Monday, May 25, 2015

The Discovery Rule: The 2011 Pinehurst Neighborhood Natural Gas Explosion and Mapfre USA Corporation v. City of Seattle dba Seattle City Light and Puget Sound Energy, Inc., King County Superior (WA) Court Case No. 13-2-28235-6 SEA).

On April 9, 2015, I mediated a subrogation action on behalf of my insurer client, Mapfre USA Corporation, for recovery of property damages arising from a natural gas explosion in the Pinehurst neighborhood of Seattle, Washington in 2011.[1]  The mediation session, which lasted twelve hours involving multiple actions, parties, and over a millions dollars in claimed damages, was unsuccessful but provided a springboard for settling the majority of the plaintiffs’ consolidated cases a few weeks later.  At the start of my client’s case, we had to file a government claim against the City of Seattle after the applicable two-year statute of limitations (for action(s) concerning negligent damage to real property) had already run. Nonetheless, I was able to plead in Mapfre’s third-party action against defendants Puget Sound Power, Inc. (“PSE”) and City of Seattle/Seattle City Light that the defense should not bar the action because the causal nature of the explosion (involving both a downed power line and underground natural case pipelines) was so complex that the completion and publishing of an investigation report by the Washington Utilities and Transportation Commission ("WUTC") was a perquisite to any requirement to bring the action.  The argument succeeded as we were able to defeat a motion for summary judgment and later build a solid case of negligence against both the City and PSE allowing us to prevail and recover all claimed damages in the case:

The statute of limitations is an affirmative defense.[2]  The party asserting the defense bears the burden of proving facts that establish it.[3]  Washington courts have long applied a discovery rule to toll the date of accrual for a cause of action when a delay occurs between the time of an injury and the plaintiff's discovery of that injury (damages).  The discovery rule is also extended to plaintiff(s) when there is a delay in the discovery of factual evidence (due to no fault of their own) necessary to support other elements of a cause of action such as causation of injuries or damages.[4]  Notably, a discovery rule has been applied in negligence actions when the injury is due to or caused by professional malpractice, occupational diseases or conditions that are latent in nature, a failure of self-reporting requirement(s) and/or a concealment of information by defendant(s).[5]   The discovery rule has been applied to a variety of other causes of action especially those involving latent problems or when a connection between a harm and a cause are technical or complex such as actions alleging products liability[6]; construction defect[7]; actions seeking penalties for the illegal discharge of pollutants[8]; nuisance, strict liability (abnormally dangerous activity); negligent injury to real property[9]; breach of implied warranty of habitability[10]; as well as professional malfeasance and/or related breaches of fiduciary duty arising in various settings.[11]  The discovery rule tolls the date of accrual "until the plaintiff knows or, through the exercise of due diligence, should have known all the facts necessary to establish the element(s) of his or her legal claim (i.e., duty, breach, causation and damages)."[12]  The point at which the plaintiff should have acquired such knowledge is a question for the trier of fact.[13]

The discovery rule applied to toll the running of the two-year statute of limitations (Revised Code of Washington 4.16.130) applicable to Mapfre’s negligence claim for largely three reasons.  First, Mapfre had no access to the physical evidence supporting causation of the explosion (e.g., the physical phenomena and result of electrical arcing/energy contacting underground metal piping) because it was latent (underground) and was subject of utility provider record(s)/recordings to which Mapfre had no access or understanding. (WUTC Report).  Second, Mapfre had no knowledge or information concerning the manner PSE mapped and inspected its utility system without access to the same utility provider records and, in any event, it had no means to interpret the data.  Third, the subject matter of this case has been actively and almost continuously litigated since the September 2011 incident hence the parties’ claims are anything but stale.  In determining whether to apply the discovery rule, the possibility of stale claims must be balanced against the unfairness of precluding justified causes of action. U.S. Oil & Refining Co. v. Dept. of Ecology, 96 Wn.2d 85, 93 (1981).  That balancing test has dictated the application of the rule where the plaintiff lacks the means or ability to ascertain that a wrong has been committed (Id. at 93 – 94) and it overwhelming support application of the rule in the instant case.

Counsel for the City argued that various news report(s) somehow offered Mapfre all the “essential facts” supporting its cause of action but counsel’s argument defies explanation or support in law or by the material facts and evidence in the case. Fundamentally, the news reports cited by the City on their face, however, offered no reliable factual evidence of causation but only speculation and conflicting theories warning Mapfre to wait for a governmental process designed to determine cause and responsibility for the damage to conclude. Further, the cited news reports while noting possible connection(s) between the provision of electricity, natural gas and the explosion provided nothing to show or resolve issues of fact concerning whether Mapfre could have reasonably acted upon them to inquire and discover let alone support a cause of action.  The overwhelming evidence supported the conclusion that Mapfre could not and that the media reports provided little assistance. As explained by the WUTC Report, the evidence/facts supporting causation of damage or injury (e.g., the arc of electricity energizing PSE’s largely underground gas distribution system; the electricity’s creation of holes in gas piping at each of these location(s) where the electricity grounded; other metal piping that served to convey and ground the electricity; gas leak reports and special surveys of the underground system mapped by PSE; PSE’s failure to map and survey critical underground service pipes in the Ingham’s private drive that served three homes as well as the gas main under the Ingham’s private drive, as well as other critical evidence) all involved latent problems and defects, as well as complex operational data possessed by the utility providers to which Mapfre had no efficient or independent access.[14]  

Mapfre argued that a related and supporting reason why a discovery rule should apply to Mapfre’s case was the nature of the relationship between the public utility provider-defendant(s) and their customers (including plaintiffs’ subrogees).  According to Seattle City Light Department’s 2012 Annual Report, as a municipally owned public power system, Seattle City Light is governed by elected Seattle officials and primarily supported by customer revenues and surplus power sales.  According to its Mission Statement’: “Seattle City Light is dedicated to exceeding its customers’ expectations in producing and delivering environmentally responsible, safe, low cost and reliable power.” Similarly, PSE’s company website promises its customers that “PSE engineers and construction crews adhere to strict federal and state safety requirements governing pipeline design, materials and construction” and that “safety is [PSE’s] top priority when it comes to designing, constructing, operating and maintaining our natural gas system. [PSE] monitor(s) the system every day of the year, 24 hours a day.” The utility-provider defendants’ promises to provide their products applying professional expertise and a vigilance for customer safety created a fiduciary relationship and corresponding duties of the utility providers to self-report and advise customers about malfeasance causing damage to customer property and/or or upon which claim(s) for reimbursement might be based.[15]  The WUTC investigation and related laws serve to enforce such duties.  For example, the City and PSE had statutory obligation(s) as an “electrical” and/or “public service company” (RCW 80.04.010; RCW 80.20.010) to cooperate with WUTC investigation(s) and disclose information as needed to determine acts and omissions causing damage. See also, RCW 80.04.015 (Conduct of business subject to regulation – Determination by commission); RCW 80.04.440 (Companies liable for damages); RCW 80.28.010 (Gas pipelines – Safety – Commission’s duties); RCW 81.88.080 (Pipeline mapping system – Commission specifications and evaluations) and all other statutory/code provisions cited in the WUTC Report and related documents.  Nonetheless and despite these duties, it should be no surprise that defendant(s) did not promptly self-report acts and omissions proving causation directly to plaintiff(s) but rather their disclosures came only after a protracted governmental investigation lasting more than one year and in the context of a WUTC report, complaint and settlement agreement.

As explained in U.S. Oil & Refining Co. v. Dept. of Ecology, 96 Wn.2d 85 (1981) where the Washington Supreme Court applied a discovery rule to an action involving penalties for the illegal discharge of pollutants: “[w]here self-reporting is involved, the probability increases that the plaintiff will be unaware of any cause of action, for the defendant has an incentive not to report it.  Like the other cases which have employed the rule, this is a case where if the rule were not applied the plaintiff would be denied a meaningful opportunity to bring a suit.  Like those plaintiffs, this plaintiff lacks the means and resources to detect wrongs within the applicable limitation period.  Not applying the rule in this case would penalize the plaintiff and reward the clever defendant.  Neither the purpose for statutes of limitation nor justice is served when the statute runs while the information concerning the injury is in the defendant's hands.” Id. at 93.          
Similarly, before the WUTC report and findings were issued, Mapfre plainly had no reasonable means or resources to discover that the City’s provision of electricity caused holes and gas leaks in underground gas line(s) or in appliances within the Ingham residence thereby causing damaging explosion(s).  Further, Mapfre had no means of discovering (prior to the issuance of the WUTC Report) that PSE failed to inspect and insure the integrity of its gas line system (by proper mapping or otherwise).  Based upon Mapfre's arguments, the Court denied the City's motion for summary judgment (which was joined by PSE) and delayed accrual of Mapfre’s cause(s) of action allowing Mapfre to prevail in the case.  

[1]  On or about September 26, 2011, a natural gas explosion and fire ignited destroying a house located at 12312 5th Avenue NE owned by David and Hong Phung Ingham and located in the Pinehurst neighborhood of Seattle, Washington.  The explosion(s), in turn, damaged several neighboring homes including a home located at 527 N.E. 124th Street, Seattle, Washington owned by Abdull Khamis and insured by third-party plaintiff Mapfre. (Mapfre Third-party Complaint).

The fuel source of the explosion and fire was natural gas. (Mapfre Third-party Complaint and Ex. “1” thereto entitled WUTC Commission Staff Investigation Report, Docket 111723, December 26, 2012 hereafter referred to “WUTC Report”.)  Gas leaked because the day before the explosion, September 25, 2011, a nearby high voltage power line owned by defendant Seattle City Light fell to the ground and energized PSE’s gas system in the area.   The electricity arced from PSE’s gas service line at the Ingham’s’ house to the Ingham’s’ sewer pipe (the sewer pipe acted as a ground), thereby creating a hole in the PSE gas service pipe, from which gas leaked.  The gas migrated to the crawl space under the Ingham’s’ house, entered the living space, and was ignited, causing the explosion and fire. (WUTC Report).  Alternatively or in combination, the electrical current running through the gas pipe continued to trespass into the Ingham’s’ house causing another gas leak in the Ingham’s’ fuel line, furnace, or other facilities. (WUTC Report).

On September 25, 2011, the day before the explosion, PSE received separate calls indicating there were three separate leaks in PSE’s gas system in the Pinehurst neighborhood. (WUTC Report).  Defendant Hong Ingham reportedly smelled gas that day at or near her home but after David Ingham investigated her report and did not smell gas himself the Ingham’s did not report it to PSE. (WUTC Report).  PSE responded to the calls it did receive and addressed the three gas leaks. (WUTC Report).  PSE recognized that the leaks were caused by electrical arcing, which is unusual. (WUTC Report).  In view of the unusual circumstances, PSE initiated two special gas leak surveys in the Pinehurst area that same day. (WUTC Report).

The first PSE special leak survey (‘first special leak survey’) began at approximately 5:30 p.m. on September 25, 2011.  (WUTC Report). This first special leak survey was for PSE’s wrapped steel gas piping, and it included a walking leak survey. (WUTC Report).  The area of the first special leak survey was 5th Avenue N.E. to 12th Avenue N.E. and N.E. 115th Street to N.E. 130th Street. (WUTC Report). Included within this area were the Ingham’s’ house, the two houses neighboring the Ingham’s’ house and the paved private drive to these three houses. (WUTC Report).

In the first special leak survey, PSE did not leak survey the PSE wrapped steel main under the private drive to these three houses or the PSE wrapped steel services serving these three houses. (WUTC Report).

The second PSE special leak survey (‘second special leak survey’) started at approximately 9:30 p.m. on September 25, 2011.  (WUTC Report). This was a mobile leak survey using gas detection equipment mounted to motor vehicles. (WUTC Report).  PSE identified the scope of the facilities to be surveyed as PSE gas piping located in the public rights-of-way accessible to a vehicle.  (WUTC Report). The area of the second special leak survey was 5th Avenue N.E. to 15th Avenue N.E. and N.E. 105th Street to N.E. 130th Street.   (WUTC Report).  Included within this area were the Ingham’s’ house, the two houses neighboring the Ingham’s’ house and the paved private drive to these three houses. (WUTC Report).  The paved private drive is accessible to a vehicle. (WUTC Report).

In the second special leak survey, PSE did not leak survey the PSE wrapped steel gas main under the private drive to the three houses. (WUTC Report).

In the second special leak survey, PSE did not leak survey all gas service lines located outside the public right of way (or inaccessible to vehicles within the public right of way).  (WUTC Report).  PSE only leak surveyed a service line of the gas detection equipment on the vehicle detected gas. (WUTC Report).  In that circumstance, PSE would conduct a leak survey only of service lines around that specific location to the extent necessary to resolve that specific of gas detection. (WUTC Report).

In or about October 2011, the Washington State Utilities and Transportation Commission (“UTC”) with exclusive statutory powers, duties, and jurisdiction under Revised Code of Washington Chapter 81.88 to investigate the subject explosion began its inquires and study of what caused the explosion and resulting damage, as well as to identify any violation(s) of safety standards and/or law pertaining to the provision of gas pipeline facilities at issue. (WUTC Report). 

On or about December 26, 2012, after more than a year of investigation by safety engineer(s) and other specialized/professional staff members, the UTC issued its report and findings.  (WUTC Report and “WUTC Complaint”, Ex. “2” to Mapfre Third-party Complaint).

[2]    Brown v. ProWest Transp. Ltd., 76 Wn.App. 412, 419 (1994) citing Haslund v. City of Seattle, 86      Wn.2d 607, 620 (1976).

[3]    Id.   

[4]     In re Estates of Hibbard, 118 Wn.2d 737, 744-50 (1992). 

[5]    Id.      

[6]     See e.g., North Coast Air Servs., Ltd. v. Grumman Corp., 111 Wn.2d 315, 319 (1988).

[7]     See e.g., 1000 Virginia Ltd. P'ship v. Vertecs Corp., 158 Wn.2d 566 (2004).

[8]     See e.g., U.S. Oil & Refining Co. v. Department of Ecology, 96 Wn.2d 85 (1981).

[9]     See e.g., Mayer v. City of Seattle, 102 Wn.App. 66, 76-77 (2000).  

[10]    See e.g., Stuart v. Coldwell Banker Commercial Group, Inc., 109 Wn.2d 406 (1987).

[11]     See e.g., Gillespie v. Seattle-First Nat. Bank, 70 Wn.App. 150 (1993).

[12]    In re Estates of Hibbard, 118 Wn.2d 737, 744-50 (1992); Mayer v. City of Seattle, 102 Wn.App. 66, 76-77 (2000) and cases cited therein.

[13]    Id.  

[14]  This evidence proves, among other things, that PSE thwarted its own identification of a fix that might have avoided or mitigated damage caused by the explosion but Mapfre had no way of gathering these facts without access to and knowledge of PSE’s systems, records, as well as of the standards that apply to inspections and self-assessment and reporting.  Instead, all of this latent and complex evidence was exclusively controlled by the utility providers themselves or given their cooperation gathered and analyzed by government investigators. (See Mapfre Complaint and Exhibits “1” and “2” thereto; Declaration of Madelyn C. Burden; Declaration of Eric Johnson and Exhibits “1” and “2” thereto).

[15]   A fiduciary relationship arises in fact when there is “something in the particular circumstances which approximates a business agency, a professional relationship, or *** something which itself impels or induces the trusting party to relax the care and vigilance which he otherwise should, and ordinarily would, exercise.” Hood v. Cline, 35 Wn.2d 192, 200, 212 P.2d 110 (1949) (quoting Collins v. Nelson, 193 Wash. 334, 345, 75 P.2d 570 (1938).  "Superior knowledge and assumption of the role of adviser may contribute to the establishment of a fiduciary relationship." Liebergesell v. Evans, 93 Wn.2d 881, 891 (1980). See also, Restatement Contracts § 472 Comment C (any person whose relation with another is such that the latter justifiably expects his welfare to be cared for by the former can create a fiduciary relationship).

Relief Under 42 United States Code Section 1983: Werner v. Moore, USDC for the Western District of Washington Case No. 3:11-cv-05608-BHS and U.S. Court of Appeals for the Ninth Circuit, No. 12-35875.

In the early '90s, I defended police officers in Southern California in several cases alleging excessive force usually in the context of an arrest situation or police pursuit of a suspected criminal. Most of these actions pled civil rights violations under 42 USC Section 1983[1] and occurred at a time when police conduct and department policies were not nearly so circumspect, scrutinized and otherwise controversial as they are today.  For example, in 1992, I defended two City of Anaheim police helicopter pilots that had "called" a multi vehicle/jurisdiction ground pursuit from the air.  By the time the suspect car crashed into several civilian vehicles at an intersection in Hawaiian Gardens, four different police departments (and several squad cars) were involved in the high-speed chase. A few years later, police policy and practice changed dramatically to curtail high speed pursuits of suspects because they often led to deaths or  serious injuries to bystanders. 

I had a lengthy absence from this line of work until about 2012, when a 65 year old client of mine named Leif Werner told me a story that for me raised some ‘red flags’. Although I certainly believe that our police forces perform remarkable public service under often stressful and dangerous conditions it had been my experience that a few officers in a given department or force somewhat habitually cross the line.  Whether because of personal issue(s) or style these few officers seem to be involved in frequent complaints.  Mr. Werner’s version of his encounter with Officer Darrell Moore of the Poulsbo (Washington) Police Department soon became a federal lawsuit and the subject of an appeal by the City and Officer Moore to the Ninth Circuit Court of Appeals.  The primary issue of the case concerned whether Officer Moore was protected from suit by the doctrine of “qualified immunity”; that is whether his use of force in the form of a chokehold and use of his taser (“stun gun”) weapon upon Mr. Werner was reasonable under the circumstances or whether it was excessive and a violation of Werner’s civil rights and the protections afforded by 42 United States Code Section 1983.  Prosecuting the case for Mr. Werner, we were able to survive a motion for summary judgment in the trial court, as well as defendant’s interlocutory appeal to the Ninth Circuit.  By the time we settled the case in late 2014, my initial suspicions and instincts about my client’s recount of events was confirmed (at least for me).[2]  When we obtained Officer Moore’s personnel file in discovery it contained several letters by citizens, notable from older gentlemen, who had taken the time to complain about Officer Moore.  For example, one man named M. John Pauw was so upset about his contact with Officer Moore he wrote: “Tell Officer Moore that no matter how long we both live, he is never going to have a worse enemy than I am.  Although I am 63 years old, I sincerely hope that I live long enough to spit on his grave.”  Additionally, by the time of the settlement in our case, Officer Moore was involved in two fatal shootings of suspects and employment in three different municipal police departments.

Werner's arguments before the Ninth Circuit Court of Appeals is summarized as follows:  At the time Moore physically attacked Werner, Moore had no probable cause to arrest Werner under anyone’s “version of events” but certainly not Werner’s version.  Moore grabbed Werner from behind while Werner was peacefully trying to comply with Moore’s order to return to his vehicle, applied a chokehold upon Werner and as Werner struggled to breathe quickly applied a contact taser to the area of Werner’s heart.  Werner argued that Moore violated Werner’s constitutional rights by his use of excessive force committed before any arrest, lawful or otherwise.
Defendants’ motion in the District Court did not identify precisely when and how Moore arrested Werner and, in particular, did not comment upon whether a seizure or arrest occurred when Moore ordered Werner to take a seat in his car.  Similarly, Moore did not identify precisely when and upon what facts he determined that he had “probable cause” to arrest Werner.  Nonetheless, Moore wanted the District Court to apply the doctrine of judicial estoppel and grant summary judgment apparently upon argumentative conclusions that Moore arrested Werner; that Moore had probable cause to do so and that the force he employed was objectively reasonable.
When Moore arrived parking behind Werner’s vehicle he reportedly suspected (apparently upon observing “angry faces”) that a “possible DV, verbal” had been committed.  However, there is no evidence that the criminal offense suspected by Moore (i.e., “DV, verbal”) was actually committed let alone in the presence of Officer Moore.  Under Washington law, domestic violence of a verbal nature or type alluded to by Moore would at most constitute a misdemeanor or gross misdemeanor. (See RCW 9A.46.020 (Penalties for harassment).  Under Revised Code of Washington 10.31.100 entitled “Arrest without warrant”, a police officer may arrest a person without a warrant for committing a misdemeanor or gross misdemeanor only when the offense is committed in the presence of the officer (subject to certain exceptions none of which defendants identify here).  See RCW 10.31.100 and ER 136-138. See also, State v. Hornaday, 105 Wn.2d 120, 123 (1986).    However, plainly, Moore never obtained any evidence to support suspected ‘DV, Verbal’ and when he asked the Leif and Leah whether “everything was okay” they immediately responded “yes; everything is okay.”
So why did Moore, with his patrol vehicle flashers signaling official business, order Leif to get into his vehicle and stay there?  Moore’s written report(s) provide some clues.  Moore states that Werner “yelled” at him “something about his wife not liking cops or being afraid of cops” while pointing his index finger at Moore’s chest.   Moore states he felt like Werner was going to assault him due to these actions so he ordered Werner to confine himself to his car. According to Moore, when Werner allegedly refused to go to his car indicating that “he didn’t have to”, Moore grabbed Werner’s right arm to handcuff Werner at which time Werner reportedly responded “no” and pulled away.    In response, Moore reports that he then grabbed Werner again and “tried to apply level one control arm bar techniques”.  When Werner, according to Moore, continued to refuse to cooperate with Moore’s instructions, Moore reports that he grabbed his taser and performed a contact taser on Werner. 

One problem with Moore’s action(s) is that when he ordered Werner to be confined to his car he effectively seized and arrested Werner even though Werner had done nothing illegal in Moore’s presence.  Moore then, according to his version of events, used force to affect an arrest that was plainly illegal and lacked probable cause.  Even if one was to believe Moore’s version, the alleged yelling and pointing at Moore while indicating that his wife did not like or was afraid of cops did not constitute criminal conduct.   In Duran v. City of Douglas, Arizona, 904 F.2d 1372 (9th Cir. 1990), the Court of Appeals considered whether a police officer, Aguilar, properly detained Duran with physical force after Duran yelled profanities and made an obscene gesture at Aguilar, as well as refusing to obey Aguilar’s order to ‘step away from his car.’  In ruling that Aguilar’s arrest was unlawful, the court in Duran explained that: “…disgraceful as Duran’s behavior may have been, it was not illegal; criticism of the police is not a crime” and held that Duran’s yelling of obscenities at Aguilar was protected by the First Amendment. Id. at 1378. See also, City of Houston v. Hill, 482 U.S. 451 (1987) (the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers).  The Court in Duran also refused to apply the defense of qualified immunity finding that Aguilar should have known that he was acting illegally when he detained Duran by violating Duran’s rights under the Fourth and First Amendments to the Constitution.  Duran, 904 F.2d at 1378.  See also, Wilson v. Kittoe, 337 F.3d 392, 399 (4th Cir. 2003) (refusal to obey officer orders under the disputed facts would not generate probable cause). 

Similarly, when Moore ordered Werner back into his car  and shortly thereafter grabbed Werner from behind applying a chokehold , Moore plainly seized  Werner without probable cause and in violation of law. See also, Fourth Amendment, U.S. Constitution;  42 U.S.C. Section 1983.    Moore was required by law to have a warrant before seizing/arresting Werner for “possible DV, verbal” and Moore did not articulate any other alleged criminal act committed by Werner. See RCW 10.31.100; State v. Hornaday, 105 Wn.2d 120, 123 (1986). Defendants’ motion cannot be granted because, at a minimum, material issues of fact exist concerning whether Moore could lawfully confine, restrain or use any force against Werner for “possible DV, verbal” and/or other alleged acts of Werner characterized by Moore as “hostile and aggressive” (e.g., “pointing his finger” at Moore and “yelling at me about his wife not liking cops”).

Finally, Werner argued that Moore, in any event, did not claim that he had “probable cause” to arrest Werner for “disorderly conduct”; “assault”; “resisting arrest” and/or “obstructing” at any time prior to ordering Werner into his vehicle and then grabbing Werner from behind when Werner was in route and plainly there is no evidence to the contrary.  Moore himself does not characterize Werner’s conduct, which he observed up to that point, as criminal.  Moore merely characterizes a hunch about a “domestic situation” and that his contact with Werner could become “assaultive”.  Nonetheless, Moore apparently decided to act on his hunch by deciding to “place Werner in his car” and to “place [Werner] in handcuffs.” 

A reasonable juror even under Moore’s description and characterization of events could determine that Moore’s conduct in ordering Werner to his car and in the process seizing/arresting Werner were unlawful and perpetrated with excessive force.  But, certainly under the actual facts as explained by the Werners, Moore’s actions were outrageously unnecessary, excessive, and unlawful causing injury to Leif.  Summary judgment and any grant of qualified immunity under either factual scenario as presented by Moore or Werner was inappropriate. See Nelson v. City of Davis, 685 F.3d 867, 875 (9th Cir. 2012); Brooks v. City of Seattle, 661 F.3d 433 (9th Cir. 2011).    

[1] 42 U.S.C. § 1983, commonly referred to as "Section 1983" provides in pertinent part that:  “Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, Suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.***”.  Only "state actors" who are "acting under color of law" may be sued under Section 1983. "State actors" are generally government officials and employees, and the term should not be interpreted literally: municipal employees are likewise state actors for purposes of Section 1983. Thus, a police officer can be sued for excessive force in violation of a citizen’s constitutional rights, while (except in very limited circumstances) the bouncer at a tavern may not. Section 1983 claims may be brought in either federal or state court, in conjunction with other claims such as state law counts for battery or false imprisonment. "[T]he statute creates no substantive rights; it merely provides remedies for deprivations of rights established elsewhere." City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). "Section 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law." Baker v. McCollan, 443 U.S. 137, 146 (1979).

[2]  On August 21, 2008, Leif Werner, a 65 year old native of Sweden and retired civil engineer drove his African-American and art professor wife of 19 years to a Poulsbo bus stop  so that she could catch the Bainbridge ferry to a meeting at Antioch University where she taught art education.   Werner drove his wife to and from the Poulsbo bus stop on a regular basis because she did not drive.  Leif parked his 1986 Mercury Grand Marquis on a paved shoulder of the road across the street from the bus stop because his wife had a large wheeled briefcase with a lot of books in it.   The couple talked and Leif chided his wife a bit about procrastinating before their journey.  There was light traffic on the roadway and Leah planned to roll her briefcase across the road to the bus.   While the Werners unloaded his wife's briefcase from the couple’s car, Moore rolled up and stopped behind the Werners’ car in his patrol vehicle.   According to a written incident report prepared by Officer Moore, he had been driving northbound on SR 305 when he “noticed a vehicle stopped on the side of the road” containing “a male driver and a female passenger.”   Moore “could see that the occupants were older in age, possibly senior citizens” and “thought they may need some help.”   Moore reportedly noticed that the male and female “were exiting the vehicle and that both “appeared to have angry faces on” and “were exchanging word to each other” and it looked to him “like they may have been arguing.”   Moore pulled his patrol vehicle in  behind the Werners’ car and “turned on his lights”.   Moore stepped out of his squad car and shouted to Werners inquiring whether “Everything was okay?” to which the Werners responded “Yes; Everything is okay”.  In an effort overcome roadway noise and accommodate Moore, Leif then approached Moore’s patrol car on foot from a distance of 35 to 50 feet away to explain to Moore why his car was stopped on the shoulder of the road.   Specifically, Leif told Moore that his wife was going with the bus to Bainbridge Island.  Officer Moore, however, did not respond to Leif’s explanation and instead ordered Leif to go back to his car and sit in the vehicle.   Leif immediately complied with Moore’s order by turning away from Moore and started walking back to his driver-side door.   In route and without notice, however, Officer Moore suddenly approached Werner from behind grabbing Leif around the neck and applying a chokehold on Werner.   Leif in shock and scared to death by Moore’s action struggled to breath.   In response, Moore pulled his contact taser from a holster and fired it on the center of Leif’s body near his heart.   Leif felt a terrible and painful sensation losing control of his body completely falling down like a wet swab/noodle.     Thereafter, Moore and another officer that arrived at the scene, Stacey Smaaladen, secured the handcuffs on Werner and physically moving him to the backseat of Moore’s patrol car.  Moore was then transported Leif to the Kitsap County Jail where Leif was incarcerated until he was released the next day.  Leif was later charged in Kitsap County for alleged Assault in the Third Degree and Obstructing.   The prosecution was postponed however when the government decided to drop the assault charge and offered a pre-trial diversion agreement concerning a charge of Resisting Arrest, an offer accepted by Werner.   On February 15, 2011, the pending criminal case against Leif was dismissed with prejudice by the Kitsap County District Court.
Thereafter, Leif and his wife filed letter(s) of complaint with Poulsbo describing Moore’s unprovoked attack upon Leif and documenting the emotional and physical injuries caused by Moore’s actions.   Poulsbo informed the Werners that the incident would be investigated and that they would be informed of the outcome.   By letter dated April 27, 2009, Poulsbo informed the Werners that “after reviewing all available” evidence that Moore had been exonerated of any misconduct.   

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 under documents posted by the Law Offices of Eric Brian Johnson.