety provision talked aboutthe site specific safety plans the accident prevention planthat NADegerstrom had, in fact, for that project, and how Sharp-Line had to comply with those safety requirements. And finally Sharp-Line agreed thatthey would have a written safety plan for this project, an accidentpreventionplan, 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 ofSharp-Line, and he's beenthe president ofSharp-Line since its inception in 1987. Mr. Craigwill be testifYing that he signed this contract, and that he understood these contractprovisions, andthat he understood that Sharp-Line was required to furnish their own safety equipment andperformtheir work under this contract, and that type ofsafety equipment also included chocks. You'll also beprovidedtestimony thattheprovisions with regard to safety that were in the [Degerstrom] contractwith Sharp-Line, they are typical and they are standard in the industry because, again, ifyou're a specialty subcontractor, you'rethe one who's gonnaknow your equipment and know how to safely operate it. RP at 46-48. Later in opening statement, Degerstrom's lawyertold thejury: You'll hear how Coit Wright was the employee responsible for the truck that day for Sharp-Line

.... You'll hearhow Mr. Wright was a laborer, that he did not havetraining on this equipment, that he was notthe 19 

# INo. 30185-1-111 

### Millican v. 

### NA. Degerstrom, Inc. employee responsible in the operation ofthis truck. You'llhearhow Mr. Wright made several poor choices thatwere in contradiction to the training that he received from Sharp-Line, and that atthe end ofthis workday that caused that truck to start rolling. So what did Mr. Wright fail to do? Mr. Wrightprovided a statement to the Department ofLabor & Industries, and then he also was interviewed by the Department ofLabor & Industries. That information heprovidedto the Department ofLabor & Industries, you'll heartestimony about. You'll heartestimony that Mr. Wright failed to set the truck's parking brake. You'll hear testimony thatMr. Wright failed to tum those wheels into the downward slope orthe shoulder ofthe road. You'llhearhow Mr. Wright deployed the outriggers, butthen for whateverreason broughtthem back in. You'll also hearthat, although it was notrequired because the truck was attended-bothMr. 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 summarizingthe evidence that it hadpresented, 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 ofthe ways that Degerstrom and all general contractors ensure a safe worksite is they have their subcontractors-theyhave their subcontractors, under contract, furnish the safety equipment. Andwhy is that? There's been a lot ofdiscussion. Because subcontractors are the experts in their field, notDegerstrom. They'rethe ones who know whatthe hazards are. They're using their equipment, they know what is hazardous and how to protecttheir employees. Degerstrom's duty is analogous to a forest. Think ofthe project as being a forest andthink ofthe subcontractors beingthe trees in that forest. Andthe subcontractors being responsible for the leaves onthose trees, their equipment, their workers, all the things in order to do theirjob 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

20No. 30185-1-111 Millican v. N.A. Degerstrom, Inc.

time. Norcan it see any ofthe leaves at any given moment. But it'sthe subcontractors thathave agreed to take care ofthose leaves. Recall the testimony ofMarkLawless, that was plaintiff's site safety expert. Both he and Mr. Stranne stated it'snotreasonable, or industry standard, to expect a general contractorto 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 equipmentrelated to their work. Ladies and gentlemen ofthejury, I'm gonna ask that you look at Exhibit DI03 and that safety provisionthat's cited in that contract. And 1 want youto look, instead ofat the second paragraph, look at that first paragraph onthatpage, because that talks about the safety requirements and that Sharp-Line was solely responsible for theprotection and safety ofits employees, for the final selection ofadditional safety means and methods, and for daily inspection ofits 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. Craigto 

### 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 withthe rules governing unpublished opinions. RCW 2.06.040. Denial of the estate's motionforjudgment on liability as a matter of law. 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 newtrial. Thenewtrial it sought, though, would be limited to damages-the estate wanted the courtto instructthe jurythat Degerstrom was negligent and its negligence was a proximate cause ofMr. 21No. 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 onthe issue ofliability. It argues that the court erred in denying it. The estate did not move forjudgment as a matter oflaw at the close ofthe evidence as contemplated by CR 50(b). In authorizing

### postverdict motions forjudgment

as a matter oflaw, CR 50(b) speaks only ofrenewing an equivalent motion made under CR 50(a) before the case was submitted tothejury. The estate argues that it was excused from moving for the reliefat the close ofthe evidence, however, because the motion would have been futile in light ofthe trial court's denial ofits motion in limine. Itcites 

### Kaplan v. 

### N W Mut. LifeIns. Co., 115 Wn. App. 791, 804 n.6, 65 P.3d 16 (2003) in support. Degerstrom's response makes a one-sentence mention ofthe estate's alleged waiver ofits right to move forjudgment as a matter oflaw. Br. ofResp't at 6. Butit does not dispute the estate's argument that its posttrial motion was implicitly a CR 50(b) motion orprovide any authority or argument in oppositionto the estate's claimed excuse offutility. Absent any authority or argument in opposition, we assume without deciding that the estate's posttrial motion was, in part, a motion forjudgment as a matter oflaw and that its failure to move for such reliefat the close ofthe evidence is excused. See RAP 10.3(a)(6) and (b) (arespondent's brief, like the appellant's, must include argument

onthe issues presented for decision along with citations to legal authority). 22No.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 thatwhile violation ofa controlling statute or regulation is notnegligence per se, evidence ofsuch a violation can be conclusive ifthe violator fails topresent any evidence ofexcuse orjustification. It argues that itpresented evidence ofWISHA violations for which Degerstrompresented no excuse orjustification. Itfocuses 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. Ifa requirement for chocking was breached it argues that the "breachwas, as a matter oflaw, a proximate cause of[Mr.] Lafayette's death." 

### Id. The principal WISHA regulation thatDegerstrom alleges was notenforced is WAC 296-155-6 1 O(2)(b) (entitled "Motor Vehicles on Construction Sites"), which provides: (b) Before leaving a motor vehicle unattended: (i) The motor mustbe stopped. (ii) The parking brake must be engaged and the wheels turned into curb orberm whenparked 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 thatDegerstrom did not require Sharp-Line to use chocks and did not inspect Sharp-Line's vehicles for chockusage, the estate contends thatDegerstrom undisputedly violated this WISHA regulation.

23No. 30185-1-111 

### Millican v. 

### NA. Degerstrom, Inc. Degerstrom's position at trial and on appeal is that the auger truck in whichMr. Lafayette died was not "unattended" and therefore the regulation did not apply. Degerstrom's first argumentthatthe truck was notunattendedbefore beginningto roll downthe incline is a logicalry fallacious one: Degerstrom argues that "[t]he Washington Administrative Code requires a vehicle's motorto be stopped in orderfor it to be considered 'unattended.'" Br. ofResp't at 38 (footnote omitted). It infers this proposition from the regulatory language, "Before leaving a motorvehicle unattended: (i) The motor must be stopped." Its construction misconstrues this language as saying something about what makes a motorvehicle "unattended," when it is instead saying something about what operators are requiredto do when they 

### leave a,motorvehicle unattended. Were Degerstrom's construction correct, then the WAC would also require a vehicle's parkingbrake to be engaged for it to be considered "unattended." Forthat 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 motorvehicle left remotely overnight, with

no operator anywhere in the vicinity, would be considered "attended," ratherthan "unattended," as long as its motor was running, the parkingbrake was engaged, orits wheels were turned into a curb orberm 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 leftunattended.



### 24No.30185-1-III 

### Millican v. 

### NA. Degerstrom, Inc. Elsewhere, Degerstrom'sposition that a vehicle's motormust be stopped in order for it to be considered "unattended" appears to be based on the fact thatthe auger and tamper used by Mr. Lafayette and his supervisorwere operatedusing a powertake-off (PTO) from the truck's**transmission~requiring** thatthe motorbe running. Degerstrom considers it obvious that "unattended" cannot include times whenthe operator ofa truck has stepped outside ofits cab to operate a PTO-poweredpiece ofequipment. But WISHA regulations are construed liberally to achieve theirpurpose ofproviding safe working conditions. 

### Pate/co, Inc. v. 

### Dep'tofLabor & 

### Indus., 166 Wn. App. 647, 653, 272 P.3d 262 (2012). Itis not obvious that the Department ofLabor and Industries would be unconcerned that the motorwas running, the cab was unattended, andthe only potential operators in the vicinity ofthis truck (pointed downhill), were engaged in other work that could distracttheir attention orpreventthem from reachingthe cab in the event ofsome hazard. The department mightwellrequire that a vehicle in this situation be attended by an employee in the cab orone 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 longerin the vicinity) is contrary to any meaning

25No. 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 OSHAregulations and consistent federal decisions. 

### Wash. Cedar & 

### Supply Co. v. 

### Dep'tof Labor & 

### Indus., 137 Wn. App. 592,604, 154 P.3d 287 (2007) (citing

### Adkins 

### v. Aluminum Co. of Am., 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 uponthe context, andrecognizes 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 BuildingAnalysts (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, toPaul 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 [aconstructionvehicle is] 

### left unattendedand running, theparking brake mustbe set, and ifthe vehicle is on an incline, in addition to settingthebrake, the wheels mustbe chocked" (emphasis added)).7

6 Occupational Safety and Health Act of 1970,29U.S.C. §§ 651-678. 7Although only briefly reviewed, OSHA regulations include a definition and requirements for industrial trucks used in general industry (notconstruction): 

### (ii) A powered industrial truck is unattended whenthe operator is 25 ft. ormore away from the vehicle which remains in his view, or whenever 26No. 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 particularjob site is a question oflaw for the court." Reply Br. at 20 (citingManson v. Foutch-Miller, 38 Wn. App. 898,902,691 P.2d 236 (1984)); see alsoBall

### 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 orordinance and determine whether 

### itapplies to a party). Its argumentthat the trial court should have determined whether WAC 296-155-61O(2)(b) applied, or at least instructed thejury on a meaning for "unattended," appears worthy ofbriefing and consideration inthe retrial. We will not consider 

### itin this appeal, however, for two reasons: it was notraised in the trial court and

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

### (iii) When the operator ofan 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 topreventmovement. 29 C.F.R. 1910.l78(m)(5). In a May 11,2005 interpretation letter addressed to Peter Kuchinsky II, OSHAreferred to this industrial truck regulation in addressing a question about construction equipment, stating: Although theseprovisions do not apply to construction orearthmoving equipment, they address some ofthe sametype ofhazards. After considering the approach that was taken in §1910.178(m)(5) and the hazards associated with construction equipment, we have determined that, for construction equipment such as bobcats, backhoes, and trenchers, leavingthe motorrunning 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 inthe neutral position, thebrakes are set, all manufacturerprovided and recommended safetymeasures are utilized, and the operator is within 25 feet (and still in· view) ofthe equipment. Letterto Paul Kuchinsky II, supra (footnote omitted). 27No. 30185-1·111 

### Millican 

### v. NA. Degerstrom, Inc.

was raised for the first time in the estate'sreply brief. RAP 2.5(a) (appellate courts need not entertain issues notraised 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 briefis too late to warrant consideration). In the trial court, the estate was contentto have thejury decide whether the regulation applied. While we reject the two principal arguments Degerstrom offers on appeal as to why its construction ofthe regulation is correct, the fact remains that the estate allowed the meaning and application ofthe regulation to be decided by thejury. Bothparties' witnesses offered their views as to whether the auger truck was "unattended" when the auger was being operated; the estate's witnesses saidthat itwas unattended and Degerstrom's witnesses testified that it was attended, notunattended. As the case was tried, and viewed in the light most favorable to Degerstrom, the evidence could support ajury determination that the auger truck was notunattended 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 thejury for its determination), 

### aff'd, 734 F.2d 9 (3d Cir. 1984). While placingprincipal reliance on WAC 296-155-610(2)(b), the estatepoints to evidence itpresented ofother alleged violations ofWISHA regulations by Degerstrom as well. Butthat evidence was similarly disputedby Degerstrom's employees and experts at 28No. 30185-I-III Millican 

### v. N.A. Degerstrom, Inc.
trial. And with respect to some ofthe WISHA regulations the estate argued were violated by Degerstrom, the estate did not conclusively demonstrate that any violation was a proximate cause ofMr. Lafayette's death. The trial court did not err in denying the estate's motion forjudgment as a matter oflaw on liability and a new trial limited to the issue ofdamages. Refusalto instructon a duty owedto thepublic. The estate next appeals the trial court's refusal to instruct thejury that the general contractor on a highway constructionprojecthas 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 ofliability that Degerstrom's negligent omissions created a peril to the motorists on Flowery Trail Road who were in the path ofthe auger truck as itrolled downhill. Its breach ofthat duty owed thepublic created liability to anyone injured in a reasonable attempttorescue the imperiled motorists-inthis case, the rescuer happened to be the employee ofa subcontractor. See McCoy v. Am. Suzuki Motor Corp., 136 Wn.2d 350, 355, 961 P.2d 952 (1998) (rescue doctrines allows an injured rescuerto sue the party that caused the

8A plaintiffrelying onthe rescue doctrine must prove that (1) the defendant was negligent to the person rescued and that negligence created an appearance thatthe person rescued was in peril, (2) the peril or appearance ofperil was imminent, (3) a reasonably prudentperson would have concluded that the peril existed, and (4) the rescuer acted with reasonable care. McCoy, 136 Wn.2d at 355-56. 29No. 30185-1-111 Millican v. N.A. Degerstrom, Inc. danger thatrequired the rescue). Itcontends that the court's refusal to give the requested instruction prevented it from arguingthis separate theory ofnegligence. Jury instructionsmust allow the parties to argue their theories ofthe case, must not mislead thejury, and must as a whole inform thejuryofthe applicable law. Thompson v. KingFeed & Nutrition Serv., Inc., 153 Wn.2d 447,453, 105 P.3d 378 (2005). "Failure to permit instructions on a party's theory ofthe case, where there is evidence supporting the theory, is reversible error." Barrett v. LuckySeven Saloon, Inc., 152 Wn.2d 259, 266-67, 96 P.3d 386 (2004). "As with a trial court's instruction misstatingthe applicable law, a court's omission ofa proposed statement ofthe governing law will be 'reversible error where itprejudices aparty.'" Id. at 267 (quotingHue v. FarmboySpray 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 patternjury instruction; the authority it cited in proposing the instruction was Smith v. AcmePaving Co., 16 Wn. App. 389, 558 P.2d 811 (1976) and Cummins v. Rachner, 257 N.W.2d 808 (Minn. 1977). On appeal, it citesArgusv. PeterKiewit 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 oronthe physicalroadway being constructed. We agree; the duty ofthe contractor in each case
was identified as being to maintain the streets in a reasonably safe condition and to guard 30No.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 ofarise out ofthe actual construction, repair, and maintenance ofthe roadway." Degerstrom is not accused ofcreating a hazard, but offailing to safeguard against it. Nonetheless, other evidence presented at trial supported a broader duty owedby Degerstrom to the public. Degerstrom's agreement in its accidentpreventionprogramto reasonably ensure thatparked, unattended vehicles were chocked on inclines apparently

was intended to protectthepublic as well as employees from hazardous runaway vehicles. The reference in WISHAregulations to vehicles parked at night, afterwork hours, proves this intent. WAC 296-155-605(1)(a). Degerstrom also agreed to safeguard thepublic from its operations and to provide adequate warnings ofhazards for workers and the public. This scope ofDegerstrom's duty was reflected in other instructions given by the trial court, however, from which the estate could argue thatDegerstrom breached a duty ofcare to the public by failing to require Sharp-Line to use chocks onthe augertrucks. The trial court's instructions informed thejurythat negligence includes "the failure to do

some actthat a reasonably careful person would have done under the same or similar circumstances," CP at 3179, and that a violation ofa WISHA regulation is evidence of negligence. The estate elicitedtestimony from several witnesses that itwould have been 31No. 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 ofWISHA safety regulations, creating

an imminent threat to the pUblic. The instructions given enabled the estate to argue a negligentbreach ofduty to the public. The trial court'srefusal to give a more specific instruction was therefore not reversible error. Dismissal of Ms. Millican's individualclaim. Ms. Millican sued not only as the personal representative ofMr. Lafayette's estate but also individually, as a statutory beneficiary. RCW4.20.020 identifies a first and second tier ofbeneficiaries who may recover damages for wrongful death. Armantroutv. Carlson, 166 Wn.2d 931, 935, 214 P.3d 914 (2009). The first tier includes a decedent's wife, husband, orregistered 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 orsiblings "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 bythe child ofthe parent's '''necessitous want.'" Id. at 936 (quotingBortle

v. N. Pac. 

### Ry., 60 Wash. 552, 554, 

### III P. 788 (1910)). The substantial dependency must 32No. 30185-1-111 

### Millican 

### v. NA. Degerstrom, Inc.
bebased on the situation existing atthe time ofthe decedent's death, not on a promise of future contributions. 

### Id. Emotional dependency alone will not qualify parents for second-tierbeneficiary status. 

### Id. In

### Armantrout, the Washington Supreme Courtheld that the trier offact may consider services providedby the deceased thathad a monetary value for whichthe parents would not otherwise have been able to pay. Itmay not, however, consider "everyday services a childwouldroutinely provide." 

### Id. at 940. The defendants moved for summaryjudgmentdismissing Ms. Millican's individual claim, arguingthat there was no genuine issue that she was dependent on her

son for support. Itwas undisputed that Mr. Lafayette had moved out ofhis mother's home four months before the accident and hadbeen living independently. The defendants submitted Ms. Millican's deposition in support oftheir motion, summarizing material concessions made in the deposition as follows: Mrs. Millican does nothave debilitatinghealth problems requiring necessary care and assistance from her family members. She had a pulmonary embolism nearly twenty years ago andnow has hypertension, but she tries not to limit herselfin activities. Mr. Lafayette didnotoffer any medical care to his mother. In fact, Ms. Millican is able to work attwo jobs,the Riverside school district administration office and a foster home for at-risk youth. Currently, she is working about 35 hoursperweek 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 submittedthe declaration ofher primary care physician that shehas class IVpulmonary hypertension that causes shortness ofbreath with 33No.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 becomeproficient 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 ofimprovements to her home and the 10-acreparcel on which it is located. She argued that herphysical limitations preventedher, personally, from performingthe maintenance required on herhome andproperty. She testified that her son plannedto continue providingthese and other maintenance, repair, and home improvement services inthe future. In support ofa motion for reconsideration she submitted a declaration stating conclusorily that she and herhusband were financially unable to pay someone else toperform 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 herto refinance a home that was losing value, she testified that she lost her home in foreclosure. Ourreview ofan order ofsummaryjudgment 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-PriceRecreation, LLC

### v. ConnellsPrairie Cmty. Council, 146 Wn.2d 370,381,46 P.3d 789 (2002). Summaryjudgment is proper ifthe pleadings and accompanying documentary evidence show that there is no genuine issue ofmaterial fact and that the moving party is entitled 34No.30185-1-III Millican v. N.A. Degerstrom, Inc.

tojudgment 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 Armantroutthat make a parent "dependent

... for support" within the meaning ofRCW 4.20.020. Inthat case, the 18-year-old decedent had livedwith 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 decedenthad contributedher monthly disability benefit checks to the household. Armantroutheldthat these services were the kind for which an economic value couldbe determined. Atthe sametime, it endorsed the trial court's instruction to thejurythatthe financial dependence required excludedthe everyday services a child would routinely provide. 166 Wn.2d at 939. Ms. Millican's evidence responding to the summaryjudgmentmotion failed to demonstrate a genuine issue ofmaterial fact. Mr. Lafayetteprovided no medical care or monetary supportto his mother, who was able to get around on her own and hold more than full-time employment. Some services providedby Mr. Lafayette, such as snow plowing and yard maintenance, were in the nature ofeveryday services a childwould routinely provide. Extensive future home and landscaping improvements accounted for a

35No. 30185-1-111 Millican 

### v. N.A. Degerstrom, Inc. large part ofher damage claim9 butthey were bothhoped-for contributions and not the degree ofdependency contemplatedby the statute, which "mustbe real and substantial andwill not arise from occasional gifts orgratuities." Beggs, 171 Wn.2d at 82 n.12. Finally, with respect to any assistance she had been receiving from Mr. Lafayettethat Ms. Millican might legitimately argue was nonroutine andresponded to a real and substantial need, she made no showing offinancial dependence onthat assistance. The trial courtproperly granted the defendants' motion for partial summary judgment dismissing Ms. Millican's individual claim. We affirm the trial court's dismissal ofMs. Millican's individual claim, reverse the dismissal ofthe estate's claim, andremand 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 improvementsto herhome that she had hoped 

### Mr. Lafayette would undertake in the future: construction ofa new two-car garage with studio apartment; a two-story addition to the home; a kitchen remodel; andnew lawn, sprinkler, and drip irrigation systems. 36No. 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 ofthe 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 ofany 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 thejury. Id. The trial court's balancing ofprobative 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 ordeath 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 ofemployees. See Stute, 114Wn.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) ofthe 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. 

### 2No. 30185-1-111 Millican v. Degerstrom, Inc. - concurrence/dissent
Subsection (2) ofthe statute and regulation, however, "imposes a specific dutyto 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. at456. Mr. Stute sued P.B.M.C., alleging the general contractor owed a dutyto provide necessary safety devices on the work site. Citing RCW49.17.060, WAC 296-155-040, and the general contractor's "innate supervisory authority," Stute, 114Wn.2d at 464, the Supreme Court held a general contractor had a specific duty as a matter of lawto supply safety equipment for all employees on a work site orto 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 myview, the trial court correctly admitted the subcontract with the understanding it would deal with the legal issues in thejury instructions.



### 3No. 30185-1-111 Millican v. Degerstrom, Inc. - concurrence/dissent
In Degroot, a subcontractor's employee was injured while working on ajob 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 ofor in any way connected with the work to be performed underthis Subcontract. "Subcontractor shall strictly comply with all safety orders, rules, regulations or requirements ofall federal, state and local government agencies, exercising safetyjurisdiction 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 subcontractorthe 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 ofthe evidence, the Degrootcourt found the boilerplate language in the safety provision appearedto be designed to meet the duty of care outlined in Stute, particularly the general contractor's duty to "'furnish safety equipment orto 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 theirWISHA responsibility for the safety ofall employees on the work site." Id. The Degrootcourt concluded the safety provision was not misleading, because the general contractors

4No. 30185-1-111 Millican v. Degerstrom, Inc. - concurrence/dissent agreed at trial they had a nondelegable dutyto comply with WISHA safety regulations, never argued the subcontract delegated this duty to the subcontractor, and submitted the safety provision solely as "evidence oftheir attempt to exercise reasonable care to enforce safety regulations on the work site." Id. at 131. The trial court in Degroot instructed thejury thatthe provision was not evidence that the general contractors had delegated theirWISHA 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 at464; WAC 296-155-040(2). The trial court found the relevance ofthe 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



### 5No. 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 fairtrial, 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 thejob site daily, as well as a safety director who checked in on occasion, and it ran weekly safety meetings thatwere required for all workers on the site. NAO's closing statement explained that as the general contractor, itwas 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, ifthey had been made. Importantly, thejury was instructed that a general contractor has a nondelegable responsibility to ensure the safety of all employees on the work site: UnderWashington law, a general contractor on a construction project owes a duty to every employee at thejob 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 thejob 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 assumejuries follow the instructions. Degroot, 83 Wn. App. at 131.

6No. 30185-1-111 Millican v. Degerstrom, Inc. - concurrence/dissent 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.

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