Judges pressed whether predominance is a factual question or a legal test

Members of the appellate panel pressed counsel on whether the predominance inquiry is properly a question of law for the court or a question of fact for a jury or finder of fact. One judge asked, “Why is this a question of fact? Why isn't the predominant activity something the jury should decide?” citing concerns about the evidence and inferences the Department asked the court to draw from the record.

Appellant counsel argued the record supports reversal or at least that the trial court improperly resolved disputed inferences against the Port on summary judgment. The Department responded that the record is undisputed as to the activities and that, given the statutory framework and payment/invoice evidence, the court can apply the law to those facts. The panel's questioning focused on what inferences are permissible on summary judgment and whether the statutory 'predominant activity' test can be applied as a matter of law in these circumstances.