Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

 Ferguson v. King County, Tyssenkrupp Safway, Inc., and International Alliance 
             of Theatrical Stage Employees, Local 15, No. 65092-1-I

       Dwyer, C.J. (dissenting)  --  In resolving the crucial issue in this appeal, 

the majority does that which the jury plainly declined to do:  accept as true the 

testimony of Safway's witnesses on the question of Safway's negligence.

       The starting point of any sound analysis of the issues presented must be 

the jury's verdict. The jury found Safway negligent but also found that Safway's 

negligent acts were not a proximate cause of Ferguson's injuries.

       Safway, as a party, did not concede its negligence.  No witness testifying 

on Safway's behalf conceded negligence or the performance of negligent acts.  

The inescapable conclusion is that the jury did not accept the truth of all of the 

evidence presented on Safway's behalf.  Also unavoidable is the conclusion that 

the jury did not accept as probative Safway's attempts to impeach or contradict 

the testimony of those witnesses giving testimony on Ferguson's behalf on the 

question of Safway's negligence.  This matters.

       Ferguson's claim, that one of the ways in which Safway was negligent 

was in supplying a defective swivel clamp, is not complex.  These swivel clamps 

are supposed to rotate into the vertical position so that the ladder can be  

No. 65092-1-I/2

installed on a vertical post as recommended in Safway's instructions.  

Ferguson's claim is that one of the swivel clamps was frozen in the horizontal 

position with its claw portion on top and its bolt on the bottom.  This allowed the 

bolt to fall out of the ineffectively tightened clamp.  

       The testimony was that neither Safway's warehouse employees nor its 

truck drivers who delivered its scaffold components to jobsites were trained to 

inspect or recognize potential hazards in its ladders or clamps.  Further 

evidence was that, from the immediate aftermath of the incident in June 2005 

until the clamps were sent to Ferguson's expert witness for inspection and 

testing in November 2009, the clamps were in the sole custody and control of 

Safway personnel.  When examined by Dr. Richard Gill, the expert, the clamp at 

issue could not be rotated, even with a crescent wrench.  

       Dr. Gill, Ferguson's engineering and human factors expert, testified to the 

jury that, "This clamp is defective.  It won't rotate." Further, he opined that this

condition prevented the ladder from being installed on a vertical post.  

       The clear premises underlying Dr. Gill's opinion were these:  (1) Having 

been in Safway's sole possession the entire time, the clamp was in the same 

condition in November 2009 as it was in June 2005, and (2) the clamp was in the 

same condition when it came into Safway's sole possession on June 21, 2005 as 

it had been at the time of the collapse late on the evening of June 19, 2005.

       Safway moved to dismiss Ferguson's claim, arguing that there was no 

direct evidence that the clamp was frozen on June 19, 2005.  The trial court 

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No. 65092-1-I/3

agreed and granted the motion.

       Moreover, at the conclusion of the case, the trial court instructed the jury 

that, "The court hereby withdraws from your consideration the following claim of 

negligence: (1) That the bracket and clamp on the ladders were in a defective 

condition for allegedly being frozen or difficult to turn at the time of 

delivery . . . ."  (Instruction 2).  

       The applicable law is not complicated.  When reviewing a defendant's 

motion for judgment as a matter of law, we are to review the evidence in the light 

most favorable to the plaintiff and give the plaintiff the benefit of all reasonable 

inferences from the evidence presented.  Guijosa v. Wal-Mart Stores, Inc., 144 

Wn.2d 907, 915, 32 P.3d 250 (2001).  Our review is directed to the existence or 

nonexistence of a "legally sufficient evidentiary basis for a reasonable jury to 

find" in favor of the plaintiff on the claim at issue.  Civil Rule 50.  "[I]t is essential 

to keep in mind that a verdict does not rest on speculation or conjecture when 

founded upon reasonable inferences drawn from circumstantial facts."  Douglas 

v. Freeman, 117 Wn.2d 242, 254-55, 814 P.2d 1160 (1991).

       At trial, Ferguson's position was clear:  He was entitled to the benefit of 

the inference that the clamp "is as it was." It was for the jury to determine, 

Ferguson argued, whether this inference was outweighed by other evidence in 

the case.  I agree.

       The majority reasons differently.  Based on the testimony of two 

witnesses, it determines that the inference in Ferguson's favor was not a 

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No. 65092-1-I/4

reasonable one.

       The first of these witnesses was Safway's salesman, Scott Rowden, who 

visited the site after the incident and concluded that the collapse was caused by 

something other than a defective clamp.  But surely the jury was not required to 

accept the analysis of the salesman on the cause of the collapse.

       The second witness was John Poulson.  But Poulson was clearly self-

interested.  There is no reason for the jury to have been required to accept his 

testimony as true.

       Indeed, the jury's mixed verdict, in which it did find Safway negligent, 

indicates that it did not believe all of the testimony given in Safway's behalf.  We 

will never know, however, whether the jury believed Dr. Gill's testimony 

concerning the defective clamp because the issue (and thus his testimony on the 

issue) was explicitly withdrawn from the jury's consideration.  Perversely, given 

the jury's mixed verdict, one possibility is that the jury did believe Dr. Gill, 

believed the defective clamp to be a proximate cause of the scaffold's collapse, 

and declined to find for Ferguson on the question of proximate cause because 

the "clamp issue" had been withdrawn from its consideration.

       This is, of course, speculation.  And it is not for an appellate court to 

speculate on the reasons for a jury's decision.  But neither is it for an appellate 

court to weigh the evidence.  The majority does just that, however, in 

determining that Safway's witnesses were credible and, thus, the inference 

arising from other evidence in the case was an unreasonable one.  In so doing, I 

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believe, the majority -- and the trial court -- usurp the role of the jury.  It was for 

the jury, not the court, to determine if the testimony of Poulson and Rowden 

outweighed the testimony of Dr. Gill, premised upon the inference that the clamp 

was in the same condition when he examined it as it was at the time of the 

collapse.

       Because the facts should be found by 12 jurors at trial, not by two judges 
on appeal, I respectfully dissent.1

                                     _____________________________

1 I concur in the majority's disposition of the cross-appeal, regarding claims between Safway and 
King County.

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