Opinion
No. 60067-2-I.
April 27, 2009.
Appeal from a judgment of the Superior Court for King County, No. 05-2-42228-9, Jeffrey M. Ramsdell, J., entered April 30, 2007.
Affirmed by unpublished opinion per Becker, J., concurred in by Appelwick and Lau, JJ.
Speculation and conjecture cannot defeat summary judgment when the moving party meets its initial burden of demonstrating an absence of a genuine issue of material fact. Nor may a party create a genuine issue of fact by contradicting their deposition testimony without explaining their change in position. Sui Wong failed to present evidence supporting the causation elements of her claims of nuisance and trespass by water, and offered no explanation for her change in position disclaiming other trespass damages. We affirm the order on summary judgment dismissing Wong's suit for nuisance and trespass against her former neighbors, Robert and Rose Richards.
The Richards and Mrs. Wong were next-door neighbors. In 1998, the Richards installed a lawn by elevating a corner of their property and constructing a small retaining wall. Sometime over the next year or two, cracks of up to 1/8 inch in width developed in Wong's concrete driveway that ran parallel to the wall.
Robert Richards knocked on Wong's door one evening in March 2003, to complain about noise she was making that was keeping his toddler awake. Wong refused to stop, and Richards called police. When an officer arrived, Wong claimed Richards had trespassed and damaged her front door, but the officer saw no damage and told Wong the path to her door was open to the public. The officer asked Wong to stop making the noise.
After the officer left, Wong stood in the Richards' yard and banged on a metal box with a wooden spoon. Richards called police again, who found Wong in the yard with the spoon and box. Wong was arrested for creating a public disturbance and criminal trespass and spent the night in jail. She later stipulated to a no contact order in municipal court to get the charges dismissed.
In December 2005, Wong filed a complaint against the Richards pro se, seeking damages for trespass, misrepresentation, nuisance and abuse of process. She claimed, among other things, that Robert Richards damaged her front door. Wong also sought punitive damages and costs resulting from her municipal court case. In 2006, after Wong obtained counsel, she was deposed. When questioned about the basis for her claim for damage to her front door, Wong repeatedly stated that she claimed no damages for the door.
In January 2007, Wong filed an amended complaint. She added claims for nuisance and trespass by water against the Richards based on their retaining wall and her allegation that they were over-watering their lawn. She also sought a declaratory judgment to limit the Richards' and other neighbors' use of an easement over her property.
The Richards moved for summary judgment. For purposes of Wong's nuisance and trespass by water claims they relied on the affidavit of expert construction analyst Mark Lawless, who opined that the cracks in Wong's driveway were exclusively caused by the construction defect that the slab had no expansion or control joints, rather than as a consequence of the Richards' retaining wall. Regarding the claim that Robert Richards damaged Wong's front door, the Richards cited Wong's deposition answers disclaiming such damages.
Wong filed affidavits containing lay opinions from herself, her husband, and tenants who at that time resided in her house. She also retained an expert civil engineer, Mark Nordstrom, who provided a letter report. In his report, Nordstrom discussed the possibility that the Richards' retaining wall and practice of overwatering their lawn had caused or exacerbated the cracks in Wong's driveway. When the Richards moved to strike Nordstrom's letter report, Wong obtained a supplemental declaration in which Nordstrom certified that he believed his report to be true and correct.
Wong stipulated to dismissal of her claim for declaratory judgment. The trial court denied the Richards' motion to strike Nordstrom's declaration and report. The court granted the motion for summary judgment and accordingly dismissed Wong's other claims against the Richards. This appeal followed.
A moving party under CR 56 bears the initial burden of demonstrating an absence of any genuine issue of material fact and an entitlement to judgment as a matter of law. Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). Thereafter, the nonmoving party must set forth specific facts evidencing a genuine issue of material fact for trial. "The nonmoving party may not rely on speculation or argumentative assertions." Craig v. Washington Trust Bank, 94 Wn. App. 820, 824, 976 P.2d 126 (1999). The court must consider the evidence and the reasonable inferences therefrom in a light most favorable to the nonmoving party. This court reviews the facts and law with respect to summary judgment de novo. Mountain Park Homeowners Ass'n v. Tydings, 125 Wn.2d 337, 341, 883 P.2d 1383 (1994).
NUISANCE AND TRESPASS BY WATER
"Nuisance is `a substantial and unreasonable interference with the use and enjoyment of land.'" Bodin v. City of Stanwood, 79 Wn. App. 313, 318 n. 2, 901 P.2d 1065 (1995) (quoting 1 William H. Rodgers, Environmental Law § 2.2, at 33 (1986)). Trespass is an act that interferes with the right to exclusive possession of property. Gaines v. Pierce County, 66 Wn. App. 715, 719, 834 P.2d 631 (1992). Both theories hinge on an invasion of a plaintiff's interest in property. Gaines, 66 Wn. App. at 719. The concept of trespass includes a trespass by water. Phillips v. King County, 136 Wn.2d 946, 957 n. 4, 968 P.2d 871 (1998). Negligence, trespass, and nuisance claims all require a showing of actual harm or damages in order to avoid summary judgment. Wallace v. Lewis County, 134 Wn. App. 1, 17-19, 137 P.3d 101 (2006); Gaines, 66 Wn. App. at 719-20. Wong sought treble damages and attorney fees for the injury to her property under the waste statute, RCW 4.24.630.
The Richards' expert construction analyst, Mark Lawless, opined that more probably than not, the cracking in Wong's driveway was unrelated to the Richards' retaining wall and was caused solely by the fact that no expansion joints were used in the slab. Wong contends that Nordstrom's expert opinion and the lay opinion evidence she presented raised a material issue of fact as to causation.
In her deposition, Wong also identified the Richards' acts of calling the police over the metal box incident, playing basketball outside her window, talking on a cell phone while walking on the easement and watering their lawn with a sprinkler such that some water touched her wood fence as additional bases of her nuisance claims. She does not contend on appeal, however, that these assertions, individually or taken together, should have survived summary judgment and we do not further discuss them.
The "need for positive expert testimony to establish a causal link between the defendant's negligent act and the plaintiff's injury depends on the nature of the injury." Riggins v. Bechtel Power Corp., 44 Wn. App. 244, 254, 722 P.2d 819 (1986). Here, the materials submitted by the experts amply demonstrate that the question of causation depends on considerations of construction design and engineering that are outside the knowledge of an average layperson. Indeed, in anticipating an argument based on the statute of limitations, Wong acknowledged in her brief that "because she is not a construction or engineering expert, it is not likely that she could have identified the cause of the cracks in her driveway as they were formed." The lay opinions offered in Wong's affidavits fail to raise a material issue of fact regarding the cause of the cracks in Wong's driveway.
Appellant's Brief at 18.
Nordstrom's materials also fail to raise a material issue of fact because he could only speculate about causation. "The factual, informational, or scientific basis of an expert opinion, including the principle or procedures through which the expert's conclusions are reached, must be sufficiently trustworthy and reliable to remove the danger of speculation and conjecture and give at least minimal assurance that the opinion can assist the trier of fact." Griswold v. Kilpatrick, 107 Wn. App. 757, 761-62, 27 P.3d 246 (2001). Here, Nordstrom provided only informed speculation.
Wong asserts that Nordstrom provided opinions supporting her claim on a more probable than not basis, Nordstrom's report actually stated only that his opinions were provided on that basis "where possible." Nordstrom explained that his investigation was "cursory." He said it was based in part on Wong's videotape of the Richards' watering activities, which was "of very poor quality, both visually, and in terms of editing." He discussed the "possibility" that "somehow" groundwater was being focused by the Richards' yard and wall and that it contributed "in some way" to the formation of the cracks due to changes in the soil under the driveway. But he declined to draw firm conclusions because of "the very limited information and limited investigation to date" and recommended further inquiry because "a great deal more" could be learned. Nordstrom acknowledges that concrete slabs poured on a grade are prone to cracking and that the damage he observed was consistent with the same construction defect Lawless identified as most probably the exclusive cause of the cracking. Wong disregards these remarks. Significantly, nowhere in Nordstrom's report or his subsequent affidavit did he offer an opinion that the cause of the damage was any more likely the result of the Richards' wall or watering than it was the construction defect. See Bruns v. PACCAR, Inc., 77 Wn. App. 201, 215, 890 P.2d 469 (1995) (expert opinion on causation must be reached on a more probable than not basis). Nordstrom's materials accordingly failed to raise a material issue of fact.
Clerk's Papers at 322.
Clerk's Papers at 322-23.
Clerk's Papers at 324.
Clerk's Papers at 325.
Clerk's Papers at 324-25.
Wong also seems to suggest that, alternatively, the mere presence on her property of water that she could identify as coming from the Richards' premises can sustain her claims, but her factual claims in that regard are entirely speculative and conclusory. Wong's materials, in short, failed to establish a material issue of fact that the Richards had caused her substantial harm or damages to establish her claims of nuisance and trespass by water.
TRESPASS FOR PHYSICAL DAMAGE TO WONG'S DOOR
Wong next contends that the trial court erred by dismissing her claim for trespass against the Richards because Robert Richards damaged her front door in March 2003. She relies on affidavits from her tenants submitted in 2007. They stated they had paid $50 to have the doorknob replaced at some undetermined time. These are additional affidavits from Wong, her husband, and a repairman.
But when a party has given clear answers to unambiguous questions, which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, the previously given clear testimony. Marshall v. A C S, Inc., 56 Wn. App. 181, 185, 782 P.2d 1107 (1989). Nothing in any of the declarations Wong filed in response to the Richards' motion for summary judgment offered any explanation for the change in her position from the time of her deposition that she had no claim for damages to the door. And while Wong's counsel on appeal speculates that there may have been a problem because English is not Wong's primary language, the record reflects that an interpreter was used during the deposition. Following Marshall, we disregard Wong's declarations and conclude there is no issue of fact as to the lack of compensable damage to the door. Without actual damage, Wong's claim of trespass fails as a matter of law. Wallace, 134 Wn. App. at 15.
We affirm the dismissal of Wong's suit on summary judgment.
WE CONCUR.