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Date: 11-22-2010
Case Style: James H. Jackson v. The City of Seattle
Case Number: 64244-8-I
Judge: Becker
Court: Washington Court of Appeals
Plaintiff's Attorney: Larry L. Setchell, Helsell Fetterman, L.L.P., Seattle, Washington and Benjamin Ta-shin, Bellevue, Washington
Defendant's Attorney: Gregory Dale Fuller Seattle City Attorney's Office, Seattle, Washington; Shellie McGaughey, McGaughey Bridges Dunlap PLL, Bellevue, Washington; Kathleen M. Boyle, Themis Litigation Group, Seattle, Washington
Description: The trial court granted summary judgment dismissal of a
homeowner's negligence claims against two construction contractors whose
allegedly negligent installation of a waterline for the previous owner caused a
landslide, damaging the landscaping and house. We reverse. This is not a
negligent construction case where the economic loss rule would apply and
No. 64244-8-I/2
recovery would be limited to contract remedies. The contractors are liable in tort
if their negligence caused the landslide.
"We affirm orders granting summary judgment only when satisfied, after
considering the facts in the light most favorable to the nonmoving party, that
there is no genuine issue of material fact and the moving party is entitled to a
judgment as a matter of law." Burg v. Shannon & Wilson, Inc., 110 Wn. App.
798, 803-04, 43 P.3d 526 (2002).
The appellant homeowners are James Jackson and his wife, C.R.
Hendrick. They bought their house from Corrine Otakie and moved in in
November 2006. Earlier that year, Otakie had a problem with a leaking
waterline. She contacted respondent QPS, Inc., a plumbing company. After
investigating, QPS determined that fixing the old line would be too dangerous
because it came down a steep hillside. QPS recommended installing a new
waterline using the trenchless method. Otakie took the advice. She contracted
with respondent Trenchless Construction Services, LLC, to drill and install the
new waterline. She contracted with QPS to connect one end of the line to her
house and the other end to the city water main at the top of the hill above her
house, and to backfill any excavations.
Starting near the city water main above Otakie, Trenchless drilled a
tunnel 5 inches in diameter and 160 feet long, at an acute angle down the hill to
her house. The drilled line began on city property and crossed at least one
private lot that did not belong to Otakie. Trenchless installed a one and one
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No. 64244-8-I/3
quarter inch pipe for the length of the line. QPS dug a trench, 30 feet long and 5
feet deep, along the top of the hill above Otakie's house from the water main to
the start of the waterline Trenchless installed. QPS backfilled the connection
trench. QPS then connected the pipe to the house, completing the installation in
March 2006.
In November 2006, a large sinkhole formed at the top of the hill above the
house -- now owned and occupied by Jackson -- near the water main where QPS
had dug and backfilled the connection trench. The sinkhole was reported by a
local homeowner and backfilled by the city. The sinkhole reformed in early
December, but it was not reported or filled again.
In December 2006, heavy rains fell on Seattle. On December 14, a city
catch basin clogged and water began to pool in the sinkhole. The pooling water
burst from the sinkhole, scouring a path down the hill to Jackson's property. The
scour path, 15 feet wide by 4 to 5 feet deep, roughly followed the waterline
drilled by Trenchless, causing the hillside above Jackson to slide down. The
landslide caused considerable damage to the landscaping and house.
Jackson sued the city of Seattle, Trenchless, and QPS. He sued Seattle
for negligently inspecting and backfilling the first November sinkhole and for
allowing the catch basin to fail. Jackson voluntarily dismissed all claims against
Seattle after they reached a mediated settlement.
Trenchless and QPS each moved for summary judgment dismissal. In
opposition to the motions, Jackson filed declarations by engineers who opined
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No. 64244-8-I/4
that the construction by Trenchless and QPS caused the landslide and that it
would not have happened if QPS had properly compacted the soil when it
backfilled the 30 foot water main connection trench at the top of the hill, or if
Trenchless had used a better medium to stabilize the downhill tunnel it bored for
the 160 foot long pipe, or if Trenchless and QPS had properly planned and
coordinated their project with each other and with the city.
The trial court granted the motions for summary judgment, orally ruling
the contractors owed no duty to Jackson. Jackson appeals.
To show actionable negligence, "a plaintiff must establish: (1) the
existence of a duty owed to the complaining party; (2) a breach of that duty; (3) a
resulting injury; and (4) that the claimed breach was the proximate cause of the
injury." Burg, 110 Wn. App. at 804. Duty in a negligence action is a threshold
question. A duty may be predicated "on violation of statute or of common law
principles of negligence." Burg, 110 Wn. App. at 804. Jackson offers both a city
ordinance and the common law as predicates for a duty owed by contractors.
He relies on Wells v. City of Vancouver, 77 Wn.2d 800, 467 P.2d 292 (1970). In
Wells, a hangar at the municipal airport blew apart in a fierce storm. The
plaintiff's leg was broken when he was hit by a flying piece of plywood.
According to the experts who testified for the plaintiff, the construction of the
hangar fell short of the wind resistance standards in the city building code. The
trial court allowed the plaintiff's case to go to the jury on the theory that a
violation of the wind resistance standards breached a duty arising from the
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No. 64244-8-I/5
building code and also on the common law theory of a breach of a property
owner's duty to an invitee. The Supreme Court affirmed.
The plaintiff has the burden of establishing the existence of a duty. Burg,
110 Wn. App. at 804. Jackson first contends the contractors breached a duty
created by the Seattle stormwater code, analogous to the building code
violations that were held to breach a statutory duty in Wells.
"In deciding when violation of a statute or administrative regulation shall
be considered in determining liability, this court has relied upon the Restatement
(Second) of Torts § 286 (1965)." Melville v. State, 115 Wn.2d 34, 36-37, 793
P.2d 952 (1990). Section 286 gives a four factor test:
The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part (a) to protect a class of persons which includes the one whose interest is invaded, and (b) to protect the particular interest which is invaded, and (c) to protect that interest against the kind of harm which has resulted, and (d) to protect that interest against the particular hazard from which the harm results.
The version of the stormwater code in effect at the time the contractors
began their work set forth requirements for erosion control "for all land disturbing
activities." Former SMC 22.802.015 (2006). Compliance required the use of
construction controls to achieve the following objectives:
b. Before the completion of the project, permanently stabilize all exposed soils that have been disturbed during construction. Methods such as permanent seeding, planting, and sodding may be specified by rules promulgated by the Director.
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No. 64244-8-I/6
c. Prevent the transport of sediment from the site. Appropriate use of methods such as, but not limited to, vegetated buffer strips, stormdrain inlet protection, silt fences, sediment traps, settling ponds, and protective berms may be specified in rules promulgated by the Director.
Former SMC 22.802.015(C)(3)(b)-(c). The code authorized certain city agencies
to investigate and initiate enforcement action against parties responsible for
code violations. Former SMC 22.808.030. An enforcement action could be
initiated either through the office of the hearing examiner or in court, potentially
leading to an order for corrective action or monetary penalties. Former SMC
22.808.040. The code also included a section on "Violations" making
noncompliance with the code a "civil violation" and designating more egregious
activities, such as noncompliance with orders, as "criminal violations." Former
SMC 22.808.090. Creating a dangerous condition was specifically designated
as a civil violation:
Dangerous Condition. It is a violation of this subtitle to allow to exist, or cause or contribute to, a condition of a drainage control facility, or condition related to grading, stormwater, drainage or erosion that is likely to endanger the public health, safety or welfare, the environment, or public or private property.
Former SMC 22.808.090(A)(5). Jackson contends these provisions of the code
demonstrate that its purposes satisfy the Restatement four-part test.
The difficulty for Jackson is the lack of language expressing a purpose to
protect a particular class of persons. Building codes and other similar municipal
codes do not typically serve as a basis for tort liability because they are enacted
merely for purposes of public safety or for the general welfare. Halvorson v.
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No. 64244-8-I/7
Dahl, 89 Wn.2d 673, 677, 574 P.2d 1190 (1978). Halvorson was an exception
to the traditional rule because it involved a housing code with a declaration of
purpose that specifically mentioned a concern for the welfare of the "occupants"
of buildings, not just the welfare of the public as a whole. Halvorson, 89 Wn.2d
at 677. Seattle's stormwater code, on the other hand, comes within the
traditional rule. It declares that one of its remedial purposes is protection of "life,
property and the environment" from erosion, flooding, landslides, and other
hazards. Former SMC 22.800.020(A)(1). Almost identical language was
discussed in Halvorson to show how the purpose of a typical building code is to
protect the general public rather than a particular class of individuals.
Halvorson, 89 Wn.2d at 677 n.2. While the court in Wells did approve a duty
instruction based on the city building code, the parties in that case apparently
assumed the wind resistance standards were designed with a purpose to protect
a particular class. The issue presented was whether the particular class was
limited to persons directly injured by a collapsing building. In deciding that the
protected class was broad enough to include anyone injured by flying debris, the
court did not address the precise issue presented in this case -- whether the
code was intended to protect a particular class of persons rather than the
general public.
Not only does the Seattle stormwater code employ the general purpose
language of a typical building code, it also contains language specifically
disavowing an intention to protect a particular class of persons. In the
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No. 64244-8-I/8
subsection on penalties and damages that can be awarded by the hearing
examiner or by a judge, the code specifically states: "It is expressly the purpose
of this subtitle to provide for and promote the health, safety and welfare of the
general public. This subtitle is not intended to create or otherwise establish or
designate any particular class or group of persons who will or should be
especially protected or benefitted by its terms." Former SMC 22.800.020(B).
The subtitle "does not establish a cause of action that may be asserted by any
party other than the City. Penalties, damages, costs and expenses may be
recovered only by the City." Former SMC 22.808.060(C).
When a court decides that a violation of a statute shall be considered in
determining liability for negligence, the motivation for doing so is to give effect to
the will of the legislature:
It is not every provision of a criminal statute or ordinance which will be adopted by the court, in a civil action for negligence, as the standard of conduct of a reasonable person. Otherwise stated, there are statutes which are considered to create no duty of conduct toward the plaintiff, and to afford no basis for the creation of such a duty by the court. The courts in such cases have been careful not to exceed the purpose which they attribute to the legislature. This judicial self-restraint is rooted in part in the theory of the separation of powers.
W. Page Keeton et al, Prosser and Keeton on Torts § 36 at 222 (5th ed. 1984)
(footnote omitted). Jackson does not persuasively explain how we could view
the stormwater code as a foundation for a negligence action in spite of the
express disclaimer of a purpose to designate a protected class and the express
terms making the code enforceable only by the city. We conclude he has not
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No. 64244-8-I/9
established the existence of a duty arising from the code.
This does not mean Jackson is without a remedy. Even if a violation of
the city stormwater code is not negligence, this case does resemble Wells in that
the facts support a common law theory of liability. We agree with Jackson that
the contractors owed him the common law duty of care recognized in Davis v.
Baugh Industrial Contractors, Inc., 159 Wn.2d 413, 417, 150 P.3d 545 (2007).
In Davis, the crew foreman of a concrete company was accidentally
crushed to death by falling cement blocks while he was inspecting leaking water
pipes. A contractor had installed the pipes, allegedly without using reasonable
care. The trial court granted summary judgment to the contractor on the ground
that the common law completion and acceptance doctrine relieved the contractor
of liability for negligence after the work was completed by the contractor and
accepted by the landlord. Abandoning the "ancient" doctrine of completion and
acceptance, the court instead employed Restatement (second) of Torts § 385
(1965):
§ 385. Persons Creating Artificial Conditions on Land on Behalf of Possessor: Physical Harm Caused After Work has been Accepted
One who on behalf of the possessor of land erects a structure or creates any other condition thereon is subject to liability to others upon or outside of the land for physical harm caused to them by the dangerous character of the structure or condition after his work has been accepted by the possessor, under the same rules as those determining the liability of one who as manufacturer or independent contractor makes a chattel for the use of others.
Under this section of the Restatement, "a builder or construction contractor is
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No. 64244-8-I/10
liable for injury or damage to a third person as a result of negligent work, even
after completion and acceptance of that work, when it was reasonably
foreseeable that a third person would be injured due to that negligence." Davis,
159 Wn.2d at 417.
This statement in Davis defines the duty that Trenchless and QPS owed
to Jackson when they installed the waterline. Viewed in the light most favorable
to Jackson, the evidence establishes that the installation of the waterline created
a dangerous condition on the hillside land above the residence. The land had
previously been designated as a potential landslide area by the city of Seattle,
and it was reasonably foreseeable that drilling and connecting the new waterline
would cause damage to third persons if done without sufficient attention to
compacting the disturbed soil or stabilizing the newly bored waterline. See
Schneider v. Strifert, 77 Wn. App. 58, 63, 888 P.2d 1244 (1995) ("Foreseeability
is a question of fact for the jury unless reasonable persons could reach but one
conclusion.").
Trenchless and QPS argue that Davis is factually distinguishable. In
Davis, the negligently installed water pipes leaked, whereas in this case the new
waterline remained intact and functioned as promised. And in Davis, the
negligence caused bodily injury, whereas in this case there was only property
damage. But these are not material distinctions. They do not override the policy
concerns that motivated our Supreme Court to cast aside the completion and
acceptance doctrine:
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No. 64244-8-I/11
The doctrine is also harmful because it weakens the deterrent effect of tort law on negligent builders. By insulating contractors from liability, the completion and acceptance doctrine increases the public's exposure to injuries caused by negligent design and construction of improvements to real property and undermines the deterrent effect of tort law. Illinois long ago abandoned the doctrine specifically for this reason, stating that "[a]n underlying purpose of tort law is to provide for public safety through deterrence of negligent designers and builders. This purpose cannot be accomplished if these persons are insulated from liability simply by the act of delivery." Johnson v. Equip. Specialists, Inc., 58 Ill. App. 3d 133, 373 N.E.2d 837, 843, 15 Ill. Dec. 491 (1978).
Davis, 159 Wn.2d at 419-20. Similarly here, the deterrent effect of tort law on
negligent construction would be diminished by absolving contractors of tort
liability so long as they deliver a functional system and do not cause bodily
injury. Contractors who install a waterline on a steep slope have to be
concerned about the condition in which they leave the slope, not just the
condition of the waterline. And liability imposed under Restatement § 385 is "for
physical harm"; this includes damage to property, not just personal injury.
Trenchless and QPS insist that the economic loss rule bars Jackson's
negligence action. "The economic loss rule marks the fundamental boundary
between the law of contracts, which is designed to enforce expectations created
by agreement, and the law of torts, which is designed to protect citizens and
their property by imposing a duty of reasonable care on others."
Berschauer/Phillips Const. Co. v. Seattle Sch. Dist. No. 1, 124 Wn.2d 816, 821,
881 P.2d 986 (1994).
"If the economic loss rule applies, the party will be held to contract remedies,
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No. 64244-8-I/12
regardless of how the plaintiff characterizes the claims." Alejandre v. Bull, 159
Wn.2d 674, 683, 153 P.3d 864 (2007).
In a case involving a claim of negligent misrepresentation by homebuyers
against an appraiser hired by their lender, this court stated that it is error to
apply the economic loss rule where no contractual relationship exists between
the parties. Borish v. Russell, 155 Wn. App. 892, 901, 904, 230 P.3d 646
(2010). Citing Borish, Jackson contends the economic loss rule has no
application in this case because he did not have a contract with Trenchless or
with QPS.
The idea that there must be privity between the parties before the
economic loss rule comes into play would seem to be at odds with the leading
case of Berschauer/Phillips. In that case, the court made the economic loss rule
the foundation of its decision to deny a tort remedy to a general contractor even
though the damages, costly delays in the construction of a school project, were
allegedly caused by negligent preparation of architectural plans and negligent
inspection of the work by individuals with whom the contractor did not have a
direct contractual relationship. The court denied the contractor's tort claims
because the damages caused by the construction delays were only economic
losses. Notwithstanding Borish, we conclude it is appropriate to consider the
economic loss rule here, even though Trenchless and QPS did not directly
contract with Jackson.
Based on the economic loss rule, Trenchless and QPS argue that any
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No. 64244-8-I/13
duty they had to install the waterline safely arose solely by means of their
contracts with Otakie and accordingly Jackson must be limited to a contract
remedy. We disagree. As discussed above, a duty in tort to use due care in
installing the waterline arose from the common law.
The contractors contend Jackson's claim is precluded by Stuart v.
Coldwell Banker Commercial Group, Inc., 109 Wn.2d 406, 745 P.2d 1284
(1987). In Stuart, a condominium homeowners' association, suing on behalf of
original and subsequent unit purchasers, attempted to impose tort liability upon
the builder and vendor of the units for construction defects that resulted in rotting
and impairment of the units. Stuart, 109 Wn.2d at 422. Applying the economic
loss rule, the court refused to recognize a tort cause of action for negligent
construction. Beyond the terms expressed in the contract of sale, "the only
recognized duty owing from a builder-vendor of a newly completed residence to
its first purchaser is that embodied in the implied warranty of habitability."
Stuart, 109 Wn.2d at 417. Stuart does not stand for the proposition that a
building
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No. 64244-8-I/14
contractor can only be sued for contract remedies. The court was concerned
with preventing the consumer from using a tort theory to obtain compensation for
a defective "product" (the condominium) that did not meet the consumer's market-
based economic expectations. The court was careful to preserve tort liability for
physical damage caused when the "product" does not meet a standard of safety
defined in terms of conditions that create unreasonable risks of harm. Stuart,
109 Wn.2d at 419, quoting Seely v. White Motor Co., 63 Cal. 2d 9, 45 Cal. Rptr.
17, 403 P.2d 145 (1965).
Under Stuart, Jackson's loss was not an "economic" loss. An economic
loss is a defect of quality as evidenced by internal deterioration. But when a
loss stems "from defects that cause accidents involving violence or collision with
external objects," that is a physical injury susceptible of a tort remedy. Stuart, 109 Wn.2d at 420.1 If the new waterline had not functioned properly and had to
be reinstalled or fixed, that would be an economic loss. But the waterline itself
worked as anticipated. Jackson's loss was damage to his house and
landscaping, caused by the violent occurrence of the landslide -- an event
allegedly precipitated by the defective condition in which the contractors left the
hillside.
1 See also Eastwood v. Horse Harbor Foundation, Inc., No. 81977-7, 2010 WL 4351986 (Wash. Nov. 4, 2010); Affiliated FM Ins. Co. v. LTK Consulting Servs., Inc., No. 82738-9, 2010 WL 4350338 (Wash. Nov. 4, 2010). These two decisions, issued after oral argument in this case and cited by Jackson as supplemental authority, confirm our decision and our rationale. 14
No. 64244-8-I/15
In short, we agree with the distinction stated in Stieneke v. Russi, 145
Wn. App. 544, 556, 190 P.3d 60 (2008), review denied, 165 Wn.2d 1026 (2009):
"When a defective product injures something other than itself, such as a person
or other separate property, the loss is not merely an economic loss and tort
remedies are appropriate." The same is true of a defective installation of a
product. The nature of Jackson's loss is injury to property resulting from the
allegedly negligent installation of an otherwise functional waterline. Because
Jackson establishes that Trenchless and QPS owed him a duty of care under
Davis, the trial court erred in treating his case as if it were a claim for negligent
construction precluded by Stuart.
In addition to arguing lack of duty, QPS contends the dismissal can be
affirmed on the alternative ground of lack of proximate cause. This argument
was not properly raised below and we will not consider it. White v. Kent Med.
Center, Inc., 61 Wn. App. 163, 168-69, 810 P.2d 4 (1991).
The record shows genuine issues of material fact remain concerning
breach of duty. Summary judgment was inappropriate.
* * *
See: http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=642448MAJ
Outcome: Reversed
Plaintiff's Experts:
Defendant's Experts:
Comments: