Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                  DIVISION ONE

ENOS DON FERGUSON,                          )
                                            )       No. 65092-1-I
                      Appellant,            )
                                            )       DIVISION ONE
              v.                            )
                                            )       UNPUBLISHED OPINION
KING COUNTY, a governmental entity,         )
                                            )
       Defendant/Cross Respondent,          )
                                            )
THE LAKESIDE GROUP, LLC, a legal            )
entity,                                     )
                      Defendant,            )
                                            )
TYSSENKRUPP SAFWAY, INC. fka                )
SAFWAY SERVICES, INC., a                    )
corporation,                                )
                                            )
       Respondent/Cross Appellant,          )
                                            )
INTERNATIONAL ALLIANCE OF                   )
THEATRICAL STAGE EMPLOYEES,                 )
LOCAL 15, an international union,           )       FILED: March 19, 2012
                                            )
                      Respondent.           )

       Grosse, J.  --  When there is no legally sufficient basis on which to find for 

the party with respect to an issue, the trial court may grant a motion to dismiss 

as a matter of law.  Here, the fact that a clamp was frozen or defective at the 

time of trial, several years after the accident, is not sufficient in and of itself to 

infer that the clamp was frozen at the time of the accident, particularly here, 

where testimony indicated that the clamp was movable at the time of the 

accident. Further, an action for vicarious liability will not lie where the tortfeaser 

is a coworker and therefore immune from liability under the Industrial Insurance  

No. 65092-1-I / 2

Act, Title 51 RCW. Accordingly, we affirm the trial court.

                                        FACTS

       Enos  Ferguson was injured on June 19, 2005, while working as a 

spotlight operator for a theatrical event at Marymoor Park.      Ferguson's complaint 

alleges that his "injuries were caused by the unsafe condition and improper 

installation of the ladder, scaffolding and other equipment used in the spot 

tower" at the event.  The event was sponsored by both King County Parks 

Department (County) and The Lakeside Group, LLC (Lakeside) under a special 

use permit.  The County rented the  scaffolding from Safway Services, Inc. 

(Safway)  for this event just  as they had done in 2003 and 2004 for similar 

events.

       In its capacity as a labor organization, defined under §             2(5) of the 

National Labor Management  Relations Act (NLRA), 29                U.S.C.  §   185, the 

International Alliance of Theatrical Stage Employees, Local 15 (Union) operates 

a hiring hall and dispatches workers to the jobsites of employers with whom the 

Union has entered into collective bargaining agreements.  Lakeside hired Union 

members to work at the event.  On June 19, 2005, the Union dispatched a crew 

of workers.  

       The crew erected the spot tower, but work came to a standstill when it 

was discovered that Safway had sent the wrong scaffolding cross bars for 

installation.  These cross bars are usually installed prior to installing the ladder.  

When the time limit set for work was reached, John  Poulson, as the lead, 

                                           2 

No. 65092-1-I / 3

released the workers, stating that he would install the ladder himself.  Poulson 

contacted Larry Huffines, the production manager for Lakeside, but since it was 

a Saturday, they were unable to get replacement cross bars.  Safway is closed 

on the weekend, but does have a messaging service.  Without these cross bars,

the scaffolding structure was more wobbly, but was still structurally sound. 

Poulson, together with Huffines, checked the spotlight and determined that its 

function as a spot light tower was not affected by the increased wobble. Poulson 

then installed the ladder, which came in three segments.  The lowest segment 

was attached with two clamps and the second and third segments with one 

clamp.  

       Poulson installed the ladder attaching the clamps to the horizontal bars of 

the scaffolding.  He climbed up and down at least three times. Another worker 

climbed the ladder about three or four times with no problems.  Ferguson, a 

member of the Union, arrived at work later and climbed the ladder to the 

spotlight platform with no incident.  At intermission, he went to exit the platform 

and the third section of the ladder pulled away from the structure, causing 

Ferguson's fall and resulting injuries.

       Ferguson sued King County, Lakeside, the Union,  and Safway for 

damages as a result of the accident.  Safway cross appealed against King 

County,    contending the       County failed to defend Safway under the 

indemnification clause contained in a rental agreement, which Safway alleges 

was incorporated into the quotation for scaffolding.  The trial court dismissed 

                                           3 

No. 65092-1-I / 4

both the Union and Lakeside on summary judgment.  A jury trial was held on the

damage/liability issues. The jury found Safway negligent, but also found that 

Safway's negligence was not the proximate cause of the accident.  The court 

then held a bench trial on Safway's cross appeal.  The trial court found that the 

rental agreement was not incorporated into the contract and dismissed Safway's 

cross claim for indemnification.

       Ferguson appeals the dismissal of the Union, arguing that it is vicariously 

liable for his injuries because of the Union steward's negligence.  Ferguson also 

appeals trial court rulings at the jury trial.  Specifically, he contends the trial court 

erred in granting a CR 50 judgment as a matter of law dismissing his negligence 

and product liability claims based on a faulty clamp            resulting in improper 

placement and/or tightening.     Ferguson also contends the trial court commented 

on the evidence and erroneously instructed the jury that Safway's failure to 

furnish a guardrail gate was not relevant or material to the issues before the jury.

       Safway cross appeals,       contending that the      County was required to 

indemnify Safway.

                                      ANALYSIS

Vicarious Liability of the Union

       The trial court granted the  Union's motion for summary judgment 
dismissing Ferguson's claims.1      Ferguson argues that the Union is vicariously 

liable because Poulson, the shop steward, was negligent in placing the bolt on 

1 The Union had originally brought a CR 12(b)(6) motion for failure to state a 
claim, which was denied by the court.           The court also issued a summary 
judgment dismissing Lakeside as a party, but that is not at issue in this appeal.

                                           4 

No. 65092-1-I / 5

the ladder horizontally instead of vertically and/or did not tighten the bolt. His 

theory hinges on the fact that Poulson dismissed the crew and installed, by 

himself, the ladder which gave way -- thus preventing any safety check by 

another installer who would have discovered if the bolt was loose.  Since 

Poulson was the shop steward, Ferguson argues, he was responsible for the 

safety of the crew, and dismissing that crew before installation was complete 

resulted in faulty installation of the ladder.  

       An employer is vicariously liable for injuries caused by the negligence of 
its employee under the principle of respondeat superior.2        To apply respondeat 

superior, (1) the relationship must be that of employer-employee; and (2) the tort 

must be committed within the scope of employment and in furtherance of the 
employer's interest.3   The underlying policy is that the employer is in the best 

position to control the conduct of its employees and to compensate injured 
parties.4  

       Ferguson confuses Poulson's role.  When Poulson was working on the

scaffolding he was not functioning in his role as a Union steward.  Poulson was 

paid by Lakeside, was under Lakeside's control, and was performing a function 

for the benefit of Lakeside.  Poulson was nothing more than a coworker and as 

such is exempt from liability under the Industrial Insurance Act, Title 51 RCW.  A 

2 Brown v. Labor Ready N.W., Inc., 113 Wn. App. 643, 646, 54 P.3d 166 (2002).
3 Breedlove v. Stout, 104 Wn. App.          67, 70, 14     P.3d 897 (2001) (quoting 
Dickinson v. Edwards, 105 Wn.2d 457, 467, 716 P.2d 841 (1986)).
4 Rahman v. State, 170 Wn.2d 810, 818-19, 246 P.3d 182 (2011) (policy 
supporting vicarious liability is that employer is in position to impose workplace 
rules and standards).

                                           5 

No. 65092-1-I / 6

union cannot be vicariously liable for the negligence of a plaintiff's  coworker 
where the coworker is immune from suit.  Brown v. Labor Ready Northwest, Inc.5

is dispositive.

       Brown was a permanent            employee of CMI Northwest, a lumber 
distribution center.6  She was injured in an accident at CMI caused by a forklift 

operated by Henson, an employee of a labor agency, Labor Ready.7                  Brown 

sued Labor Ready and Henson for Henson's negligence.  The trial court granted 

Labor Ready's motion for summary judgment and this court affirmed.  The 

threshold question there, as here, was the relationship between the two 

employees.  If Brown and Henson were coworkers, Brown's negligence claim 

against Henson and his vicarious liability claim against Labor Ready were 

barred because Brown was limited to the remedies provided by Washington's 
workers' compensation system.8        RCW 51.04.010; RCW 51.32.010.            Likewise, 

Poulson was a coworker, and Ferguson's remedies are also limited.

       Vicarious liability is a derivative and depends on the liability of the 

negligent agent to the injured plaintiff.  "[I]f a plaintiff is barred from suit against 

the negligent employee, [he or] she cannot sue the employer on a theory of 
vicarious liability."9 As noted in Brown, "the sole concern for vicarious liability 

(as opposed to workers' compensation immunity) is whether the master accepted 

5 113 Wn. App. 643, 54 P.3d 166 (2002).
6 Brown, 113 Wn. App. at 645.
7 Brown, 113 Wn. App. at 646.
8 Brown, 113 Wn. App. at 655.
9 Brown, 113 Wn. App. at 646-47.

                                           6 

No. 65092-1-I / 7

and controlled the service that led to the injury."10     Here, the evidence is clear 

that Lakeside controlled the service that led to the injury.  

       Despite the evidence that Lakeside had control over the worksite, was 

responsible for the safety of the workers, and paid the employees, Ferguson 

nonetheless contends that Poulson was acting as an                agent of the Union

responsible for the safety of the workers.   An agency relationship may arise 
when one engages another to perform a task for the former's benefit.11          Consent 

between the parties and control are the essential elements of an agency 
relationship.12  "'It is the existence of the right of control, not its exercise that is 

decisive.'"13  

       Ferguson argues that it was Poulson who determined the number of 

Union workers on the jobsite and acted as their supervisor and administrator.  In 

the capacity of administrator, Poulson kept track of time, meal breaks, and the 

payroll time sheets.   As the supervisor, he found out what the show needed and 

assigned the crew in that manner.   But it was Lakeside, as the employer, who 

was in control of the worksite and had ultimate responsibility for safety.  

Poulson's role was "to make sure that the work occurred in a safe manner."             In 

that capacity he acted as a foreman of a jobsite.  
       Ferguson's reliance on Woods v. Graphic Communications14                        is 

10 Brown, 113 Wn. App. at 649.
11 O'Brien v. Hafer, 122 Wn. App. 279, 281, 93 P.3d 930 (2004).
12 Barker v. Skagit Speedway, Inc., 119 Wn. App. 807, 814, 82 P.3d 244 (2003).
13 O'Brien 122 Wn. App. at 281 (quoting Pagarigan v. Phillips Petroleum Co., 16 
Wn. App. 34, 37, 552 P.2d 1065 (1976) (internal quotation marks omitted).
14 Woods v. Graphic Commc'ns, 925 F.2d 1195 (9th Cir. 1991).

                                           7 

No. 65092-1-I / 8

misplaced. Woods brought a 42 U.S.C. § 1981 action against both his employer 

and the union alleging racial harassment that interfered with his ability to enforce 

his labor contract.  Woods was subject to racial epithets and a hostile work 

environment.  At least three times he asked the union through its steward to file 

a grievance concerning racial atmosphere at work.  The union never filed a 

formal grievance. The steward was entrusted with implementing the grievance 

process, and failure to process the claims constituted racial harassment.  Here, 

Poulson was acting in his capacity as a lead worker for Lakeside, not as a 

steward for the Union.

Clamp

       At the conclusion of Ferguson's case, Safway moved to dismiss 

Ferguson's claim that Safway was negligent and proximately caused the injury.  

The court granted the CR 50 motion on the issue of whether the clamp supplied 

was immovable.  CR 50 provides:

       If, during a trial by jury, a party has been fully heard with respect to 
       an issue and there is no legally sufficient evidentiary basis for a 
       reasonable jury to find or have found for that party with respect to 
       that issue, the court may grant a motion for judgment as a matter of 
       law.

 A motion to dismiss as a matter of law should be granted when, in viewing the 

evidence most favorable to the nonmoving party, the court can say as a matter 

of law that there is no substantial evidence or reasonable inference to sustain a 
verdict on the claim of the nonmoving party.15  "Substantial evidence is said to 

exist if it is sufficient to persuade a fair-minded, rational person of the truth of the 

15 Guijosa v. Wal-Mart Stores, Inc., 144 Wn.2d 907, 915, 32 P.3d 250 (2001).

                                           8 

No. 65092-1-I / 9

declared premise."16     An appellate court reviews the trial court's decision de 

novo and applies the same standard as the trial court.17

       Evidence at trial demonstrated that the clamp before the jury was frozen 

and difficult to move.  However, Poulson's testimony at trial indicated that the 

clamp which attached the ladder brackets was movable.

       Q.  Now, one of the things that you have to do when the ladder comes 
       to you is you have to --  especially if you're going to put it on the 
       horizontal, you need to get these brackets on the right level?
       A.  Even if it's going on a vertical, sometimes you have to move those.
       Q.  Because you have to get around the ring sets so you're in the right 
       spot where this will attach; fair?
       A.  Yes.
       Q.  You're going to have to move this bracket?
       A. Yes.
       Q.  And chances of it being in the right spot for your particular location 
       is almost nil; right?
       A.  Correct.
       Q.  Not nil.  What are the odds, right, that your horizontal member 
       would be right here?  So you're going to have to put a wrench on this 
       thing and you're going to have to loosen it up and move it around; fair?
       A.  Correct.
       Q.  All right.  Regardless of the condition that the ladder was delivered 
       in, you were going to have to make some modifications in order to 
       make it work?
       A.  Yes, some adjustments.
       ****

       Q.  And on the actual clamp that was on the very top section, the one 
       that Mr. Ferguson fell from, that's this one here, if there had been any 
       defect in the -- you inspect these before you put them; right?  I mean, 
       you have to look at them and make sure --
       A.  You have to because sometimes the threads are full of cement, you 
       can't use it.
       Q.  They could get fouled in some way or they can get dinged up or 
       nicked in the process?
       A.  Yes.
       Q.  Or paint or something like that.  But if there were any fouling or 
       dining up of the threads that made this clamp difficult or unusuable, 

16 Guijosa, 144 Wn.2d at 915.
17 Guijosa, 144 Wn.2d at 915.

                                           9 

No. 65092-1-I / 10

       you wouldn't have used it; is that correct.
       A.  That is correct.

Poulson further testified that whether or not the clamp was difficult to turn played 

no role in his decision on how to attach the ladder to the scaffold.  Significantly,

this testimony suggested that his decisions on where to locate the clamp and his 

efforts in installation were in no way determined by a defect in the clamp.  

       When Ferguson asked his engineering expert, Dr. Richard Gill, whether 

Safway supplied the clamp in a condition contrary to its installation standards, 

Safway's counsel objected as to foundation.  Outside the jury, the following 

colloquy took place:

       THE   COURT:   Let me tell you the problem I'm having with your 
foundation question.  I don't know if this clamp is in the same condition it was on 
the day of the accident, either before the accident or after the accident.

       MR. BUDLONG:  I can ask him.

       THE COURT:  I don't know when Cook's deposition was taken.

       MR. BUDLONG:  Decmeber 10th

       THE COURT:  Of this year --

       MR. BUDLONG:  Of last year.

       THE COURT:  Of 2009.

       MR. BUDLONG:  Correct.

       THE COURT:  I don't know where the ladder was between the time of the 
accident and Cook's deposition.

       MR. BUDLONG:  Mr. Lindemer had it.  He's already testified.

       THE COURT:  I understand.  But I don't know if it was out in a yard 
somewhere, whether it was in a secure area or not, and so your question is 
assuming that it was in this condition at the time of the accident.  Was it --

                                           10 

No. 65092-1-I / 11

       MR. BUDLONG:  Fair enough, Your Honor.  Thank you.

       THE COURT:  That's the problem I have.

       MR. BUDLONG:  I'll do that.  I'll ask the question that way and then we 
can follow-up with Mr. Lindemer.

       MR. EDEN:  More precisely, Your Honor, I believe the question is, if the 
ladder was delivered on June 14th of 2005 in this condition, because there is 
going to be evidence, as there has been already, that these components sat out 
in a public park for five days unattended, they were assembled and 
disassembled and other things.  So the primary point in time is the point of 
delivery.
       MR. BUDLONG:  I'll just ask the question your way, assuming that they 
were in this condition -- 

       THE COURT:  When they were delivered.

       MR. BUDLONG: Yeah. Great. Thank you, Your Honor.

       THE COURT:  Okay.

       Dr. Gill's testimony that "this clamp is defective" refers only to the state of 

the clamp at the time of trial.  The condition of the clamp in the courtroom was 

not germane to the issue of whether it was defective when delivered.  Dr. Gill's 

testimony regarding the clamp and its impact was based on nothing more than 

an assumption that the clamp was likewise defective at the time of the accident.  

After the colloquy with the court, but before Ferguson rested, there was no follow-

up testimony from Mr. Lindemer about the condition of the clamp at the time of 

the accident.  

       A supplier owes a duty of reasonable care when it delivers a product for 

use by another.  The alleged breach of duty was that the clamp was defective or 

frozen at the time of the accident.  Dr. Gill merely assumed that fact.         Poulson 

                                           11 

No. 65092-1-I / 12

testified that he did not notice any defects in the bracket and the condition of the 

bracket did not influence his assembly of the ladder. The court correctly ruled 

that there was no substantial evidence to indicate that the clamp was defective 

when the scaffolding and ladder were delivered.  We do not believe allowing an 

inference for purposes of CR 50 that the bracket was immovable at the time of 

the incident is proper.  However, even allowing such an inference to create a

question of fact does not alter the result.  Poulson's uncontradicted testimony, 

which implicate his negligence, establishes that the bracket itself was not the 

cause of how the ladder was attached or of the resulting accident.            The court 

properly granted Safway's motion because the evidence did not establish that 

the clamp was frozen or defective at the time of the accident and established it 

was not the cause of the design or accident.

Guardrail

       Ferguson contends that the trial court commented on the evidence and 

erroneously instructed the jury that Safway's failure to furnish a guardrail gate 

was not relevant to the jury's determination of negligence.  At trial, the jury was 

shown a video clip of a Safway ladder and installation instructions for tube and 

clamp scaffolding.     The instructions state that one should "[i]nstall guardrail 

gates at all platform levels.  When erecting the scaffold higher, use a ladder to 

access the scaffold."    The jury next heard the testimony from Edward Dupras 

who was involved in building the scaffold at Marymoor.  Ferguson's counsel 

posed the following questions:

       Q.  Let me ask you this.  Did Safway provide a gate as part of this scaffold 

                                           12 

No. 65092-1-I / 13

       to step out around get on the ladder, do you recall?
       A.  I don't recall if we had a gate for that.  Normally we had always just 
       had to swing our leg up over the rail.
       Q.   All right.  That was the standard way that --
       A.  It had been and I do know the last time I worked out there after the 
       accident, I was working follow spot and there was a gate.
       Q.  That was after the accident?
       A.  Yes
       Q.  But not before?
       A.  Not that I recall before the accident.

There was no further testimony regarding the guardrail gate.  Juror No.                9 

submitted the following question:

       Is there any industry standard height that requires a guardrail gate?  If 
       not, is [it] the customer who determines whether or not this is included in 
       the setup materials?

       After reading the juror's question, the court stated it was inclined to read 

the question to the jury and inform them it was not relevant or material to the 

issues before it.   The court asked counsel if they had any objections. When 

Ferguson's counsel hesitated, the court noted that there was no claim that there 

had to be a guardrail.  Ferguson's counsel responded:

       MR. BUDLONG:  Well, there is an issue, though, Your Honor, because 
       Mr. Eden got up there and implied that [Enos]  Don Ferguson was 
       negligent for having to lift this leg all the way over the second rail of the 
       ladder.  And so I think that it is in the case, and I think that the question 
       ought to be answered and I shouldn't -- I don't think --

       THE COURT:  No, I'm not going to ask the question.  Mr. Eden has 
       indicated in opening argument that he does              not have any sort of 
       contributory or comparative negligence claim against Mr. Ferguson.  And 
       if in closing argument or anywhere else there is any suggestion of that, I 
       will certainly take whatever measures are necessary.

       But to me, to ask this question without some explanation, allows the jury 
       to start speculating that there could be all these other problems and 
       nobody has identified the lack of a gate as a problem.  The only problem 
       is that clamp, as far as I can see it, whether it should have been hooked 

                                           13 

No. 65092-1-I / 14

       to a vertical or whether it should have been in an up or down swivel 
       position, and to interject these other things, to me, is just irrelevant, 
       immaterial, and is confusing to the jury.

       MR. BUDLONG:  I understand your ruling.

       THE COURT:  And again, if you believe at any point that Mr. Eden is 
       going in a different direction, I'll be sure and sustain whatever you want.

       This colloquy occurred shortly after noon on January 21, 2010, which was 

a Thursday.  The court read the question to the jury and informed them it was 

not relevant to the case.  After the ruling, John Poulson, the employee who 

attached the ladder to the structure, testified.  Ferguson then called two more 

witnesses, Keith Crandall, the operations manager for Safway, and Scott 

Rowden, the sales representative for Safway.  

       On Monday, January 25, 2010, the next day of trial, Ferguson moved for a 

curative instruction, arguing that the issue of whether there was a guardrail gate 

was germane.  Ferguson contends that had a gate been there, he would have 

accessed the ladder in the middle section which was firmly attached to the 

scaffolding.  Thus, he argues, the lack of a gate was the proximate cause of the 

fall.  When the court inquired whether this was a theory that was initially relied 

on, counsel responded:

       MR. BUDLONG: It was -- well, we've always said that the -- I'm 
       sorry, we have always said that the products that were supplied 
       were not in a safe condition.  We had not specifically stated this 
       about the gate, but that's not our fault, Your Honor, and let me 
       explain why.

       We    asked for all of the instructions and videos concerning 
       installation of ladders and so forth in February of 2008.  We never 
       got any.  And so I asked Mr. Lindemer, who is present in the 
       courtroom, at his deposition on November 10th, do you have any 

                                           14 

No. 65092-1-I / 15

       videos or instructions?      And for the first time we were informed 
       that they existed.

       And then the defendants waited until after Dr. Gill was deposed on 
       December 4th and after Mr. Cook was deposed on December 10th, 
       and only disclosed the 1994 instructions           and the videos on 
       December 11th after our experts had been deposed.  And so it was 
       not through any fault of ours that this occurred.  It was deliberate 
       delay in producing them, and I'm not claiming any prejudice.

       Ferguson submitted an offer of proof through Dr. Gill's testimony.  Dr. Gill 

testified that the lack of an access gate caused the accident because a gate 

would have required Ferguson to step down on the third rung  of the middle 

ladder, thus bypassing the top ladder.  The middle ladder would have withstood 

Ferguson's weight since that section held fast even with the extreme load of the 

top section with Ferguson falling back on it.      If Ferguson had stepped onto the 

middle section of the ladder the weight on the upper section would be nothing 

more than a stabilizing force.  Since the top section of the ladder had been 

climbed upon several times prior to Ferguson scaling it, the section would not 

have failed if it only provided a means of stepping onto the stable middle 

section.  

       On cross-examination,  Dr.  Gill admitted that in his deposition on 

December 4, 2009, he advanced five theories for the cause of the fall, none of 

which encompassed the absence of an access gate.  Gill testified that he had 

not had the information about the guardrail gate, even though he testified that a 

gate was the industry standard on scaffolding higher than six feet.        Gill testified 

that he received Safway's video and safety instructions sometime  during the 

                                           15 

No. 65092-1-I / 16

holiday season and had discussions with Ferguson's counsel as things unfolded.  

Gill's interrogatory responses were not amended.  Neither did counsel move to 

supplement his deposition.   

       After the offer of proof, the trial court adhered to its previous ruling on the 

basis that "the theory of the gate was not a theory that was previously advanced, 

either in terms of communication between the parties, nor was it advanced at the 

outset of this trial in terms of the instructions that were given to the jury with the 

agreement of counsel, and at this point in time it will be tantamount to essentially 

allowing the plaintiff to reopen and reintroduce another theory with all of the 

attendant problems of witnesses, et cetera."

       Ferguson's arguments to the contrary are without merit.  Ferguson argues 

that Safway implied that Ferguson was "responsible" for causing the ladder to 

collapse.  He relies on a question posed by Safway's counsel where he asked a

witness who had observed the fall, how Ferguson got on the ladder: 

     What I'm most curious about is how did Mr. Ferguson manage to get from 
     inside here -- there was no gate or any other device to get around or 
     through the top rail; correct?

This question is insufficient to attribute negligence to Ferguson.  Further, Safway 

specifically told the jury that Ferguson was not at fault or in any way to blame for 

the accident in its opening argument.

       Ferguson's argument that the judge commented on the evidence when he 

ruled that the issue of whether or not there was a gate was not an issue before 

the jury is without merit.  The court did not comment on the evidence; rather, it 

                                           16 

No. 65092-1-I / 17

ruled that the issue was precluded because it had not previously been raised 

and thus it was not relevant to the jury's decision.  

       Ferguson's  request for a curative instruction is likewise without merit.  

There is no dispute that Ferguson failed to supplement answers to 

interrogatories.  A party must seasonably update a response to an interrogatory 

asking about the substance of the testimony an expert witness is expected to 
give.  CR 26(e).18    The duty arises when a party obtains information upon the 

basis of which a party "knows that the response though correct when made is no 

longer true and the circumstances are such that a failure to amend the response 

is in substance a knowing concealment."              CR 26(e)(2)(B).  Exclusion of 

evidence, though a harsh remedy, is not an abuse of discretion if the violation 
substantially prejudices the opponent's ability to prepare for trial.19  

       Dr. Gill testified that he had received the additional information about the 

guardrail gate during the holidays and that he had discussed it with Ferguson's 

attorneys "as things unfolded, but it's not up to [him] to file legal papers."       Not 

advancing the theory of the gate placed Safway in an untenable position having 

to defend when the majority of the witnesses had already testified.  

       Ferguson failed to raise the guardrail gate issue.  The instructions issued 

permitted Ferguson to argue his theory of the case.  None of his theories of 

18 CR 26(e)(1) provides:
     A party is under a duty seasonably to supplement his response with 
     respect to any questions directly addressed to . . . (B) the identity of 
     each person expected to be called as an expert witness at trial, the 
     subject matter on which he is expected to testify, and the substance of 
     his testimony.
19 Hampson v. Ramer, 47 Wn. App. 806, 812-13, 737 P.2d 298 (1987).

                                           17 

No. 65092-1-I / 18

negligence included the gate until a juror asked the question and many of his 

witnesses had already testified. The cases cited by Ferguson that "facts tending 

to establish a party's theory, or to qualify or disprove the testimony of an 
adversary, are relevant evidence" are not pertinent.20       Those cases all support 

the admission of relevant evidence to support a theory presented to the jury.  

Here, the theory of the missing guardrail was not before the jury.  The trial court 

did not abuse its discretion in ruling the evidence not relevant.

       Because we affirm the trial court, and uphold the dismissal of claims, we 

need not address Safway's assignment of error to the court's order dismissing 

the fault apportionment defenses.  

Cross Appeal

       Safway sought indemnification from King County per its scaffolding rental

agreement.  The cross claim was severed from the jury trial.  After the jury trial 

concluded, the trial court conducted a bench trial. The trial court found the 

indemnification provisions were not incorporated by reference, dismissed 

Safway's cross claims, and awarded attorney fees to the County.  Safway

appeals.

       Safway argues that the County owed a duty to defend and indemnify it 

from Ferguson's claims.  Safway bases its claim on an indemnification provision 

contained in its rental  agreement, which requires the County to defend and 

indemnify it against all claims except those that are solely caused by Safway.  

Safway's tender of its defense to Ferguson's lawsuit was rejected by King 

20 Lamborn v. Phillips Pac. Chem. Co., 89 Wn.2d 701, 706, 575 P.2d 215 (1978).

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No. 65092-1-I / 19

County and Safway filed this cross claim against the County.

       A bench trial was held on May 5 and 6, 2010.  The court found that the 

rental agreement was not incorporated into the cost quotation negotiations 

between Safway and the County, and dismissed Safway's cross claim against 

the County.

       Safway argues that de novo review is proper here. Where a record at trial 

consists entirely of written documents and there were no credibility issues, the 

review is de novo.  Here, however, the court heard testimony from witnesses 

regarding the transaction and entered findings of fact and conclusions of law.  
Thus, the substantial evidence standard applies.21  

       David Sizemore, an engineer employed by the County, negotiated with 

Phil Stephens from Safway to obtain scaffolding for the event at Marymoor Park.  

Sizemore received a quote from Stephens.   Sizemore had solicited a proposal 

from Safway to provide scaffolding previously in 2003 and 2004.  Safway sent a 

rental quotation in each instance that contained language that all quotes were 

subject to the terms and conditions referred to in a Safway rental agreement.

       Sizemore faxed the prior year's quotation to Safway and spoke with 

Stephens on the telephone to refine what was needed for the concert.          Stephens 

returned a  price  quote which Sizemore then  signed.  He did not alter the

document. Sizemore did not ask for any clarification of the language referring to 

the rental agreement.  Sizemore never saw or signed the rental agreement 

referenced by Safway.  

21 Dolan v. King County, 172 Wn.2d 299, 310, 258 P.3d 20 (2011).

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No. 65092-1-I / 20

       Safway delivered the scaffolding to Marymoor Park where a County

employee signed the delivery slip.  The employee did not sign on the signature 

line provided  to   indicate acquiescence to the terms of the Safway rental 

agreement.  That portion of the contract was signed by Safway, but a blank 

signature line appeared where the County would have signed.              The trial court 

found the County employee only had authority to accept delivery and did not

have authority to sign the rental agreement and further that no one authorized by

the County had approved or signed the rental agreement.

       Safway argues that the quotation signed and faxed by Sizemore 

incorporated the rental agreement's terms and conditions.  But neither Sizemore 

nor Stephens believed that their negotiations and quotation were anything more 

than an agreement to a price for parts ordered.       As noted in Mattingly v. Palmer 

Ridge Homes, LLC, "[a]lthough 'parties have a duty to read the contracts they 

sign,' documents incorporated by reference usually must be reasonably 

available, at the least, so that the essentials of the contract can be discerned by 
the signer."22 Sizemore had not seen the rental agreement.

       To effectively incorporate a document by reference, it must be clear that 

the parties to the contract had knowledge of and assented to the incorporated 
terms.23  Here, there is no evidence that King County had knowledge of the 

22 Mattingly v. Palmer Ridge Homes, LLC, 157 Wn. App. 376, 391-92, 238 P.3d 
505 (2010) (quoting Del Rosario v. Del Rosario, 152 Wn.2d 375, 385, 97 P.3d 
11 (2004)).
23 W. Wash. Corp. of Seventh-Day Adventists v. Ferrellgas, Inc., 102 Wn. App.
494-95, 7 P.3d 861 (2000) (citing 11 Samuel Williston, The Law of Contracts §
30:25, at 234 (4th ed. 1999)).

                                           20 

No. 65092-1-I / 21

terms of the rental agreement.  

       The evidence was substantial to support the trial court's finding that the 

terms which Safway sought to incorporate are not normally contained in a rental 

quotation.  The evidence showed that the County neither knew nor assented to 

the incorporated terms as they were never discussed between Stephens and 

Sizemore.  Nor did Safway provide a copy of said agreement to Sizemore.  

       The court's conclusion that there was no meeting of the minds on the 

indemnity clause is supported by substantial evidence.  Neither Sizemore nor 

Safway's representative had any knowledge of the incorporated terms.  That 

there was no agreement is further evidenced by the delivery slip, which 

contained a further reference to the rental agreement and its terms, but was only 

signed by Safway.  The signature line for King County was blank.

       Additionally, there was no evidence to support Safway's contention that 

the County ratified the terms when it paid for the scaffolding.             The parties 

negotiating for the price testified that they both were dealing with the price for 

the parts ordered, nothing more.

       The County is entitled to attorney fees under RCW 4.84.330 under the 

reasoning set forth in Herzog Aluminum, Inc. v. General American Window 
Corp.24  As discussed in Herzog, the mutuality of remedy intended by the statute 

supports an award of attorney fees to a prevailing party under a contractual 

provision if the party-opponent would have been entitled to attorney fees under 

that same provision had that opponent prevailed, even when the contract itself is

24 39 Wn. App. 188, 692 P.2d 867 (1984).

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No. 65092-1-I / 22

found invalid.25

       Accordingly, we affirm.

WE CONCUR:

_________________________

25 Herzog, 39 Wn. App. at 195-97.

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