Opinion
No. 64301-1-I.
December 13, 2010. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for King County, No. 09-2-23679-8, Michael Hayden, J., entered September 25, 2009.
Affirmed by unpublished opinion per Spearman, J., concurred in by Becker and Appelwick, JJ.
Craig Kresser informed his Boeing supervisor, Kris Janssen, that he "did not feel well, he was light-headed, dizzy, and that he had no feeling in his left hand and was unable to pick up objects with the left hand." Janssen told Kresser to "take it easy" until his shift ended in one hour. Kresser went home following his shift and suffered a stroke sometime that evening. Kresser and his wife sued Boeing. Finding no set of facts consistent with the Kressers' complaint show Boeing violated any duty of an employer to keep a safe workplace, we affirm the trial court's order dismissing the case under CR 12(b)(6).
FACTS
Approximately one hour before his shift ended at Boeing, Craig Kresser informed his temporary supervisor, Kris Janssen, that he "did not feel well, he was light-headed, dizzy, and that he had no feeling in his left hand and was unable to pick up objects with the left hand." Janssen replied to Kresser "that his shift was nearly over and so he should just take it easy until he could leave for home." Kresser "went home following his shift."
The next morning, his family found him and called an ambulance. The symptoms Kresser had reported were the result of a transient ischemic attack (TIA, also known as a "mini-stroke") restricting the flow of blood to his brain. By the time Kresser reached Harborview Medical Center at 8:00 a.m., the opportunity for early medical intervention had passed. According to the complaint, Kresser "was beyond the 3 hour time window for tissue plasminogen activator (tPA) and the 6 hour window for neuroangio intervention and other stroke treatment" known to reduce the risk of permanent damage.
The Kressers sued Boeing and Janssen for failure to provide a safe workplace in violation of various WISHA regulations; failure to call for medical assistance in violation of Boeing policies; failure to make reasonable provisions for medical assistance for foreseeable emergencies; and negligent training of temporary supervisors. Defendants filed a CR 12(b)(6) motion to dismiss on grounds that none of the duties imposed on Washington employers by statute, regulation, or common law, required Boeing supervisors to accurately diagnose and assess the severity of an employee's medical symptoms. The trial court granted the motion, and the Kressers appeal.
DISCUSSION Standard of Review
A dismissal under CR 12(b)(6) is for "failure to state a claim upon which relief can be granted." "On a 12(b)(6) motion, a challenge to the legal sufficiency of the plaintiff's allegations must be denied unless no state of facts which plaintiff could prove, consistent with the complaint, would entitle the plaintiff to relief on the claim." Halvorson v. Dahl, 89 Wn.2d 673, 674, 574 P.2d 1190 (1978). "This weeds out complaints where, even if what the plaintiff alleges is true, the law does not provide a remedy." McCurry v. Chevy Chase Bank, FSB, 169 Wn.2d 96, 101, 233 P.3d 861 (2010). We review de novo the propriety of a trial court's dismissal of an action under CR 12(b)(6). Burton v. Lehman, 153 Wn.2d 416, 422, 103 P.3d 1230 (2005).
Common Law Duty to Provide a Safe Workplace
The Kressers contend Boeing breached a common law duty to provide a safe workplace by failing to "recognize and respond to" symptoms of a possible stroke. We disagree. None of the cases cited by the Kressers hold that an employer's duty to provide a safe workplace is so broad as to require the employer "to recognize and respond to" symptoms of a possible stroke. Rather, in each of the cases cited by the Kressers, the duty to provide a safe workplace was breached because the employee's injury or illness was actually related to or caused by conditions of employment.
Two of the cases involve bodily injury caused by the foreseeable criminal conduct of third parties. In Nivens v. 7-11 Hoagy's Corner, 133 Wn.2d 192, 943 P.2d 286 (1997), after a customer was assaulted by a group of youths at a 7-11 with a history of violence in the parking lot, the Supreme Court held that businesses have a duty to take reasonable steps to protect business invitees from reasonably foreseeable criminal conduct by third parties. Nivens, 133 Wn.2d at 194-95. In Bartlett v. Hanover, 9 Wn. App. 614, 513 P.2d 844 (1973) ( rev'd on other grounds, 84 Wn.2d 426, 526 P.2d 1217 (1974)), a motel manager who had previously been robbed on the job was shot in the head. The court held that "employer has a duty to make reasonable provision against foreseeable dangers of criminal misconduct to which the employment exposes the employee." Bartlett, 9 Wn. App. at 621. Here, there is no allegation of foreseeable third party criminal conduct, nor any allegation of danger of TIA or stroke caused by Kresser's employment at Boeing.
The Kressers also cite Hoffman v. Gamache, 1 Wn. App. 883, 465 P.2d 203 (1970) and McCarthy v. Dep't of Social Health Services, 110 Wn.2d 812, 759 P.2d 351 (1988). But again, in both of these cases, a duty existed because the injury suffered by the employee was caused by conditions of employment. In Hoffman, the plaintiff lost two fingers in chopper blades in defendants' hop-picking machine after protective glass had been removed by the employer. Hoffman, 1 Wn. App. at 886. In McCarthy, not only was the plaintiff's pulmonary disease caused by exposure to tobacco smoke in the workplace, but the employer knew about the exposure and refused to make any accommodations to ameliorate the exposure. McCarthy, 110 Wn.2d at 822. Here, by contrast, there is no similar duty because there is no allegation that Kresser's TIA or stroke was caused by his employment at Boeing.
In sum, none of the cases cited by the Kressers hold that an employer's duty to provide a safe workplace is so broad as to require the employer "to recognize and respond to" symptoms of a possible stroke.
Duties Under WISHA to Provide a Safe Workplace
The Kressers next argue Boeing breached duties to provide a safe workplace under the Washington Industrial Safety and Health Act ("WISHA") and various regulations promulgated there under. The Kressers, however, simply make the bare allegation that Boeing violated multiple statutes and regulations without providing meaningful argument, citation to authority, or explanation as to how Boeing's actions violated duties specified in those statutes and regulations. See Opening Brief at 23-25. In general, "[p]assing treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration." Holland v. City of Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290 (1998) (citing State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992)). But even if we were to consider the issue, we reject Kresser's arguments.
The Kressers contend Washington Administrative Code ("WAC") sections 296-126-094, 296-800-11010, and 296-800-11035 required Boeing "to recognize and respond to" his symptoms. Those regulations read as follows:
General duty — Working conditions. It shall be the responsibility of every employer to maintain conditions within the
work place environment that will not endanger the health, safety or welfare of employees. All facilities, equipment, practices, methods, operations and procedures shall be reasonably adequate to protect employees' health, safety and welfare.
Provide and use means to make your workplace safe. You must:
• Provide and use safety devices, safeguards, and use work practices, methods, processes, and means that are reasonably adequate to make your workplace safe.
— Do not remove, displace, damage, destroy or carry off any safety device, safeguard, notice or warning, furnished for use in any employment or place of employment.
— Do not interfere with use of any of the above.
— Do not interfere with the use of any method or process adopted for the protection of any employee.
— Do everything reasonably necessary to protect the life and safety of your employees.
Establish, supervise, and enforce rules that lead to a safe and healthy work environment that are effective in practice. You must:
• Establish, supervise, and enforce rules that lead to a safe and healthy work environment that are effective in practice.
The purpose of these regulations is not to transform an employer into a guarantor of an employee's good health. Rather, the purpose is to ensure employers maintain a safe workplace environment, so that employees do not become injured on the job. Indeed, in the statute itself, the legislature clearly stated the purpose of WISHA:
The legislature finds that personal injuries and illnesses arising out of conditions of employment impose a substantial burden upon employers and employees in terms of lost production, wage loss, medical expenses, and payment of benefits under the industrial insurance act. Therefore, in the public interest for the welfare of the people of the state of Washington and in order to assure, insofar as
may reasonably be possible, safe and healthful working conditions for every man and woman working in the state of Washington, the legislature in the exercise of its police power, and in keeping with the mandates of Article II, section 35 of the state Constitution, declares its purpose by the provisions of this chapter to create, maintain, continue, and enhance the industrial safety and health program of the state, which program shall equal or exceed the standards prescribed by the Occupational Safety and Health Act of 1970 (Public Law 91-596, 84 Stat. 1590).
. . .
Each employer:
(1) Shall furnish to each of his or her employees a place of employment free from recognized hazards that are causing or likely to cause serious injury or death to his or her employees: PROVIDED, That no citation or order assessing a penalty shall be issued to any employer solely under the authority of this subsection except where no applicable rule or regulation has been adopted by the department covering the unsafe or unhealthful condition of employment at the work place; and
(2) Shall comply with the rules, regulations, and orders promulgated under this chapter.
RCW 49.17.010, .060.
The Kressers also cite WAC 296-800-150,-15005, and-15020 in support of their argument. Subsection 150, which is the rule summary relating to first aid regulations, provides:
Rule summary. Your responsibility: Make sure first-aid trained personnel are available to provide quick and effective first aid.
You must:
Make sure that first-aid trained personnel are available to provide quick and effective first aid.
WAC 246-800-15005 [ 296-800-15005.].
Make sure appropriate first-aid supplies are readily available.
WAC 296-800-15020.
Make sure emergency washing facilities are functional and readily accessible.
WAC 296-800-15030.
Inspect and activate your emergency washing facilities.
WAC 296-800-15035.
Make sure supplemental flushing equipment provides sufficient water.
WAC 296-800-15040.
Subsection-15005 provides that "`[i]n the absence of an infirmary, clinic, or hospital in near proximity to the workplace, which is used for the treatment of all injured employees, a person or persons shall be adequately trained to render first aid.'" Subsection-15020 simply provides that first-aid supplies must be available and appropriate to the work environment. These rules do not apply here because, as the Kressers admit in their complaint, Boeing's Everett facility had available both a medical clinic and emergency personnel on standby.
In short, no set of facts consistent with the Kressers' complaint show Boeing violated any duties under WISHA or the WISHA-related regulations listed in the Kressers' complaint and briefing on appeal.
"Humane Instincts" Doctrine
The Kressers next claim Boeing violated duties owed under what has been labeled the "humane instincts" doctrine. We disagree. Washington courts have never adopted this doctrine, and even if they had, the facts alleged in the complaint do not show Boeing violated any such doctrine.
The Kressers contend Washington "recognizes" the "humane instincts" doctrine, which is an embodiment of the Restatement (Second) of Agency § 512(2) (1958):
If a servant is hurt and thereby becomes helpless when acting within the scope of employment and this is known to the master or to a person having duties of management, the master is subject to liability for his negligent failure or that of such person to give first aid to the servant and to care for him until he can be cared for by others.
According to the Kressers, our Supreme Court "approved" this doctrine in Vanderboget v. Campbell Mill Co., 82 Wash. 602, 144 P. 905 (1914). The Kressers' reading of this case is simply incorrect. The Kressers write, "The court further observed that this rule had been `[adopted] by many courts of the highest learning and respectability,' . . ." The Kressers admit in footnote 5, however, that the original word in that sentence was not "adopted" but was instead "rejected". They go on to claim it is "clear from the context of the opinion and the authorities cited by the court" that use of the word "rejected" was a mistake, and that "the court intended to state that the rule had been `adopted' in those jurisdictions." Id., n. 5. This too, is incorrect. Our Supreme Court wrote:
It has been held in some jurisdictions that, while a corporation is not responsible generally for medical or surgical aid to a sick or injured employee, it is obligated to render an employee such assistance in extreme cases where immediate attention is required to save life or prevent great injury. It is said that the duty begins and ends with the emergency. It has been held that, in a railroad accident where an employee is seriously injured on the road at a place remote from the center of authority, the highest representative of the company present, from the necessities of the case, has authority to employ medical and surgical aid. The rule has usually, if not always, been applied to railroad corporations, and the liability has been limited to cases in which there was an extreme emergency calling for immediate medical or surgical attention. Terre Haute I. R. Co. v. McMurray, 98 Ind. 358, 49 Am. Rep. 752; 31 Cyc. 1400; Sourwine v. McRoy Clay Works, 42 Ind. App. 358, 85 N. E. 782; King v. Forbes, etc., Co., 183 Mass. 301, 67 N. E. 330; Cushman v. Cloverland, etc., Co., 170 Ind. 402, 84 N. E. 759, 16 L. R. A. (N.S.) 1078, 127 Am. St. Rep. 391; Sevier v. Birmingham, etc., R. Co., 92 Ala. 258, 9 South, 405.
Though we should adopt the rule of these cases — and it has been rejected by many courts of the highest learning and respectability — no emergency was shown in this case which would enlarge the powers of a subordinate representative, such as Murphy, for two reasons, (a) The appellant had already made reasonable provision for medical and surgical attention and hospital care, and
(b) the appellant's place of business was near Seattle, had telephonic communication with it, and its representative officers could have been readily communicated with.
Vanderboget, 82 Wash. at 604-05. While use of the word "though" in this context is old-fashioned, a plain reading of these paragraphs indicates the Court is using the word "though" in the same manner as courts today use the phrase "even if". Thus, contrary to Kresser's argument, the Court did not adopt the rule. Rather, it held that "even if" it adopted the rule (a rule it noted was "rejected" by "many courts"), the rule did not apply to the facts of the case.
Additionally, the Kressers' claim that the cases cited in the above paragraph "all . . . recognized the rule" is incorrect. As a preliminary matter, those cases were not cited to show approval or rejection of the rule. Rather, they were cited in support of the Court's statement that some jurisdictions have held the employer is obligated to provide medical assistance to injured employees, especially in "extreme cases" involving railroad accidents. Moreover, contrary to Kressers' description, some of those cases reject the rule. See Sevier v. Birmingham, S. T.R.R. Co., 9 So. 405 (Ala. 1891) (holding that although railroad company is "under no legal obligation to provide surgical attendance for an injured employee," the authority to contractually incur such a duty is implied); Sourwine, 85 N.E. at 782 ("Corporations whose `business is stationary' are under no duty `to furnish their workmen with medical services, any more than they should be required to furnish them with their dinner'" (quoting Cushman, 84 N.E. at 762)) ("as a rule the severity of the injury does not affect the question of its liability, and even should death result from a failure of immediate aid the amount and basis of liability would not be changed").
In sum, no Washington court has adopted or "approved" the "humane instincts" doctrine. But even if it was the law in Washington, the facts alleged in the Kressers' complaint do not fit within the doctrine. Again, this doctrine applies when an employee becomes helpless when acting within the scope of employment; the helplessness is known to the employer; and the employer then fails to give the person first aid. Restatement (Second) of Agency § 512(2) (1958). Here, the facts as pled in the complaint do not show that Kresser was helpless, that Boeing knew or should have known about any alleged helplessness, or that Boeing failed to give first aid. Indeed, according to the complaint, Boeing had a medical center and personnel available, and the temporary supervisor told Kresser to "take it easy" until the end of his shift, which was an hour away. Kresser, however, did not contact any medical personnel at Boeing, nor did he seek treatment after his shift ended. Instead, he went home.
The Kressers cite cases from other jurisdictions in support of their argument, including Carey v. Davis, 180 N.W. 889 (Iowa 1921). In that case, a farm laborer became overheated while working in a gravel pit under the sun, and lost consciousness. Carey, 180 N.W. at 890. Rather than render first aid, his employers but him in a wagon box in a location that was even more exposed, and he was left there for four hours. Id. This is unlike the facts in this case. Kresser did not collapse and lose consciousness, nor was he helpless. Rather, he told his supervisor that he "did not feel well, was light headed, dizzy, and that he had no feeling in his left hand and was unable to pick up objects with the left hand." Although the Kressers claim they do not seek to impose a duty to diagnose illnesses upon employers, the standard proposed in their brief does just that: "an employer need only be prepared to recognize and respond to the classic, well-known symptoms of serious illnesses and injuries that may arise suddenly in the workplace[.]"
The Kressers also contend that given the court must draw all reasonable inferences in their favor, we "must therefore assume that Mr. Kresser's speech and mobility were impaired, that he exhibited physical indication that he was in emergent danger due to illness, and that he was unable to arrange his own transportation to a hospital[.]" But these are not "reasonable" inferences; rather, they amount to speculation.
In sum, Washington has not adopted the "humane instincts" doctrine, and even if it had, there are no facts alleged in the complaint that could show Boeing violated the doctrine.
Affirmed.