                                                       COURT OF iLED
                                                        STATE OFAPPEALS DIV I
                                                                 WASHINGTOfi
                                                       2017 DEC ii At!
                                                                       10: 27



      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JOSHUA K. KNUTSON and NATASHA      )
KNUTSON, and the marital community )   No. 75565-0-1
composed thereof, and JOSHUA K.    )
KNUTSON as Guardian Ad Litem for   )   DIVISION ONE
K.K., a minor child,               )
                                   )
                     Appellant,    )
                                   )
               v.                  )
                                   )
MACY'S WEST STORES, INC., a        )
foreign corporation; KEMPER        )
DEVELOPMENT COMPANY, a             )
Washington corporation; BELLEVUE )
SQUARE, LLC, a Washington limited )
liability company,                 )
                                   )   PUBLISHED OPINION
                     Respondents.  )
                                   )   FILED: December 11,2017
MACY'S WEST STORES, INC., an Ohio)
corporation,                       )
                                   )
                     Third Party   )
                     Plaintiff,    )
                                   )
               v.                  )
                                   )
KEMPER DEVELOPMENT COMPANY,)
a Washington corporation; BELLEVUE )
SQUARE, LLC, a Washington limited )
liability company; SCHINDLER       )
ELEVATOR CORPORATION, a            )
Delaware corporation,              )
                                   )
                     Third Party   )
                     Defendants.   )
                                   )
No. 75565-0-1/2




       BECKER, J. — Escalator owners and operators are common carriers who

owe their passengers a nondelegable duty to act with the highest degree of care.

When an escalator malfunctions due to negligent maintenance and causes

personal injury, the owner and operator cannot escape liability on the theory that

they lacked notice of the problem. They are vicariously liable for the negligence

of the independent contractor hired to maintain the escalator. The trial court

erred by dismissing the owner and operator on summary judgment.

       Appellants Natasha Knutson and her husband and daughter were leaving

a holiday performance at the Bellevue Square Mall on December 6, 2012. They

rode up an escalator located directly outside of a Macy's department store.

Knutson and her daughter were among seven persons physically injured when

one of the escalator steps jammed. The escalator had several fail-safe

mechanisms designed to shut it off in this situation, but due to poor maintenance,

the fail-safes did not activate and the escalator continued to run. According to

witnesses, there was a screeching noise, steps began piling up, and the

escalator collapsed within itself.

       The respondents in this appeal are the company that owns the Macy's

store and the companies that own the mall and escalator: Macy's West Stores

Inc, Kemper Development Company, and Bellevue Square LLC. We will refer to

them as Macy's and Kemper. Macy's contracted with Schindler Elevator

Corporation to service and maintain the escalator.




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No. 75565-0-1/3

      The Department of Labor and Industries investigated the incident. An

inspector found that screws, bolts, and brackets were loose on the skirt panel,

which caused the panel to get in the way of the escalator steps. Schindler had

failed to maintain proper maintenance logs and had not performed required

maintenance for an extended period of time. Also, the escalator had a history of

mechanical issues such as vibrating, shaking, and emitting grinding sounds and

smoke. Chief Elevator Inspector Jack Day concluded that a lack of maintenance

and inaccurate escalator safety testing procedures led to the malfunction. His

opinion was confirmed by Lerch Bates, an engineering firm hired by Kemper to

conduct an independent investigation. Stephen Carr, an expert witness retained

by the Knutsons, similarly concluded that the accident was caused by Schindler's

failure to recognize obvious equipment defects that "would have been apparent

to any reasonably trained escalator mechanic." In short, it is undisputed that

neglectful maintenance of the escalator caused the injuries.

      The Knutsons sued Macy's and Kemper for damages. Macy's and

Kemper moved successfully for summary judgment. This appeal followed.

      This court reviews an order of summary judgment de novo, considering

the facts in the light most favorable to the nonmoving party. Tinder v. Nordstrom,

Inc., 84 Wn. App. 787, 791, 929 P.2d 1209 (1997).

      A common carrier owes the highest degree of care toward its passengers

commensurate with the practical operation of its services at the time and place in

question. Price v. Kitsap Transit, 125 Wn.2d 456, 465, 886 P.2d 556 (1994).




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No. 75565-0-1/4

Owners and operators of escalators are common carriers. Dabroe v. Rhodes

Co., 64 Wn.2d 431,434, 392 P.2d 317(1964).

       Macy's and Kemper contend they cannot be held vicariously liable for

negligent maintenance by Schindler because Schindler was an independent

contractor, not an employee. They are mistaken. Delegating maintenance to an

independent contractor does not relieve owners and operators of escalators from

the high degree of care they, as common carriers, owe to their passengers.

Common carriers have historically been held vicariously liable for injuries to their

passengers based upon a nondelegable duty of care. Niece v. Elmview Group

Home, 131 Wn.2d 39, 54, 59, 929 P.2d 420(1997), citing Marks v. Alaska S.S.

Co., 71 Wash. 167, 127 P. 1101 (1912).

       In Niece, 131 Wn.2d at 55, the court favorably quoted the Restatement

(Second) of Agency § 214 (1958), which states the vicarious liability that may

arise when a principal delegates the performance of its duty of care to an agent:

      "A master or other principal who is under a duty to provide
      protection for or to have care used to protect others or their
      property and who confides the performance of such duty to a
      servant or other person is subject to liability to such others for harm
      caused to them by the failure of such agent to perform the duty."

When a principal's duty of care is nondelegable, it cannot be satisfied merely by

using due care in the selection of a contractor. It is satisfied "if, and only if, the

person to whom the work of protection is delegated is careful in giving the

protection." RESTATEMENT(SECOND)OF AGENCY § 214 cmt. a (1958). Thus, a

nondelegable 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,


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No. 75565-0-1/5

to whom the performance of the duty is entrusted." Millican v. N.A. Degerstrom,

Inc., 177 Wn. App. 881, 891, 896-97, 313 P.3d 1215 (2013), quoting

RESTATEMENT(SECOND)OF TORTS, Ch. 15, topic 2 introductory note (1965), review

denied, 179 Wn.2d 1026 (2014). An actor who owes a nondelegable duty is

permitted to delegate the activity to an independent contractor but will remain

vicariously liable for the contractor's tortious conduct in the course of carrying out

the activity. Millican, 177 Wn. App. at 896, citing RESTATEMENT(THIRD)OF TORTS:

LIABILITY FOR PHYSICAL AND EMOTIONAL HARM § 57 cmt. b (2012).

       Contrary to the argument of respondents, vicarious liability for the

negligence of a contractor is not strict liability. A plaintiff who brings a negligence

claim for injury on an escalator must make a prima facie showing of negligence.

Tinder, 84 Wn. App. at 791. Summary judgment was properly granted in Tinder

when the plaintiff relied solely on a theory of res ipsa loquitur to raise an

inference of negligence. In contrast, the Knutsons did make a prima facie

showing of negligence with their evidence that Schindler's servicing of the

escalator was shoddy. Thus, the Knutsons are not seeking to have negligence

presumed from the mere happening of the malfunction.

       Macy's and Kemper contend Dabroe limits their common carrier duty to

malfunctions or defects of which they had notice. They misread Dabroe.

       In Dabroe, a department store escalator came to a sudden stop as a result

of a small boy getting the toe of his tennis shoe wedged in the side. Dabroe, 64

Wn.2d at 432. A woman riding the escalator was injured. Dabroe,64 Wn.2d at

432. The defendant owner and operator were aware of four instances within the


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No. 75565-0-1/6

previous year of children's footwear being caught in the sides of the escalator.

Dabroe,64 Wn.2d at 435 n. 4. The plaintiffs' theory was that the defendants

were negligent for failing to post warning signs and failing to equip the escalator

with a switch that would produce a sliding stop instead of a jerk when it jammed.

Dabroe,64 Wn.2d at 435.

       The Supreme Court reversed a defense verdict on the ground that the

instructions failed to apprise the jury of the plaintiffs' theory of negligence.

Dabroe,64 Wn.2d at 435. Prejudicial error occurred when the trial court refused

to give the following instruction requested by the plaintiffs: "'It was the duty of the

Defendants to exercise the highest degree of care consistent with the practical

operation of its escalator to protect its passengers from the danger of injury from

malfunctions or defects of which they knew or should have anticipated from facts

and circumstances known to them:" Dabroe,64 Wn.2d at 433(emphasis

added).

       Respondents contend the emphasized portion of the instruction quoted

above shows they cannot be held liable for the Knutsons' injuries if they had no

notice or knowledge of any defects in the escalator. They emphasize that the

escalator failed due to what they describe as "latent" defects, i.e., loose internal

screws and missing nuts that could only be discovered through internal

inspection of the conveyance. What respondents overlook is that Dabroe did not

involve a claim of negligent maintenance performed by an agent. The

emphasized language was necessary in Dabroe to support the plaintiffs' theory in

that particular case—the defendants'failure to warn passengers and properly


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No. 75565-0-1/7

equip the escalator. The language requiring notice was not intended to be part of

an all-purpose instruction appropriate in every escalator case. It is not

appropriate in the present case. The plaintiffs' theory is that the owner and

operator breached their high duty of care by failing to keep the escalator properly

maintained. This breach, though committed by an independent contractor, is

imputed to the owner and operator of the escalator.

       If Schindler's neglectful maintenance caused the Knutson's injuries, it is

immaterial that Macy's and Kernper were unaware of the loose screws and

missing nuts. It is immaterial that escalator repair, by law, must be carried out by

a licensed technician like Schindler. Macy's and Kernper are vicariously liable for

Schindler's negligence the same as they would be if their own employees had

been licensed to maintain the escalator and had been negligent in doing so.

       Kemper, citing principles of premises liability, attempts to deflect liability to

Macy's by arguing Macy's "was in complete control and possession of the

demised premises as well as the escalator on the date that the subject incident

occurred." But the issue in this appeal is whether Kemper can be held liable as a

common carrier, not as an owner of premises. Because sufficient evidence

establishes that Kemper was at least the owner of the escalator if not also the

operator, Kemper is held to the same standard as Macy's. Both owe the same

nondelegable common carrier duty to passengers on the escalator. Both are

vicariously liable for Schindler's acts and omissions.

       Kemper moves to strike from the record any references to the Lerch Bates

report. The motion is denied. The report was among the materials considered


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No. 75565-0-1/8

by the trial court with no objection noted. We express no opinion as to the

report's admissibility at trial.

       Reversed.




WE CONCUR:




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