FILED Aug 5, 2025 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
NOHEMI RICHARDSON, AS ) No. 39791-2-III PERSONAL REPRESENTATIVE OF ) THE ESTATE OF JOEL V. ) RODRIGUEZ, ) ) Appellant, ) ) V. ) ) IRVIN DEAN CALLAHAN; NANCY R. ) UNPUBLISHED OPINION CALLAHAN; CALLAHAN AG, LLC; ) CALLAHAN DAIRY, LLC; AND ) CALLAHAN ORCHARDS, LLC; ABC ) COMPANIES 1-100; JOHN and JANE ) DOES 1-100, ) ) Respondents. )
FEARING, J. — On November 20, 2015, Eduardo Valencia, an employee of
Callahan Manufacturing, Inc., shot and killed co-employee Joel Rodriguez inside the
manufacturing company’s shop. In the suit on appeal, Nohemi Richardson, the personal
representative of Rodriguez’s estate, recognizes that the employer of the two workers,
Callahan Manufacturing, holds immunity. Therefore, Richardson seeks to impose
liability on the owners of Callahan Manufacturing, Dean and Nancy Callahan, who also No. 39791-2-III Richardson v. Callahan
personally own the shop property and work for Callahan Manufacturing. Richardson
asserts that the Callahans breached a duty, owed as owners of the property, to protect
Rodriguez from Valencia.
In response to Nohemi Richardson’s action, Dean and Nancy Callahan assert
immunity afforded co-employees under Washington’s Industrial Insurance Act, (IIA),
Title 51 RCW. Richardson maintains that the Callahans, despite being co-employees,
acted in a separate role as landowners such that the IIA dual persona doctrine withholds
immunity.
Nohemi Richardson also sues three limited liability companies, Callahan
Orchards, LLC, Callahan Dairy, LLC, and Callahan Ag, LLC (the LLCs). A child of
Dean and Nancy Callahan respectively owns each limited liability company. Richardson
alleges that the LLCs also controlled the shops and acted in concert with the Callahans
when failing to protect Joel Rodriguez from Eduardo Valencia.
The superior court dismissed all claims against all defendants on summary
judgment. We affirm.
FACTS
We introduce the parties, including the three defendant LLCs. We provide many
details of the corporations because plaintiff Nohemi Richardson seeks to amalgamate the
companies as one entity for purposes of tort liability.
2 No. 39791-2-III Richardson v. Callahan
Nancy and Dean Callahan (the Callahans) begat five children: Kelly Callahan,
Richard Callahan, Amy Callahan Davies, Cindy Callahan Carter, and Shaun Callahan. In
1969, Nancy and Dean Callahan founded two businesses: Callahan Manufacturing, Inc.
and Royal Turf Farms. Callahan Manufacturing provides welding and fabrication
services for farm equipment and trucks. Nancy and Dean own all stock of Callahan
Manufacturing and serve as the only board members of the company. Nancy is the
President, Secretary, and Treasurer of Callahan Manufacturing, and Dean serves as Vice
President.
Callahan Manufacturing operates in a shop located at 219 Balsam St NW, Royal
City. Nancy and Dean Callahan own the shop property. Callahan Manufacturing is the
sole tenant of the property and shop. Callahan Manufacturing rents the shop on a yearly
basis and reports its rental payments as a business expense. Callahan Manufacturing has
sole control over the premises, including the shop. Nancy and Dean Callahan did not use
the shop for personal reasons unrelated to the manufacturing business.
The parties have not presented to the court, or at least not disclosed its location in
the record, the lease from Dean and Nancy Callahan to Callahan Manufacturing. A
diagram of the Callahan Manufacturing building shows that Callahan Manufacturing’s
office attaches to the shop building, with an internal door between the two sections of the
building.
3 No. 39791-2-III Richardson v. Callahan
Callahan Manufacturing employs Nancy and Dean Callahan. Both receive health
insurance through the business. Nancy works for the company as a bookkeeper. Dean
supervises the shop operations along with shop foreman, Enrique Juarez, the immediate
supervisor of Callahan Manufacturing employees. Dean and Juarez hire and train
employees.
Nancy and Dean Callahan founded Royal Turf Farms, as a separate corporation
from Callahan Manufacturing, to perform custom farming, including building ponds,
deep ripping soil, and discing fields. In its early days, Royal Turf acquired farmland and
cattle and expanded its operations to include dairy farming, dairy heifer rearing, and
farming fruit orchards.
In 2012, Nancy and Dean Callahan divided the operations of Royal Turf and
assigned the orchard business with its land to son Richard Callahan. Richard formed
Callahan Orchards, LLC. Nancy and Dean bestowed dairy operations and cattle to son
Kelly Callahan, who formed Callahan Dairy, LLC. The family matriarch and patriarch
granted Paul and Amie Davies the custom farming operation, and the two formed
Callahan Ag, LLC. When Callahan Orchards, Callahan Dairy, and Callahan Ag formed,
Royal Turf dissolved. Once Royal Turf dissolved, Dean and Nancy relinquished all
control of ownership, management, and operations of the dairy, orchard, and custom
farming businesses.
4 No. 39791-2-III Richardson v. Callahan
Limited liability companies Callahan Orchards, Callahan Dairy, and Callahan Ag
operate separately from Callahan Manufacturing. None of the LLCs hold an ownership
interest in another. The companies are not jointly managed. Each LLC maintains its own
tax ID number, has filed its own taxes, has separate bank accounts, pays its own
expenses, earns its own revenue, and collects its own income. The LLCs do not operate
under an “umbrella” of Callahan Manufacturing, nor do they share labor or management
operations with Callahan Manufacturing.
Although Callahan Orchards and Callahan Dairy do not own or lease any office
space at the Callahan Manufacturing shop, Dean and Nancy Callahan allow Callahan
Orchards and Callahan Dairy occasional use of office space for the purposes of retrieving
mail, processing payroll, reviewing bills, and utilizing the internet. Hillary Callahan
performed bookkeeping services for the various companies. Contrary to the assertion of
Nohemi Richardson, Hillary did not play a role as personnel manager for any company.
Callahan Ag does not use office space at Callahan Manufacturing. Although two of the
LLCs may utilize the office, no evidence suggests that those two LLCs use the shop area
of the building. Although the LLCs pay their own expenses, they share with Callahan
Manufacturing the expense of a QuickBooks program used by all companies. Paul
Davies sometimes purchased trucks and truck parts for Callahan Manufacturing and
5 No. 39791-2-III Richardson v. Callahan
refabricated some of the trucks. Each limited liability company received a family
discount for any work performed in the shop.
We garner the facts of the shooting from a police report prepared by Sergeant
Derek Gregg, who reviewed security camera footage taken on the morning of the
homicide. The video permits us to identify precise times of events leading to the tragic
death. We have not seen the video because neither party sent this court the video.
On November 20, 2015, at 7:00 a.m., Callahan Manufacturing employees and
brothers, Joel Rodriguez and Frederico Rodriguez, arrived in the parking lot across from
the Callahan Manufacturing shop. Eduardo Valencia, another Callahan Manufacturing
employee, arrived for work at the shop at 7:11 a.m. but did not punch the time clock.
Valencia left the property in his truck at 7:24 a.m., returned to the property at 7:32 a.m.,
and parked his vehicle in a parking space across from the front door to the Callahan
Manufacturing office, the same spot in which he had parked twenty-one minutes earlier.
For four minutes, Eduardo Valencia sat in his truck. At 7:36 a.m., Valencia exited
his vehicle and walked out of sight of a security camera. During the next nine minutes,
Valencia approached Frederico Rodriguez and yelled insults at him. Joel Rodriguez
approached his brother and Valencia. Valencia reached into his jacket, showed Frederico
a pistol, and told Frederico, “I got something here to kill all you fuckers.” Clerk’s Papers
(CP) at 98.
6 No. 39791-2-III Richardson v. Callahan
At 7:45 a.m., the video showed Eduardo Valencia returning to his vehicle. He sat
in the vehicle for forty seconds before exiting and walked toward the shop. He entered
the shop at 7:46 a.m.
At 7:49 a.m., after Dean Callahan had arrived for work, Frederico and Joel
Rodriguez conversed with Dean at the front counter of the shop office. The brothers
informed Dean that Eduardo Valencia was angry, had a gun, and threatened to kill them.
Shortly after, Joel Rodriguez and Dean entered the shop from the office. Joel traveled to
the northwest corner of the shop, and Dean proceeded through the shop and exited
through the southeast side of the building to summon Paul Davies. Davies, at a nearby
carwash, speaks fluent Spanish, interacts with Callahan Manufacturing employees daily,
and had earlier assisted Valencia surmount a period of depression.
At 7:50 a.m., Joel Rodriguez and Eduardo Valencia conversed inside the shop. At
7:51 a.m., Valencia exited the shop and ambled again to his truck. At 7:53 a.m., Valencia
returned to the shop and shot Rodriguez. Valencia continued through the shop and shot
at another employee. He then dashed to his truck and drove from Callahan
Manufacturing.
PROCEDURE
Nohemi Richardson, on behalf of the estate of Joel Rodriguez, filed a lawsuit
against Dean and Nancy Callahan and the three Callahan limited liability companies,
7 No. 39791-2-III Richardson v. Callahan
Callahan Ag, Callahan Dairy, and Callahan Orchards. The complaint did not name
Callahan Manufacturing, Inc., the employer of Joel Rodriguez and Eduardo Valencia, as
a defendant. The complaint invoked the general survival statute, the special survival
statute, the wrongful death statute, and the declaratory judgment statute. The complaint
sought to impose liability against Nancy and Dean Callahan on the theories of premises
liability and liability under the Washington Industrial Safety and Health Act (WISHA).
The estate pursued liability against the three limited liability companies on the theory that
the three controlled the shop premises and acted in concert with Callahan Manufacturing.
All defendants filed a motion for summary judgment seeking the dismissal of all
causes of action. Dean and Nancy Callahan each filed declarations in support of the
motion for summary judgment. The defendants filed two memoranda in support of their
motion, arguing that (1) the LLC entities lacked legal responsibility because they were
not possessors or controllers of the land at the time of the shooting, (2) Dean and Nancy
Callahan fulfilled all duties possessed by landowners to protect Joel Rodriguez,
(3) the Callahans incurred no liability for the intentional tortious acts of their employees,
(4) the Callahans enjoyed immunity under the IIA as co-employees of Rodriguez, (5)
WISHA did not impose liability on the limited liability companies because they did not
employ Joel Rodriguez, and (6) no facts supported a finding that the limited liability
companies acted in concert with Callahan Manufacturing or controlled the premises.
8 No. 39791-2-III Richardson v. Callahan
In response to the defendants’ summary judgment motion, Nohemi Richardson
argued that inconsistencies in the defendants’ declarations irreparably ruptured the
credibility of the defendants, some evidence supported a finding that Callahan
Manufacturing and the limited liability companies acted in concert, some evidence
supported a finding that Nancy and Dean Callahan employed Eduardo Valencia and that
the couple negligently supervised him after learning of his threats to harm others, and
Nancy and Dean Callahan as property owners lacked immunity under IIA. The estate
also contended that all limited liability companies possessed and occupied the Callahan
Manufacturing shop and this possession imposed on them a duty to protect invitees, such
as Joel Rodriguez, into the shop.
In opposition to the defense’s summary judgment motion, the estate of Joel
Rodriguez filed a declaration of expert Jon Groussman. Groussman asserted that
Eduardo Valencia engaged in increasingly assertive conduct that Dean Callahan and
others should have recognized forebode violent action toward others. Groussman opined
that the Callahans and the LLCs owed a duty to protect Rodriguez and failed to perform
this duty.
The superior court issued a summary judgment ruling in writing. The letter read:
While there are some disputed facts, these facts are not material to the ultimate issues on summary judgment. Dean and Nancy Callahan are immune under the Industrial Insurance
9 No. 39791-2-III Richardson v. Callahan
Act. The “dual persona” and other possible exceptions do not apply. Plaintiffs may not recover from Dean and Nancy Callahan under any theories of premises liability. Callahan Ag, Dairy, and Orchard did not control or have the right to control the premises or employees of Callahan Manufacturing and are not liable under any theories of premises liability or WISHA. None of the defendants “acted in concert.”
CP at 1309-10.
The estate of Joel Rodriguez filed a motion for reconsideration. In the motion, the
estate contended for the first time that all defendants owed a duty, under WISHA, to
provide a safe place for work. The superior court denied the motion for reconsideration.
LAW AND ANALYSIS
On appeal, Nohemi Richardson seeks reversal of all the superior court’s summary
judgment rulings. She also asks that we strike testimony of witnesses for the defense.
The defendants attack the declaration of Richardson’s expert, Jon Groussman. We do not
address the admissibility of Groussman’s declaration because our rulings render his
opinion irrelevant.
Nohemi Richardson’s causes of action assume that all defendants knew or had
constructive knowledge of the dangerous proclivities of Eduardo Valencia and failed to
undertake necessary action to prevent the shooting. Because of our rulings, we do not
address the extent of knowledge of the various defendants or possible measures taken to
restrain Valencia.
10 No. 39791-2-III Richardson v. Callahan
Witness Credibility
Nohemi Richardson attacks declaration testimony of Paul Davies, Dean Callahan,
and Nancy Callahan because the testimony purportedly conflicts with earlier statements
including deposition testimony. She goes further and asks that we reverse the summary
judgment order solely on the basis of the Callahan family’s lack of credibility. We reject
this latter request. We address the challenge to request to strike areas of testimony,
however, before reaching the merits of the appeal so that we know in advance the facts to
use when considering those merits.
The testimony challenged by Nohemi Richardson addressed the limited liability
companies’ alleged joint possession and use of the Callahan Manufacturing building, the
companies’ joint operations, and Callahan family members’ advance notice of Eduardo
Valencia’s violent propensities. Nohemi Richardson cites to Dean Callahan’s declaration
when she criticizes Dean’s credibility. Nevertheless, Richardson does not identify what
earlier statements Dean made that conflict with the declaration. Richardson did not
challenge the declaration testimony of Nancy Callahan when opposing the summary
judgment motion. Therefore, we focus on the testimony of Paul Davies, son-in-law of
the Callahans and owner of Callahan Ag. We ignore challenged testimony with regard to
any of Davies’ knowledge of the character and behavior of Eduardo Valencia.
11 No. 39791-2-III Richardson v. Callahan
When, at the hearing on a motion for summary judgment, the parties present
contradictory evidence or the defending party impeaches the movant’s evidence, an issue
of credibility is present, provided the contradicting or impeaching evidence is not too
incredible to be believed by reasonable minds. Balise v. Underwood, 62 Wn.2d 195, 200,
381 P.2d 966 (1963). The court should not, at such hearing, resolve a genuine issue of
credibility and should deny the summary judgment motion. Balise v. Underwood, 62
Wn.2d 195, 200 (1963).
An issue of credibility arises only if the party opposing the summary judgment
forwards evidence which contradicts or impeaches the movant’s evidence on a material
issue. Howell v. Spokane & Inland Empire Blood Bank, 117 Wn.2d 619, 626, 818 P.2d
1056 (1991). To raise an issue of credibility at a hearing on a motion for summary
judgment, the nonmoving party must present contradictory evidence or otherwise
impeach the evidence of the moving party. Dunlap v. Wayne, 105 Wn.2d 529, 536, 716
P.2d 842 (1986). Impeachment of a witness does not establish the opposite of his or her
testimony as fact. Laguna v. Washington State Department of Transportation, 146 Wn.
App. 260, 267, 192 P.3d 374 (2008).
Nohemi Richardson contends Paul Davies’ testimony during an April 19, 2023
deposition in the pending suit conflicts with testimony he gave on two other occasions: a
pre-suit December 6, 2016 deposition and Eduardo Valencia’s criminal trial on January
12 No. 39791-2-III Richardson v. Callahan
10, 2022. The testimony surrounds whether Davies performed management functions for
Callahan Manufacturing if not the LLCs, in which he held no ownership interest.
Richardson characterizes Davies as a manager of Callahan Manufacturing such that all
LLCs incur liability.
During the December 6, 2016 deposition of Paul Davies, the relevant dialogue
went:
Q. Okay. What is your—Do you have a position, rather, at Callahan Manufacturing? A. Not officially, but I’m—you could say I’m a manager, I suppose. Q. Okay. And what do you mean but not officially, but you could say I’m a manager? A. We don’t really have titles in the company per se. I think the plan is—and I can’t—I don’t know this for sure, but I think the plan is eventually to transition to an ownership position there. I mean, that’s not going to happen until it happened. So I guess I’m kind of in training, I guess you could say.
CP at 184 (emphasis added). During this same deposition, Davies declared:
Q. Okay. You mentioned at the outset of this deposition that you were—I didn’t write it down—A manager of sorts, I think is what you said. A. Yeah. A transient manager Q. A transient manager, okay. A. That’s my job application for just about every company in the Callahan, transient. Q. Transient manager? A. Translator/manager.
CP at 202-03 (emphasis added).
13 No. 39791-2-III Richardson v. Callahan
On January 10, 2022, Paul Davies averred during Eduardo Valencia’s criminal
trial:
Q. Did you talk to Mr. Ibarra Valencia about what was going on with him. A. I did. Well, I did in the time where he was having problems a year before. I went over to his house and helped him navigate his—it was depression, with issues that he was having with his—at the time it was his brother that had been murdered in Mexico, and he was—he was struggling with that. So I did help him through that. I don’t know if you would consider that in a professional or friend capacity. I don’t really know. But I did help him with that. Q. It’s fair to say it might have been a kind of hybrid position you were in? A. Correct. Correct.
CP at 254-55 (emphasis added).
At the April 2023 deposition, Paul Davies denied he served as a transient manager
for limited liability companies:
Q. Would you consider yourself—Do you know what the term “transient employee” or “transient manager” means? A. No. Q. So “transient,” meaning that you would come and go in a role as an employee or a manager, paid or unpaid Do you understand what I’m saying? A. Can you rephrase your question, then? Q. Yeah, I haven’t asked a question yet. I just want to make sure you understand what I mean by “transient employee” or “transient manager.” Did you ever consider yourself as being a transient employee or
14 No. 39791-2-III Richardson v. Callahan
manager at Callahan Manufacturing? A. No. Q. Okay. You never considered yourself to be a transient manager at Callahan Manufacturing at the time of the shooting; is that correct? .... A. I never had any managerial functions or power, if you call it that, for Callahan Manufacturing, ever. I still don’t. Q. Right. But did you ever consider yourself to be a transient manager? That’s the question. A. No.
CP at 345-46.
We discern no discrepancy between Paul Davies’ criminal trial testimony and his
2023 deposition testimony. The trial excerpt fails to confirm management duties with
any limited liability company. Instead, Davies agreed that he assumed a friendship role
with Eduardo Valencia to help Valencia through a period of depression. The hybrid
position concerned some professional relationship with some friendship role.
We struggle with the import of Paul Davies’ 2016 deposition testimony when
juxtaposed with the 2023 deposition testimony regarding the term “transient manager,” a
term to which we are not accustomed. Conflation of the two depositions suggests that
Davies does not employ good English. In 2016, he spoke of his “job application” being
that as “transient manager.” CP at 202-03. We do not know why he would apply for a
job. Later he changed the phrase “transient manager” to “translator/manager. CP at 202
We conclude that the 2016 deposition fails to help Nohemi Richardson for two
15 No. 39791-2-III Richardson v. Callahan
reasons. First, Richardson questioned Davies in generalities. Richardson did not
question Davies about what, if any, particular duties Davies assumed that corresponded to
his serving as a manager of limited liability companies. Evidence establishes that Davies
provided some translation services for Callahan Manufacturing, but no evidence suggests
that Callahan Manufacturing used Davies for the purpose of supervising employees.
Second, assuming Davies held some duties with Callahan Manufacturing, those duties
simply mean that Callahan Manufacturing sometimes employed the services of Paul
Davies. The presence of shared employees might in some circumstances show one
corporation to be the alter ego of another corporation if other factors exist. Nevertheless,
Richardson does not expressly argue alter ego or shared liability, let alone cite law
supporting such liability.
Summary Judgment Principles
We next outline familiar rules attended to summary judgment motions. We apply
these principles to the various claims of Nohemi Richardson.
Summary judgment is appropriate if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law. CR 56(c). A material fact is one on which the outcome of
the litigation depends in whole or in part. Ranger Insurance Co. v. Pierce County, 164
16 No. 39791-2-III Richardson v. Callahan
Wn.2d 545, 552, 192 P.3d 886 (2008); Morris v. McNicol, 83 Wn.2d 491, 494, 519 P.2d
7 (1974). In a summary judgment motion, the burden is on the moving party to
demonstrate that there is no genuine issue as to any material fact and that, as a matter of
law, summary judgment is proper. Hartley v. State, 103 Wn.2d 768, 774, 698 P.2d 77
(1985).
The law renders an important distinction between summary judgment motions
brought by the party with the burden of proof on an issue and a party defending on that
issue. This distinction looms important in this appeal. For instance, a defendant may
move for summary judgment by showing that there is an absence of evidence to support
the plaintiff’s case. Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 225 n.1, 770
P.2d 182 (1989); Sligar v. Odell, 156 Wn. App. 720, 725, 233 P.3d 914 (2010). Stated
differently, a party moving for summary judgment can meet its burden by pointing out to
the trial court that the nonmoving party lacks sufficient evidence to support its case.
Guile v. Ballard Community Hospital, 70 Wn. App. 18, 21, 851 P.2d 689 (1993). A
complete failure of proof concerning an essential element of the nonmoving party’s case
necessarily renders all other facts immaterial. Celotex Corp. v. Catrett, 477 U.S. 317,
323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
17 No. 39791-2-III Richardson v. Callahan
Special Relationship Liability under Restatement
Nohemi Richardson argues on appeal that each defendant incurs liability under
Restatement of Torts (Second) § 315(a) because a special relationship existed between
each and Eduardo Valencia such that the Callahans and the LLCs possessed a duty to
control Valencia’s conduct and protect Joel Rodriguez. Valencia obviously committed a
crime when killing Rodriguez. Generally, a private person holds no duty to protect others
from the criminal acts of third parties. Hutchins v. 1001 Fourth Ave. Associates, 116
Wn.2d 217, 223, 802 P.2d 1360 (1991). Section 315 manifests two exceptions to this
rule. Brady v. Whitewater Creek, Inc., 24 Wn. App. 2d 728, 743, 521 P.3d 236 (2022).
Section 315 declares:
There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection.
Section 315 does not designate when such a special relationship exists.
The defendants ask that we decline to review this contention. They contend
Nohemi Richardson never argued before the superior court that a special relationship
existed. We will not review a theory, argument, or claim of error not presented at the
trial court level. RAP 2.5(a); Lindblad v. Boeing Co., 108 Wn. App. 198, 207, 31 P.3d 1
18 No. 39791-2-III Richardson v. Callahan
(2001). In response, Richardson insists she argued liability under the section 315 special
relationship theory.
We agree with the defendants. In response to the defense’s summary judgment
motion, Nohemi Richardson contended that each of the defendants controlled the shop
premises and the Callahan Manufacturing employees. Richardson expounded and
insisted that this control placed a duty on each defendant to protect Joel Rodriguez. The
duty to protect one from the criminal acts of another based on one’s control of premises
or workers may overlap with a duty imposed by section 315, but the estate did not assert
section 315 as an independent basis for liability. Thus, we do not review what liability
any defendant may incur under the Restatement section.
Co-Possessors
Nohemi Richardson contends on appeal that each defendant incurs liability as a
co-possessor with Callahan Manufacturing of the manufacturing company’s shop where
Eduardo Valencia killed Joel Rodriguez. The defendants respond that Richardson failed
to raise this argument before the trial court. We disagree. In its summary judgment
response, the estate wrote: “[a]ll defendants were co-possessors and occupiers of the
premises and owed a duty to ensure invitees were safe on the premises.” CP at 120.
We address now potential liability of the limited liability companies for possessing
the shop. We later address Dean and Nancy Callahan’s potential exposure to
19 No. 39791-2-III Richardson v. Callahan
responsibility. Nohemi Richardson argues that, because the limited liability companies
jointly possessed the Callahan Manufacturing building, they owed a duty to protect Joel
Rodriguez as an invitee. Richardson cites Restatement § 344 as having been adopted by
the Washington Supreme Court and supplying the basis for liability.
To recover against the LLCs for premises liability, Nohemi Richardson must
establish two propositions: (1) the companies were “possessors” of the Callahan building;
and (2) a possessor owed a duty to Joel Rodriguez to protect him from the criminal
conduct of Eduardo Valencia. Restatement (Second) of Torts § 328E (1965) defines a
“possessor of land” as:
(a) a person who is in occupation of the land with intent to control it or (b) a person who has been in occupation of land with intent to control it, if no other person has subsequently occupied it with intent to control it, or (c) a person who is entitled to immediate occupation of the land, if no other person is in possession under Clauses (a) and (b).
(Emphasis added.) A related Restatement section reads:
One who does an act or carries on an activity upon land on behalf of the possessor is subject to the same liability, and enjoys the same freedom from liability, for physical harm caused thereby to others upon and outside of the land as though he were the possessor of the land.
RESTATEMENT (SECOND) OF TORTS § 383 (1965). In turn, section 344 declares:
A possessor of land who holds it open to the public for entry for his
20 No. 39791-2-III Richardson v. Callahan
business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.
RESTATEMENT (SECOND) OF TORTS § 344 (1965). The Washington State Supreme Court,
in Nivens v. 7-11 Hoagy’s Corner, 133 Wn.2d 192, 204, 943 P.2d 286 (1997), adopted
Restatement § 344 with respect to the duty a business owner or possessor of land owes to
an invitee.
Nohemi Richardson argues that the evidence, when viewed in a light most
favorable to her, establishes that each limited liability company possessed the Callahan
Manufacturing building and exercised sufficient control over the shop to impose a duty of
care. Richardson highlights that each limited liability company maintained an office,
received mail, split some expenses, and handled payroll in the shop. Agents of each
limited liability company could use the office adjacent parking lot at any time.
The evidence establishes that a co-employee performed bookkeeping for the
respective companies. Paul Davies, owner of Callahan Ag, purchased and fabricated
trucks for Callahan Manufacturing and translated for its employees. The evidence does
not suggest, however, that Davies performed management responsibilities for Callahan
21 No. 39791-2-III Richardson v. Callahan
The evidence underscored by Nohemi Richardson shows that the limited liability
companies occupied space and conducted limited business in the Callahan Manufacturing
building before the shooting. The evidence does not, however, indicate that any of the
companies occupied the premises with the intent to control. The evidence shows that
Callahan Manufacturing continuously occupied and controlled the shop.
WISHA
On appeal, Nohemi Richardson contends that the three limited liability companies
owed a duty to Joel Rodriguez to maintain a safe place to work. Richardson, however,
did not assert this theory in the estate’s complaint. Richardson first raised the argument
in a motion for reconsideration. For this reason, the LLCs ask that this court reject
review of the theory. We grant this request.
The trial court holds discretion to decline consideration of a new argument raised
for the first time on reconsideration absent a good excuse. Clare v. Telquist McMillen
Clare PLLC, 20 Wn. App. 2d 671, 685, 501 P.3d 167 (2021). We review a trial court’s
denial of a motion for reconsideration for abuse of discretion, that is, discretion
manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.
Clare v. Telquist McMillen Clare PLLC, 20 Wn. App. 2d 671, 685 (2021). Nohemi
Richardson did not proffer before the superior court and does not offer before this court
any excuse for raising the duty to provide a safe place to work theory for the first time on
22 No. 39791-2-III Richardson v. Callahan
reconsideration. The superior court did not abuse its discretion in denying the motion for
reconsideration, and we do not address the new theory on appeal.
Callahan Immunity under Industrial Insurance Act
The superior court granted Nancy and Dean Callahan immunity under the IIA
against all claims asserted by Nohemi Richardson. RCW 51.04.010 abolishes most civil
actions arising from job injuries and replaces them with the exclusive remedy of
industrial insurance benefits. RCW 51.04.010; Meyer v. Burger King Corp., 144 Wn.2d
160, 164, 26 P.3d 925 (2001). The statute proclaims in part:
The state of Washington, therefore, exercising herein its police and sovereign power, declares that all phases of the premises are withdrawn from private controversy, and sure and certain relief for workers, injured in their work, and their families and dependents is hereby provided regardless of questions of fault and to the exclusion of every other remedy, proceeding or compensation, except as otherwise provided in this title; and to that end all civil actions and civil causes of action for such personal injuries and all jurisdiction of the courts of the state over such causes are hereby abolished, except as in this title provided.
RCW 51.04.010.
RCW 51.24.010 affords the injured worker’s employer and co-employees
immunity from suit for job injuries. Brown v. Labor Ready Northwest, Inc., 113 Wn.
App. 643, 647, 54 P.3d 166 (2002). Washington courts extend RCW 51.24.010’s
exclusionary provision broadly. Meyer v. Burger King Corp., 144 Wn.2d 160, 164
(2001). Stated differently, courts construe Washington’s workers compensation statute
23 No. 39791-2-III Richardson v. Callahan
stringently in eliminating claims against employers and co-employees. Evans v.
Thompson, 124 Wn.2d 435, 879 P.2d 938 (1994); Kimball v. Millet, 52 Wn. App. 512,
514, 762 P.2d 10 (1988). The worker cannot easily avoid the immunities conferred by
the IIA. Kimball v. Millet, 52 Wn. App. 512, 513 (1988).
The IIA affords negligent parties unrelated to the employment relationship no safe
haven. RCW 51.24.030 instead grants the injured worker the opportunity to recover
against a third party. The statute reads:
If a third person, not in a worker’s same employ, is or may become liable to pay damages on account of a worker’s injury for which benefits and compensation are provided under this title, the injured worker or beneficiary may elect to seek damages from the third person.
Washington promotes a strong policy in favor of third-party actions in order to make the
worker whole and to reimburse the Department of Labor & Industries for some of its
payments. Entila v. Cook, 190 Wn. App. 477, 482, 360 P.3d 870 (2015). This court thus
encounters, on the forehand, a strong public policy favoring withdrawing job injuries
from the common law tort system and protecting employers and co-employees from
liability while, on the backhand, also facing a strong public policy favoring third party
tort actions.
Nancy and Dean Callahan worked for Callahan Manufacturing, the employer of
Joel Rodriguez. Thus, the Callahans were co-employees with Rodriguez. Nohemi
24 No. 39791-2-III Richardson v. Callahan
Richardson does not argue otherwise. Instead, Richardson seeks to avoid IIA immunity
by characterizing the Callahans as third parties in addition to their being co-employees.
The Callahans personally owned the land and shop where Eduardo Valencia killed
Rodriguez. Richardson argues that the Callahans functioned in a dual role in the context
of the shooting. Richardson thereby employs the dual persona doctrine by advocating
liability against the Callahans for their role as owner of the property.
Under the dual persona doctrine, an employer or co-employee may fall within the
third person exception to immunity if, but only if, possessing a second persona is so
completely independent from and unrelated to the status of employer or co-employee
that, by established standards, the law recognizes the second persona as a separate legal
person. Corr v. Willamette Industries, Inc., 105 Wn.2d 217, 220-21, 713 P.2d 92 (1986);
Kimball v. Millet, 52 Wn. App. 512, 513 (1988). This statement of the rule suffers from
hyperbole because it introduces a concept of complete independence and a complete
unrelationship on a continuum of degrees of independence and relationship and suggests
the two personas must be unrelated and independent in the extreme gradation. No
decision, however, suggests the party seeking immunity must fulfill such a radical
independence. The statement of the rule also references “established standards,” but
Washington case law provides no guidance as to where to find those standards. Corr v.
Willamette Industries, Inc., 105 Wn.2d 217, 221 (1986).
25 No. 39791-2-III Richardson v. Callahan
If both employees labor under a common employer but the negligent employee did
not act in the course of his employment at the time of the injury, he garners no immunity
from suit. Evans v. Thompson, 124 Wn.2d 435, 444 (1994); Taylor v. Cady, 18 Wn. App.
204, 206, 566 P.2d 987 (1977). Workers toil in the same employ when the tortfeasor can
show the same employer as the injured person and establish that he acted in the scope and
course of his or her employment at the time of injury. Entila v. Cook, 187 Wn.2d 480,
487, 386 P.3d 1099 (2017); Evans v. Thompson, 124 Wn.2d 435, 444 (1994).
Occasionally the injured worker sues the owner of the land where the injury
occurs, and the owner of the land happens to be a co-employee. Nevertheless, the
prevailing view still grants the landowner immunity under these circumstances. Folsom
v. Burger King, 135 Wn.2d 658, 958 P.2d 301 (1998); 2A ARTHUR LARSON, THE LAW OF
WORKMEN’S COMPENSATION § 72.82 (1983).
Nohemi Richardson principally relies on Evans v. Thompson, 124 Wn.2d 435
(1994). In Evans v. Thompson, the estates of two employees of Santana Trucking &
Excavating, Inc. (Santana) brought suit against Robert and Amber Thompson, who
owned the property where the deaths occurred. The Thompsons were also shareholders,
officers, and directors of Santana. Frederick Evans, Daniel Kanning, and a third person,
all employed by Santana, inspected the drain system on the property. Evans dropped a
calculator into the manhole. He proceeded down the manhole, but did not return.
26 No. 39791-2-III Richardson v. Callahan
Kanning entered the manhole to find Evans. Both died from methane gas accumulated at
the bottom of the manhole. Robert and Amber posited immunity under the IIA because
of their co-employment with Santana. The trial court granted summary judgment. The
estates appealed.
The Supreme Court posed two questions. First, when the defendants are
landowners and a separate legal entity from the employer of a worker, are the defendants
immune under the Industrial Insurance Act for breach of their duties as landowners?
Second, are the officers and directors of a corporate employer immune, as a matter of
law, as co-employees of a person employed by the corporation, even though at least one
of the officers and directors is not employed by the corporation and performs no duties
for the corporation? The court recognized that, instead of suing the employer
corporation, the estates sued entirely separate legal entities, the Thompsons, as
individuals. Santana leased the property from the Thompsons. As to the first question,
the court ruled that Robert and Amber Thompson, as landowners and distinct legal
persons, lacked immunity under IIA.
In addressing the second issue, the Supreme Court recognized that, for Amber and
Robert Thompson to be immune as a matter of law, each of them must have been in the
same employ as the decedents. The court determined that Amber Thompson was not
immune as a matter of law because she was not employed by the corporation or otherwise
27 No. 39791-2-III Richardson v. Callahan
performed services for the corporation. She received no wages from Santana. The
Supreme Court further concluded that Robert Thompson failed to prove he was an
employee of Santana. The Supreme Court remanded for a factual determination of
whether the employer and landowner were separate entities.
Two Washington decisions assist Nancy and Dean Callahan, the first being
Folsom v. Burger King, 135 Wn.2d 658 (1998). The estates of two Burger King
employees killed by a third party while at work brought suit against Hatter, Inc., the
landowner of the restaurant premises. Hatter, Inc. operated the Burger King franchise
where the murder occurred. Edwin Hatter, an employee and sole shareholder of Hatter,
Inc., participated in the management, supervision of daily operations, marketing, and
financial decisions of the restaurant.
The decedent estates argued that Hatter, Inc. and Edwin Hatter possessed distinct
personas as the landowners of the property. Therefore, the IIA did not afford them
immunity. According to the estates, Hatter, Inc. and Edwin owed a duty to the
employees as occupiers of land, a duty separate from a duty as the employer or co-
employee. The trial court granted summary judgment in favor of Hatter because he did
not use the premises for purposes other than the restaurant. The Supreme Court affirmed.
The high court distinguished Evans v. Thompson because the Thompsons used their
property for purposes other than business purposes.
28 No. 39791-2-III Richardson v. Callahan
Another Washington case of relevance is Kimball v. Millet, 52 Wn. App. 512
(1988). Clayton Kimball sued Earl and Vina Mae Millet for personal injuries caused by
an aggressive bull. A farming corporation owned the raging bull and also employed
Kimball and the Millets. The Millets owned and leased to the farming corporation the
land on which the raging bull struck Kimball during the course of his employment. This
court held the Millets were immune from suit under the IIA. This court rejected
Kimball’s contention that the Millets faced liability either under a “dual persona” theory
or as landlords.
This court in Kimball v. Millet, 52 Wn. App. 512, 514 (1988) relied on Heritage v.
Van Patten, 59 N.Y.2d 1017, 466 N.Y.S.2d 958, 453 N.E.2d 1247 (1983) and Rauch v.
Jones, 4 N.Y.2d 592, 176 N.Y.S.2d 628, 152 N.E.2d 63 (1958). A New York statute
imposed a nondelegable duty upon a property owner to protect against injuries to persons
employed in construction work on the premises. In Heritage v. Van Patten, 59 N.Y.2d
1017 (1983), the New York court ruled that the statute did not apply to a landowner who
was a co-employee of an injured worker in light of an exclusivity provision of workers
compensation law making compensation the exclusive remedy of an employee injured by
the negligence of another in the same employ. In Rauch v. Jones, 4 N.Y.2d 592 (1958),
the New York court also applied this rule under the circumstances wherein the co-
employee owned the car in which the plaintiff rode when suffering injuries.
29 No. 39791-2-III Richardson v. Callahan
Nohemi Richardson suggests that Dean and Nancy Callahan acquired and
exercised their rights to use the property for purposes unrelated to Callahan
Manufacturing. According to Richardson, the Callahans shared the shop and the adjacent
parking lot with their children and their related businesses. They managed the property
for the benefit of multiple distinct corporate entities created by the Callahan family for
tax and estate planning benefits. Still, the underlying facts remain that the Callahans did
not employ the shop property as a home or a place to engage in personal pursuits. The
Callahans shared some of the facilities with other businesses in their roles as owners and
workers at Callahan Manufacturing.
We do not know the full extent of the property owned by the Callahans in the
region of the Callahan Manufacturing shop. Nohemi Richardson suggests the Callahans
and Eduardo Valencia lived in the vicinity. The facts, however, show the confrontation
to revolve around the shop and the adjacent parking lot used by workers.
Nohemi Richardson wishes to create a question of fact as to whether Dean
Callahan performed work for Callahan Manufacturing when the altercation between
Eduardo Valencia and the Rodriguez brothers began in the parking lot. Dean then left the
premises to enlist Paul Davies to assist. We discern no question of fact. Dean Callahan
came to the shop in his role as manager of Callahan Manufacturing. He approached the
Rodriguez brothers because of being their boss at Callahan Manufacturing. In short,
30 No. 39791-2-III Richardson v. Callahan
Dean toiled within the scope of his employment with Callahan Manufacturing when
overseeing the conduct of Eduardo Valencia and the Rodriguez brothers.
We deem important that Nohemi Richardson does not sue because of a defect in
the Callahan Manufacturing shop. The death of Joel Rodriguez arose from an employee,
who Dean Callahan supervised. Assuming Dean possessed knowledge of the dangerous
proclivities of Eduardo Valencia, he gained the knowledge through his role as a manager
for the employer, not his role as the owner of the property.
Concerted Action
Nohemi Richardson argues that evidence she submitted raises questions of
material fact exist as to whether the Callahans and LLCs acted in concert. The only act
or omission that Richardson targets for concerted action liability is a failure to address the
security concern posed by Eduardo Valencia. Richardson does not argue that the LLCs
acted in concert with Callahan Manufacturing as opposed to the Callahans. We have
ruled that the Callahans, as co-employees of Joel Rodriguez, enjoy immunity. The LLCs
do not claim that concerted action with a co-employee brings immunity, so we must
address whether the LLCs could be liable for concerted action.
Nohemi Richardson asserts that all defendants knew of concerns about Eduardo
Valencia. In turn, all defendants maintained an obligation to intervene to protect invitees
31 No. 39791-2-III Richardson v. Callahan
in the common areas held and used in common by all. We already concluded that
Richardson’s evidence does not support any inference of joint control.
Nohemi Richardson argues facts beyond the evidence showing the Callahan
family businesses acted as one unit also merit concerted action liability. Richardson
contends that the “decision” of Dean Callahan and Paul Davies to take no steps to protect
invitees on the property exhibited a conscious decision to act “together in an unlawful
manner.”
Concerted action is not a tort in itself, but is a theory of liability. Westview
Investments, Ltd. v. U.S. Bank National Association, 133 Wn. App. 835, 853, 138 P.3d
638 (2006). The notion of concerted action under the common law derives from
vicarious liability and requires that a plaintiff show “a tacit agreement among defendants
to perform a tortious act.” Martin v. Abbott Laboratories, 102 Wn.2d 581, 596, 689 P.2d
368 (1984). A defendant can be liable for harm resulting from another person’s tortious
act if the defendant renders substantial assistance to the other in accomplishing a tortious
result, and his own conduct, separately considered, constitutes a breach of duty to the
third person. Martin v. Abbott Laboratories, 102 Wn.2d 581, 596 (1984); RESTATEMENT
(SECOND) OF TORTS § 876(C), at § 315 (1977).
For a defendant to be held liable under the theory of concerted action, the plaintiff
must show that the defendant:
32 No. 39791-2-III Richardson v. Callahan
(a) does a tortious act in concert with the other or pursuant to a common design with him, or (b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or (c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.
Westview Investments, Ltd. v. U.S. Bank National Association, 133 Wn. App. 835, 853
(2006). Concert of action is a true joint tort in that all acted jointly to produce the harm.
Martin v. Abbott Laboratories, 102 Wn.2d 581, 596 (1984).
Nohemi Richardson supplies no evidence, and the evidence she forwards leads to
no reasonable inference, that any agent of an LLC, let alone Paul Davies, reached an
implied agreement to provide no protection from acts of Eduardo Valencia. No evidence
suggests that Davies knew that the Callahans’ conduct constituted a breach of a duty to
protect others.
CONCLUSION
We affirm the superior court’s dismissal of all claims against all defendants on
summary judgment.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
33 No. 39791-2-III Richardson v. Callahan
_____________________________ Fearing, J.
WE CONCUR:
______________________________ Lawrence-Berry, C.J.
______________________________ Hazel, J.P.T. 1
†Tony Hazel, an active judge of a court of general jurisdiction, is serving as a judge pro tempore of this court pursuant to RCW 2.06.150(1).