Behla v. R.J. Jung, LLC

• Decision Date: 03 December 2019
• Docket Number: No. 36276-1-III,36276-1-III
• Parties: James F. BEHLA, Appellant, v. R.J. JUNG, LLC, a Washington Limited Liability Company; Jennifer Jung and John DOE Jung, and the marital community thereof, Respondents.
• Court: Washington Court of Appeals

11 Wash.App.2d 329

453 P.3d 729

James F. BEHLA, Appellant,

v.R.J. JUNG, LLC, a Washington Limited Liability Company; Jennifer Jung and John DOE Jung, and the marital community thereof, Respondents.

No. 36276-1-III

Court of Appeals of Washington, Division 3.

FILED DECEMBER 3, 2019

Jeffrey T. Sperline, Sperline Raekes, PLLC, 601 N Young St. Ste. A, Kennewick, WA, 99336, Julie Christine Watts, The Law Office of Julie C. Watts, PLLC, 505 W Riverside Ave. Ste. 210, Spokane, WA, 99201-0518, for Appellants.

Elizabeth E. Lampson, Cari Danielle Ehrlic Waters, Jonathan Wayne Henderson, Attorney at Law, Davis Rothwell Earle & Xochihua PC, 200 Sw Market St. Ste. 1800, Portland, OR, 97201-5745, for Respondent.

PUBLISHED OPINION

Fearing, J.

We have frequently said that, if there is nothing more tangible to proceed upon than two or more conjectural theories under one or more of which a defendant would be liable and under one or more of which a plaintiff would not be entitled to recover, a jury will not be permitted to conjecture how the accident occurred. Gardner v. Seymour , 27 Wn.2d 802, 809, 180 P.2d 564 (1947).

¶1 This appeal asks whether a claimant presents a question of fact as to causation of injuries in order to defeat the defendant’s summary judgment motion. The claimant lost awareness from a fall and found, when he regained consciousness, a coiled cable near him. He asserts that the cable caused his fall. Because of these facts and other attended facts, we answer the question in the affirmative. We reverse the summary judgment dismissal granted the claimant’s landowner in a premises liability suit based on the stretching of the cable across a parking lot.

FACTS

¶2 This appeal arises from injuries sustained by James Behla on the evening of March 2, 2014, when he fell on property owned by R.J. Jung LLC (R.J. Jung). Behla sues R.J. Jung and its owner, Jennifer Jung, in negligence. We refer to the defendants collectively as R.J. Jung. The dispute between the parties on appeal concerns the cause of the fall.

¶3 Since the early 2000s, James Behla has operated a rafting guide service on the White Salmon River. Beginning in the early 2000s, Behla frequently shopped at White Salmon’s BZ Corner Grocery Store, then owned by the Gross family. The Gross family kept a shed on the edge of the parking lot, which shed the family offered to permit Behla to use if he repaired it. Behla repaired the shed, installed lighting in and outside of the building, and laid gravel for a parking lot on both sides of the shed. Thereafter he used the shed to store rafting equipment for his business. Behla parked a bus near the shed. Presumably he employed the bus to ferry customers along the river.

¶4 In approximately 2003, R.J. Jung, owned by Jennifer Jung and her now deceased husband, purchased BZ Corner Grocery Store. R.J. Jung thereafter rented the shed to James Behla for $1,000 annually. In 2013, Behla, at the direction of R.J. Jung, moved his bus so that Jung could place a recreational vehicle in the lot. R.J. Jung desired employees to use the RV. Behla moved the bus nearer to his storage shed.

¶5 On March 2, 2014, at 10:00 p.m., James Behla went to his shed on R.J. Jung’s property to perform inventory and move rafting equipment. One inch of snow blanketed the ground. The only light shone from gas pumps 150 feet away from the shed. Behla ambled to the shed to activate an exterior light switch on the outside of the building. Behla flipped the light switch, but no lights appeared. He then sauntered toward the bus to check its locks. After checking the locks, Behla returned to the shed. According to Behla:

And—and I turned and walked back to the walk-through door of the building. Next thing I knew, I was lying on the ground with a stabbing, like a knife in the back, of my lower spine, my head banged up, my shoulder aching and blood coming out wherever.

Clerk’s Papers (CP) at 52.

¶6 James Behla regained consciousness on a concrete slab in front of the shed door. Behla’s right hip struck the slab. His body lay in a skiff of snow on the gravel.

¶7 After realizing that he fell and sustained injuries, James Behla scanned the area to determine the cause of his fall. He saw a black cable the diameter of his thumb. This cable ran 125 feet and sent power between the shed’s breaker box and the recreational vehicle parked on the R.J. Jung property. Behla did not see the cable before falling, but, when examining it after, saw that part of the cable curled and rose above the ground. After viewing the cable, Behla concluded: "my foot caught it, and it pitched me forward, and my head hit first and then my left hand and arm and then my butt and back hit the concrete slab, and I was laying on my right side." CP at 27. Behla testified in his deposition:

I am not certain, ‘cause I never saw it [the cable] until I woke up on the ground and went back and looked to see what I had tripped over. ...

CP at 53. The coiled cable rose high enough for his foot to catch thereon. Behla did not directly testify that the cable lay in the pathway that he tread to the shed, but we draw reasonable inferences from other testimony and from photographs to reach this factual conclusion for purposes of R.J. Jung’s summary judgment motion.

PROCEDURE

¶8 James Behla sued R.J. Jung and Jennifer Jung for failure to exercise reasonable care in maintaining the rented premises. R.J. Jung filed a motion for summary judgment dismissal and argued that Behla cannot prove proximate causation because his theory of liability relies on conjecture. R.J. Jung did not argue the impossibility of Behla’s tripping on the cable, but contended that other causes were as likely the cause of the fall. The trial court granted R.J. Jung’s summary judgment motion.

LAW AND ANALYSIS

¶9 The principal question on appeal is whether James Behla presents an issue of fact, in order to defeat R.J. Jung’s summary judgment motion, as to whether the cable stretched across R.J. Jung’s parking lot caused Behla’s trip and fall. We rule that Behla presents a genuine question of fact.

¶10 James Behla sues R.J. Jung in negligence. A negligence claim requires the plaintiff to establish (1) the existence of a duty owed, (2) breach of that duty, (3) a resulting injury, and (4) a proximate cause between the breach and the injury. Tincani v. Inland Empire Zoological Society , 124 Wash.2d 121, 127-28, 875 P.2d 621 (1994). Proximate cause consists of two elements: cause in fact and legal causation. Albertson v. State , 191 Wash. App. 284, 296, 361 P.3d 808 (2015). In support of its summary judgment motion, R.J. Jung relies only on a lack of cause in fact. Even if the complainant establishes negligence, the defendant may not be held liable unless its negligence caused the accident. Marshall v. Bally’s Pacwest, Inc. , 94 Wash. App. 372, 378, 972 P.2d 475 (1999).

¶11 Cause in fact, or "but for" causation, refers to the physical connection between an act and an injury. Hartley v. State , 103 Wash.2d 768, 778, 698 P.2d 77 (1985). The plaintiff must establish that the harm suffered would not have occurred but for an act or omission of the defendant.

Joyce v. Department of Corrections , 155 Wash.2d 306, 322, 119 P.3d 825 (2005).

¶12 A ubiquitous term found in the case law of causation is the word "speculation." Many decisions rest on this word. R.J. Jung argues that James Behla speculates when contending that the black cord caused his fall and injuries.

¶13 Evidence establishing proximate cause must rise above "speculation, conjecture, or mere possibility." Reese v. Stroh , 128 Wash.2d 300, 309, 907 P.2d 282 (1995). "Speculation" and "conjecture," in this context, mean the same thing. Frescoln v. Puget Sound Traction, Light & Power Co. , 90 Wash. 59, 63, 155 P. 395 (1916). The plaintiff cannot rest a claim for liability on a "speculative theory." Marshall v. Bally’s Pacwest, Inc. , 94 Wash. App. 372, 381, 972 P.2d 475, (1999). The plaintiff must supply proof for a reasonable person to, "without speculation," infer that the act of the other party more probably than not caused the injury. Little v. Countrywood Homes , Inc. , 132 Wash. App. 777, 781, 133 P.3d 944 (2006). Cause in fact does not exist if the connection between the act and the later injury is "indirect and speculative." Estate of Bordon ex rel. Anderson v. State, Department of Corrections , 122 Wash. App. 227, 240, 95 P.3d 764 (2004).

¶14 Labeling causation as speculative plays a unique role in summary judgment jurisprudence. If one takes many statements of the law literally, a court must withdraw consideration of a tort suit from a jury and grant summary judgment or a directed verdict to the defendant, if the plaintiff bases his assertion of causation on speculation, or at least if the facts present at least two speculative causes. Under these statements of the law, identifying speculation becomes the prerogative of the judge, not the jury.

¶15 The rule, on which R.J. Jung principally relies and which we anatomize, declares: when "two or more conjectural theories" exist, "under one or more of which a defendant would be liable and under one or more of which a plaintiff would not be entitled to recover, a jury will not be permitted to conjecture how the accident occurred." Gardner v. Seymour, 27 Wash.2d 802, 809, 180 P.2d 564 (1947). We label this rule "the stated rule." Courts often quote and apply this stated rule. Schmidt v. Pioneer United Dairies , 60 Wash.2d 271, 276, 373 P.2d 764 (1962) ; Marshall v. Bally’s Pacwest, Inc. , 94 Wash. App. 372, 379, 972 P.2d 475 (1999) ; Schneider v. Rowell’s, Inc. , 5 Wash. App. 165, 168, 487 P.2d 253 (1971). Note that the rule precludes a jury from speculating. Under such a rule the trial court plays the function of a gatekeeper and evaluates evidence to determine if the plaintiff’s proffered cause relies on speculation, and, if so, whether other possible conjectural theories exist. If the court so finds, the court must remove the suit from the consideration...