Opinion
No. 55453-1-I.
May 30, 2006.
Appeal from a judgment of the Superior Court for King County, No. 03-2-02417-1, James D. Cayce, J., entered November 23, 2004.
Counsel for Appellant(s), David Andrews Williams, Attorney at Law, 9 Lake Bellevue Dr Ste 104, Bellevue, WA 98005-2454.
Counsel for Respondent(s), Dan'l Wayne Bridges, Law Offices of Dan'L W. Bridges, 11100 NE 8th St Ste 300, Bellevue, WA 98004-4477.
Affirmed by unpublished per curiam opinion.
Kazi Sharif was severely injured when he was attacked by unknown assailants on the grounds of his apartment. He appeals a summary judgment order dismissing his claims against James Street Crossing. Sharif, however, has no memory of the attack and no one else witnessed it. Because he could only speculate that his injuries would not have occurred but for James Street's negligence, he could not establish proximate cause and could not withstand summary judgment.
James Street cross-appeals the trial court's denial of its motion to order sanctions against Sharif's attorney. Although the trial court relied upon an incorrect fact in denying sanctions, we do not remand the case for reconsideration of sanctions, and we decline to impose sanctions. The trial court's discretion is affirmed.
Kazi Sharif lived at the James Street Crossing Apartments in Kent, Washington. One night, Sharif was severely beaten outside the apartment complex. No one witnessed the assault, and no one was arrested for the crime.
Sharif filed a complaint against James Street Crossing Limited Partnership, the owner of the apartments, and Always on Guard Security Services, the company that provided security for the complex. He alleged he was injured as a result of their negligence.
Always on Guard moved for summary judgment, arguing it did not owe a duty to Sharif, and even if it did, it did not breach its duty. The court granted the security company's motion for summary judgment, and that judgment has not been appealed.
The apartment owners also moved for summary judgment. The motion was to be heard on May 7, 2004. In April, 2004, Sharif disclosed Leroy Moore as an expert witness and filed his declaration. Moore was a dispatch and field supervisor for Pacific Coast Security Company. In his declaration he stated that more probably than not, if the apartment complex had 'on-site patrol with competent security personnel,' the assault would not have occurred or at least Sharif's injuries would not have been as severe, because the incident would have been interrupted before he was so badly injured.
James Street arranged to depose Moore before oral argument on its summary judgment motion. At the deposition, after preliminary instructions, James Street's attorney, Dan'l Bridges, asked Moore about the documents he brought to the deposition, which Bridges referred to as Exhibit 1. One document was a contract between his security company and an apartment complex comparable to the James Street Crossing Apartments. Moore, however, was reluctant to give details about the comparable property, and tensions rose when Sharif's lawyer, David A. Williams, told Moore he did not have to answer Bridges' questions:
A. I'm not comfortable at giving the name of the apartment.
Q. Well, you need to tell me. What's the name of the apartment?
A. Montero.
. . .
Q. Do you know names of any of the people who work security there?
A. Yes, sir.
Q. What are their names?
THE WITNESS: Do I have to tell him the names of the —
Q. Yeah, you do.
MR. WILLIAMS: No, you don't.
MR. BRIDGES: Pardon me?
MR. WILLIAMS: You heard me.
Q. I want to talk to these people to see if this is actually correct information. What are their names?
A. To give out security officers' names, I'm concerned about that one.
Q. Well, I can't —
MR. WILLIAMS: He's not going to do it.
MR. BRIDGES: You want to just play games the whole case, is that it? What privilege are you relying on? You have to state a statutory privilege recognized under law not to answer a question.
What privilege are you relying on, Counsel?
MR. WILLIAMS: He told you he's not going to answer the question. I didn't instruct him not to answer.
MR. BRIDGES: Oh, really. Okay.
Q. Well, then I need to explain something to you then. Counsel is trying to play both sides of the fence. He wants to tell you not to tell you to answer the question.
MR. WILLIAMS: If you don't have a question for him, the deposition is over.
(To witness) Would you please do me a favor and leave the room?
MR. BRIDGES: No, you are not going to leave. You're going to sit right there.
MR. WILLIAMS: (To witness) Go ahead.
(Whereupon, the witness left the proceedings.)
Each attorney accused the other of being responsible for the disruption to the proceedings. Bridges accused Williams of telling Moore to not answer Bridges' questions, and Williams claimed the deposition would continue when Bridges was prepared to ask questions. Bridges then picked up Moore's documents, stating, 'This will be Exhibit No. 1.' Apparently, Williams then grabbed the documents from Bridges' hands. Bridges accused Williams of committing an assault and said he intended to call the police, as well as file a complaint with the Washington State Bar Association. James Street asked the court to find Williams in contempt and impose sanctions based upon his conduct at the deposition and to strike Moore's declaration as untimely. When the parties appeared for argument on James Street's summary judgment motion, the trial court was reluctant to act on the defendant's motions while the bar complaint and possible criminal charges against Williams were pending. The court, therefore, asked James Street to note its motion for contempt and sanctions and re-note its motion for summary judgment.
The prosecutor's office declined to file assault charges against Williams, and the bar association delayed consideration of the bar complaint until this litigation is resolved. The trial court denied James Street's motions to strike Moore's deposition or sanction Williams for contempt, but the court granted the defendant's motion for summary judgment. Sharif appeals the order granting summary judgment, and James Street cross-appeals the trial court's denial of its motion to sanction Williams.
Sharif argues that the trial court erred when it granted James Street's motion for summary judgment because James Street owed a duty to protect him against the foreseeable criminal acts of third parties and there was sufficient evidence to establish that James Street's negligence was the proximate cause of his injuries. We disagree.
An appellate court reviewing a grant of summary judgment engages in the same inquiry as the trial court. Degel v. Majestic Mobile Manor, 129 Wn.2d 43, 48, 914 P.2d 728 (1996). A 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); Degel, 129 Wn.2d at 48. The facts and all reasonable inferences from those facts must be considered in the light most favorable to the nonmoving party. Degel, 129 Wn.2d at 48.
The moving party bears the initial burden of showing the absence of an issue of material fact. Young v. Key Pharmaceuticals, 112 Wn.2d 216, 225, 770 P.2d 182 (1989). If the moving party meets this initial showing and is a defendant, the burden shifts to the plaintiff. Young, 112 Wn.2d at 225. At that point, if the plaintiff fails to make a showing sufficient to establish an essential element of his case, the trial court should grant the summary judgment motion because there can be no genuine issue of material fact in that situation; a complete failure of proof concerning an essential element of the plaintiff's case renders all other facts immaterial. Young, 112 Wn.2d at 225. The nonmoving party may not rely on speculation or argumentative assertions that unresolved factual issues remain. Marshall v. Bally's Pacwest, Inc., 94 Wn. App. 372, 377, 972 P.2d 475 (1999).
To prove negligence, the 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) a proximate cause between the breach and the injury. Christen v. Lee, 113 Wn.2d 479, 488, 780 P.2d 1307 (1989). The existence of duty is a question of law. Hutchins v. 1001 Fourth Ave. Assocs., 116 Wn.2d 217, 220, 802 P.2d 1360 (1991).
The general rule under common law is that a private person has no duty to protect others from the criminal acts of third persons. Nivens v. 7-11 Hoagy's Corner, 133 Wn.2d 192, 199, 943 P.2d 286 (1997). A duty to protect others from third party criminal conduct may arise, however, if a special relationship exists between the defendant and the third person or between the defendant and the third party's victim. Nivens, 133 Wn.2d at 200. The principle that a duty arises when there is a special relationship is expressed in the Restatement (Second) of Torts sec. 315 (1965):
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.
The Washington Supreme Court specifically adopted sec. 315 in Peterson v. State, 100 Wn.2d 421, 671 P.2d 230 (1983). Since then, Washington courts have recognized special relationships between a common carrier and a passenger, an employer and employee, a hospital and patient, and others. Nivens, 133 Wn.2d at 201.
This court recognized that a special relationship may exist between a landlord and tenant in Griffin v. West RS, Inc., 97 Wn. App. 557, 984 P.2d 1070 (1999), rev'd on other grounds, 143 Wn.2d 81, 18 P.3d 558 (2001): The special relationship arises because the tenant entrusts to the landlord the responsibility to deal with issues that arise from the landlord's control of the common areas of the premises. Because of that special relationship, the residential landlord owes its tenant a duty to protect the tenant from foreseeable criminal conduct of third persons on the premises.
The Supreme Court reversed our decision on other grounds, without deciding whether the landlord owed a duty to the tenant, but we reaffirmed that such a duty exists in Faulkner v. Raquetball Village Condominium Assn., 106 Wn. App. 483, 486-87, 23 P.3d 1135 (2001). We held that a landlord's duty to protect the tenant from foreseeable criminal conduct in the common areas can arise when the landlord exerts control over that area. Faulkner, 106 Wn. App. at 487.
In this case, Sharif was found on the grounds of the apartment complex, an area over which the property owners had control. He, therefore, met his burden to show that James Street owed him a duty to protect him from the foreseeable criminal conduct of third persons on the premises. But the trial court properly granted James Street's motion for summary judgment because Sharif did not meet his burden to show there was genuine issue of material fact regarding proximate cause.
Proximate causation requires both cause in fact and legal causation. Ang v. Martin, 154 Wn.2d 477, 482, 114 P.3d 637 (2005). 'Cause in fact' refers to a physical connection between an act and the injury. Ang, 154 Wn.2d at 482. The claimant must establish that the harm he suffered would not have occurred but for an act or omission of the defendant. Taggart v. State, 118 Wn.2d 195, 226, 822 P.2d 243 (1992). Legal causation is a determination that the cause in fact of the plaintiff's harm should be deemed the legal cause of that harm. Ang, 154 Wn.2d at 482. Cause in fact usually is a question for the jury. Daugert v. Pappas, 104 Wn.2d 254, 257, 704 P.2d 600 (1985). But factual causation may become a question of law for the court if the facts, and inferences from them, are plain and not subject to reasonable doubt or a difference of opinion. Daugert, 104 Wn.2d at 257. Legal causation presents a question of law. Ang, 154 Wn.2d at 482.
The mere fact that Sharif was injured does not entitle him to put James Street to the expense of trial. See Marshall, 94 Wn. App. at 377 (an accident does not necessarily lead to an inference of negligence). He needed to submit evidence allowing a reasonable person to infer, without speculating, that James Street's negligence more probably than not caused his injuries. Marshall, 94 Wn. App. at 378.
One may speculate that Sharif would not have been injured if a security guard was on the premises. But even if we assume that the criminal conduct in this case was foreseeable and that James Street breached its duty to protect Sharif, he did not provide evidence showing more probably than not that James Street's negligence caused his injuries. No one, including Sharif, knows who attacked him or why. Sharif argues that the presence of an on-site security guard would have prevented the attack, or at least lessened its severity. But without knowing who committed the attack and how it was committed, we can only speculate that Sharif's injuries would not have occurred but for James Street's negligence.
Ordinarily, foreseeability is a jury question. Wilbert v. Metropolitan Park Dist., 90 Wn. App. 304, 308, 950 P.2d 522 (1998). If, however, there is no evidence that the defendant knew of the perpetrator's propensity for violence and no history of such crimes occurring on the premises, the criminal conduct is unforeseeable as a matter of law. Wilbert, 90 Wn. App. at 309. In this case, there was evidence of six previous assaults on the property, but four of those incidents involved domestic violence that occurred inside individual apartments. One woman was assaulted inside her apartment when an uninvited party guest became violent. A sixth incident occurred in the James Street parking lot, but involved a dispute between two women over a mutual boyfriend.
Because Sharif did not meet his burden to present evidence showing that he, more probably than not, was injured as a result of James Street's negligence, the trial court did not err when it granted the apartment owner's motion for summary judgment.
Cross-Appeal
James Street cross-appeals the trial court's denial of sanctions against Sharif's attorney, David Williams. Under the unusual circumstances in this case, we affirm.
James Street initially asked the court to sanction Williams for his deposition conduct when the parties appeared to argue the summary judgment motion on May 7, 2004, a few days after the aborted deposition. James Street proposed that the court strike Moore's declaration. The court expressed concern about Williams' conduct, but did not want to rule on the motion for sanctions without the motion being formally noted. The judge also expressed reservations about imposing sanctions when he did not witness what happened.
As the judge requested, James Street filed a motion to strike Moore's declaration, dismiss the case as a discovery sanction, grant summary judgment and award CR 11 costs for filing a frivolous lawsuit, and sanction Williams under CR 37. When the parties appeared for argument on the summary judgment motion on September 29, 2004, Williams argued that the declaration should not be stricken and his client's case should not be dismissed based upon the dispute between the lawyers. In response, the trial court stated:
I am not getting involved in making a judgment about what happened. I don't like what happened, but I wasn't there and I'm not making findings of what happened. I was hoping that the bar association or the police would do that.
. . .
It sounds like they have been deferred to the court, or whatever, and I'm not going to get involved in it. It's outside my presence. If something happens in this Court, I will take action.
It's just unfortunate.
The court later, on November 23, 2004, entered an order granting the motion for summary judgment. The court did not enter formal findings or an order in connection with its decision to deny the motion for sanctions. (Although James Street argues that formal findings are always required after a court considers a motion for CR 11 sanctions, the case cited by James Street holds that such findings are mandatory when a court decides to impose sanctions. Biggs v. Vail, 124 Wn. 2d 193, 201, 876 P. 2d 448 (1994)). Sharif filed his notice of appeal on December 21, 2004. James Street decided to file a cross-appeal contending that the trial court abused its discretion on September 29, 2004, when it did not enter an order granting the motion for sanctions. James Street at this point asked the court to enter findings and conclusions as to this issue and proposed findings and conclusions indicating the court had refused to rule on the motion for sanctions because the judge was not present at the deposition. James Street made clear its intent to argue on appeal that the court had discretion to impose CR 11 sanctions even if the judge had not actually observed the wrongful conduct. The motion was noted for consideration by the court on February 18, 2005.
On that date, the court entered an order in which James Street's proposed findings and conclusions were crossed out. The court's order stated a different rationale for not imposing sanctions: 'The Court has the discretion to sanction, however, the early termination of the [deposition] resulted in a net savings of time as it was not necessary to later resume the deposition due to the dismissal. The Court will not impose sanctions against attorney David Williams.'
James Street argues that the trial court abused its discretion when it refused to enter sanctions because, in fact, Moore was deposed a second time before the court granted the motion for summary judgment. Normally, we would agree that basing a discretionary decision upon incorrect facts constitutes an abuse of discretion that warrants reversal. But considering the length of time that had passed between the court's initial refusal to order sanctions and when the sanctions order was entered, it is understandable that the court would not be aware of the second deposition, and the record does not reflect that James Street brought this factual error to the court's attention. James Street should have brought the error to the court's attention and asked it to correct the error before appealing. We also decline to reverse on this issue because it is clear that the judge, while recognizing that Williams' conduct at the deposition was not commendable and that the court did have discretion to sanction, simply did not think sanctions were called for. While a decision to impose sanctions would likely have been affirmed, a trial court's discretionary decision not to impose sanctions is also entitled to broad deference because the trial court is better positioned than we are to evaluate the situation. For the same reason, we decline James Street's invitation to take up the issue and decide on our own to impose sanctions.
Conclusion
The trial court properly granted James Street's motion for summary judgment because Sharif failed to meet his burden to show there was a genuine issue of material fact regarding the cause-in-fact of his injuries. The judgment is affirmed. James Street's cross-appeal is denied.
BECKER, SCHINDLER and AGID, JJ., Concur.