Blenheim v. Dawson & Hall Ltd.

• Decision Date: 25 July 1983
• Docket Number: No. 10482-9-I,10482-9-I
• Court: Washington Court of Appeals
• Parties: Holly BLENHEIM, Appellant, v. DAWSON & HALL LTD. and Pacific Partition Systems, Inc., Respondents, Seven Unknown Individuals Believed Employees of Pacific Partition Systems, Inc., Defendants.

Page 435

35 Wn.App. 435

667 P.2d 125

Holly BLENHEIM, Appellant, v. DAWSON & HALL LTD. and Pacific Partition Systems, Inc., Respondents,

Seven Unknown Individuals Believed Employees of Pacific

Partition Systems, Inc., Defendants.

No. 10482-9-I.

Court of Appeals of Washington,

Division 1.

July 25, 1983.

Rehearing Denied Sept. 8, 1983.

Review Denied Nov. 18, 1983.

Lawrence Moore, Tacoma, for appellant.

Timothy J. Parker, John Schedler, Seattle, for respondent.

SWANSON, Judge.

Holly Blenheim appeals dismissal of her claim against Dawson and Hall, Ltd. (Dawson) and Pacific Partition Systems, Inc. (PPS) for failure to state a claim upon which relief can be granted under CR 12(b)(6). We affirm.

Blenheim brought this action against Dawson, PPS, and "seven unknown individuals." Blenheim in her complaint alleged that on December 24, 1980, a number of employees of PPS held a Christmas party at a construction site. The defendant Dawson was general contractor at the site and PPS was Dawson's subcontractor. Blenheim further alleged that the employees paid Blenheim to dance at the party, and that after dancing and drinking she felt drugged and attempted to run from the site. She claims she was struck, raped, and left unconscious, awaking with a broken arm.

Blenheim evidently based her action against the corporations on two theories: (1) the corporations were vicariously liable for the actions of the seven individuals; and (2) the corporations were directly negligent for violating safety regulations and failing to provide security and supervision. Blenheim submitted a number of interrogatories to Dawson and PPS. The defendants' answers stated that their employees, including one PPS foreman, were at the party and that the corporations did not sponsor any Christmas party in 1980 and were unaware of the party at the time it took place. The corporate defendants filed a motion to dismiss for failure to state a claim upon which relief can be granted under CR 12(b)(6). The trial court granted the motion.

At the outset, we must determine the dismissal procedure used by the trial court and in turn the appropriate standard of review.

Where an answer is filed prior to a motion to dismiss for failure to state a claim upon which relief can be granted under CR 12(b)(6), the motion will be considered one for judgment on the pleadings pursuant to CR 12(c). Stevens v. Murphy, 69 Wash.2d 939, 421 P.2d 668 (1966). Thus, because the defendants in this case filed answers prior to their motion to dismiss, the motion initially should be considered as one for judgment on the pleadings under CR 12(c).

Furthermore, CR 12(c) provides:

If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

A motion to dismiss under CR 12(c) can be considered a motion for summary judgment even if not denominated as such either by the moving party or the court. Stevens, at 943, 421 P.2d 668.

In the present case, the trial court stated in its order granting dismissal that it considered the records herein, which included interrogatories and answers. Answers to interrogatories may be considered in deciding a summary judgment motion. American Linen Supply Co. v. Nursing Home Bldg. Corp., 15 Wash.App. 757, 764, 551 P.2d 1038 (1976). Accordingly, this, in substance, was a summary judgment and the standard of review on appeal is the same as for summary judgment.

Because this in substance was a summary judgment, there is a question of whether the parties were given reasonable opportunity to present materials on summary judgment as required by CR 12(c). Blenheim, in her memorandum to the trial court in opposition to the motion for summary dismissal, repeatedly referred to defendants' answers to her interrogatories to support her position and referred to the test for summary judgment. ¹ Thus, it appears that Blenheim not only had the opportunity to present materials, but, in fact, presented materials. While ordinarily where a trial court treats a motion under CR 12(b)(6) or 12(c) as one for summary judgment it must ask all parties if they wish to present materials, where the appealing party in fact presented materials and argued the motion as one for summary judgment the trial court need not on its own initiative ask the parties if they wish to present additional materials. Review of this dismissal as a summary judgment is appropriate. ²

In reviewing a motion for summary judgment an appellate court engages in the same inquiry as the trial court. E.g., Wilson v. Steinbach, 98 Wash.2d 434, 656 P.2d 1030 (1982). Summary judgment is proper under CR 56(c)

if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

"The court must consider all facts submitted and all reasonable inferences from the facts in the light most favorable to the nonmoving party." Wilson v. Steinbach, at 437, 656 P.2d 1030. Furthermore, "[a] party may not avoid an opponent's motion for summary judgment by resting on mere allegations of its complaint but must set forth specific facts showing that there is a genuine issue of material fact." Retail Store Employees Local 631 v. Totem Sales, Inc., 20 Wash.App. 278, 281, 579 P.2d 1019 (1978); accord Plaisted v. Tangen, 72 Wash.2d 259, 432 P.2d 647 (1967).

Thus, the issue here is whether based on the specific facts in the materials presented there existed genuine issues of fact as to each of the elements constituting the causes of action alleged by Blenheim.

We first address Blenheim's claim that the corporate defendants were vicariously liable. We conclude that the materials presented show there is no genuine issue of fact as to defendants' vicarious liability.

This court in Kuehn v. White, 24 Wash.App. 274, 277, 600 P.2d 679 (1979), discussed the issue of an employer's liability for the conduct of his employees.

A master is responsible for the servant's acts under the doctrine of respondeat superior when the servant acts within the scope of his or her employment and in furtherance of the master's business. Where a servant steps aside from the master's business in order to effect some purpose of his own, the master is not liable.

In particular, where an employee commits an assault in order to effect a purpose of his own, the employer is not liable. Kyreacos v. Smith, 89 Wash.2d 425, 429, 572 P.2d 723 (1977). Kuehn also recognized that although whether an employee's conduct is within the scope of his employment is ordinarily a question for the jury, certain fact patterns may as a matter of law relieve the employer of liability. Kuehn, 24 Wash.App., at 280-81, 600 P.2d 679.

Here, even the facts alleged establish that as a matter of law the defendant corporations were not liable. The alleged conduct involved assault and rape and was not within the scope of employment or in furtherance of the employers' business. Granting defendants' motion on the vicarious liability theory was proper.

Blenheim's second theory for recovery is that the defendant corporations were directly negligent. To establish negligence the plaintiff must prove that: (1) the defendants had a statutory or common-law duty to protect the plaintiff from the general type of harm at issue; (2) the defendants violated that duty; and (3) defendants' conduct constituting the breach proximately caused the damage suffered by the plaintiff. E.g., Bernethy v. Walt Failor's, Inc., 97 Wash.2d 929, 932, 653 P.2d 280 (1982). The defendants argue that they owed Blenheim no duty to protect her from the type of harm at issue here. Blenheim asserts that the defendants breached a duty established by WISHA and OSHA safety rules by allowing alcohol on the premises.

Washington courts follow the test stated in the Restatement (Second) of Torts § 286 (1965) in deciding whether violation of a regulation shall be considered in determining liability. Kness v. Truck Trailer Equip. Co., 81 Wash.2d 251, 257, 501 P.2d 285 (1972). The Restatement states:

The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part

(a) to protect a class of persons which includes the one whose interest is invaded, and

(b) to protect the particular interest which is invaded, and

(c) to protect that interest against the kind of harm which has resulted, and

(d) to protect that interest against the particular hazard from which the harm results.

Blenheim is not within the class of persons OSHA and WISHA were designed to protect nor was the harm alleged of the type against which the regulations were intended to protect. The regulations were intended to ensure safe working conditions for employees. Davis v. Niagara Mach. Co., 90 Wash.2d 342, 346, 581 P.2d 1344 (1978). Here, no facts were presented showing Blenheim was an employee or that her alleged injury was the type against which the regulations were designed to protect. Hence, a violation of the regulations does not establish any liability. The trial court correctly dismissed the action based on a claimed violation of OSHA and WISHA.

Blenheim also claims that the defendant corporations were directly negligent because they breached a common law duty to maintain security and provide supervision at ...