Opinion
No. 58245-3-I.
August 13, 2007.
Appeal from a judgment of the Superior Court for King County, No. 00-2-31211-3, Charles W. Mertel, J., entered May 12, 2006.
Affirmed by unpublished opinion per Dwyer, J., concurred in by Baker and Becker, JJ.
While working on December 7, 1997, Gregory Bostwick was severely injured by an explosion of pressurized air from a sandblasting pot owned by Ballard Marine, Inc., and leased to Bostwick's employer, Marine Fluid Systems, Inc. Bostwick subsequently initiated a lawsuit against Ballard Marine, asserting claims for product liability under chapter 7.72 RCW, the Washington product liability act (WPLA), and common law negligence.
This case was previously before this court following Ballard Marine's first successful motion for summary judgment dismissal of Bostwick's claims. At that time, we held that the trial court had properly dismissed Bostwick's product liability claim but improperly dismissed Bostwick's negligence claim.
Bostwick v. Ballard Marine, Inc., 127 Wn. App. 762, 112 P.3d 571 (2005).
On remand, Ballard Marine again moved for summary judgment dismissal of the negligence claim, asserting that Bostwick's proffered evidence failed to demonstrate either that Ballard Marine owed Bostwick a duty of care or that a breach of such a duty proximately caused his injury. The trial court granted Ballard Marine's motion, resulting in the dismissal of Bostwick's negligence claim.
On appeal, Bostwick does not demonstrate that Ballard Marine owed him either an ongoing duty to inspect or maintain the sandblasting pot used by Bostwick's employer, Marine Fluid Systems, for approximately three years before the incident, or a duty to warn him of the dangerous condition of the pot, in the absence of evidence that it knew of the existence of such a dangerous condition. Accordingly, we affirm.
FACTS
Beginning in approximately 1994, Bostwick's employer, Marine Fluid Systems, rented a sandblasting pot from Ballard Marine. The sandblasting pot is somewhere between five and eight feet high and has a ladder attached to its side to provide access to the lid at the top. The lid is constructed of metal and is designed to be to be attached to the top of the sandblasting pot by a hinge and secured by tightening three steel bolts threaded through hexagonal nuts. However, the hinge that had attached the lid to the sandblasting pot had rusted and broken away prior to the explosion.
Just before the incident, air was leaking from the top of the pot while it was in use. Bostwick tried to stop the leak. He closed the pot's pressure valve, bled off the pressure, opened the lid, cleaned a gasket and re-secured the lid. After Bostwick re-pressurized the pot, the lid was still leaking. Bostwick climbed the rungs on the side of the pot and attempted to stop the leak by "tightening the [nut on one of the bolts] with a two-by-four." The nut broke and the bolt gave way under the pressure from the pot. The lid blasted open. The force of the explosion bent the two remaining bolts backward and sent Bostwick thirty feet into the air. Bostwick's arms were thrown back with such force that the nerves controlling his arms were permanently severed from his spine. He landed on concrete twenty-five feet from the sandblasting pot.
Bostwick subsequently filed a complaint against Ballard Marine, alleging negligence and product liability under the WPLA. The parties filed cross-motions for summary judgment. The trial court granted Ballard Marine's motion for summary judgment and denied Bostwick's motion. Bostwick appealed.
On appeal, this court held (1) that the trial court properly granted Ballard Marine's motion for summary judgment dismissal of Bostwick's product liability claim because Ballard Marine was not "in the business of leasing" and, thus, was not a "product seller" for purposes of the WPLA; and (2) that the trial court improperly dismissed Bostwick's negligence claim. BalIard Marine, Inc., 127 Wn. App. at 771-72. The case was remanded for further proceedings relating to Bostwick's negligence claim.
In March 2006, Ballard Marine filed a motion for summary judgment seeking dismissal of Bostwick's negligence claim. The trial court granted the motion.
Ballard Marine had previously moved for summary judgment dismissal of Bostwick's negligence claim, which the trial court denied in January 2006.
Bostwick filed a motion for reconsideration, which the trial court denied.
DISCUSSION
We review an order of summary judgment de novo, performing the same inquiry as the trial court and viewing the facts and the reasonable inferences from those facts in the light most favorable to the nonmoving party. Overton v. Consol. Ins. Co., 145 Wn.2d 417, 429, 38 P.3d 322 (2002); Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999). Summary judgment is appropriate where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." CR 56(c).
The elements of negligence include the existence of a duty owed to the plaintiff, breach of that duty, and injury to the plaintiff proximately caused by the breach. Aba Sheikh v. Choe, 156 Wn.2d 441, 447-48, 128 P.3d 574 (2006). We engage in de novo review of questions of law, including whether a duty exists in the context of a negligence claim. Hertog, 138 Wn.2d at 275. "In a negligence action, a defendant's duty may be predicated on violation of statute or of common law principles of negligence." Burg v. Shannon Wilson, Inc., 110 Wn. App. 798, 804, 43 P.3d 526 (2002). "The existence of a duty is a threshold question. If there is no duty, appellants have no claim." Burg 110 Wn. App. at 804, citing Folsom v. Burger King, 135 Wn.2d 658, 671, 958 P.2d 301 (1998).
To prevail on his negligence claim, Bostwick was required to demonstrate that Ballard Marine, as a supplier of chattel, owed him a common law duty of care based on the fact that Ballard Marine owned the sandblasting pot and was renting it to Bostwick's employer, Marine Fluid Systems, on the day of the incident.
Bostwick argues that: (1) Ballard Marine had a common law duty to either inspect the sandblasting pot and make any needed repairs prior to renting it to Marine Fluid Systems, or an ongoing duty to inspect and repair the sandblasting pot thereafter; and (2) alternatively or in conjunction with the duty to inspect or repair, Ballard Marine owed Bostwick a duty to warn him of the dangerous condition. We disagree.
Duty to Inspect or Repair
Bostwick first asserts that Ballard Marine had a duty to inspect, maintain, or repair the pot either before or after renting it to Marine Fluid Systems. Such a duty is set forth in Restatement (Second) of Torts § 408 (1965), and is made applicable to a lessor of a chattel for immediate use:
One who leases a chattel as safe for immediate use is subject to liability to those whom he should expect to use the chattel, or to be endangered by its probable use, for physical harm caused by its use in a manner for which, and by a person for whose use, it is leased, if the lessor fails to exercise reasonable care to make it safe for such use or to disclose its actual condition to those who may be expected to use it.
Our inquiry is whether this section applies to Ballard Marine, in the context of Bostwick's claim. It does not.
There are several bases for our conclusion that Restatement (Second) of Torts § 408 did not impose a duty on Ballard Marine. First, section 408 "is peculiarly applicable to persons who make a business of leasing chattels":
The rule stated in this Section is peculiarly applicable to persons who make a business of leasing chattels. In such a case, in the absence of an understanding to the contrary, it may be assumed that both lessor and lessee understand that the article is leased as fit for immediate use. On the other hand, the mere fact that on a particular occasion, a chattel is leased for immediate use does not necessarily warrant the assumption that it is understood to be leased as safe. Thus, if A's car has broken down and he asks B to lend him his car, but B refuses to do so unless A will pay him for its use, in the absence of some assurance that the car is fit for use, A would not be entitled to believe that it was leased as fit to use.
Restatement (Second) of Torts § 408, cmt. b. Given that this court has previously held that Ballard Marine was not "in the business of leasing," BalIard Marine, Inc., 127 Wn. App. at 771, we conclude that section 408 does not apply to Bostwick's claim.
Although the phrase "peculiarly applicable" is not necessarily synonymous with "solely applicable," Noble v. Bruce, 709 A.2d 1264, 1272 (Md. 1998), the principle underlying Restatement (Second) of Torts § 408 is that a lessee is entitled to have greater expectations when leasing from a lessor that is in the business of so doing. Ballard Marine is not "in the business of leasing." BalIard Marine, Inc., 127 Wn. App. at 771.
Furthermore, even if section 408 did apply to Ballard Marine, the duty described therein requires the supplier to ensure only that the chattel is fit for immediate use. The record indicates that the sandblasting pot was rented out by Ballard Marine and used for at least three years before the explosion. There is no evidence that it was not fit for immediate use.
In addition, no language in section 408 describes or implies an ongoing duty on the part of the supplier to continue inspecting the chattel once it has been leased. Thus, by its own terms, section 408 does not support the imposition of such a duty on Ballard Marine.
Finally, further support for the proposition that Ballard Marine did not owe Marine Fluid Systems or its employees a duty to inspect the chattel, either before leasing it or in an ongoing fashion, can be inferred from the fact that the Restatement (Second) of Torts § 392 (1965) imposes exactly such a duty upon a supplier of chattel to be used for the supplier's business purposes, a scenario that does not exist in this case:
One who supplies to another, directly or through a third person, a chattel to be used for the supplier's business purposes is subject to liability to those for whose use the chattel is supplied, or to those whom he should expect to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by persons for whose use the chattel is supplied
(a) if the supplier fails to exercise reasonable care to make the chattel safe for the use for which it is supplied, or
(b) if he fails to exercise reasonable care to discover its dangerous condition or character, and to inform those whom he should expect to use it.
Restatement (Second) of Torts § 392 (1965). This addresses the very duty that Bostwick asserts is applicable to his claim, yet it does not support the imposition of the duty upon suppliers in the position of Ballard Marine.
Accordingly, Restatement (Second) of Torts § 408 does not establish the existence of a duty owed to Bostwick by Ballard Marine.
Duty to Warn
Bostwick next contends that Ballard Marine had a duty to warn employees of Marine Fluid Systems of the faulty hinge either before it leased the chattel or in an ongoing fashion. Again, we disagree.
Washington has adopted Restatement (Second) of Torts § 388 (1965) to define the scope of the duty to warn owed by a supplier of chattel. Mele v. Turner, 106 Wn.2d 73, 78, 720 P.2d 787 (1986). Section 388 states that a supplier will be subject to liability for harm to those whom the supplier should expect to use the chattel if the supplier:
(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and
(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.
Restatement (Second) of Torts § 388 (emphasis added). In order for a duty to exist under section 388, the conditions set forth in all three subsections must be met. Mele, 106 Wn.2d at 79.
The duty described in Restatement (Second) of Torts § 388 does not apply to Ballard Marine in the context of Bostwick's claim. There is no basis in the record for an inference that Ballard Marine knew or had reason to know that the chattel was likely to be dangerous for the use for which it was supplied. The record indicates to the contrary — the sandblasting pot was used over a period of approximately three years before the incident occurred.
A plaintiff must demonstrate the existence of a statutory or common law rule that imposes a duty upon the defendant to refrain from the complained-of conduct. Wells v. City of Vancouver, 77 Wn.2d 800, 802-03, 467 P.2d 292 (1970). Bostwick has not made this showing. Bostwick has identified no common law authority supporting the proposition that Ballard Marine, an entity that was not "in the business of leasing," on the basis of the casual leasing arrangement described herein, owed Marine Fluid Systems or its employees a duty to inspect the chattel in an ongoing fashion. Because there is no duty to inspect in the manner described, and because there is no evidence supporting the proposition that Ballard Marine knew of the dangerous condition, there is no applicable common law duty requiring Ballard Marine to warn Bostwick of the existence of the dangerous condition.
In his briefing, Bostwick argues that, in addition to those duties discussed in the Restatement (Second) of Torts, which we have determined to be inapplicable to Ballard Marine, the common law imposes a general duty of reasonable care upon Ballard Marine as a supplier of chattel. The authority upon which Bostwick relies in support of this argument is Gall v. McDonald Industries, 84 Wn. App. 194, 926 P.2d 934 (1996). In the Gall decision, the court employed general language to describe a variety of duties owed by suppliers of chattel in an array of contexts. However, the portions of the Gall decision upon which Bostwick relies cite, as authority for the rules stated in the opinion, those sections of the Restatement (Second) of Torts previously discussed herein. The Gall decision does not purport to pronounce a new or separate common law basis for imposing a legal duty upon a supplier of chattel in Ballard Marine's position. Thus, Bostwick's reliance upon it is unavailing.
Because Bostwick has not established the existence of a duty owed to him by Ballard Marine and because in the absence of proof of the existence of such a duty Ballard Marine is entitled to judgment as a matter of law, we need not reach the remaining assignments of error asserted in either Bostwick's appeal or Ballard Marine's cross-appeal.
Affirmed.