Opinion
No. 26493-9-III.
July 31, 2008.
Appeal from a judgment of the Superior Court for Pend Oreille County, No. 07-2-00064-6, Allen Nielson, J., entered September 13, 2007.
Affirmed by unpublished opinion per Kulik, J., concurred in by Schultheis, C.J., and Korsmo, J.
Christie Sanford appeals the trial court's summary judgment dismissal of her action for negligence and retaliatory eviction against Moonlight RV Park and owners William and Donna Rae Lands. Ms. Sanford contends that the Landses were negligent in providing unsanitary water, causing her son's illness. She further argues that the Landses violated Washington's Landlord-Tenant Act by evicting her in retaliation for complaining about health and safety violations in the RV Park, and for filing an allegation of child abuse against the Landses.
Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to a judgment as a matter of law. Negligence requires a showing of a causal relationship between the negligent act and an injury. Ms. Sanford failed to present any admissible evidence of a causal relationship between the water problem and any resulting injury to her son. Ms. Sanford's additional claim of retaliatory eviction was litigated in a previous unlawful detainer action and is, thus, barred by res judicata. Accordingly, we affirm the trial court's grant of summary judgment.
FACTS
Christie Sanford and her father, Douglas Pitts, rented a space at the Moonlight RV Park in Newport, Washington. The RV Park is owned and operated by William and Donna Rae Lands (the Landses). The parties had a month-to-month tenancy. Ms. Sanford and her father lived in their own travel trailer, and Moonlight RV Park provided water, electricity, and septic service.
The record reveals a relationship between the Landses and their tenants, Ms. Sanford and Mr. Pitts, that is best described as contentious. Mr. Lands alleged that during the course of the lot rental, Ms. Sanford and Mr. Pitts engaged in conduct that was detrimental to the peace and quiet enjoyment of the Landses and other tenants at the RV Park. In an affidavit, Mr. Lands recounted that in May 2006, Mr. Pitts was shooting a bb gun when he hit another tenant's trailer with bb pellets. The tenant moved out because of the bb gun incident. Mr. Lands also described harassing behavior by Mr. Pitts.
The Landses further alleged that during the rental, Mr. Pitts had been investigated by the Social Security Administration and/or the State Department of Labor and Industries regarding disability benefits that he had been receiving. The Landses claimed that Mr. Pitts did not exhibit any physical disabilities and that they had been identified as witnesses in a legal proceeding that challenged Mr. Pitts's rights to disability benefits. The Landses later learned that Mr. Pitts's disability benefits had been revoked. Mr. Lands stated that he believed this had a negative financial impact on Ms. Sanford, as she had been identified as Mr. Pitts's caregiver and was being paid for providing care to Mr. Pitts. He concluded that when Mr. Pitts's disability benefits were revoked, Ms. Sanford lost the income that she derived as his caregiver.
On June 16, 2006, Ms. Sanford delivered a four-page letter to the Landses. The letter claims that Ms. Sanford's son became ill after drinking rusty water from a faucet in the women's restroom at the RV Park. The letter outlines a variety of code and regulatory violations allegedly existing at the RV Park. The letter contemplates a lawsuit over the condition of the RV Park, although there is some disclaimer on the last page.
Mr. Lands saw the letter as a threat by Ms. Sanford to call various county and state agencies to investigate Moonlight RV Park. Mr. Lands confronted Ms. Sanford and her father about the letter and a heated exchange followed. According to Mr. Lands, Mr. Pitts claimed that the letter was "hypothetical." Clerk's Papers (CP) at 103.
On June 19, Mr. Pitts complained to the Northeast Tri-County Health District alleging that the RV Park had contaminated drinking water and that the septic system had failed and was leaking sewage onto the ground. Ms. Sanford filed a complaint with the Washington State Department of Health, claiming that "plumbing, electrical, and sewage repairs [were] needed to bring [the RV Park] up to county codes for safety purposes." CP at 327.
Also on June 19, Ms. Sanford called the Washington State Child Protective Services (CPS), alleging that Ms. Lands had abused her 7-month-old grandson. CPS investigated and concluded that the allegation of physical abuse was unfounded. Ms. Sanford then issued a hand-written letter to Ms. Lands, complaining about the absence of rules and other procedures at the RV Park.
The next day, June 20, Mr. Pitts misrepresented himself as an authorized agent of Moonlight RV Park and hired Spokane attorney Eric Stevens to perform legal work on behalf of the RV Park. Relying on Mr. Pitts's representations, Mr. Stevens prepared various documents. Mr. Stevens charged Moonlight RV Park for his services. The Landses did not learn of the misrepresentation until Mr. Stevens's bill was issued.
James L. Sayre, an Environmental Health Supervisor with the Northeast Tri-County Health District failed to find any discolored water from the RV Park's spigots. Mr. Sayre found no evidence of sewage contamination. However, the county's record revealed that the RV Park's drinking water system had not been granted a permit to operate as a public water system.
When the Landses purchased the RV Park in 1995, the park had been in operation for many years under the prior owner. The Landses purchased the park believing that the water system had previously been approved by the State of Washington and that all permits had been acquired. Within months of the purchase, a new well was drilled by a contractor who represented to the Landses that all permits had been obtained. The Landses stated that no questions had ever been raised about the water system until they received the June 16, 2006 letter.
Mr. Sayre contacted Tom Justus of the Washington State Department of Health to assist the Landses in obtaining State approval for the park's water system. In July 2006, Mr. Sayre and Mr. Justus visited the site to specifically address the water system permitting process. After inspecting the park, Mr. Justus found nothing pertaining to the water supply system that required immediate attention. Subsequent tests of the water, conducted by State-approved laboratories, revealed safe or compliant water quality. The system was approved as a Group B water system on October 10, 2006. Mr. Lands stated that no material changes were made to the system between June 2006 and the approval.
Unlawful Detainer Action. Following the four-page complaint letter, the unfounded claim of child abuse, and other issues between Mr. Pitts and Ms. Sanford, the Landses began the process to evict Ms. Sanford and Mr. Pitts from the RV Park. The Landses filed an unlawful detainer action in late June 2006 and initially served Ms. Sanford and Mr. Pitts with a 3-day notice to vacate on June 19. After consulting with an attorney, the Landses dismissed the initial action and obtained new service with a 20-day notice to terminate the tenancy, which was served on July 2, 2006.
Ms. Sanford and Mr. Pitts contested the eviction. However, the court entered an order and writ of restitution and judgment in favor of the Landses against Ms. Sanford and Mr. Pitts. The order terminated the tenancy and awarded the Landses their costs.
Current Action. Six months later, Ms. Sanford filed pro se, a summons and complaint against the Landses and Moonlight RV Park, seeking $700,000 in damages for "negligence, fraud, and retaliation." CP at 1-2. Ms. Sanford later amended the complaint, alleging the Landses were negligent in failing to inform her that the water provided at the RV Park was "unapproved for public consumption." CP at 9. Ms. Sanford further alleged that when she complained of the rusty water, the Landses retaliated with "1. eviction, 2. harassment, 3. defamation, [and] 4. malicious prosecution." CP at 9. The Landses denied the allegations and asserted seven affirmative defenses, including that "the plaintiff's conduct and material breach gave rise to the justified eviction of the plaintiff." CP at 21. Ms. Sanford filed a demand for a jury trial.
The Landses filed a motion for summary judgment, seeking dismissal of all claims and causes of action asserted against them. The Landses argued that Ms. Sanford presented no admissible evidence to support a genuine issue of material fact on each element of the asserted claims. Ms. Sanford responded to the summary judgment by filing multiple documents, including a memorandum of authorities, a second amended complaint, and a statement of damages. The trial court granted the Landses' motion for summary judgment. This appeal followed.
ANALYSIS
Summary judgment rulings are reviewed de novo. Barr v. Day, 124 Wn.2d 318, 324, 879 P.2d 912 (1994). When reviewing an order granting summary judgment, an appellate court engages in the same inquiry as the trial court, considering all facts and reasonable inferences in the light most favorable to the nonmoving party. Mountain Park Homeowners Ass'n, Inc., v. Tydings, 125 Wn.2d 337, 341, 883 P.2d 1383 (1994). An appellate court may affirm on any basis supported by the record and the moving party bears the burden of showing the absence of a material issue of fact. Redding v. Virginia Mason Med. Ctr., 75 Wn. App. 424, 426, 878 P.2d 483 (1994). "A material fact is one upon which the outcome of the litigation depends." Barrie v. Hosts of Am., Inc., 94 Wn.2d 640, 642, 618 P.2d 96 (1980). Once the moving party has established that there is no dispute as to any issue of material fact, the burden shifts to the nonmoving party to establish the existence of an element material to its case. Kahn v. Salerno, 90 Wn. App. 110, 117, 951 P.2d 321 (1998). Summary judgment is proper if the record before the court shows that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Ruff v. County of King, 125 Wn.2d 697, 703, 887 P.2d 886 (1995).
Ms. Sanford brought the present action for damages under theories of negligence and retaliatory eviction. The trial court granted summary judgment in favor of the Landses because Ms. Sanford failed to provide admissible evidence in support of the necessary elements of her claims and also failed to establish any genuine issue of material fact. On appeal, Ms. Sanford contends that the Landses admitted to the negligence and retaliation through their court filings on August 8, 2007.
Ms. Sanford asserts that the Landses were negligent in offering water to her from a system that had not been approved by the State of Washington. She appears to argue that the water provided was not in compliance with the Washington State Department of Health standards. And Ms. Sanford cites to portions of the Landlord-Tenant Act, chapter 59.18 RCW, to support her argument. Specifically, RCW 59.18.060 provides that:
The landlord will at all times during the tenancy keep the premises fit for human habitation, and shall in particular:
(1) Maintain the premises to substantially comply with any applicable code, statute, ordinance, or regulation governing their maintenance or operation, which the legislative body enacting the applicable code, statute, ordinance or regulation could enforce as to the premises rented if such condition substantially endangers or impairs the health or safety of the tenant;
. . . .
(3) Keep any shared or common areas reasonably clean, sanitary, and safe from defects increasing the hazards of fire or accident;
. . . .
(7) Maintain all electrical, plumbing, heating, and other facilities and appliances supplied by him in reasonably good working order.
She further contends that the Landses did not comply with WAC 246-291-030 in order to legally serve water to their renters. Finally, Ms. Sanford argues that the Landses' willful refusal to repair and maintain plumbing in the bathhouse recklessly endangered her health and safety.
Throughout the proceedings, Ms. Sanford continually changed the basis for her claim, although she consistently characterized it as a claim for "negligence." In her amended complaint, Ms. Sanford argued only that "Defendants neglected to inform Plaintiff that said water was unapproved for public consumption." CP at 9. Thus, it did not appear that Ms. Sanford was asserting any claim for personal harm or injury. Later, her deposition testimony revealed that the sole form of damage or injury resulting from the alleged negligence was her son's illness in June 2006. Ms. Sanford's son is not a party to this action.
After the Landses moved for summary judgment, Ms. Sanford filed a second amended complaint and a "statement of damages." CP at 237-46. She asserted in her memorandum of authorities denying the motion for summary judgment for the first time that: "Plaintiff's claim is not physical injury to her son as the basis of the action. Plaintiff claims psychological [sic] damage." CP at 228. The statement of damages listed "psychological damages: intentionally inflicted upon Plaintiff, to include: emotional trauma, mental anguish, depression, [and] insomnia." CP at 245.
Negligence. The essential elements of a negligence action include: "(1) the existence of a duty owed to the complaining party[,] (2) a breach of that duty[,] and (3) a resulting injury." Ruff, 125 Wn.2d at 704. In addition, "[f]or legal responsibility to attach to the negligent conduct, the claimed breach of duty must be a proximate cause of the resulting injury." La Plante v. State, 85 Wn.2d 154, 159, 531 P.2d 299 (1975).
A proximate cause of an injury is defined as a cause which, in a direct sequence, unbroken by any new, independent cause, produces the injury complained of and without which the injury would not have occurred. Stoneman v. Wick Constr. Co., 55 Wn.2d 639, 643, 349 P.2d 215 (1960). Proximate cause requires proof of cause in fact as well as a legal determination that liability should attach. Petersen v. State, 100 Wn.2d 421, 435, 671 P.2d 230 (1983).
Expert medical testimony is necessary to establish causation where the nature of the injury involves "obscure medical factors which are beyond an ordinary lay person's knowledge, necessitating speculation in making a finding." Riggins v. Bechtel Power Corp., 44 Wn. App. 244, 254, 722 P.2d 819 (1986). Medical testimony as to a causal relationship must demonstrate that the alleged negligence "'more likely than not'" caused the subsequent injury or condition, complained of, rather than that the defendant's actions "'might have,' 'could have,' or 'possibly did' cause the subsequent condition." Ugolini v. States Marine Lines, 71 Wn.2d 404, 407, 429 P.2d 213 (1967) (quoting Orcutt v. Spokane County, 58 Wn.2d 846, 364 P.2d 1102 (1961)). A nurse is not competent to testify as to causation concerning a medical or psychological condition or diagnosis. Colwell v. Holy Family Hosp., 104 Wn. App. 606, 612-13, 15 P.3d 210 (2001).
A defendant moving for summary judgment has the initial burden of showing either (1) that there is no genuine issue of material fact, or alternatively, (2) that the plaintiff lacks competent evidence to support an essential element of his or her claim. Seybold v. Neu, 105 Wn. App. 666, 676, 19 P.3d 1068 (2001). After the defendant meets this initial burden by showing that the plaintiff lacks admissible expert testimony to support her case, the burden shifts to the plaintiff to present competent medical expert testimony establishing that the alleged injury was proximately caused by the defendant's actions. Seybold, 105 Wn. App. at 676.
In order to meet this burden, Ms. Sanford may not rely on allegations contained in the pleadings; rather, she must respond with affidavits or other documents setting forth specific facts showing that there is a genuine issue for trial. Id.; CR 56(e). If she fails to come forward with the requisite expert medical testimony, summary judgment is appropriate. Berger v. Sonneland, 144 Wn.2d 91, 111-12, 26 P.3d 257 (2001). Pro se litigants are bound by the same rules of procedure and substantive law as attorneys. Bly v. Henry, 28 Wn. App. 469, 471, 624 P.2d 717 (1980).
The Landses moved for summary judgment on Ms. Sanford's negligence claim on the basis that she failed to establish any of the elements of negligence relative to the water system. Regarding the element of causation, the Landses pointed out that Ms. Sanford's son was never examined by a medical doctor and, consequently, there was no evidence showing that his illness was, on a more probable than not basis, caused by water from the RV Park. The Landses argue that Ms. Sanford, as a certified nursing assistant (CNA), was not competent to determine whether her son became ill as a result of drinking water at the RV Park and whether his illness, in turn, caused Ms. Sanford psychological harm.
In response to the Landses' motion for summary judgment, Ms. Sanford submitted a memorandum which provided only further argument regarding her negligence claim. She mistakenly argued that "'[m]ore probable than not' testimony from a physician is not required to establish causation in this action, or for psychological [sic] damages to the Plaintiff." CP at 229. Ms. Sanford further argued that because she had been a CNA, she was "certainly able to medically determine whether her own 3 1/2 year old son was sickened by consuming the water in the bathhouse, as witnessed by the Plaintiff and Plaintiff's father." CP at 229.
The Landses' motion for summary judgment was sufficient to shift the burden of proof to Ms. Sanford to produce an affidavit from a qualified expert medical witness alleging specific facts that establish a cause of action for negligence. See Guile v. Ballard Cmty. Hosp., 70 Wn. App. 18, 25, 851 P.2d 689 (1993). CR 56(e) provides that affidavits made in support of or in opposition to a motion for summary judgment must be made on personal knowledge, set forth admissible evidentiary facts, and affirmatively show that the affiant is competent to testify to the matters therein. "Affidavits containing conclusory statements without adequate factual support are insufficient to defeat a motion for summary judgment." Guile, 70 Wn. App. at 25. Here, the record lacks any admissible evidence of a causal relationship between the water and any resulting injury.
Moreover, Ms. Sanford failed to make any showing of damage or injury resulting from the unapproved water system. Ms. Sanford admitted in her deposition that she did not know if the "system had been approved" and if it would have made the water at the RV Park any different. CP at 208. The Washington State Department of Heath found no problems with the water system requiring immediate attention. Subsequently, the system was approved as a Group B water system in October 2006. Mr. Lands stated in his affidavit that no material changes were made to the system between June 2006 and the date of the approval. State-approved laboratory tests showed safe or compliant water quality. The record lacks any evidence supporting Ms. Sanford's claim of psychological damage.
In sum, Ms. Sanford did not satisfy her burden to come forward with admissible evidence creating a genuine issue of material fact as to causation or damages. Accordingly, the trial court properly dismissed her negligence claim as a matter of law.
Retaliatory Eviction. Ms. Sanford next contends that the trial court erred in granting summary judgment because she raised an issue of material fact concerning her claim of retaliation. The Landlord-Tenant Act, chapter 59.18 RCW, prohibits a landlord from retaliating against a tenant for engaging in certain protected conduct. Specifically, a landlord shall not take or threaten to take reprisals or retaliatory action against a tenant because of any good faith and lawful:
(1) Complaints or reports by the tenant to a governmental authority concerning the failure of the landlord to substantially comply with any code, statute, ordinance, or regulation governing the maintenance or operation of the premises, if such condition may endanger or impair the health or safety of the tenant; or
(2) Assertions or enforcement by the tenant of his rights and remedies under this chapter.
RCW 59.18.240. Further, RCW 59.18.250 provides that
[i]nitiation by the landlord of any action listed in RCW 59.18.240 within ninety days after a good faith and lawful act by the tenant as enumerated in RCW 59.18.240, or within ninety days after any inspection or proceeding of a governmental agency resulting from such act, shall create a rebuttable presumption affecting the burden of proof, that the action is a reprisal or retaliatory action against the tenant.
Ms. Sanford contends that after she delivered a written notice to the Landses complaining of rusty water coming from a common area bathhouse faucet and after she reported a claim of abuse to CPS, she was served with a 3-day notice to vacate. She further argues that she was previously considered by the landlords to be a superior tenant and was described as quiet, clean, and always paying rent on time. Ms. Sanford points out that she had received no oral or written warnings concerning any issues prior to June 18, 2006.
The Landses contend that any retaliation claim was properly dismissed on summary judgment because the same parties litigated or should have litigated that issue in the unlawful detainer action and Ms. Sanford failed to put on evidence supporting a prima facie claim of retaliatory eviction. We agree.
The term res judicata encompasses two related doctrines: claim preclusion, often referred to as res judicata, and issue preclusion, also known as collateral estoppel. Shoemaker v. City of Bremerton, 109 Wn.2d 504, 507, 745 P.2d 858 (1987). Under the doctrine of res judicata, a prior judgment will bar litigation of a subsequent claim if the prior judgment has a "concurrence of identity with a subsequent action in (1) subject matter, (2) cause of action, (3) persons and parties, and (4) the quality of the persons for or against whom the claim is made." Loveridge v. Fred Meyer, Inc., 125 Wn.2d 759, 763, 887 P.2d 898 (1995). The purpose of res judicata is to ensure the finality of decisions. Mellor v. Chamberlin, 100 Wn.2d 643, 645, 673 P.2d 610 (1983). Thus, a final judgment on the merits bars parties from relitigating claims and issues that were or could have been raised in the prior action. Chamberlin, 100 Wn.2d at 645.
While claim preclusion prevents a plaintiff from bringing the same claim under a different theory, issue preclusion prevents the relitigation of an issue that has already been litigated and determined where the plaintiff asserts a new and distinct claim. Shoemaker, 109 Wn.2d at 507. "[T]he party asserting collateral estoppel must prove: (1) the issue decided in the prior adjudication is identical with the one presented in the second action; (2) the prior adjudication must have ended in a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with the party to the prior adjudication; and (4) application of the doctrine does not work an injustice." Nielson v. Spanaway Gen. Med. Clinic, Inc., 135 Wn.2d 255, 262, 956 P.2d 312 (1998). "Collateral estoppel promotes the policy of ending disputes by preventing the relitigation of an issue or determinative fact after the party estopped has had a full and fair opportunity to present a case." McDaniels v. Carlson, 108 Wn.2d 299, 303, 738 P.2d 254 (1987).
Each of the elements of res judicata are present and dismissal of Ms. Sanford's retaliation claim on summary judgment was appropriate. See Loveridge, 125 Wn.2d at 763. Here, Ms. Sanford concedes that her claim for retaliation is based upon her eviction from the Moonlight RV Park in 2006. Ms. Sanford contested the eviction and specifically asserted retaliation as an affirmative defense in the unlawful detainer action, just as she has asserted a claim for retaliation in the present action. The unlawful detainer action resulted in a final judgment on the merits. The Landses and Ms. Sanford were parties to that action. Ms. Sanford was properly precluded from relitigating her claim of retaliatory eviction because that claim was raised, argued, and decided in the earlier proceeding.
Constitutional Right to Jury Trial. Finally, Ms. Sanford contends that the dismissal of her claims violated her right to a jury trial under Washington Constitution article I, section 21. In support of her argument, Ms. Sanford cites RCW 4.44.090, which provides that "[a]ll questions of fact other than those mentioned in RCW 4.44.080, shall be decided by the jury, and all evidence thereon addressed to them." She also cites RCW 4.48.010, which provides that "[a]ny party shall have the right in an action at law, upon an issue of fact, to demand a trial by jury."
Summary judgment is appropriate if the record before the court shows that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Ruff, 125 Wn.2d at 703. "The purpose of a summary judgment is to avoid a useless trial when no genuine issue of material fact remains to be decided." Nielson, 135 Wn.2d at 262.
Our Supreme Court addressed a similar argument in Nave v. City of Seattle, where the plaintiff claimed that his right to a jury trial as guaranteed in civil actions under amendment VII of the United State Constitution and by article I, section 21 of the Washington Constitution was infringed upon by the summary judgment proceedings. Nave v. City of Seattle, 68 Wn.2d 721, 725, 415 P.2d 93 (1966). The court held that the constitutional right to a jury trial is not infringed upon by the granting of a summary judgment where there are no issues of fact to be determined. Nave, 68 Wn.2d at 725.
Here, there is no genuine issue of material fact and there is nothing warranting or requiring a jury determination. Ms. Sanford's argument that the dismissal of her negligence and retaliation claims on summary judgment violated her constitutional right to a jury trial is without merit.
We affirm.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
SCHULTHEIS, C.J., KORSMO, J., Concur: