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March 16, 2026 Get Citation Alerts Download PDF Add Note

Vincent Smith, V. Jimmy Don Decker, Jr.

Court of Appeals of Washington

• Citations: None known
• Docket Number: 87000-9

• Precedential Status: Non-Precedential

• Opinion

• Authorities (8)

• Cited By (0)

• Summaries (0)

• Similar Cases (304)

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Lead Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

VINCENT SMITH, a single man,
No. 87000-9-I
Appellant,
DIVISION ONE
v.
UNPUBLISHED OPINION
JIMMY DON DECKER, JR. and JANE
DOE DECKER, husband and wife and
their marital community; ROBERTO
RODRIGUEZ and JANE DOE
RODRIGUEZ, husband and wife and
their marital community; and TRJ
CONSTRUCTION, LLC, a Washington
limited liability company,

Defendants,

JOHN DOE RODRIGUEZ and JANE
DOE-2 RODRIGUEZ, husband and
wife and their marital community;
JIREH ASPHALT AND CONCRETE,
INC., a Washington corporation, d/b/a
JIREH CONSTRUCTION SERVICES,

Respondents.

BIRK, J. — The superior court dismissed Vincent Smith’s negligence claim

against Juan Rodriguez and Jireh Asphalt and Concrete Inc., d/b/a Jireh

Construction Services (collectively Jireh), on Jireh’s CR 12(c) motion for judgment

on the pleadings. Because hypothetical facts consistent with the complaint support

Smith’s claim for negligence against Jireh, we reverse the order granting Jireh’s

CR 12(c) motion and denying Smith leave to amend and remand.
No. 87000-9-I/2

I

On review of a CR 12(c) motion, “we presume the truth of the allegations

and may consider hypothetical facts not included in the record.” Wash. Trucking

Ass’ns v. Emp’t Sec. Dep’t, 188 Wn.2d 198, 207, 393 P.3d 761 (2017).

A

On February 18, 2017, Jimmy Decker, Jr. struck Smith with his truck,

severely injuring him. Decker was driving a truck that had TRJ Construction LLC

advertising on its tailgate and doors. Smith alleged that Decker worked for Jireh

and that Decker paid for the truck in installments by deductions from his paycheck

he received from Jireh.

Smith brought negligence claims against Decker, Roberto Rodriguez, TRJ,

Jireh, and John Doe Rodriguez,1 who is the brother-in-law of Roberto.2 Smith

alleged Decker was an employee of TRJ who was acting within the scope of

employment and agency when he struck Smith. He alleged in the alternative that

if Decker was not an employee or agent of TRJ, he was driving the truck with

consent, permission, and knowledge of Roberto and that Roberto knew of Decker’s

driving habits when he entrusted the truck to Decker.

Jireh moved for summary judgment. It argued it owed no duty of care to

Smith because Decker was not an employee at the time and had been terminated

weeks before the collision. Smith responded, arguing TRJ and Jireh’s actions

1 John Doe Rodriguez would later be identified as Juan Rodriguez, the part-

owner of Jireh Asphalt.
2 Because two parties share the same last name, this opinion refers to the

parties by their first names. No disrespect is intended.

2
No. 87000-9-I/3

were so intertwined that no division of liability was possible and there existed an

“ ‘indivisible injury.’ ” Smith noted text messages attached in a declaration to

Jireh’s motion for summary judgment showed Juan texted Decker the day of the

accident about work and the day after about needing or having to work the next

day. The court denied Jireh’s motion.

Jireh moved unsuccessfully for reconsideration. Jireh then unsuccessfully

sought discretionary review in this court.

B

Later, Jireh moved for judgment on the pleadings under CR 12(c). Jireh

argued the complaint only alleged that Jireh may have hired Decker at some point

and that Jireh may have allowed deductions from Decker’s paychecks to pay for

the truck.

Smith responded that Jireh’s motion must be converted to a motion for

summary judgment because Smith introduced “by this reference the evidence

already in the record in response to this motion.” Smith also moved for amendment

of the pleadings under CR 15(b) and attached a copy of an amended complaint.

Smith argued the claims “already have been extensively litigated by the evidence

in the form of declarations and deposition transcripts” introduced into the court

record.

The court granted Jireh’s CR 12(c) motion for judgment on the pleadings,

and Smith moved unsuccessfully for reconsideration.

3
No. 87000-9-I/4

Smith appeals.3

II

A

We review dismissal under CR 12(c) de novo. P.E. Sys., LLC v. CPI Corp.,

176 Wn.2d 198, 203, 289 P.3d 638 (2012). A CR 12(c) motion is treated exactly

the same as a CR 12(b)(6) motion for failure to state a claim. Id. The purpose is

to determine if a plaintiff can prove any set of facts that would justify relief. Id.

“[D]ismissal is appropriate only when it appears beyond doubt that the claimant

can prove no set of facts, consistent with the complaint, which would justify

recovery.” San Juan County v. No New Gas Tax, 160 Wn.2d 141, 164, 157 P.3d

831 (2007). “Such motions should be granted ‘sparingly and with care,’ and only

in the unusual case in which the plaintiff’s allegations show on the face of the

complaint an insuperable bar to relief.” Id. (quoting Tenore v. AT&T Wireless

Servs., 136 Wn.2d 322, 330, 962 P.2d 104 (1998)).

Here, there is a hypothetical scenario, consistent with the complaint, which

would establish Jireh’s vicarious liability. Smith alleged Decker worked for Jireh at

the time of the accident, that Decker was paying for the truck that struck Smith with

deductions from his earnings from Jireh, and that Jireh may have employed

Decker. “Under the doctrine of respondeat superior, an employer may be held

liable for employee negligence that injures third persons, if the employee was

within the scope of his employment at the time of the occurrence.” Michael v.

3 The court’s order denying reconsideration became a final judgment under

RAP 2.2(d) when Smith obtained judgments against Roberto, TRJ, and Decker.

4
No. 87000-9-I/5

Laponsey, 123 Wn. App. 873, 874, 99 P.3d 1254 (2004). It is hypothetically

possible that Decker was driving the truck within the course and scope of

employment with Jireh such that Jireh would be vicariously liable for Decker

striking Smith with the truck.

This hypothetical scenario is lent credence by the evidence produced during

summary judgment motions practice, namely answers to interrogatories, copies of

text messages, and declarations showing that Decker texted Jireh about a

mechanical issue with a work trailer the day of the accident and Jireh discussed

work with Decker in the days before and after the accident. The superior court had

already ruled that there was a genuine issue of material fact about whether Decker

was employed by Jireh, and this court had denied discretionary review of that

ruling. The superior court erred in granting Jireh’s CR 12(c) motion.

B

Alternately, the superior court erred in denying leave to amend.

We review a court’s denial of leave to amend for abuse of discretion.

Caruso v. Loc. Union No. 690 of Int’l Bhd. of Teamsters, 100 Wn.2d 343, 351, 670

P.2d 240 (1983). The purpose of the pleadings is not to erect formal, burdensome

impediments to the litigation process but to help facilitate a proper decision on the

merits. Id. at 349. “Undue delay on the part of the movant in proposing the

amendment constitutes grounds to deny a motion to amend only ‘where such delay

works undue hardship or prejudice upon the opposing party.’ ” Id. (quoting

Appliance Buyers Credit Corp. v. Upton, 65 Wn.2d 793, 800, 399 P.2d 587 (1965)).

5
No. 87000-9-I/6

“The touchstone for denial of an amendment is the prejudice such amendment

would cause the nonmoving party.” Id. at 350.

Jireh showed no prejudice resulting from amendment. Jireh had notice that

Smith was seeking to establish vicarious liability and had already litigated the issue

through dispositive motions. Smith’s amendment was not futile where the court

had already ruled that there was a genuine issue of material fact on Jireh’s

vicarious liability.

Reversed and remanded.

WE CONCUR:

6