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Chism v. Tri-State Construction, Inc.
193 Wn. App. 818 (2016)
A Washington Superior Court exceeded its powers when it ordered the disgorgement of an attorney’s in-house wages. This case involved a dispute over wages and bonuses between in-house counsel, Geoffrey Chism, and his employer, Tri-State Construction, Inc (“Tri-State”). Mr. Chism sued Tri-State for unpaid bonuses, wages, and exemplary damages due to Tri-State’s withholding of his wages. Tri-State counterclaimed that Mr. Chism violated his fiduciary duty and RPC 1.5, 1.7, 1.8, and 8.48. After the jury trial, Mr. Chism was awarded $750,000.00 in damages. However, the trial court entered a substantially reduced judgment for Mr. Chism and concluded that Mr. Chism violated the Rules of Professional Conduct (“RPCs”) and his common law fiduciary duty to Tri-State.
Upon appeal, the Court of Appeals found that the trial court went beyond its powers by ordering disciplinary remedies that the Washington Supreme Court itself has never issued and without reference to any supporting case law regarding the RPCs concerning attorney’s wages. In fact, the Supreme Court has not yet taken a stance on attorneys’ wages, but the Washington Legislature has enacted policies in favor of the payment of employee wages. Therefore, the Court of Appeals reversed the trial court’s entry of judgment to disgorge Mr. Chism’s fees and remanded the case to reinstate the verdict.
Implications for Practice
Attorneys’ fees are not interchangeable with attorneys’ wages. While attorneys’ fees are governed by the RPC, which the Washington courts enforce, attorneys’ wages are not. The Supreme Court’s disciplinary authority over attorneys is plenary in Washington; however, absent precedent for issuing disciplinary penalties on a specific topic, the lower courts cannot impose or create their own. The lower court’s power is derivative from the Supreme Court’s power.
Lee v. Willis Enters., Inc.
194 Wn. App. 394 (2016)
A recently published Division II case discusses negligence, duty, and foreseeability in inherently dangerous work environments. The plaintiff was an electronics technician who was hired to repair a piece of high-voltage electrical equipment at a log processing mill. During the repair, a fan near the equipment became stuck and one of the log mill’s own load operators, who escorted the electrician to the equipment, picked up a screwdriver and tapped a fan located near the high-voltage electrical equipment. This caused an “electrical arc blast” which later resulted in the electrician suffering severe bodily injuries that rendered him unable to work. Accounts differed as to whether the electrician told the load operator not to touch the fan or kept quiet upon learning the load operator’s plan to touch the fan with a screwdriver.
The plaintiff electrician sued the load operator and the mill, under the respondeat superior doctrine, for negligence and won on partial summary judgment in regards to the load operator’s negligence. The load operator appealed claiming that the electrician’s injuries were not foreseeable and the court should apply the “implicit assurance of safety” theory as a defense.
Ultimately, the Court of Appeals disagreed with the load operator. First, the Court reminded the defendant that “the test of foreseeability is whether the result of the act is within the general field of danger which should have been anticipated.” In this case, because the parties were working in an inadvertently dangerous high-voltage area, it was foreseeable that careless behavior could result in an injury. Second, the Court held, “there is no authority holding that silence and inaction can give rise to an implied assurance of safety.” Thus, absent affirmative conduct on the part of the electrician, he did not implicitly assure the load operator that his conduct was safe when he remained silent or failed to act.
Implications for Practice
The holding in this case appears to show that the Washington Court system will find that most accidents are probably foreseeable at inherently dangerous job sites. This provides a relatively low bar for the theory of negligence’s foreseeability element to be met when the work being performed is already characteristically dangerous; i.e., construction or electrical work. Further, only affirmative conduct promoting reliance by one party on another will result in the application of the theory of implied assurance of safety. Thus, silence or inaction will not be construed as tacit agreement or the defense of assumption of risk in comparable situations.