UNPUBLISHED OPINION

BECKER, J.

A jury awarded nearly $400,000 to a clothing company whose goods were damaged by dust as a result of sandblasting carried on by appellant Schuchart Corporation in a neighboring building. Finding no error, we affirm.

Schuchart, a general contractor, was hired to perform renovations on the Greenstein Warehouse building in Seattle. Respondent Jarbo, a designer of high-end women's clothing, stored its inventory in a neighboring building. The two buildings shared an adjoining brick wall on one side.

Renovations on the Greenstein building began on January 21, 2009. Renovations included asbestos and lead abatement and involved sandblasting of lead-based paint. Schuchart gave Jarbo no warning that it would be conducting these activities.

On Monday, February 2, 2009, and Tuesday, February 3, 2009, Schuchart's sandblasting subcontractor, Aqua-Brite, was setting up and testing the sandblasting equipment. On the afternoon of February 3, Jarbo personnel heard loud noises coming from the basement of the Greenstein building and encountered a thick plume of dust in the air.

Jarbo's owner, Michael Kaplan, went next door and complained to Jan Christ, Schuchart's superintendent on the Greenstein building. Christ came over to inspect the dust in Jarbo's basement. Schuchart employees covered Jarbo's inventory in plastic. The next day, Wednesday, February 4, the loud noises in the basement recommenced and Jarbo employees again found another thick plume of dust in the basement. The dust was so thick it set off the smoke alarm.

Jarbo's clothing inventory was damaged. Jarbo had to give the damaged inventory away or sell it at a steep discount.

Jarbo sued Schuchart, alleging negligence. At trial, Schuchart disputed that its renovation work had caused the plumes of dust, claimed it was not negligent, and argued that it could not be held liable for any negligence of its subcontractors who were operating machinery and sandblasting equipment during the days in question. Schuchart joined as a third party defendant Demolition Man, the subcontractor hired to chip away a concrete floor, and sued for full indemnity. Schuchart did not join Aqua-Brite, the subcontractor hired to perform sandblasting. A pretrial deposition and testimony elicited at trial provided strong evidence that the dust plumes were generated as a result of sandblasting activities by Aqua-Brite.

The jury found Jarbo's injuries were proximately caused by negligence and attributed 100 percent of the negligence to Schuchart. The jury awarded Jarbo $390,385 in damages. The court entered judgment on the verdict. The court denied Demolition Man's request for attorney fees for successfully defending against Schuchart's indemnity suit.

Schuchart appeals the judgment. Demolition Man appeals the court's denial of its request for attorney fees from Schuchart.

CR 50 MOTION TO DISMISS

Schuchart assigns error to the court's denial of its CR 50 motion to dismiss Jarbo's lawsuit. This court reviews de novo the trial court's denial of a motion for judgment as a matter of law under CR 50(a). Davis v. Microsoft Corp., 149 Wn.2d 521, 530-31, 70 P.3d 126 (2003). Such a motion must be granted "`when, viewing the evidence 3 most favorable to the nonmoving party, the court can say, as a matter of law, there is no substantial evidence or reasonable inference to sustain a verdict for the nonmoving party.'" Davis, 149 Wn.2d at 531, quoting Sing v. John L. Scott, Inc., 134 Wn.2d 24, 29, 948 P.2d 816 (1997).

The first premise of the CR 50 motion was that Jarbo had not alleged that Schuchart was liable for damages based on its own negligence. But in fact, from the very beginning of the lawsuit, Jarbo argued that Schuchart was negligent. Jarbo's complaint alleged, "Schuchart is responsible for the damage to Jarbo caused by its own actions and those of its subcontractors." (Emphasis added.) Jarbo's trial brief stated, "Schuchart owes Jarbo an independent duty to use reasonable care to avoid damaging Jarbo's property." (Emphasis added.) It was frivolous for Schuchart to base a CR 50 motion on a patently false premise.

The second premise of the CR 50 motion was that Jarbo did not prove negligent conduct by Schuchart. This argument likewise lacks merit. Substantial evidence showed that Schuchart was the entity responsible for securing the walls of the site, preparing the site for sandblasting, protecting neighboring buildings, and controlling safety. Schuchart was the party responsible under contract for any issues related to the lead abatement work.

Britt Barton, Demolition Man's foreman on the Greenstein project, testified that the brick walls of the Greenstein Building were visibly "very old, decrepit, sagged, not in great shape." Jan Christ testified that the bricks were "very old and loose," and that there were "holes and spaces in the bricks." Jarbo presented evidence that Schuchart had failed to warn the neighbors of any potentially dangerous work occurring next door, that Schuchart had been hurrying to meet deadlines before the sandblasters began work in the basement, and that Schuchart patched holes in the outer brick walls only after the sandblasting accidents occurred.

Schuchart argued the case should be dismissed for lack of proof of causation. Jarbo presented substantial evidence that Schuchart's failure to patch the walls before the sandblasting began was the proximate cause of the damage. Britt Barton testified that during the sandblasting accidents he witnessed, the compressed air caused dust to shoot up from the basement "out of every crack, crevice and hole in the entire building," creating a swiftly moving dust cloud that affected workers' breathing and forced them to "clear out of the first floor." Both Michael Kaplan and Jan Christ testified that when they stood near the shared wall in Jarbo's basement, they could feel air coming through between the bricks. Dan Rutkowski, project manager for Schuchart at the Greenstein project, testified that if there were any holes in the floors or walls, sandblasting would shoot dust through the holes. Britt Barton testified that after Jan Christ viewed the Jarbo basement unit in response to Kaplan's complaints, he was of the opinion that the dust he observed was sandblast dust. Jan Christ admitted that when he went to the Jarbo basement to examine the damage on the day of the complaint, the workers in the basement renovation project were only painting drywall; they were not performing any dust-creating work.

The evidence was adequate to submit Schuchart's liability to the jury.

JURY INSTRUCTIONS

Schuchart assigns error to several of the jury instructions. "The general test for reviewing jury instructions is whether the instructions, read as a whole, allow counsel to argue their theory of the case, are not misleading, and properly inform the trier of fact of the applicable law." Kirk v. Wash. State Univ., 109 Wn.2d 448, 460, 746 P.2d 285 (1987). Whether to give a particular instruction to the jury is a matter within the discretion of the trial court. Stiley v. Block, 130 Wn.2d 486, 498-99, 925 P.2d 194 (1996). An alleged error of law in a jury instruction is reviewed de novo. Boeing Co. v. Key, 101 Wn.App. 629, 632, 5 P.3d 16 (2000), review denied, 142 Wn.2d 1017 (2001). A party is entitled to have the trial court instruct on its theory of the case if there is substantial evidence to support it. Egede-Nissen v. Crystal Mountain, Inc., 93 Wn.2d 127, 135, 606 P.2d 1214 (1980). In determining whether there is substantial evidence to support the instruction, the court views the evidence in the light most favorable to the party who requested it. Mina v. Boise Cascade Corp., 37 Wn.App. 445, 448, 681 P.2d 880 (1984), aff'd, 104 Wn.2d 696, 710 P.2d 184 (1985). Trial court error on jury instructions is not a ground for reversal unless it is prejudicial, i.e., it affects the outcome of trial. Stiley, 130 Wn.2d at 498-99.

In addition, a party challenging an instruction on appeal must have preserved the alleged error by properly 6 objecting to the instructions at trial. CR 51(f); Egede-Nissen, 93 Wn.2d at 134. The objecting party must "state distinctly the matter to which he objects and the grounds of his objection, specifying the number, paragraph or particular part of the instruction to be given or refused and to which objection is made." CR 51(f). The purpose of this rule is to enable the trial court to correct any mistakes in the instructions in time to prevent the unnecessary expense of a second trial. Egede-Nissen, 93 Wn.2d at 134. Thus absent constitutional ramifications, if instructional challenges made on appeal differ from those made to the trial court, the arguments will not be considered on appeal and the alleged error is not grounds for a new trial. See Van Hout v. Celotex Corp., 121 Wn.2d 697, 702-03, 853 P.2d 908 (1993) (party not entitled to appellate review of a theory of instructional error never presented to the trial court.)

Res Ipsa Loquitur Instruction

Schuchart assigns error to instruction 13, which informed the jury that it was permitted, but not required, to infer Schuchart's negligence if it found certain facts. The instruction was based on the doctrine of res ipsa loquitur. Curtis v. Lein, 169 Wn.2d 884, 890, 239 P.3d 1078 (2010). A plaintiff may rely upon res ipsa loquitur's inference of negligence if (1) the accident or occurrence that caused the plaintiff's injury would not ordinarily happen in the absence of negligence, (2) the instrumentality or agency that caused the plaintiff's injury was in the exclusive control of the defendant, and (3) the plaintiff did not contribute to the accident or occurrence. Curtis, 169 Wn.2d at 891.

Schuchart objected to the instruction on four grounds that it does not repeat on appeal.1 On appeal, Schuchart claims the instruction was improper for reasons not raised below. We conclude Schuchart did not preserve the alleged error. Van Hout, 121 Wn.2d at 702-03.

And in any event, substantial evidence supported each of the elements of res ipsa loquitur. An instruction on res ipsa loquitur is proper where substantial evidence supports each element, even if the defendant presents "weighty, competent and exculpatory proof" in support of its defense. Brown v. Dahl, 41 Wn.App. 565, 582, 705 P.2d 781 (1985). There was evidence that the dust cloud that damaged the clothing would not ordinarily occur in the absence of someone's negligence. The dust filling the basement reportedly consisted of opaque plumes so thick that a person could not see through them or breathe. Jarbo had never experienced problems with dust in the basement in previous years, even though there had been other construction work in the vicinity.

There was substantial evidence that the shared wall between the two buildings was in Schuchart's exclusive control for purposes of sealing the work space and preparing the area for sandblasting. And there was substantial evidence that Jarbo did nothing to contribute to the accident. The evidence showed that Jarbo was not warned of the possibility of any harm from a neighboring building renovation, and had it been so warned, it would have completely covered the inventory.

The court did not err by giving instruction 13.

Vicarious Liability and Lead Hazard Instructions

Schuchart contends instructions 14 and 19 to the jury incorrectly instructed the jury that Schuchart could be held strictly liable for abnormally dangerous activity.

This assignment of error is not only unpreserved—Schuchart's appellate brief being the first mention of strict liability with regard to the jury instructions—it is frivolous. The court gave no such instruction. Instruction 14 set forth four circumstances in which a general contractor can be held vicariously—not strictly—liable for the negligence of a subcontractor. One circumstance is when the subcontractor's work "is inherently dangerous or the work undertaken is likely to create a peculiar risk of the type of harm alleged." Instruction 19 set forth a specific nondelegable duty imposed by statute to protect public health and the environment from the hazards of lead-based paint. These instructions bear no relationship to the hypothetical strict liability instructions Schuchart objects to on appeal.

Strict liability was not an issue in this case. Jarbo sued Schuchart for negligence, not strict liability. Schuchart's appellate counsel has apparently confused vicarious liability for negligence in performing an "inherently dangerous" activity with the wholly distinct concept of strict liability for an "abnormally dangerous" activity. Strict liability for abnormally dangerous activities and a claim alleging that the defendant was engaged in inherently dangerous activities involve distinct legal theories. Liability for injuries proximately caused by inherently dangerous activities is based on negligence rather than strict liability. See 57A Am. Jur. 2d, Negligence § 375 (2004).

Schuchart repeats one argument it made at trial with regard to these instructions: that any references to the hazards of lead-based paint and to a company's duty to protect the "safety of . . . others" were improper in this case because Jarbo was claiming damage to property, not personal injury due to lead exposure.2 Schuchart argues that the statute and administrative code sections on which the instruction was based "clearly deal with potential harm to persons from lead based paint, not dust with lead paint chips in it settling on old inventory and samples." Schuchart ignores the plain language of the statute quoted in instruction 19, which requires companies to carry out lead abatement in a way that both protects the health of citizens and "safeguards the environment." See RCW 70.103.010(4).

Schuchart fails to show any error in instructions 14 and 19.

Agency Liability Instructions

Instruction 15 defined "agent" as a person subject to the principal's control or right to control the manner and means of performing the service. Instruction 16 stated the rule that an act or omission of an agent within the scope of authority is imputed to the principal. Instruction 17 outlined Jarbo's contention that Demolition Man was acting as Schuchart's agent. See WPI 50.01, 50.03, and 50.07. Schuchart assigns error to all three instructions, in conjunction with instruction 14, and argues there was insufficient evidence to prove Schuchart had the right to control its subcontractors.

The instructions permitted the jury to find Schuchart liable for the negligence of its agents as well as for its own negligence. The verdict does not reveal which of these theories the jury relied on in finding Schuchart 100 percent liable for Jarbo's damages. Because Schuchart did not propose a special verdict form that would have asked the jury to specify which theory of liability it based its verdict on, the verdict will be upheld if the evidence was sufficient to support one of the theories presented to the jury. Davis, 149 Wn.2d at 539-40.

Since the evidence was adequate to support a jury verdict on a theory that Schuchart's own negligence proximately caused Jarbo's injury, Schuchart cannot show that the agency liability instructions affected the outcome of trial. Therefore, any error in giving the agency instructions would not warrant reversal. See Farm Crop Energy, Inc. v. Old Nat'l Bank of Wash., 109 Wn.2d 923, 942-43, 750 P.2d 231 (1988) (where evidence supported jury verdict under breach of contract theory, any error in instructions on alternative promissory estoppel theory did not warrant reversal).

In any event, there is no merit to Schuchart's argument that the agency liability instructions are unsupported by the evidence. The evidence at trial raised a dispute as to whether Demolition Man and Aqua-Brite were acting as agents of Schuchart when the dust plumes were created. A principal may generally be held liable for the tortious acts of its agent if such acts are performed within the scope of authority, although the principal may not know or approve of them. Titus v. Tacoma Smeltermen's Union Local No. 25, 62 Wn.2d 461, 469, 383 P.2d 504 (1963); WPI 50.03. Merely giving a party the title "independent contractor" does not resolve whether the entity was acting as an agent at the time of the injury. See Massey v. Tube Art Display, Inc., 15 Wn.App. 782, 785-86, 551 P.2d 1387 (1976) ("we recognize that the placing of labels upon the parties in question may be of little value when discussing vicarious tort liability"). The test is whether the employer retains the right to exercise control over the subcontractor's work. Kelley v. Howard S. Wright Constr. Co., 90 Wn.2d 323, 330-31, 582 P.2d 500 (1978).

It was not, as Schuchart suggests, uncontested at trial that the subcontractors were entirely responsible for their own work. Dan Rutkowski testified that it was Schuchart's job to get the site ready for the sandblasters by filling the holes before the blasters got there. Jan Christ testified that it was Aqua-Brite's job to contain the dust, but he admitted that Schuchart had worked on patching holes in the exterior wall to keep sand and dust in the Greenstein building. This was confirmed by Christ's job reports. Britt Barton testified that in his experience, the general contractor is responsible for containing the area before allowing sandblasting to begin. Evidence and testimony also showed that Schuchart retained responsibility for overseeing safety matters in and around the job site and that it retained the right to order the subcontractors to stop their work.

The instructions on agency liability were supported by the evidence.

FRIVOLOUS APPEAL

RAP 18.9(a) permits the court to award fees that a party incurs responding to a frivolous appeal. An appeal is frivolous when the appeal presents no debatable issues upon which reasonable minds could differ and when the appeal is so totally devoid of merit that there was no reasonable possibility of reversal. Mahoney v. Shinpoch, 107 Wn.2d 679, 691, 732 P.2d 510 (1987). The record should be examined as a whole, and doubts should be resolved in favor of the appellant. Mahoney, 107 Wn.2d at 691-92.

We grant Jarbo's request for an award of appellate attorney fees under RAP 18.9. Schuchart's assignment of error to the court's denial of its CR 50 motion was, to put it bluntly, preposterous. Schuchart's assignments of error to the jury instructions also presented no reasonable possibility of reversal. Schuchart's arguments on appeal consistently bear little to no similarity to the arguments it made at trial, leaving no reasonable doubt that the challenges would be deemed waived on appeal. 13 Schuchart spent a full seven pages of its opening brief challenging a strict liability instruction that was never given.

DEMOLITION MAN'S APPEAL

By attributing "100%" of the negligence to Schuchart and "0%" to Demolition Man, the jury verdict exonerated Demolition Man from Schuchart's claim for indemnity.3 Demolition Man requested an award of attorney fees expended in defending against Schuchart's third party complaint. The trial court denied this request.

Demolition Man contends it was entitled to fees based on a provision in the "Indemnification Addendum" to its subcontract with Schuchart. In this addendum, Demolition Man agreed to indemnify, defend, and hold Schuchart harmless "from any and all claims, demands, losses and liabilities to or by third parties arising from, resulting from or connected with services performed . . . under this Subcontract by Subcontractor."4 The duty to defend, indemnify, and hold Schuchart harmless included Schuchart's reasonable attorney fees as well as other claim-related expenses.

Demolition Man argues that RCW 4.84.330 and the "mutuality of remedy" doctrine require that this fee provision be applied reciprocally to award Demolition Man its fees for defending against Schuchart's indemnification action.

The court did not err in denying Demolition Man's request for fees. The fee agreement in the addendum was limited on its face to Schuchart's fees and costs spent defending against third party claims, such as Jarbo's lawsuit. It did not contain terms granting Schuchart a right to fees for an action to enforce its right to indemnification. In the absence of express terms to this effect, fees for establishing a right to indemnification are unwarranted. Jones v. Strom Constr. Co., 84 Wn.2d 518, 523, 527 P.2d 1115 (1974).

Jones, 84 Wn.2d at 523 (emphasis added, citations omitted); accord Tri-M Erectors, Inc. v. Donald M. Drake Co., 27 Wn.App. 529, 538, 618 P.2d 1341 (1980), review denied, 95 Wn.2d 1002 (1981).

RCW 4.84.330 applies where a contract specifically provides that one of the parties shall be awarded attorney fees that "are incurred to enforce the provisions of such contract." RCW 4.84.330. In such a case, the statute imposes reciprocal treatment if the other party prevails.

The addendum does not provide for an award of fees to Schuchart for enforcing its provisions. Because Schuchart could not have obtained an award of this type of attorney fees if it had prevailed against Demolition Man, Demolition Man likewise has no right to an award of attorney fees as the prevailing party.

Affirmed. Subject to compliance with RAP 18.1, Jarbo is entitled to an

SPEARMAN and GROSSE, Judges, concurs.