Tuesday, March 4, 2014

The Doctrine of Avoidable Consequences: Jaeger v. Cleaver Construction, Inc., 148 Wn.App.698, 201 P.3d 1028 review denied 166 Wn.2d 1020, 273 P.3d 335 (2009).

Recent mud/landslides in California and Washington brought to mind a case I tried several years ago about a high-bank slope between a million dollar home and the waters of the Puget Sound.  My client, who owned a septic design company, had divided by short-plat some acreage he owned into three lots, built his home on one of the lots and sold the two parcels down-slope over which he designed and constructed a storm water drainage system.  The drainage system collected all storm/surface waters from my client’s land and moved it across the other lots by tightline and eventually to the Sound.  My client also designed and built a septic system for the neighboring purchaser, a lawyer.  Among some of the more bedeviling facts of the case, during construction of the septic system (and unbeknownst to anyone), a pipe in the previously constructed drainage system was damaged by a backhoe digging a hole for the lawyer's septic tank. 

A few years later, when my client sold his own home, he carefully explained to the purchasers (the Jaegers) how the drainage system worked including the operation of a sump pump that moved storm water collected in a catch basin from a sports court built on a bench of the steep slope to the uphill plateau and into the drainage system piping.  Thereafter, during a particularly wet winter, the sump pump stopped (for largely unknown reasons although the parties offered several theories including that the Jaegers failed to maintain the pump as instructed) and rain pooled on the sports court until it flowed off onto the steep bank causing a small slide just beneath the sports court.  When the Jaegers saw the slide they immediately summoned their homeowner’s insurer to the scene who in turn retained geotechnical consultants to investigate both the slide and the drainage system, as well as to propose possible remedies to repair and protect the slope.  In the course of the investigation it was discovered that the drainage pipe on the neighboring property had been damaged by the backhoe years earlier during installation of lawyer's septic tank and that it had become clogged with debris over time possibly causing a backup to occur in the drainage system.  This "backup" theory advanced by the Jaegers created a sort of 'mousetrap game' presentation at trial as plaintiffs tried to show how my client may have caused or contributed to the presence of water on the slope triggering the slide.  Aside from alleged flaws in the drainage system, plaintiffs contended that the 'mound' septic system design built on the lawyer's property violated County regulations by its proximity to the steep slope and that it produced runoff that could have made its way to the slide area.

The decision in Jaeger v. Cleaver Construction, Inc., has been cited in subsequent cases to support a variety of legal propositions including the premise that contributory negligence is usually a factual question for the  jury, as well as the proclamation that a court has no duty to give irrelevant or unsupported jury instructions.  However, the case is most frequently cited in Washington common law and learned treatises as the most recent explanation of the doctrine of ‘avoidable consequences’ more commonly referred to as the defense of failing to mitigate damages.  This doctrine and affirmative defense prevents an injured party from recovering damages that the party could have avoided through reasonable efforts.  Sometimes a duty to mitigate damages arises from a statutory obligation.  Revised Code of Washington 4.22.015 also defines "fault" as including an "unreasonable failure to avoid an injury or to mitigate damages."  In Washington, the defense has been employed in a variety of legal actions and factual scenarios ranging from unfavorable settlement(s) impacting business transaction(s) (examined in the context of a legal malpractice action) to damages considered in worker's compensation and employment litigation.  Whenever a plaintiff may arguably have a duty to take reasonable steps to 'stop the bleeding' a defendant may argue that the consequences or damages could have been avoided by actions of the plaintiff(s) themselves. In the Jaeger case, the jury found that the Jaegers had suffered over $400,000 in landslide damages but it also apportioned 85 percent of the liability to the Jaegers for negligently contributing to the harm and failing to take prompt or appropriate action that was recommended to stem further slope movement.  
The complex facts in Jaeger and other notable cases in California and Washington, reveal the many ways earth movement (and consequential damage) can be triggered by unpredictable sources of water; by soils that slide easily (e.g., glacial till); soils that expand and contract depending on weather conditions and the presence or absence of groundwater; by earthquake(s); by sinkholes; by volcanic activity; and by less direct causal factors such as deforestation/logging and population change.  Once the land starts to move, all structures built on the surface may also be compromised or damaged and lives can be lost.  The resulting damage claims are often met with a failure to mitigate defense because so often  there are remedies that might have been taken to stop water flow to the slide area and stop or slow the sliding altogether.  In Jaeger, a total of four geotechnical and/or engineering geologist experts were called to explain likely forces/factors causing landslide(s) to happen and to worsen over time, as well as the specific issues at play on the Jaeger property.  I was lucky enough to be able to retain one of the deans of engineering geology in Washington, Jon Koloski of GeoEngineers, Inc., before he began contemplating semi-retirement. During his career, Mr. Koloski, among other things, evaluated the competency of soils under many of the multi-story buildings in downtown Seattle, as well as on the slopes bordering the Panama Canal.  In my opinion, the jury was persuaded by the quiet confidence Mr. Koloski’s long and extensive career provided him and the ease of his manner on the stand.  In the end, Mr. Koloski’s opinions prevailed against three highly esteemed geotechnical experts who testified for plaintiffs from the firms of Shannon & Wilson; Aspect Consulting, Inc. and URS Corporation.  

The decision in Jaeger is recommended reading and in my opinion an excellent starting point whenever you start analyses of an earth movement case or problem.  In particular, the case proves the importance of a multi-faceted investigation and approach to solving issues of earth movement identification, causation and remediation.  In Jaeger, there was testimony concerning how vegetation and trees impact and show slope movement;  about various septic system designs and related permitting issues; about community water sharing and use measurement; about storm water drainage systems and component parts thereof; about the geological history and the makeup of soils in an area including upland areas and the delicate slide prone slopes adjacent to Puget Sound; about unique zoning and mapping issues related to groundwater and soil identification in a given area; about slope/soils testing methods and about landslide remediation alternatives and their cost to name just a few.  Finally, the case provides an excellent overview of the steps or efforts the law may require of a property owner in mitigating damages caused by earth movement.  

Friday, September 27, 2013

Summer 2013

I spent several months in beautiful Minnesota this past summer taking work breaks to compete in triathlons held at various regional lakes.  It was a lot of fun racing in the elements with so many fine people.  I am presently reading a book entitled "Spark" by John Ratey, MD who touts physical exercise as one of the most important building blocks for human development/creativity.  The book is motivating me to try and incorporate Dr. Ratey's science into my law practice efficiently and on a daily basis. :)

Thursday, May 23, 2013

Summary Judgment: A Contractually Shortened Limitations Period in Tennyson Homes, Inc. v. NW Siding & Prefinishing Inc.

This King County Superior Court case involved alleged construction defects in a custom single-family home in Kirkland, Washington.  The general contractor, Tennyson Homes, sought indemnity following a settlement with the homeowners against several parties including my client, NW Siding & Prefinishing, Inc., citing a 'master contract' and project specific subcontract(s). NW Siding's motion to dismiss focused upon whether indemnity terms in the 'master contract' were effective and whether the pertinent statute of limitations was shortened by terms contained in subsequent documents including the parties' site specific subcontract (which had been amended by unsigned handwritings) and in invoices issued by NW Siding which were paid without dispute by Tennyson. Following extensive briefing and argument, Judge Barbara Linde granted NW Siding's motion and denied a subsequent motion for reconsideration by Tennyson Homes. Judge Linde's rulings were appealed by Tennyson to the Washington State Court of Appeals, Division I on March 12, 2013, however the appeal was later abandoned.

Under Washington law, parties may agree by contract to a shorter time limitation for filing suit than the period provided by an applicable statute of limitation(s). Yakima Asphalt Paving Co. v. Department of Transportation, 45 Wn.App. 663 (1986), rev. den., 107 Wn.2d 1029 (1987). The stipulated limitation period will prevail unless prohibited by statute, public policy or unless the provision is unreasonable. Id. at 666. Washington courts have found contractual limitations on the time to bring suit ranging between three months and a year to be reasonable and not violative of law or public policy. Seee.g.,City of Seattle v. Kuney, 50 Wn.2d 299, 302 (1957) (one year contractual limitation on contractor’s liability upheld); Yakima Asphalt, 45 Wn.App. at 666 (180 day limitation upheld); Ashburn v. Safeco Ins. Co., 42 Wn.App. 692, 695 rev. den. 105 Wn.2d 1016 (1986) (one year limitation); Absher Constr. Co. v. Kent School Dist., 415, 77 Wn.App. 137, 147-48 (1995) (contractual limitation requiring suit on contract to be brought within 120 days after substantial completion upheld); Syrett v. Reisner, McEwan & Assocs., 107 Wn.App. 524 (2001) (6 month limitation upheld); Mattingly v. Palmer Ridge Homes LLC, 157 Wn.App. 376 (2010) (12 month after completion limitation upheld). 

Wednesday, August 22, 2012

Order of Dismissal Obtained in Exploding JetSki Case.

On August 17, 2012, I obtained an Order of Summary Judgment of dismissal for my client, defendant Wright, in a hearing before Judge Stephanie Arend of the Pierce County Superior Court in Tacoma, Washington. Plaintiffs' case against defendants Wright and Kawasaki Motors Corp USA concerned a 2004 Kawasaki JetSki which exploded propelling the plaintiffs up to 15 feet into the air causing personal injuries. Plaintiffs claimed that the explosion was caused by alleged negligent maintenance of the craft by Wright and/or by a Kawasaki manufacturing or design defect that was the subject of a 2008 recall notice. Wright moved for summary judgment arguing that he had not breached any duty owed to his social guests (licensees) and that there was a lack of competent evidence to support causation. The Court (Judge Stephanie Arend) continued Wright's motion twice to allow for additional discovery including an in camera review of expert information which plaintiffs sought to compel. At a third hearing of Wright's motion and after supplemental briefing and the extended argument by counsel, Judge Arend finally granted Wright's motion dismissing all claims against him. This case presented some unusual issues on topics of discovery, as well as premises and products liability which I will address further in future posts. The parties' briefings on the issues and Judge Arend's Order can be viewed at JDSupra.com under documents posted by the Law Offices of Eric Brian Johnson.

Tuesday, January 3, 2012

Civil Discovery of Social Media Information

With the increasing use of social media, some attorneys have turned their attention to mining the data for litigation purposes.  This appears especially true in employment law cases because of the numbers and the likelihood that both employees and employers will use networking sites for business purposes or to discuss workplace issues. See generally, http://www.facebook.com/press/info.php?timeline; Mattingly v. Milligan, No. 4:11cv00215 (E.D.Ark. Nov. 2011) (Employee’s Facebook status update protected by First Amendment).   In some of my recent cases (e.g., products liability; contract disputes) I have seen discovery requests that look like this:

“List each email address, social networking site (i.e., Twitter, Facebook, Match.com) and user name that you have used in the past ten years.”

This request raises privacy concerns if only because a ‘user name’ or password is requested.  But, I also think that many people would object to such a request because they also consider their writings (e.g., 'posts' and 'tweets') private despite the label “social”.  I think this is true because many users choose to restrict their communications to a defined list of ‘friends’ or ‘followers’ rather than making their posts available to the general public.  It is this measure of control that most social media sites have preserved that arguably provides a social media user with a reasonable expectation of privacy in their communications.  See United States v. Chan, 830 F. Supp. 531, 534 (N.D. Cal. 1993) (expectation of privacy in electronic repository for personal data is analogous to a personal address book or other repository for such information). Cf. State v. Martin, 106 Wn.App. 850 (2001) (DOL records); Taus v. Loftus, 40 Cal.4th 683 (2007) (court records).  However, whether a court in a given jurisdiction would agree with this perspective in a given case is largely uncertain especially when social media use is perceived to be a relaxation of privacy and when existing law(s) provide little guidance. See e.g.O`Grady v. Superior Court, 139 Cal.App.4th 1423, 1461, 1464-1466 (2006) (considering whether a blog could constitute a "periodical publication" for purposes of  journalism shield law, even though "digital magazines" did not exist when the statute was enacted.) There are a few recent cases arising from motions to quash subpoenas for production of social media information that provide further insight.

In Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965 (C.D. Cal. 2010), defendants served subpoenas duces tecum on four third-party businesses and social networking websites including Facebook and MySpace.  Crispin filed a motion to quash the subpoenas arguing, among other things, that third-party Internet Service Providers (“ISPs”) are prohibited from disclosing electronic communications under the Stored Communications Act (“SCA”) 18 U.S.C. Section 2701 (a) (1) and that the requests were otherwise violative of his privacy rights.

The SCA generally prohibits, subject to certain exceptions, a “person or entity providing an electronic communication service to the public” from “knowingly divulging to any person or entity the contents of a communication while in electronic storage by that service.” Id.  The SCA does not include an exception for civil subpoenas. See O’Grady v. Superior Court, 139 Cal.App. 4th 1423 (2006); FTC v. Netscape Communications, Inc., 196 F.R.D. 559 (N.D. Cal. 2000) (holding that EC holders may not produce “content” records in response to a civil subpoena and cannot be compelled by court order to do so.)  On the other hand, Google, after sending a form letter objection, has stated that it will produce records showing solely the dates and times of emails sent by account holders if there is no objection within 20 days.

In Crispin, the District Court found that the legislative history of the SCA suggests that Congress wanted to protect electronic communications that are configured to be private, such as…electronic bulletin boards [See Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 875 (9th Cir. 2002)] and that the plaintiff had standing to attack the subpoenas to Facebook and MySpace because he had a personal right to the information (noting that Facebook posts are accessible only to those whom the user selects and thus are not strictly public.) See Crispin v. Christian Audigier, Inc., 717 F.Supp. at 980. See also Twitter: New Challenges to Copyright Law in the Internet Age, 10 J. Marshall Rev. Intell. Prop. L. 231, 236 (2010) (although tweets are publicly visible by default, senders can restrict messages to their followers).

In sum, the Court in Crispin granted the plaintiff’s motion to quash because applicable law supported arguments that the social media user had a reasonable expectation of privacy by the way he had set his account or had defined the audience with which he communicated.

As the Crispin case demonstrates, however, courts will likely continue to struggle with the intent of statutes designed to regulate electronic communications especially if the laws do not readily accommodate new technology and means of communication.  There is also little doubt that a court could reach a decision different than Crispin on a privacy issue with only a subtle change in facts concerning how the user employed social media.  See e.g., Moreno v. Hanford Sentinel, Inc., 172 Cal.App.4th 1125, 1130 (2009) (MySpace.com post was publicized to an audience whose size supported waiver of any privacy right). See also U.S. Internet Service Providers Assn., Electronic Evidence Compliance -- A Guide For Internet Service Providers, 18 Berkeley Tech. L.J. 945, 965 (2003) (some courts have ultimately managed to skirt privacy objections to a subpoena to an ISP by ordering the subscriber to give consent to the disclosure of the contents of his or her e-mail/electronic data thought to be relevant to a dispute). See also O’Grady v. Superior Court, 139 Cal.App. 4th 1423 (2006) (the discovery must be directed to the owner of the data, not the bailee to whom it was entrusted).

In 2012 and beyond, I expect to see a number of new cases addressing peculiar case facts associated with whether social media user(s) have protected privacy interests in so-called ‘social media’ communications;  whether the form and content is relevant to a dispute and whether the issue of compelled production is properly raised and can be decided by the court as framed by the litigants.

Monday, February 7, 2011

Recovery of Attorney Fees as Damages.

The case law regarding attorney fees awardable as costs of an action is well-developed in Washington. When authorized, the determination of a reasonable attorney fee award is a matter within the discretion of the trial court. See Boeing Co. v. Sierracin Corp., 108 Wn.2d 38, 65 (1987). A party is not, therefore, entitled to have such a determination made by a jury. In re Marriage of Firchau, 88 Wn.2d 109, 114-15 (1977).

The case law regarding attorney fees recoverable as damages, however, is significantly less developed or evolved. In the majority of cases which have discussed attorney fee damage recoveries, such recoveries have been based on principles of equitable indemnity:

“[W]hen the natural and proximate consequences of a wrongful act by defendant involve plaintiff in litigation with others, there may, as a general rule, be a recovery of damages for the reasonable expenses incurred in the litigation, including compensation for attorney's fees.”

See Jacob’s Meadow Owners Ass’n v. Plateau 44 II, LLC, 139 Wn.App. 743 (2008) citing Wells v. Aetna Ins. Co., 60 Wn.2d 880, 882 (1962); Manning v. Loidhamer, 13 Wn.App. 766, 769 (1975). See also Tri-M Erectors, Inc. v. Donald M. Drake Co., 27 Wn.App. 529, 531 (1980) (noting that attorney fees incurred in defending suit against third party were recoverable pursuant to contractual indemnity provision as damages, the measure of which was determined by the jury). Pursuant to this rule, such attorney fees are considered to be damages rather than costs.

In several states, the case law is plain that attorney fees are awardable as damages, not only as a matter of equity, but also more generally as a potential form or measure of damages properly awarded upon proof that they were caused or incurred merely as a consequence of negligence. See e.g., Sindell v. Gibson, Dunn & Crutcher, 54 Cal.App.4th 1457 (1997) citing Prentice v. North American Title Guaranty Corp., 59 Cal.2d 618 (1963). In Washington, however, it appears uncertain whether the recovery of attorney fees as damages must be tied to a recognized equitable exception to the American Rule (where there is no other recognized basis for recovery) such as application of the ABC Rule or whether existing law would support such recovery solely upon a negligence theory of consequential damages.[1] Washington law seems headed in that direction if it is not there already.

[1] The Washington Supreme Court has explicitly recognized four equitable exceptions to the American Rule in allowing recovery of attorney fees: (1) the common fund theory, Grein v. Cavano, 61 Wn.2d 498, 505 (1963); (2) actions by a third person subjecting a party to litigation, Wells v. Aetna Ins. Co., 60 Wn.2d 880, 882-83 (1962); (3) bad faith or misconduct of a party, Miotke v. City of Spokane, 101 Wn.2d 307, 338 (1984); and (4) dissolving wrongfully issued temporary injunctions or restraining orders, Cecil v. Dominy, 69 Wn.2d 289, 291-94 (1966);Alderwood Assocs. v. Washington Envtl. Council, 96 Wn.2d 230, 247 (1981). See generally Philip A. Talmadge, Attorney Fees in Washington, Part. 5 (1995). While the traditional American Rule relates to attorney fees as costs, as noted above, at least two of the recognized equitable exceptions award attorney fees as damages. See, e.g., Cecil, 69 Wn.2d at 291, 418 P.2d 233 (attorney fees as damages in dissolving a wrongfully issued temporary injunction); Wells, 60 Wn.2d at 882 (attorney fees as damages in wrongful action by a third person subjecting a party to litigation). The Washington Supreme Court has also authorized the award of attorney fees as damages in slander of title and wrongful garnishment actions.Rorvig v. Douglas, 123 Wash.2d 854, 873 P.2d 492 (1994) (slander of title action); James v. Cannell, 135 Wn. 80, 82-83 (1925) (wrongful garnishment action), aff'd, 139 Wn. 702 (1926). Consequently, a perhaps more accurate statement of Washington's American Rule is attorney fees are not available as costs or damages absent a contract, statute, or recognized ground in equity. See also Flint v. Hart, 82 Wn.App. 209 (1996); Tradewell Group, Inc. v. Mavis, 71 Wn.App. 120 (1993) regarding application of ABC Rule.