Opinion
No. 34401-7-II.
April 10, 2007.
Appeal from a judgment of the Superior Court for Thurston County, No. 03-2-01944-2, Richard A. Strophy, J., entered January 27, 2006.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Armstrong and Quinn-Brintnall, JJ.
Richard and Jeannie Johnson appeal from a summary judgment order in favor of the city of Olympia. The Johnsons had sued the City under the "failure to enforce" exception of the public duty doctrine, alleging that the City officials responsible for enforcing the City building code had actual knowledge of an inherently dangerous and hazardous condition in their recently purchased house. We hold that the trial court properly ruled that the Johnsons failed to meet their burden in raising a question of fact regarding the City's actual knowledge under the "failure to enforce" exception. We affirm.
FACTS
In 2002, Danella Donlan sought to remodel her house in the City. She hired Frank Winn as a general contractor. And the City issued him a building permit for: (1) re-roofing the existing house; and (2) building a two-bedroom, one-bathroom addition to the existing house.
In the record before us, there are two different spellings of Danella Donlan's last name, Donlan and Donland. For this opinion we use the spelling Donlan.
Once the remodel was complete, Donlan offered to sell her house. Burke Long and Laura Porter offered to buy Donlan's house. Shortly thereafter, Long and Porter hired Roy Erickson, of Tri-County Home Inspection, to inspect the house. Erickson concluded that "[t]he house definitely had evidence of wood destroying organisms at that time. . . . The house also had a host of other serious construction defects, many involving recently done construction on the home." CP at 66. Erickson also noted that "any qualified and competent . . . inspector would have observed that there was overwhelming evidence of active wood destroying organisms and conductive conditions at the house. The evidence was not latent or hidden." CP at 66. According to Long, Erickson also told him that "the new bedrooms should not be occupied and were in his opinion unsafe. [Erickson] said he would not let his family sleep in that part of the home." CP at 98.
Long also spoke with Donlan, who was angry about the inspection's findings. Although Donlan argued that there was nothing wrong with her house, Long and Porter "disagreed and backed out of the sale." CP at 98.
According to Long, he then contacted the City's Community Planning and Development Department and shared the inspection's findings. In his deposition, Long stated:
I do not remember the person I spoke with, but I know I got through the receptionist to someone with authority. I told this person what our home inspector had discovered and warned that person from the City of Olympia that the 515 Eastside house was structurally unsafe. I also told this person that this seller was doing this work as a business. I may have also sent a copy of the home inspection report to the City of Olympia. I know for sure, however, that I gave the person I was speaking with at the City of Olympia the name and telephone number of our home inspector. The person who I spoke with thanked me for letting them know about this problem and said the City of Olympia would take care of it. CP at 98.
In 2003, Richard and Jeannie Johnson offered to buy Donlan's house. Shortly thereafter, the Johnsons hired Karen Swigert, of Up Close Home Inspection, to inspect the house. According to the Johnsons, Swigert concluded that "the home had no wood destroying pest infestation" and that "[t]he defects listed on the report . . . were not serious." CP at 100. Satisfied with the inspection's findings, the Johnsons purchased Donlan's house. But after only about a month in their new house, the Johnsons' insurance company contacted them and warned them that they would refuse to insure the house unless they made emergency repairs to the house.
The Johnsons contacted the City, who sent two inspectors to the house.
The first inspector, who had been involved with the approval of the remodel, found no problems. The second inspector, who had not been involved with the approval of the remodel, expressed concern. According to the Johnsons, he told them "not to occupy the new addition of the home until emergency repairs were done." CP at 101.
The Johnsons assumed that the City condemned the addition to their house. But according to the Johnsons, the City later denied that the addition to their house was "red-tagged" or condemned. CP at 101.
Thereafter, in 2005, the Johnsons sued Donlan, Winn, and Swigert for damages. After learning during discovery that Long had contacted the City in 2002, the Johnsons amended their complaint and sued the City as well. Eventually, the Johnsons settled with Donlan and Winn, voluntarily dismissing them from this action.
In 2005, the City and Swigert moved for summary judgment. The trial court denied summary judgment for Swigert, but it granted summary judgment for the City. The Johnsons appeal.
ANALYSIS I. Standard of Review
On an appeal from summary judgment, we engage in the same inquiry as the trial court. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 860-61, 93 P.3d 108 (2004) (citing Kruse v. Hemp, 121 Wn.2d 715, 722, 853 P.2d 1373 (1993)). The standard of review is de novo. Summary judgment is appropriate only 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). We construe all facts and reasonable inferences therefrom in the light most favorable to the nonmoving party. Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005) (citing Atherton Condo. Apartment-Owners Ass'n Bd. of Dirs. v. Blume Dev. Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990)).
On summary judgment, the moving party bears the burden of demonstrating that there is no genuine issue of material fact. Atherton, 115 Wn.2d at 516. The nonmoving party may not rely on speculation, argumentative assertions that unresolved factual issues remain, or having its affidavits considered at face value. Seattle Police Officers Guild v. City of Seattle, 151 Wn.2d 823, 848, 92 P.3d 243 (2004) (citing Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986)). "If the moving party satisfies its burden, the nonmoving party must present evidence that demonstrates that material facts are in dispute." Atherton, 115 Wn.2d at 516. If the nonmoving party fails to do so, then summary judgment is proper.
Vallandigham, 154 Wn.2d at 26 (citing Atherton, 115 Wn.2d at 516).
II. Public Duty Doctrine
"The threshold determination in a negligence action is whether a duty of care is owed by the defendant to the plaintiff." Taylor v. Stevens County, 111 Wn.2d 159, 163, 759 P.2d 447 (1988). In general, for an injured plaintiff to recover from a governmental agency, he must show that the duty breached was owed to him as an individual, and not merely to the public in general (i.e., a duty to all is a duty to no one). Bailey v. Forks, 108 Wn.2d 262, 265, 737 P.2d 1257 (1987). "Absent a showing of a duty running to the injured plaintiff from agents of the municipality, no liability may be imposed for a municipality's failure to provide protection or services to a particular individual." Bailey, 108 Wn.2d at 266. This basic principle is known as the "public duty doctrine." Taylor, 111 Wn.2d at 163.
In Taylor, our Supreme Court continued to "adhere to the traditional public duty rule that building codes impose duties that are owed to the public at large." Taylor, 111 Wn.2d at 165. Analyzing the purpose section of the State Building Code Act under the legislative intent exception to the public duty doctrine, our Supreme Court found that "its primary purpose is to require that minimum performance standards and requirements for building and construction materials be applied consistently throughout the state." Taylor, 111 Wn.2d at 165. Thus, "[t]he State Building Code Act's building permit and inspection requirements impose a duty which is owed to the general public as a whole." Taylor, 111 Wn.2d at 166.
In part, former RCW 19.27.020 (1974) provided:
The purpose of this chapter is to provide building codes throughout the state. This chapter is designed to effectuate the following purposes, objectives and standards: (1) To promote the health, safety and welfare of the occupants or users of buildings and structures and the general public.
As discussed below, our Supreme Court has identified four situations in which a governmental agency acquires a duty owed to a particular individual or a limited class of individuals. See Bailey, 108 Wn.2d at 268.
Then, in analyzing whether the County was in a special relationship with the plaintiffs because they had relied on the County's inspection and issuance of a building permit, our Supreme Court continued:
We hold that no duty is owed by local government to a claimant alleging negligent issuance of a building permit or negligent inspection to determine compliance with building codes. The duty to ensure compliance rests with individual permit applicants, builders and developers. Accordingly, the special relationship exception to the public duty doctrine has no application where a claimant alleges negligent enforcement of building codes because local government owes no duty of care to ensure compliance with the codes. Taylor, 111 Wn.2d at 168.
Justice Utter concurred in the result, stating:
The basic question is simple: whose duty is it to ensure that construction projects meet the standards of a local building code, the builder or the government? When we conclude there is no duty on the part of the County then it follows that the duty of compliance is on the shoulders of the builder alone.
Taylor, 111 Wn.2d at 172-73 (Utter, J., concurring).
Our Supreme Court explained that several policy considerations compelled its holding: (1) "the primary purpose of building permits and building code inspections is to secure to local government consistent compliance with construction, zoning and land use ordinances,"
Taylor, 111 Wn.2d at 168; (2) "placing the burden on local government to ensure compliance with building codes is unreasonable in light of budgetary and personnel constraints," Taylor, 111 Wn.2d at 169; (3) "the approval of construction plans and satisfactory inspections do not absolve a builder from the legal obligation to comply with statutes,"
Taylor, 111 Wn.2d at 169; and (4) "imposing liability on individuals for noncompliance with building codes is consistent with this State's zoning vested rights doctrine." Taylor, 111 Wn.2d at 169.
Nevertheless, our Supreme Court identified four situations in which a governmental agency acquires a duty owed to a particular individual or a limited class of individuals, rather than the duty owed to the public at large. Bailey, 108 Wn.2d at 268. These exceptions include:
(1) when the terms of a legislative enactment evidence an intent to identify and protect a particular and circumscribed class of persons (legislative intent), Halvorson v. Dahl, [ 89 Wn.2d 673, 676-77, 574 P.2d 1190 (1978)]; (2) where governmental agents responsible for enforcing statutory requirements possess actual knowledge of a statutory violation, fail to take corrective action despite a statutory duty to do so, and the plaintiff is within the class the statute intended to protect (failure to enforce), Campbell v. Bellevue, [ 85 Wn.2d 1, 12-13, 530 P.2d 234 (1975)]; Mason v. Bitton, [ 85 Wn.2d 321, 326-27, 534 P.2d 1360 (1975)]; (3) when governmental agents fail to exercise reasonable care after assuming a duty to warn or come to the aid of a particular plaintiff (rescue doctrine), Brown v. MacPherson's, Inc., 86 Wn.2d 293, 299, 545 P.2d 13 (1975); see also Chambers-Castanes v. King [ County, 100 Wn.2d 275, 285 n. 3, 669 P.2d 451 (1983)]; or (4) where a relationship exists between the governmental agent and any reasonably foreseeable plaintiff, setting the injured plaintiff off from the general public and the plaintiff relies on explicit assurances given by the agent or assurances inherent in a duty vested in a governmental entity (special relationship), Chambers-Castanes, [ 100 Wn.2d at 286]; J B Dev. Co. v. King [ County, 100 Wn.2d 299, 303, 669 P.2d 468 (1983), overruled by Taylor, 111 Wn.2d at 168].Bailey, 108 Wn.2d at 268.
The Johnsons ask us to reject the public duty doctrine. Although the continued vitality of the public duty doctrine remains a subject of debate, resolution of this case does not require us to reject or abolish its continued application. See Bailey, 108 Wn.2d at 264.
Specifically, in relation to building permits and building code inspections, the failure to enforce exception requires the plaintiff to prove the following three elements: (1) that the public officials responsible for enforcing the building code had actual knowledge of an inherently dangerous and hazardous condition; (2) that the public officials failed to take corrective action despite a duty to do so; and (3) that the plaintiff is within the class the building code is intended to protect. See Taylor, 111 Wn.2d at 171-72. "The plaintiff has the burden of establishing each element of the exception. In addition, we construe this exception narrowly. To do otherwise would effectively overrule Taylor and eviscerate the policy considerations therein identified." Atherton, 115 Wn.2d at 531.
Here, the trial court ruled that the Johnsons did not prove the first element, i.e., that the City officials responsible for enforcing the building code had actual knowledge of an inherently dangerous and hazardous condition. The trial court stated:
I've reviewed the Long declaration. Mr. Long does not indicate when precisely he called the City. He cannot identify with whom he talked. He does say that he was put through by a receptionist to someone who he believed had authority, but, yet, that is not clearly established, even on a more probable than not basis who that might have been or whether Mr. Long's understanding that the person he was speaking to had authority. No detail was provided, only the address of the residence and the conclusory opinion that, based upon an inspection he had done, the house was structurally unsafe. There were no other particulars discussed regarding the manner in which the home was unsafe. And Mr. Long opines that he believes he may have sent a report to the City, but did not indicate to the attention of whom he sent that report, if he did. The only other specifics Mr. Long gave were that he gave the person on the other end of the line the name and telephone number of the home inspector. We have no other information that plaintiff gained regarding the nature of Mr. Long's contact with the City.
RP (Jan. 20, 2006) at 22-23. The trial court concluded that "the nature of the contact by Mr. Long did not convey to the City the type of actual knowledge of a statutory violation warranting mandatory corrective action to be taken." RP (Jan. 20, 2006) at 24.
The Johnsons argue that the trial court erred in concluding that the City officials responsible for enforcing the building code did not have actual knowledge of an inherently dangerous and hazardous condition. The Johnsons claim that "the notice by Mr. Long should have been sufficient to warrant (at a minimum) a reinspection and inquiry by the City." Br. of Appellant at 9-10. They also claim that "Mr. Long's declaration is sufficient to allow this matter to go to the trier of fact." Br. of Appellant at 17. We disagree.
CR 56(e) in part provides: When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
"It is apparent that the emphasis is upon facts to which the affiant could testify from personal knowledge and which would be admissible in evidence." Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 359, 753 P.2d 517 (1988). Thus, Long's declaration must: (1) be made on personal knowledge; (2) set forth admissible evidentiary facts; and (3) affirmatively show the affiant is competent to testify to the matters stated therein. CR 56(e); Bernal v. Am. Honda Motor Co., 87 Wn.2d 406, 412, 553 P.2d 107 (1976). If Long's declaration does not satisfy these standards, his declaration fails to raise a genuine issue for trial, and summary judgment is appropriate. Grimwood, 110 Wn.2d at 359.
The City's actual knowledge may be shown by direct and/or circumstantial evidence. Waite v. Whatcom County, 54 Wn. App. 682, 686-87, 775 P.2d 967 (1989).
"A fact is an event, an occurrence, or something that exists in reality." Grimwood, 110 Wn.2d at 359 (citing Webster's Third New International Dictionary 813 (1976)). "It is what took place, an act, an incident, a reality as distinguished from supposition or opinion." Grimwood, 110 Wn.2d at 359 (citing 35 C.J.S. Fact 489 (1960)). Ultimate facts and conclusory statements of fact are insufficient and will not suffice. Grimwood, 110 Wn.2d at 359-60.
In his declaration, Long indicated that he contacted the City's Community Planning and Development Department and spoke to "someone with authority" about the inspection's findings. CP at 98. He also indicated that he gave "the person [he] was speaking with" the name and telephone number of the inspector. CP at 98. And Long claimed that "[t]he person who I spoke with" thanked him and said "the City of Olympia would take care of it." CP at 98. But Long provided no record of the conversation. He did not explain how he knew that the person with whom he spoke was "someone with authority." CP at 98. And he did not remember with whom he spoke. "Lack of recall is not sufficient to controvert clear opposing evidence on a summary judgment motion." Overton v. Consol. Ins. Co., 145 Wn.2d 417, 431, 38 P.3d 322 (2002).
Long also insisted that he warned "that person" that the house was structurally unsafe. CP at 98. In his declaration, he claimed, "The inspector also told me that the new bedrooms should not be occupied and were in his opinion unsafe. The inspector said he would not let his family sleep in that part of the home." CP at 98. But this statement is not evidence based on Long's personal knowledge; rather, it is in the nature of hearsay. Charbonneau v. Wilbur Ellis Co., 9 Wn. App. 474, 477, 512 P.2d 1126 (1973). Thus, it is not competent evidence. Charbonneau, 9 Wn. App. at 477.
In any case, the inspector never concluded in his declaration that the house was structurally unsafe. Instead, the inspector concluded that "[t]he house definitely had evidence of wood destroying organisms at that time. . . . The house also had a host of other serious construction defects, many involving recently done construction on the home." CP at 66. The inspector also noted that "any qualified and competent . . . inspector would have observed that there was overwhelming evidence of active wood destroying organisms and conductive conditions at the house.
The evidence was not latent or hidden." CP at 66.
Finally, Long supposes that he "may have also sent a copy of the home inspection report to the City of Olympia." CP at 98. But as previously mentioned, supposition or opinion is insufficient and will not suffice to defeat summary judgment. Grimwood, 110 Wn.2d at 359-60.
"[T]he whole purpose of summary judgment procedure would be defeated if a case could be forced to trial by a mere assertion that an issue exists without any showing of evidence." Bates v. Grace United Methodist Church, 12 Wn. App. 111, 115, 529 P.2d 466 (1974). Here, it was incumbent on the Johnsons to respond "with some showing that related evidence was available which would justify a trial on the issue." Reed v. Streib, 65 Wn.2d 700, 707, 399 P.2d 338 (1965). But with only Long's suppositions and conclusory statements of fact, the Johnsons failed to "set forth specific facts showing that there is a genuine issue for trial." CR 56(e). And as a result, the Johnsons cannot avoid summary judgment.
We recently addressed this same issue in Moore v. Wayman, 85 Wn. App. 710, 934 P.2d 707, review denied, 133 Wn.2d 1019 (1997). In that case, the buyers of a house sued Pierce County for negligent inspection when the County approved the house for occupancy even though it failed to meet building code requirements. Moore, 85 Wn. App. at 714. In fact, the County building inspectors had inspected the house and noted defects in an inspection report. Moore, 85 Wn. App. at 720. But if the defects did not appear in the next inspection report, they were satisfied that the condition had been corrected. Moore, 85 Wn. App. at 720. The buyers countered that any qualified inspector should have known that these defects had not been corrected. Moore, 85 Wn. App. at 723.
When we addressed the "failure-to-enforce" exception to the public duty doctrine, we also relied on the decision in Bailey. Moore, 85 Wn. App. at 722-23.
And even with these stronger facts, we held that the buyers had not shown that the County had actual knowledge of the defects.
Moore, 85 Wn. App. at 724. We stated, "This evidence, taken in its most favorable light, shows only constructive knowledge, which is not enough." Moore, 85 Wn. App. at 723. "'The requirement of actual knowledge does not encompass facts which the building official should have known.'" Moore, 85 Wn. App. at 724 (quoting Atherton Condo. Apartment-Owners Ass'n Bd. of Directors, 115 Wn.2d at 532-33).
Thus, we hold that the trial court did not err in granting summary judgment for the City. Because of our holding, we do not address any of the related issues raised by the Johnsons.
III. ATTORNEY FEES
The City argues that the Johnsons' appeal is frivolous. Under RAP 18.1 and RAP 18.9, the City asks us for an award of sanctions.
Under RAP 18.9, "our primary inquiry is whether, when considering the record as a whole, the appeal is frivolous, i.e., whether it presents no debatable issues and is so devoid of merit that there is no reasonable possibility of reversal." See Streater v. White, 26 Wn. App. 430, 434, 613 P.2d 187, review denied, 94 Wn.2d 1014 (1980). All doubts as to whether an appeal is frivolous should be resolved in favor of the appellant. Streater, 26 Wn. App. at 435.
Because this appeal includes debatable issues on which reasonable minds might differ, we find that the Johnsons' appeal is not frivolous. We do not award attorney fees to the City under RAP 18.1 and 18.9. 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.
Armstrong, J., Quinn-Brintnall, J., concur.