Premises Defendant Appeal Unsuccessful, Verdict Upheld

Court of Appeals of Washington, Division One, December 14, 2021

From the mid-1950s until 1988, ExxonMobil operated a refinery in Ferndale, Washington. In 1979, Northwestern Industrial Maintenance (NWIM) contracted with Mobil to perform maintenance jobs at the Mobil refinery in Ferndale. NWIM employed the decedent, Warren Wright, as a working foreman at the Ferndale facility. The decedent was diagnosed with mesothelioma, and died in September 2015. In January 2018, the plaintiff filed a wrongful death suit individually and on behalf of the decedent’s estate, alleging that he was exposed to asbestos from demolition jobs at the Ferndale facility.

After other defendants settled, Mobil proceeded to trial and a jury returned a $4 million verdict for the plaintiff. Mobil filed post-trial motions for a judgment as a matter of law and for a new trial based on erroneous jury instructions. The court denied Mobil’s motions. Next, Mobil appealed to the Court of Appeals of Washington.

The court noted that generally, the decision to give a particular jury instruction is within the trial court’s discretion. Taylor v. Intuitive Surgical, Inc. “Where substantial evidence supports a party’s theory of the case, the trial courts are required to instruct the jury on the theory.” An appellate court reviews a trial court’s decision to give a jury instruction de novo if based on a matter of law or for abuse of discretion if based on an issue of fact. “Jury instructions (1) cannot be misleading, (2) must allow counsel to argue their theory of the case, and (3) must properly inform the jury of the applicable law, when read as a whole.” Spencer v. Badgley Mullins Turner, PLLC. An instruction is erroneous if it fails to satisfy these criteria. An erroneous instruction is not reversible unless it is prejudicial. Prejudice is assumed if the instruction is a clear misstatement of the law, but must be demonstrated if the instruction is merely misleading.

The plaintiff’s negligence claim for asbestos exposure was based on two theories: (1) Mobil retained control over NWIM and failed to exercise ordinary care in overseeing its work; and (2) Mobil failed to use ordinary care for the decedent’s safety as an invitee onto its property. The court opined that reversal is necessary only if the court’s actions rose to the level of prejudicial error for instructions related to both theories.

In reviewing the record, the court found that the instruction regarding Mobil’s retention of control was the only abuse of discretion. The parties did not dispute that the decedent was an employee of an independent contractor rather than an employee of Mobil. Instead, the plaintiff argued that Mobil had liability for the decedent’s asbestos exposure because it retained control of the workplace. The trial court instructed the jury on the plaintiff’s proposed instruction for the theory of retained control:

“An owner and/or operator of a refinery ‘retains control’ over the work of a contractor when it either (1) retains the right to direct the means and manner in which a contractor works or (2) retains the right to require use of safety precautions or otherwise assumes responsibility for worker safety.”

Mobil argued this instruction was erroneous because it permitted the jury to find for the plaintiff “based solely on Mobil’s contractual requirement that NWIM follow prevailing safety laws.”

The case law established the proper inquiry for whether the employer retains control as “whether there is a retention of the right to direct the manner in which work is performed.” Kamla, 147 Wn.2d at 121. In this case, the instruction given allowed the jury to conclude that Mobil retained control because it required NWIM employees to comply with its general safety rules and Occupational Safety and Health Administration regulations. The court found this to be far below the contractual obligation for undertaking safety procedures. Moreover, the court found it to be directly contrary to the case law establishing that the right to ensure compliance with relevant laws and regulations does not constitute retained control. SeeCano-Garcia, 168 Wn. App. at 237. As a result, the court found the retained control jury instruction to be a clear misstatement of the law.

While the court held that such an error is presumed prejudicial, because it did not find prejudicial error regarding the instructions on both of the plaintiff’s theories, the verdict was affirmed.

Read the full decision here.