Opinion
No. 52407-1-I
Filed: December 27, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No. 00-2-00862-5. Judgment or order under review. Date filed: 04/23/2003. Judge signing: Hon. Gerald L Knight.
Counsel for Appellant(s), Catherine Cecily Clark, Williams Clark PSC, 6161 NE 175th St Ste 200, Kenmore, WA 98028-4800.
Kinnon William Williams, Williams Clark PSC, 6161 NE 175th St Ste 200, Kenmore, WA 98028-4800.
Counsel for Respondent(s), Mark Richard Bucklin, Keating Bucklin McCormack Inc PS, 800 5th Ave Ste 4141, Seattle, WA 98104-3175.
Stephanie Ellen Croll, Keating Bucklin McCormack Inc PS, 800 5th Ave Ste 4141, Seattle, WA 98104-3175.
Elizabeth Grace Smith, Law Ofc of Kenneth R Scearce, 1501 4th Ave Ste 420, Seattle, WA 98101-3613.
Catherine Hendricks, Assistant Attorney Gen, 900 4th Ave Ste 2000, Seattle, WA 98164-1012.
Michael Augustin Jr Nicefaro, Office of The Attorney General, 900 4th Ave Ste 2000, Seattle, WA 98164-1012.
David L. Martin, Lee Smart Cook et al, 701 Pike St Ste 1800, Seattle, WA 98101-3929.
Matthew D Taylor, Lee Smart Cook Martin Patterson PS Inc, 701 Pike Street, Suite 1800, Seattle, WA 98101-3929.
Tamera L. Williams, Lee Smart Cook et al, 701 Pike St Ste 1800, Seattle, WA 98101-3929.
During a severe windstorm in March 1997, Timothy and Shellie Rae Sattler and their three-year old son were on SR 525, the Mukilteo Speedway, when a Douglas fir tree from the property next to the highway fell on their pick-up truck and killed Shellie. The Sattler family sued the property owner, the City and the State of Washington ('the State') for the death of Shellie Rae Sattler alleging negligence in creating the 30-foot tree buffer next to the highway, SR 525. Approximately a year before the tree fell on the Sattler's pick-up truck in April 1996, the property owner was concerned the tree buffer that was imposed as a condition of development by the City of Mukilteo ('the City') created a hazard to travelers on SR 525 and retained an expert forester. The forester examined the tree buffer and recommended the property owner remove 45 trees that were at risk for wind damage but concluded it was not necessary to remove all the trees in the buffer. In May 1996, the City authorized removal of the 45 trees. We affirm the trial court's decision to grant summary judgment in favor of the property owner, the City and the State. The property owner and the City were aware that the buffer was a potentially dangerous condition in April 1996 but took the corrective steps recommended by an expert who examined the tree buffer. A year later when the tree fell on the Sattler's truck and killed Shellie, there is no evidence that the property owner, the City or the State had actual or constructive knowledge that the remaining trees in the buffer were dangerous.
FACTS
On the afternoon of Easter Sunday in March 1997, the Sattler family, Timothy and Shellie Rae and their three-year old son, were driving in their pick-up truck during a windstorm on SR 525 (the Mukilteo Speedway). A tree fell across the roadway ahead of them and traffic came to a stop. While stopped, another tree fell behind the truck. Timothy got out of the truck to see if he could drive around either of the fallen trees. As he was about to get back into the truck, another tree fell and crushed the cab of the pick-up truck. Timothy was able to pull his son out, but Shellie, who was sitting in the cab of the truck, was killed instantly.
Both Timothy and his son sustained only minor injuries.
When Commander Murphy of the Mukilteo Police Department arrived, he described the conditions as follows:
At the time, there was a very strong wind [sic] storm and other trees had also fallen into the roadway. There was debris strewn about the roadway from the storm. The wind was so strong that at one time emergency workers had to run for cover behind fire equipment. Due to the strong winds and unsafe conditions, I asked Sergeant Pew to mark the scene with paint for later measuring. He marked the position of the vehicle and the position of the tree.
Clerk's Papers (CP) at 972.
The tree that crushed the cab of the Sattler's pick-up truck and killed Shellie fell from private property abutting SR 525 owned by Harbour Pointe Limited Partnership, Bellbek Corporation, Weyerhaeuser Realty Investors, and Winmar Co., Inc. (collectively 'HPLP').
In 1992, the City approved HPLP's plan to develop the property into an office and industrial park. As a condition of development, the City required HPLP to retain a 30-foot buffer of trees at the edge of the property between the office and industrial park development and SR 525. The City insisted on the tree buffer as a visual screen to minimize the aesthetic impact of clear-cutting approximately 90% of the trees for the development. The City also prohibited HPLP from removing any trees (ten inches or more in diameter) within the buffer zone without first obtaining the City's authorization. In March 1996, the City approved HPLP's plan to remove trees and clear the property for the first stage of the development. On April 16, 1996, after clearing the property, HPLP became concerned about an alder tree within the tree buffer that was damaged by the wind and leaning precariously toward SR 525. Dennis Vrabek, president of Bellbek Corporation, the general partner of HPLP, tried unsuccessfully to contact the City to obtain permission to remove the tree. At the end of the day, he decided to have the tree removed. The next day, on April 17, 1996, Vrabek wrote a letter to the City about his decision to remove the tree and reiterated HPLP's concern that the tree buffer created a hazard and should be eliminated:
The initial stages of development were overseen by Snohomish County. In 1991, the property was annexed by the City of Mukilteo and the City assumed regulation of the development.
The condition of the tree buffer was initially imposed by Snohomish County and included as a condition in HPLP's development plan. The City of Mukilteo annexed HPLP's property and after annexation, the approval process was transferred to the Mukilteo Planning Commission. The Commission made some minor revisions to the condition and adopted it.
There is no evidence in the record suggesting the alder was diseased or otherwise unhealthy.
As we have stated in the past, we believe the thirty (30) foot buffer of trees creates a hazard and should be eliminated. The prevailing winds blow from the southwest and the northwest which could topple trees onto SR525, and the power lines, creating an exceedingly dangerous situation.
Yesterday's wind was not severe, but had the effect of breaking the alder which, without our preventative measures, could have fallen onto SR525. Stronger winds certainly could topple both the larger fir trees and alders onto SR525. Our contractor has also expresses their concern as to leaving the fringe trees along SR525.
Aesthetically, we appreciate it is everyone's first choice to leave the trees, but yesterday's fallen tree is an immediate reminder of the potential danger caused by the requirement of the City to leave these trees.
CP 1177.
Following this incident, although there was no evidence the alder was diseased, HPLP decided to hire a forester, Marc McCalmon. HPLP asked McCalmon to examine the tree buffer and provide an expert opinion about whether the trees were susceptible to wind damage. McCalmon submitted a report to HPLP on April 26, 1996. McCalmon evaluated each tree by species, tree form, crown class, age class, foliage density, existing defect and damage, site conditions (soil, wind, exposure, and drainage characteristics) and tree height/diameter ratios. In McCalmon's report, he cautioned that it is 'impossible to predict with any certainty whether a tree will blow over' because adverse conditions can cause even healthy trees to blow over. McCalmon also stated that the tree buffer subjected the '[n]ewly exposed edges' to increased stress created by wind, but said that over time the trees on the edge would adapt. While McCalmon stated that the only way to be 'absolutely certain that no trees will ever blow over' is to remove all the trees within a tree height distance of the highway, he concluded that removing all the trees in the buffer was 'not necessary.' McCalmon identified and recommended that HPLP remove 45 trees within the tree buffer that he identified as particularly susceptible to wind damage based on several criteria including species and presence of disease.
CP 510.
CP 511.
CP 510.
HPLP provided McCalmon's report to the City and requested permission to remove the 45 trees. A City employee from the engineering department then met with McCalmon to examine the trees in the buffer again. In early May 1996, the City approved removing the 45 trees, and HPLP did so. Approximately a year later during a severe windstorm, a Douglas fir from the tree buffer on HPLP's property fell onto the Sattlers' pick-up truck and killed Shellie Sattler.
In December 1997, after Sattler's fatal accident, the City authorized HPLP to remove all the trees in the buffer.
In January 2000, the Sattler family (collectively 'Sattler') sued HPLP, the City, and the Washington State Department of Transportation (the 'State'). Sattler sought damages for negligence, wrongful death, loss of consortium, and loss of income.
All three defendants, HPLP, the City, and the State, filed motions for summary judgment dismissal. The trial court granted HPLP's motion for summary judgment first. Several months later, the trial court granted the City's and the State's motions for summary judgment. Sattler appeals.
One defendant, Winmar Co., Inc., a co-owner of the property, was not bound by the summary judgment dismissals. But based on the stipulation of the parties, the court certified the orders as final.
ANALYSIS
This court's review of the trial court's summary judgment decisions is de novo. Hadley v. Maxwell, 144 Wn.2d 306, 310, 27 P.3d 600 (2001). When reviewing an order of summary judgment, the appellate court engages in the same inquiry as the trial court. 'The reviewing court considers the facts and all reasonable inferences from [the] facts in the light most favorable to the nonmoving party.' Right-Price Recreation, L.L.C v. Connells Prairie Community Council, 146 Wn.2d 370, 381, 46 P.3d 789 (2002), cert. denied, 124 S. Ct. 1147, 157 L.Ed.2d 1043 (2004). Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. CR 56(c). "The motion should be granted only if, from all the evidence, reasonable persons could reach but one conclusion." Trimble v. Washington State Univ., 140 Wn.2d 88, 93, 993 P.2d 259 (2000) (quoting Clements v. Travelers Indem. Co., 121 Wn.2d 243, 249, 850 P.2d 1298 (1993)).
Sattler argues the property owner, HPLP, the City and the State each had a duty to prevent harm to travelers on SR 525 because they had actual and constructive knowledge that the tree buffer was a dangerous condition. Sattler contends the trial court erred in dismissing his lawsuit on summary judgment.
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). Whether there is a duty is a question of law. Hertog, ex rel. S.A.H. v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999). Breach and proximate cause are generally questions for the trier of fact. Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999). But if a court decides that reasonable minds could not differ on factual questions, then such questions may be determined as a matter of law. Hertog, 138 Wn.2d at 275. A summary judgment dismissal may be affirmed on any basis supported by the record. Redding v. Virginia Mason Med. Ctr., 75 Wn. App. 424, 426, 878 P.2d 483 (1994).
In Albin v. Nat'l Bank of Commerce of Seattle, 60 Wn.2d 745, 375 P.2d 487 (1962), the Washington State Supreme Court held that a property owner who has actual or constructive knowledge of a dangerous condition on the land has a duty to take corrective action to prevent harm to others. See also Lewis v. Krussel, 101 Wn. App. 178, 2 P.3d 486 (2000); Price v. City of Seattle, 106 Wn. App. 647, 24 P.3d 1098 (2001).
In Albin, a bank owned land adjacent to a public road. During a windstorm, a tree from the property fell on a car, killing the driver. The driver's estate sued the bank and the county for wrongful death on the theory that recent logging had left the property in a dangerous condition by leaving some trees unprotected and unsupported. The Court affirmed the trial court's dismissal of the county because it had no notice of a dangerous condition. Even though the property in Albin had been logged a few weeks prior to the accident, the county was properly dismissed because it had no actual or constructive knowledge that the logging created a dangerous condition affecting the safety of the roadway.
A county's liability to the users of its roads is predicated upon its having notice, either actual or constructive, of the dangerous condition which caused injury, unless the danger was one it should have foreseen and guarded against
There is no evidence that the county had actual notice that the tree which fell was any more dangerous than any one of the thousands of trees which line our mountain roads, and no circumstances from which constructive notice might be inferred.
Albin, 60 Wn.2d at 748.
As to the bank, the Court reached a different conclusion because the logging operation had altered the property. The Court concluded the trial court properly decided to let the jury determine whether the bank had actual or constructive notice of the hazardous condition on the land created by the logging.
The trial court properly concluded that there was no duty to inspect and no liability so far as the owner was concerned (absent knowledge of a dangerous condition), so long as the forest remained in its natural condition; that the liability of the owner, if any, must be predicated on a dangerous condition created on its land, as a result of the logging operation, of which the owner knew or should have known.
Albin, 60 Wn.2d at 752.
Actual or constructive notice of a dangerous condition is an essential element of the duty of reasonable care. Lewis v. Krussel, 101 Wn. App. at 186, Under Albin, a property owner and governmental entities responsible for the operation and maintenance of roadways cannot be liable absent actual or constructive of the dangerous condition.
We agree with Sattler that the April 17, 1996 letter from Vrabek and HPLP to the City and McCalmon's April 26, 1996 report establishes that HPLP and the City had actual or constructive knowledge that the 30-foot tree buffer next to SR 525 was a dangerous condition created by clearing and removing the other trees on the property. But Vrabek's concerns about the safety of the tree buffer set forth in his April 17 letter were written before HPLP consulted an expert. Based on the concerns about the hazards of the tree buffer described in Vrabek's letter, HPLP retained McCalmon, an expert forester, to examine the trees in the buffer. McCalmon examined the trees in the buffer and recommended removal of 45 specific trees that he identified as susceptible to being 'blown over or broken during windstorms,' but concluded that the removal of all trees in the buffer was not necessary. HPLP and the City relied on and adopted McCalmon's analysis and his recommendations in the April 26 report and removed the 45 designated trees but did not eliminate the tree buffer. Although McCalmon mentions a temporary susceptibility to wind damage, of the trees on the outer edges of the buffer, his ultimate conclusion is clearly that the tree buffer did not pose a significant danger and it was not necessary to remove it.
CP 1207.
HPLP retained McCalmon to provide an expert analysis of the tree buffer and address its concerns about whether the tree buffer created a hazard that should be eliminated. HPLP relied on McCalmon's recommendations for what corrective action to take. HPLP provided McCalmon's report to the City and was given permission by the City to remove the 45 trees in May 1996. Thereafter, there is no evidence that HPLP or the City had actual or constructive knowledge that the tree buffer was a dangerous condition. The evidence in the record does not establish that HPLP and the City had a duty or breached a duty to prevent harm to travelers on SR 525 a year later when the Douglas fir fell on the Sattler's truck during a severe windstorm.
Sattler also argues HPLP and the City had actual or constructive knowledge after May 1996 based on letters from the public to the City about the proposed development and the conditions imposed by the City. Sattler's citations to the record do not support his arguments. RAP 10.3.
The declarations of arborists John Hushagen and Scott Baker submitted by Sattler in opposition to summary judgment do not raise issues of fact. While both arborists essentially disagree with McCalmon's conclusion about the safety of the tree buffer, their disagreement does not affect what HPLP and the City knew and relied on in 1996 when it took corrective measures and removed the 45 trees. In addition, many of the assertions in Hushhagen's and Baker's declarations are speculative. Seven Gables v. MGM/UA Entertainment, 106 Wn.2d 1, 13, 721 P.2d 1 (1986) (an opinion of an expert based on speculation cannot defeat summary judgment).
Liability for a government entity responsible for a roadway attaches only if the entity has notice of a dangerous condition affecting the roadway. It is undisputed there is no evidence that the State had notice of a dangerous condition on HPLP's land. There is also no evidence that the City had actual or constructive notice of a dangerous condition when the tree fell in March 1997.
Although Sattler claims that notice to the City constitutes constructive notice to the State, he cites no authority supporting this proposition. And because it is undisputed that the City had no actual notice in 1997 of any dangerous condition, the nuisance abatement statute, RCW 47.32.130, is inapplicable. Under this statute, the state is 'empowered' to take steps necessary to abate a 'public nuisance' which endangers a state highway. RCW 47.32.130(1). If the nuisance makes the highway 'immediately' or 'eminently' dangerous, the State may trespass on private property to abate the nuisance. RCW 47.32.130. This provision is not applicable where the State has no notice of a dangerous condition.
Because we conclude the City and the State were properly dismissed because they did not have actual or constructive knowledge of a 1997 dangerous condition, we do not address their arguments under the public duty, discretionary immunity, or quasi-judicial immunity doctrines. We also do not address the City's argument that it is not liable because responsibility for the roadway surface is allocated to the State. The parties also cite the Restatement (Second) of Torts sec. 364, pertaining to harm caused by structures or artificial conditions. Because we conclude that in April 1996, HPLP and the City had actual or constructive knowledge of a dangerous condition but took corrective measures based on an expert's analysis, we do not need to address the parties' arguments under the Restatement.
CONCLUSION
In 1996, when a tree was damaged by a windstorm in the newly created tree buffer, the property owner and the City had actual or constructive knowledge of a dangerous condition. After HPLP took corrective action in May 1996 and removed the trees identified by the expert forester as susceptible to wind damage, HPLP and the City did not have actual or constructive knowledge that the tree buffer was a condition that posed a danger to motorists on SR 525 or a duty to take further action. There is no evidence in the record that the State had notice of a dangerous condition on HPLP's land. We affirm the trial court's decision to grant summary judgment dismissing the property owner, the City and the State.
ELLINGTON, J., ACJ, and BAKER, J., Concur.