Opinion
Nos. 64403-3-I; 64502-1-I.
April 4, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for King County, No. 08-2-09504-5, Jim Rogers, J., entered September 30, 2009.
Affirmed by unpublished opinion per Leach, A.C.J., concurred in by Appelwick and Schindler, JJ.
In December 2005, a fire caused significant damage to Laurel and Paul Moldon's Bainbridge Island house when cedar siding stored near the Moldons' generator became too hot and ignited. After Farmers Insurance Company of Washington reimbursed the Moldons, it brought a subrogation action against several defendants, including D Square Energy Systems Inc., which had serviced the generator two months before the fire. Farmers appeals the trial court's summary dismissal of its negligence claim against D Square. Because Farmers fails to demonstrate any genuine issue of material fact regarding breach of duty, we affirm.
FACTS
In 2002, Laurel and Paul Moldon moved into a custom-built house on Bainbridge Island. Due to the possibility of frequent power outages, the Moldons installed an automatic emergency generator manufactured by Magnum Products. In the space between the house's garage and the generator, the Moldons stored bundles of excess cedar siding.
On October 25, 2005, Tim Cislo, a D Square service technician, performed basic maintenance on the generator's Kohler-manufactured engine. The Moldons' house lost its power on December 25, and the generator ran all day. A piece of cedar siding had fallen under the generator's exhaust outlet. When it became too hot, a fire started, burning through the line that fed propane to the generator, igniting the released gas, and spreading to the Moldons' nearby garage and house. The fire caused significant damage.
Magnum Products "packages" its generators, assembling them out of parts produced by other manufacturers.
Farmers reimbursed the Moldons and brought a subrogation action, claiming that Magnum was liable under the Washington products liability act, chapter 7.72 RCW, and that those involved in the installation and service of the generator were negligent. The complaint named D Square as a defendant and alleged, "D Square serviced the generator while the combustibles were stacked next to it and had a duty to alert Moldon to the situation."
D Square moved for dismissal under CR 12(b)(6) or, in the alternative, CR 56. D Square asserted that it "had no duty to warn the homeowner of a non-dangerous condition near a generator it serviced. Further, there is no evidence the condition that caused the loss existed when the unit was serviced two months earlier." The court denied the motion, concluding as a matter of law that D Square "assumed a duty to warn of obvious dangers/hazards." D Square filed a motion for reconsideration, which the court also denied.
A year later, D Square again moved for summary judgment "because there is no evidence an obvious danger/hazardous condition existed when the unit was serviced, and thus no duty to warn the homeowner." D Square supported its motion with the declarations and deposition testimony of Cislo and D Square's expert witness, Richard Carman.
Cislo testified that when he serviced the engine, he noticed the cedar "alongside the garage to one side of the generator, and some scrap wood bundled with blue tape stacked along the garage on the other side." Cislo said he could walk between the bundles and the generator. To service the engine, Cislo opened the unit, changed the oil filter, and added oil. He made sure there was no debris inside the unit. Cislo had a clear memory that nothing was underneath the exhaust. Cislo remembered that there was no wood stacked or fallen against the generator at the time of service. Cislo stated that if there had been wood under the generator, he would have moved it. And if there had been wood against the generator or under the exhaust, he would have warned the Moldons. Cislo testified that he was not concerned that the woodpile was too close to the generator or presented a hazard.
Carman, a nationally certified fire investigator who investigates the origins and causes of fires and explosions, examined the Moldon property in February 2006. Carman testified that he observed a pile of scrap cedar to the east of the generator. He determined that blue painter's masking tape originally bound the pieces of cedar together in bundles, and the cedar was stacked 16 inches high a distance of 18 inches from the generator. He opined that 18 inches was too far from the exhaust for the wood to ignite. In Carman's opinion, at some point before the fire, the pile collapsed when the tape holding the bundles together came undone due to weather or possibly the vibrations from the generator. According to Carman, the bundles were too far away from the generator to have come undone due to the heat from the exhaust. Carman explained that when the woodpile collapsed, some of the wood slid under the generator near the exhaust pipe. The hot exhaust ignited the cedar scraps, causing the fire.
In paragraph 12 of his declaration, Carman stated that only an expert could have foreseen the possibility of fire:
To foresee that the cedar siding — taped and neatly stacked a safe distance from the exhaust — would collapse toward the generator, slide all the way under the generator to be directly under the exhaust, and ignite would require specific training in ignition sources, ignition temperatures, and combustibles generally found only in experts such as myself. A generator service technician performing basic maintenance would not have such training.
Magnum moved to strike paragraph 12 of Carman's declaration, arguing it was inadmissible under ER 702. Farmers joined the motion, which the court denied.
In response to D Square's motion for summary judgment, Farmers argued that whether cedar stacked within 18 inches of the generator constituted an obvious hazard was a question of fact inappropriate for summary judgment resolution. Farmers also argued that the generator was installed too close to the Moldons' house (9 inches) and "[D Square's] service technician should have been able to recognize that it was installed only 9" away from the house, and that location caused the fire and furthered its spread." Therefore, the service technician should have warned the Moldons about the dangers of the installation.
Magnum Products also filed a brief in opposition to D Square's motion for summary judgment. Magnum argued, "[T]here is ample evidence to indicate that the wood was indeed an `obvious' hazard." Magnum argued that Cislo should have read the Magnum generator owner's installation manual and should have known the manual required three feet of clearance around the generator. In support of its position, Magnum referenced the testimony of D Square's vice president, Don Dunavant, who testified that he "expects [his] technicians to follow the owner's manual regarding service." Magnum also submitted portions of the deposition testimony of Paul Way, Farmers' expert. Way testified, "If the generator had been three feet away from the wall of the house and if all combustible materials had been kept away from the generator then it's unlikely this fire would have happened, and that is one thing that is mentioned in the manual."
In reply, D Square argued that Cislo was not required to read the manual. D Square contended that Magnum misstated Dunavant's deposition testimony, attaching the pertinent portion of that testimony, which reads,
Q: Would you expect your service tech' [sic] who goes out to service the Moldon's [sic] generator to follow the manufacturer's instructions regarding servicing that?
A: We do. That was a Kohler generator, and we're certified on Kohler engines. I mean, it's a Kohler engine, and we're certified on Kohler engines.
Dunavant stated that a service technician would consult the Magnum manual only if called on to repair a problem with the generator itself, as opposed to servicing the Kohler engine.
The court heard the arguments of counsel regarding D Square's summary judgment motion and granted D Square summary judgment five days later. In its order, the court stated that it relied on: the argument of counsel, D Square's motion for summary judgment and the attached declarations, Farmers' response to D Square's motion and the attached declaration, Magnum Product's opposition to D Square's motion for summary judgment and the attached declaration, and D Square's reply brief and the attached declaration.
Farmers moved to amend the summary judgment order to add CR 54(b) language to indicate that it was final and appealable. Meanwhile, Farmers sought discretionary review in this court. Later, the trial court granted Farmers' motion to amend and entered the amended order. Following receipt of the amended order, a commissioner of this court ruled, "In view of the amended order granting summary judgment, the notice of discretionary review will be treated as a notice of appeal. Review in No. 64502-1-I is consolidated under No. 64403-3-I."
Farmers appeals the trial court's summary judgment order. D Square cross-appeals, challenging the court's denial of its 2008 motion for summary judgment.
STANDARD OF REVIEW
This court reviews an order granting summary judgment de novo, engaging in the same inquiry as the trial court. Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. In determining whether a genuine issue of material fact exists, this court construes the facts and reasonable inferences therefrom in the light most favorable to the nonmoving party.
Hayden v. Mut. of Enumclaw Ins. Co., 141 Wn.2d 55, 63-64, 1 P.3d 1167 (2000).
CR 56(c).
Gossett v. Farmers Ins. Co. of Wash., 133 Wn.2d 954, 963, 948 P.2d 1264 (1997).
ANALYSIS
Farmers contends that the trial court should have denied D Square's summary judgment motion because "there were disputed factual questions which should not have been decided by the court as a matter of law." A plaintiff alleging negligence "must establish the existence of a duty, a breach thereof, a resulting injury, and proximate causation between the breach and the resulting injury." While issues of negligence and causation are questions of fact not usually susceptible to summary judgment, "a question of fact may be determined as a matter of law when reasonable minds can reach only one conclusion."
Schooley v. Pinch's Deli Mkt., Inc., 134 Wn.2d 468, 474, 951 P.2d 749 (1998).
Miller v. Likins, 109 Wn. App. 140, 144, 34 P.3d 835 (2001) (citing Ruff v. County of King, 125 Wn.2d 697, 704, 887 P.2d 886 (1995)).
On summary judgment, the moving party bears the initial burden of showing the absence of a genuine issue of material fact. The moving party can meet this burden by showing that there is an absence of evidence supporting an element of the nonmoving party's case. Once the moving party meets its initial burden, the burden shifts to the nonmoving party to provide evidence of specific facts demonstrating a genuine issue for trial. Summary judgment is appropriate if the nonmoving party fails to meet this burden — a complete failure of proof on an essential element of that party's case renders all other facts immaterial.
Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989).
White v. Kent Med. Ctr., Inc., 61 Wn. App. 163, 170, 810 P.2d 4 (1991).
Young, 112 Wn.2d at 225.
Young, 112 Wn.2d at 225 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).
D Square claims that it met its initial burden as the moving party by producing evidence that it did not breach its duty to warn the Moldons of obvious hazards. It asserts that it established the absence of any evidence of an obvious hazard. We agree. Cislo testified that the cedar was not under the generator when he serviced it. He said he could walk around the generator and that he was not concerned the wood posed a threat. Carman testified that the cedar could not have ignited where Cislo observed it stacked; if the blue tape had not failed and the bundles had not fallen, the cedar would not have ignited. Carman also said that only someone with his training would have realized the potential fire hazard that the taped cedar stacks posed. This testimony supports the conclusion that the wood was not an obvious hazard and D Square did not breach its duty to warn.
Farmers contends that there was conflicting expert testimony about the location of the cedar siding and about the cause and origin of the fire, creating a genuine issue of material fact. Farmers relies entirely on quoted portions of a report compiled by Independent Forensics Inc. and the deposition testimony of Farmers' expert, John Shouman. But these documents were not identified in the trial court's order as ones it considered when making its summary judgment determination. RAP 9.12 provides that
The Independent Forensics report was part of Magnum's pleadings filed in opposition to D Square's first summary judgment motion in 2008. Magnum referenced the report in its 2009 opposition brief but did not append the report to its brief. And John Shouman's deposition was part of Farmers' pleadings filed in response to a different defendant's motion for summary judgment.
[o]n review of an order granting or denying a motion for summary judgment the appellate court will consider only evidence and issues called to the attention of the trial court. . . . Documents or other evidence called to the attention of the trial court but not designated in the order shall be made a part of the record by supplemental order of the trial court or by stipulation of counsel.
Farmers failed to take the steps to supplement the record or to obtain D Square's stipulation. Therefore, we do not consider the cited documents. Without these documents, Farmers' claim of conflicting evidence is supported by argument alone. Mere allegations or conclusory statements of fact, unsupported by evidence, do not sufficiently establish a genuine issue. The nonmoving party "may not rely on speculation, argumentative assertions that unresolved factual issues remain, or in having its affidavits considered at face value. Farmers' bare argument, therefore, is insufficient to avoid summary judgment.
Baldwin v. Sisters of Providence in Wash., Inc., 112 Wn.2d 127, 132, 769 P.2d 298 (1989).
Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986).
In addition, our review of the documents the court considered satisfies us that the evidence does not support an inference that the wood was an obvious hazard. Cislo was the only person who testified about the location of the wood when he serviced the generator. Farmers did not introduce any evidence to refute Cislo's testimony. Also, Farmers produced no evidence that the location of the cedar, as Cislo described it, constituted an obvious hazard or that the wood was stacked in an obviously hazardous way. Farmers' expert, Paul Way, could not determine the point of ignition, and he did not have an opinion on how close the cedar had to have been to ignite. Similarly, Farmers' expert, John Shouman, could not determine where the bundles had been. And he could not say on a more probable than not basis that the wood could have ignited at a distance of more than a foot from the generator. No one contradicted Carman's statement that only an expert would have realized the fire safety risk that the wood posed at its location, taped and stacked as observed by Cislo.
Farmers also argues that the pile was unstable, based on Way's testimony: "The pile itself was large enough that it wouldn't move by itself unless it were piled in an unstable manner to begin with and slumped downwards on either side which would put it further underneath the duct." Farmers claims that this testimony contradicts Carman's testimony that the wood was "safely stacked." Farmers mischaracterizes Carman's testimony, which reads that the cedar was "neatly stacked a safe distance from the exhaust." No one contradicted Carman's testimony that 18 inches constituted a safe distance.
Farmers failed to present any evidence showing that the wood was an obvious hazard. Because Farmers failed to present this evidence, reasonable minds could not differ on whether D Square breached its duty to warn of an obvious hazard, an essential element of Farmers' negligence claim. Therefore the trial court appropriately granted D Square's motion for summary judgment.
But Farmers claims that D Square was negligent for other reasons and, as a result, summary judgment should not have been granted: "D Square had the burden of establishing that there was no negligence, not just that the cedar siding was not a hazardous condition." Although Farmers' complaint alleged only that D Square had a duty to alert the Moldons that combustibles were stacked next to their generator, it now lists these "other potential bases for liability": (1) failure to warn that the generator was too close to the house and the garage, (2) failure to consult the Magnum manual before servicing a Magnum generator for the first time, (3) ignorance of the setback requirements for a Magnum generator, (4) failing to train and/or require Cislo to be familiar with UL 2200 standards, (5) failure to perform a basic safety inspection of the generator, and (6) entering into a service contract to maintain a generator knowing that it lacked knowledge and experience with Magnum generators. Several of these arguments are duplicative, and all of them are unpersuasive.
UL 2200 is an electrical standard for stationary engine generators developed by Underwriters Laboratory.
The first three claims can be subsumed under the general notion that Cislo should have read the Magnum manual before servicing the generator's Kohler-manufactured engine. The manual clearly instructs to allow "3 feet of clearance around the entire generator for maintenance, service, exhaust gases." While the manual's instructions are clear, no witness testified that Cislo should have read them.
The Restatement (Second) of Torts sets forth the standard of care for professionals: "[O]ne who undertakes to render services in the practice of a profession or trade is required to exercise the skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities." The only testimony regarding the standard of care for generator service technicians came from Don Dunavant, D Square's vice president and operations manager. Dunavant testified that Cislo performed basic maintenance on the generator, which meant changing the oil, checking the spark plugs, and cleaning the interior of debris. He said that he expects basic service technicians, like Cislo, to service Kohler engines using the Kohler manual. Because no witness testified that a reasonable service technician would have read the Magnum manual, there is no evidence that Cislo should have been aware of the three-foot setback requirement. We reject Farmers' argument that D Square was negligent for failing to read the manual.
§ 299A (1965).
Magnum's manual also directs service technicians to refer to the Kohler manual for guidance when working on the generator's engine.
The fourth, fifth, and sixth bases were not argued below. Generally, arguments or theories not presented to the trial court will not be considered on appeal. This is especially true for summary judgment proceedings, where "the appellate court will consider only evidence and issues called to the attention of the trial court." Farmers failed to preserve these issues for our review.
RAP 2.5(a); see also Washburn v. Beatt Equip. Co., 120 Wn.2d 246, 290, 840 P.2d 860 (1992).
RAP 9.12.
Additionally, the trial court has not yet ruled on UL 2200's applicability in Washington state; Farmers supports its argument that Cislo knew nothing about the stability of the woodpile with citation to the deposition testimony of Paul Moldon, who stated he could not recall how the cedar was stacked; and the Moldons entered into the service contract with D Square on October 31, 2005, six days after Cislo serviced the engine. The service contract therefore has no bearing on any negligence that might have occurred before it was formed.
In challenging the court's order granting summary judgment, Farmers also claims that "D Square is not entitled to an inference that the [cedar siding] collapse was after October 25, 2005," the date Cislo serviced the engine. Because Carman testified that he did not know exactly when the cedar collapsed, Farmers argues, the court should have inferred that the collapse occurred before Cislo serviced the engine. Farmers reasons that "[i]f the woodpile had already collapsed at the time of D Square's service call, it was a hazardous condition at that time using D Square's own analysis, and Mr. Cislo should have warned the Moldons." Farmers misapplies the rule that the court resolves all inferences in favor of the nonmoving party. A party may not use speculation or conjecture to defeat a summary judgment motion, and any inference must be grounded in some evidence. Cislo unambiguously testified that the cedar was not under the exhaust when he serviced the generator's engine. Farmers introduced no evidence to contradict that testimony. Because Farmers failed to introduce specific facts demonstrating a genuine factual issue, the record before the trial court contained no evidence permitting the inference that the cedar fell before October 25.
Miller, 109 Wn. App. at 145 (citingRuff, 125 Wn.2d at 707).
Next, Farmers claims that the trial court erred when it denied Magnum Product's motion to strike a portion of Carman's testimony. Farmers argues that Carman's testimony did not meet the admissibility standards for expert opinion under ER 702 and ER 703 because it was within the ken of the ordinary layperson. We review evidentiary rulings made in connection with a summary judgment ruling de novo.
Farmers also argues that Carman was not qualified to make the statements in paragraph 12 and that paragraph 12 is simply Carman's opinion. But Farmers failed to object on these bases below; therefore it failed to preserve these arguments on appeal. Also, the evidence rules explicitly allow experts to state their opinions. ER 702.
Ensley v. Mollmann, 155 Wn. App. 744, 752, 230 P.3d 599 (2010).
Farmers, however, fails to provide this court with the evidence relied on by the trial court. Under RAP 9.2(b), Farmers had the burden of establishing a complete record that would permit this court to review its assignment of error. The court's order denying Magnum's motion states that the court relied on "Defendant Magnum Products Motion to Strike Portions of the Carman Declaration, with Declaration of Emilia Sweeney with Exhibits A-B; Response of Defendant D-Square in Opposition,with Declaration of Tracy Antley-Olander and Exhibits 1-2; and Magnum Products Reply Brief." (Emphasis added.) Farmer's has not provided this court with the trial court's order denying Magnum's motion to strike, Emilia Sweeney's declaration, Tracy Antley-Olander's declaration, or Magnum Product's reply brief. Farmers therefore failed to meet its burden to produce all of the record relevant to the issue. We decline to review Farmers' argument that the trial court improperly denied the motion to strike paragraph 12.
See also State v. Rienks, 46 Wn. App. 537, 544-45, 731 P.2d 1116 (1987) (stating that appellant has the burden of perfecting the record so the reviewing court has before it all of the evidence relevant to the issue, and matters not within the record will not be considered on appeal.).
Accessed through King County's electronic court records.
CONCLUSION
Because there is no genuine issue of material fact regarding whether D Square breached its duty to warn the Moldons of obvious hazards, we affirm the trial court's order granting D Square's motion for summary judgment. As a result of this disposition, we need not consider D Square's cross appeal challenging the denial of its first motion for summary judgment.