The Modification of Washington\u27s Nondelegable Duty Doctrine in a Post-Afoa II State

Under the nondelegable duty doctrine, a person or entity who has a duty to provide specified safeguards or precautions for the safety of others and who maintains a right of control over workplace safety is subject to liability for harm caused by the failure of a sub-contractor to provide such safeguards or precautions. This doctrine is based on the policy that the party with the greatest power over work conditions is in the best position to implement safety measures across a complex and layered worksite. This doctrine has existed in Washington State for decades until the recent Washington Supreme Court decision Afoa v. Port of Seattle, when the court was faced with determining whether the duty survived Washington’s tort reform statutes abrogating joint and several liability. While the court ultimately concluded that the nondelegable duty doctrine does not survive Washington’s tort reform statute absent an additional finding of agency, this Note provides a thorough analysis into the court’s reasoning, compares the reasoning with other jurisdictions faced with similar issues, and concludes that Afoa v. Port of Seattle was wrongly decided. The nondelegable duty doctrine should have been found to survive Washington’s tort reform legislation because it is rooted in principles of agency; therefore, an explicit additional finding of agency by a trier of fact is redundant and will have lasting consequences on workplace safety in complex worksites