Brown v. MacPherson's, Inc.

• Decision Date: 31 December 1975
• Docket Number: No. 43054,43054
• Citation: 545 P.2d 13,86 Wn.2d 293
• Parties: John F. BROWN, Jr., and Priscilla J. Brown, his wife, et al., Appellants, v. MacPHERSON'S, INC., et al., Appellants. The State of Washington, Respondent.
• Court: Washington Supreme Court

Page 293

86 Wn.2d 293

545 P.2d 13

John F. BROWN, Jr., and Priscilla J. Brown, his wife, et al., Appellants, v. MacPHERSON'S, INC., et al., Appellants The State of Washington, Respondent.

No. 43054.

Supreme Court of Washington, En Banc.

Dec. 31, 1975.

Krutch, Lindell, Donnelly, Dempcy & Lageschulte, Richard F. Krutch, Jerome R. Cronk, Olwell, Boyle & Hattrup, Lee Olwell, Karr, Tuttle, Koch, Campbell, Mawer & Morrow, Robert P. Piper, Seattle, for appellants.

Hall Baetz, Kenneth D. Beckley, James D. McBride, Robert C. Mussehl, J. Stephen Funk, Casey & Pruzan, Richard A. Acarregui, H. J. Merrick, James S. Munn, Seattle, Black, Christensen & Nielsen, Andrew T. Nielsen, Everett, Riach, Gese & Seather, J. Gaylord Riach, Lynwood, Slade Gorton, Atty. Gen., Angelo Petruss, Asst. Atty. Gen., Olympia, Flanders, Flanders & Trolson, R. L. Flanders, Hugh Allen McClure, Seattle, Wendell Carlson, Leavenworth, Stephen C. Ellis, Seattle, Martin Schaefer, Lynnwood, for respondent.

UTTER, Associate Justice.

These consolidated lawsuits were filed to recover damages for the loss of life and property that resulted from an avalanche in the Yodelin area of Stephens Pass in early 1971. They name as defendants Nason Properties and Wendell Carlson, the owners and developers of the Yodelin area; MacPherson's Inc. and William MacPherson, the real estate brokers for the project; Chelan County, which approved the platting of the area and issued building permits for the development; and the State of Washington, whose Real Estate Division of the Department of Licenses acquired information regarding the avalanche danger in the area but allegedly failed to take proper action thereon.

Shortly before the cases came to trial, the State filed a motion to dismiss the claims against it under CR 12(b)(6), on the grounds that the plaintiffs' complaints did not state a claim upon which relief could be granted. The trial court granted this motion as to appellants Edgers, Dean, Stoen and Lunde, but denied it as to the other plaintiffs. On the original appeal from this ruling we upheld the trial court's action on the basis of our determination that the State's agents had no statutory duty or authority to act to prevent the injuries appellants incurred. Brown v. MacPherson's, Inc., 85 Wash.2d 17, 530 P.2d 277 (1975). On rehearing we reverse the trial court, and hold that appellants could obtain relief if they can prove their allegation that the State's agents gratuitously assumed a duty to act on their behalf and then breached that duty to appellants' detriment.

Appellants' complaints provide only the briefest outline of their grounds for seeking damages from the State, alleging little beyond the three elements of negligence: duty, breach, and consequent damage. No one questions that appellants have been terribly damaged; the only issue raised by the State's dismissal motion is whether that damage could possibly be attributed to the breach of a duty owed them by the State or its agents. Essentially, the appellants claim that the State's agents breached three types of duty owed them: the common law duties to act on a gratuitous promise and to act with care, and the statutory duty to carry out the functions assigned the Real Estate Division by the provisions of RCW 18.85. We adhere to our determination in the original hearing of this appeal that the provisions of RCW 18.85 by themselves imposed no duty to appellants on the Real Estate Division. But we hold that there is a possible state of facts, which appellants claim they can establish, under which the State could be found to have assumed a common-law duty to act on appellants' behalf and to act with care, and to have contributed to appellants' losses by failing to perform that duty.

These common-law theories of the State's liability are outlined in two portions of appellants' complaints. First, in their original pleadings appellants alleged that the State had wrongfully failed to convey information it had received regarding the risk of avalanches in the Yodelin area to those who it knew were endangered thereby. This allegation is contained in a paragraph of each complaint, of which the following excerpt from that of appellant Robert B. Edgers, executor of the estates of Kay Barton Edgers and Nancy Prentiss Edgers, is typical:

8. Involvement of State of Washington.

The State of Washington was specifically warned of the extreme hazard of avalanche danger at the Yodelin development and, although it communicated such warning to Defendants MacPherson's, William MacPherson, Nason Properties and Wendell Carlson, it failed to give any such warning to the general public or the known owners and occupants of the Yodelin property and specifically failed to give such warning to the Edgers who the State knew or should have known from the information imparted to it to be in extreme danger of loss of their lives and property.

Second, appellants' complaints, as amended by motion of the trial court, included answers to an interrogatory by the State, which further described the State's allegedly tortious inaction and added the claim that the State's agents acted negligently in communicating with MacPherson's, Inc., further enhancing the danger to appellants. Again, the Edgers' answer is representative:

THE STATE OF WASHINGTON, 1. WHILE IT and its officials and agents:

a. Had specific knowledge of facts and circumstances showing that an extreme avalanche hazard existed in the area of the Edgers cabin at Yodelin, that winter time inhabitants thereof were in imminent danger and while its officials held the actual belief that such hazard existed

b. Had the authority, power and duty to intervene, give or require warnings, and prevent a disaster

c. Had given assurances to others that it would intervene which were relied upon

d. And while the Edgers and others similarly situated were justifiably complacent in the common belief that the State would not permit such a real estate development in a hazardous area

2. IT FAILED TO:

a. Give any warning thereof or to divulge any of the information it had regarding the danger to any of the Edgers household or to any other owners or inhabitants of the Yodelin Development

b. Require the realtor, MacPhersons, Inc., or the developer, Nason Properties, Inc., to warn the Edgers or other owners' or inhabitants of Yodelin

c. Suspend, revoke or deny the license of MacPhersons, Inc., or to take other appropriate and authorized legal action against the realtor and/or developer

d. Complete its investigation of the avalanche hazard in a proper manner or to require adequate avalanche information from MacPhersons or Nason Properties

e. Adequately communicate with MacPhersons and Nason Properties and led them to believe that it had confidential information from which it was satisfied no avalanche hazard existed--an impression upon which they relied to the ultimate detriment of the Edgers.

On the basis of these pleadings alone it is extremely difficult to determine whether or not appellants have stated a claim against the State on which relief could be granted. On a 12(b)(6) motion, no matter outside the pleadings may be considered (Stevens v. Murphy, 69 Wash.2d 939, 421 P.2d 668 (1966)), and the court in ruling on it must proceed without examining depositions and affidavits which could show precisely what, if anything, the plaintiffs could possibly present to entitle them to the relief they seek. Ordinarily, whenever a complaint is facially adequate and the possibility of obtaining relief depends on the factual showing the plaintiff can make, a dismissal motion should be treated as a motion for summary judgment, if only to keep the court from having to act completely in the dark as to the actual nature of the plaintiff's cause of action.

Without the benefit of an actual factual showing, we can only speculate as to what, if anything, appellants might prove which would entitle them to relief. In order to prevent our speculations from straying too far from reality, however, the factual background of appellants' claim has been described informally and 'hypothetically' by their counsel in argument here and the court below. We need not determine that the story related by counsel is true, or even that it is supported by some evidence, to use it as a context for consideration of the State's dismissal motion. ¹ All we need decide is whether the facts described, if established, would entitle appellants to relief under the allegations in their complaints. If they would, they constitute a state of facts which would entitle appellants to relief, and would therefore be adequate to justify denial of the 12(b)(6) motion, which cannot be granted if Any state of facts could exist under which the plaintiff's claim could be sustained. Cf. Callaway v. Hamilton Nat'l Bank, 90 U.S.App.D.C. 228, 195 F.2d 556 (1952). ²

The relevant 'hypothetical' factual basis of appellants' claim lies in an alleged series of communications between one Mr. Tonnon, an agent of the Real Estate Division, Dr. Edward LaChapelle, a noted avalanche expert, and William MacPherson, the real estate broker of the Yodelin development. These began, appellants claim, when Dr. LaChapelle informed Mr. Tonnon that appellants' cabins were in a high-risk avalanche area, and Mr. Tonnon responded in a manner which led Dr. LaChapelle justifiably to believe that the division would deal with the matter and convey his warning to appellants, causing him to refrain from taking further action to warn appellants himself. Later, they say, Mr. Tonnon met with Mr. MacPherson and others, and led them to erroneously believe that his information indicated no avalanche danger existed, and the developers therefore did not act to protect appellants, either. Finally, appellants contend, the State terminated its involvement in the matter without informing them of the avalanche danger of Dr. LaChappelle of the fact that it was proceeding no further. As a result...