Opinion
No. 35068-8-II.
April 10, 2007.
Appeal from a judgment of the Superior Court for Lewis County, No. 05-2-00389-6, Richard L. Brosey, J., entered June 9, 2006.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Hunt and Penoyar, JJ.
Steve Aust appeals the trial court's summary judgment order and the corresponding dismissal of his negligence action. We affirm.
FACTS
On March 18, 2002, Terry and Deborah Anderson had an argument at their Chehalis residence. As a result, Deborah went into the bedroom and called their daughter, Lisa Hellman, while Anderson watched television in the living room. When Anderson went into the bedroom to get a pillow, Deborah put the telephone into her lap until he returned to the living room.
Assuming something bad had happened, Lisa called 911. Lewis County Sheriff's Deputies Steve Aust and Hal Sprouse responded to the call and knocked at the Andersons' door. Anderson answered but refused to allow the deputies entry. When they pushed through the door, Anderson threw Sprouse out of the way. Aust then grabbed Anderson, and the two struggled.
Anderson drove Aust backwards and pinned him against some cabinets by grabbing Aust's throat and driving his head, neck, and torso over the cabinet countertop. When Sprouse started to reach for his pepper spray, Anderson said he would crush Aust's throat if Sprouse used the spray. After some discussion, Anderson released Aust and allowed the deputies to handcuff him. Anderson eventually pleaded guilty to two counts of third degree assault.
On March 18, 2005, three years after Anderson assaulted the deputies, Aust filed a complaint for damages, alleging that Anderson had committed the tort of negligence during the 2002 incident. Anderson responded by moving for summary judgment, contending that the two-year statute of limitation for assault and battery governed Aust's action and rendered it untimely. After initially denying Anderson's motion without prejudice, the trial court granted his supplemental motion for summary judgment: "Pursuant to Washington State law that governs intentional torts, actions based on negligence, and the statutes of limitation that govern the same, Defendant Anderson is entitled to judgment as a matter of law." Clerk's Papers (CP) at 3.
Aust now appeals, arguing that the trial court erred in granting Anderson summary judgment and in dismissing his negligence complaint.
ANALYSIS I.
A summary judgment motion under CR 56(c) can be granted only if the pleadings, affidavits, depositions, and admissions on file demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). The court must consider all facts submitted and all reasonable inferences from the facts in the light most favorable to the nonmoving party. Nivens v. 7-11 Hoagy's Corner, 133 Wn.2d 192, 198, 943 P.2d 286 (1997).
As stated, Anderson moved for summary judgment on the basis that Aust's claim was one for assault and battery governed by the two-year statute of limitation in RCW 4.16.100(1) and thus time barred. If Aust's claim was properly one for negligence, his action was timely. See Washington v. Boeing Co., 105 Wn. App. 1, 18, 19 P.3d 1041 (2000) (negligence claims are subject to the three-year limitations period in RCW 4.16.080). Anderson supported his motion with a declaration describing the conduct that led to his criminal convictions.
In determining which statute of limitation applies to an action, the essence of the case controls over particular words in the pleadings. Martin v. Patent Scaffolding, 37 Wn. App. 37, 39-40, 678 P.2d 362 (1984). A party may not recharacterize a claim to gain the benefit of a longer limitation period. Boyles v. City of Kennewick, 62 Wn. App. 174, 177, 813 P.2d 178 (1991). Nor may a party craft a complaint to avoid undesirable consequences. See New York Underwriters Ins. Co. v. Doty, 58 Wn. App. 546, 548-49, 794 P.2d 521 (1990) (rejecting insured's attempt to evade exclusionary clause by avoiding reference to intentional torts when her complaint was clearly based on intentional acts). The factual allegations in the original complaint determine the applicable statute of limitation. Boyles, 62 Wn. App. at 177.
Aust's complaint for damages explains why he was called to Anderson's residence on March 18, 2002, and how his struggle with Anderson began. It then states in pertinent part as follows:
4.6 As a result of defendant Anderson's physical resistance to Deputy Sprouse's lawful efforts at restraint and Sergeant Aust's lawful effort to aid Deputy Sprouse, Sergeant Aust suffered severe injuries for which he has received extensive medical treatment.
4.7 On March 20, 2002, defendant Terry Anderson was charged in the Lewis County Superior Court with Assault in the Second Degree or, alternatively, Assault in the Third Degree, for his assault upon Sergeant Aust. He was also charged with Assault in the Third Degree for his assault upon Deputy Sprouse[.] 4.8 On June 7, 2002, defendant Terry Anderson pleaded guilty to two counts of Assault in the Third Degree for assaulting and injuring plaintiff Steve Aust and Deputy Hal Sprouse. . . . The above-stated facts establish the tort of negligence[.]
CP at 104. Aust's complaint does not otherwise explain how Anderson's actions in assaulting him established the tort of negligence.
It is well established that intent is a nonstatutory element of third degree assault. See State v. Brown, 140 Wn.2d 456, 470, 998 P.2d 321 (2000) (to obtain conviction under RCW 9A.36.031(1)(g), State must prove that defendant intended to and did commit an assault against another person); State v. Finley, 97 Wn. App. 129, 135, 982 P.2d 681 (1999). Battery also requires intentional conduct; the tortfeasor must intend an offensive touching, and the plaintiff must show there was no consent to the touching. Bundrick v. Stewart, 128 Wn. App. 11, 18, 114 P.3d 1204 (2005). The intentional tort of assault is any act that causes apprehension of a battery.
McKinney v. City of Tukwila, 103 Wn. App. 391, 408, 13 P.3d 631 (2000); Brower v. Ackerley, 88 Wn. App. 87, 92, 943 P.2d 1141 (1997). By contrast, negligence excludes any intent to cause harm. 2 Restatement (Second) of Torts, §§ 282 cmt. d (1965). Moreover, negligence involves a risk and not a certainty of invading the interest of another. W. Page Keeton et al, Prosser and Keeton on Torts, §§ 31 (5th ed. 1985). It seems evident that the essence of Aust's claim was an action based on the torts of assault and battery rather than one based on negligence, at least insofar as the complaint itself is concerned.
Aust responded to Anderson's motion for summary judgment by explaining for the first time that his claim was one for excessive force. He stated that although Anderson intentionally came into contact with him, Anderson used more force than he intended, thereby negligently causing Aust's injuries. To support this theory, he cited Anderson's responses to his requests for admission and O'Donoghue v. Riggs, 73 Wn.2d 814, 440 P.2d 823 (1968).
At issue in O'Donoghue was an alleged altercation between a nurse and a mentally incompetent patient. The patient sued for negligence and the nurse responded that if the patient had any cause of action, it was for battery. The Supreme Court disagreed:
If the incident occurred, as the jury had a right to believe, then [the nurse's] conduct would constitute negligence if she unintentionally but carelessly used excessive force in placing [the patient] in the line of patients going to dinner. Under such circumstances as we have here, the intention with which [the nurse] acted would be the primary question in determining whether her act should be deemed negligent or whether it would constitute battery. O'Donoghue, 73 Wn.2d at 819.
Aust asserts that under O'Donoghue, he has the right to argue to a jury that Anderson carelessly used too much force during his intentional contact, thereby causing Aust's injuries. There are two problems with this assertion. The first is the lack of factual support for Aust's theory. See Thompson v. Everett Clinic, 71 Wn. App. 548, 555, 860 P.2d 1054 (1993) (broad generalizations and vague conclusions are insufficient to resist a motion for summary judgment). As Anderson stated in his supplemental motion for summary judgment, there is nothing to show that he unintentionally used excessive force against Aust. His answers to Aust's requests for admission admit the facts supporting his criminal convictions but deny that he "negligently assaulted" either deputy. CP at 57-58. In responding to the supplemental motion, Aust attempted to summon facts in support of his negligent assault theory, but his logic was somewhat confusing:
In his Declaration, the defendant admits that he used force against Deputy Aust to
"pin him against the cabinets", and that he could have used more force, but decided "[a]fter some discussion" that he would "release Deputy Aust." . . . Inherent within that statement is an admission that defendant made a conscious decision to apply a certain amount of force and not to apply any more force than he intended. Viewing these facts and all reasonable inferences therefrom in the light most favorable to Deputy Aust as the nonmoving party, a jury could find that the defendant used more force than he intended, and negligently caused injuries that he did not intend.
CP at 5-6 (citation omitted; emphasis in original). If Anderson decided not to apply more force than intended, it does not follow that he then used more force than he intended. Thus, even if we are willing to look beyond the original complaint for facts to support Aust's negligence action, we find none.
A brief examination of the elements of negligence highlights the second problem with Austs's reliance on O'Donoghue. To state a cause of action for negligence, it is necessary to allege facts that would warrant a finding the defendant committed an unintended breach of a legal duty and that such breach proximately caused the harm. O'Donoghue, 73 Wn.2d at 819. Although there was no further discussion of duty in that case, the patient/nurse relationship evidently satisfied the court that such a duty was present. Here, Anderson argued below that because he and Aust had no similar special relationship, he owed no duty to the deputy.
Aust responded by stating that case law provides for a cause of action by police who are injured by the active negligence of another while responding in the course of their duties. As support, he cited Sutton v. Shufelberger, 31 Wn. App. 579, 643 P.2d 920 (1982), and Lang v. Glusica, 393 N.W.2d 181 (Minn. 1986). Sutton affirmed a jury verdict for negligence in favor of a police officer injured by a truck driven by a third party during a traffic stop, while Lang involved an officer's negligence action for injuries sustained when the defendant resisted arrest. Sutton, 31 Wn. App. at 580; Lang, 393 N.W.2d at 182. Both cases clearly involved negligent conduct, unlike the case at bar.
On appeal, Aust cites different authority to prove the existence of duty. He states that in a negligence action, a defendant's duty may be predicated on a statutory violation, and he argues that the duty here was established by Anderson's violation of the third degree assault statute, RCW 9A.36.031(1)(g). As authority, Aust cites Burg v. Shannon Wilson, Inc., 110 Wn. App. 798, 43 P.3d 526 (2002) and Bernethy v. Walt Failor's, Inc., 97 Wn.2d 929, 653 P.2d 280 (1982). The statutes to which Burg referred set forth professional standards for engineers, while the statute discussed in Bernethy prohibited delivering a pistol to certain incompetent persons. Burg, 110 Wn. App. at 804 (citing ch. 18.34 RCW); Bernethy, 97 Wn.2d at 932 (citing RCW 9.41.080).
Bernethy involved a wrongful death action brought against gun shop owners on the theory that they negligently furnished a firearm to an intoxicated man who then shot his wife. Bernethy, 97 Wn.2d at 931. The Supreme Court found a public policy against furnishing certain people with dangerous weapons reflected in RCW 9.41.080, but the Court ultimately found the relevant duty best summarized by Restatement (Second) of Torts, section 390 (1965), which prohibits furnishing dangerous instrumentalities such as guns to incompetents.
Bernethy, 97 Wn.2d at 933. Anderson was convicted of third degree assault. Aust cites no authority or public policy supporting the proposition that violating RCW 9A.36.031(1)(g) results in civil liability. See Hostetler v. Ward, 41 Wn. App. 343, 352, 704 P.2d 1193 (1985) ("[w]hen legislation clearly manifests the intent to impose a duty, the breach of which may result in civil liability, that legislation establishes the standard of conduct required in a particular situation").
We conclude that Aust's action is governed by the two-year statute of limitation applicable to actions for assault and battery and is therefore time barred.
II.
Anderson argues that he is entitled to attorney fees and costs under RAP 18.9(a), which permits such an award against a party filing a frivolous appeal. An appeal is frivolous if it raises no debatable issues and is so devoid of merit that there is no reasonable possibility of reversal. Andrus v. Dep't of Transp., 128 Wn. App. 895, 900, 117 P.3d 1152 (2005), review denied, 157 Wn.2d 1005 (2006). Neither the underlying action nor this appeal was entirely unfounded, and we reject Anderson's description of Aust's appeal as frivolous. Anderson's request for fees and costs under RAP 18.9(a) is hereby denied.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
We concur:
Hunt, J.
Penoyar, J.