Blodgett v. Olympic Sav. and Loan Ass'n

• Decision Date: 03 June 1982
• Docket Number: Nos. 4906-6-I,5603-8-II,s. 4906-6-I
• Parties: Virginia M. BLODGETT, Respondent, v. OLYMPIC SAVINGS AND LOAN ASSOCIATION, a corporation, and Don M. Drury Company, Appellants.
• Court: Washington Court of Appeals

Page 116

32 Wn.App. 116

646 P.2d 139

Virginia M. BLODGETT, Respondent, v. OLYMPIC SAVINGS AND LOAN ASSOCIATION, a corporation, and Don M. Drury Company, Appellants.

Nos. 4906-6-II, 5603-8-II.

Court of Appeals of Washington, Division 2.

June 3, 1982.

David Armstrong, Bremerton, William Hickman, Richard Dunlap, Seattle, for appellants.

Frank Peters, James Caraher, Tacoma, for respondent.

JOHNSON, Judge. ^*

The defendants Olympic Savings and Loan Association, the owner of the property, and Drury Construction Co., the contractor, appeal from a judgment on a jury verdict awarding the plaintiff damages in the sum of $850,000. (Our cause No. 4906-6-II). Defendant Drury also appeals under our cause No. 5603-8-II from a denial of its motion to vacate the judgment under CR 60(b)(1), (4) and (11). For the purposes of appeal causes No. 4906-6-II and No. 5603-8-II were consolidated. In view of our disposition of the appeal in 4906-6-II we deem it unnecessary to rule on the appeal in 5603-8-II. We reverse.

Olympic Savings and Loan Association was the owner of property located at the corner of Second and Pacific Avenues in Bremerton. It contracted with its codefendant Drury Construction to remodel the building on that site. Fences and a removable panel were erected by Drury.

On the morning of November 1, 1977, the plaintiff was walking on a public sidewalk next to the construction site when a gust of wind blew over an 8- by 16-foot panel. It struck the plaintiff on the head and fell on top of her, knocking her unconscious and injuring her.

On the Pacific Avenue side and the Second Avenue side an 8-foot high plywood fence separated the pedestrians from the job site. Outside the plywood fence there was a wooden walkway for pedestrians and outside of that a wood railing. The fences on Pacific Avenue and Second Avenue were connected by a removable corner panel 8 by 16 feet which ran diagonally at the intersection. It was composed of four sheets of plywood held together by 2 by 4 plates at the top and bottom. There were also two-by-fours that were nailed vertically at the end of each section of plywood and at each end of the fence. It was not braced with "knee braces" as were the other sections of the fence. The panel was removable to permit supply trucks to enter the building site. When the panel was removed the nails were pulled out and upon replacement it was renailed.

The defendant Drury makes 24 assignments of error, some of which are repetitive. Defendant Olympic Savings adopts the errors assigned by Drury and adds two additional assignments: (1) that the court erred in denying its motion to dismiss at the close of the plaintiff's case, and (2) the giving of instruction 19.

1. Instruction 13

Instruction 13 ¹ as given by the court was WPI 15.01 Proximate Cause to which plaintiff added the words "even if such injury is unusual or unexpected." The plaintiff claims that the defendants did not take a proper exception to this instruction. We disagree. We have searched the plaintiff's brief to discover any reason given for the insertion of the phrase but find none. We can only surmise that it may have been inserted to cover the claim for damages by reason of the evidence of a rape and abortion, which claim was withdrawn by the plaintiff by the giving of instruction 30. ² It may have been inserted to inject the question of foreseeability. If so, it was improper.

The Supreme Court in the case of Rikstad v. Holmberg, 76 Wash.2d 265, 456 P.2d 355 (1969) said at page 268:

The better considered authorities do not regard foreseeability as the handmaiden of proximate cause. To connect them leads to too many false premises and confusing conclusions.

See also Maltman v. Sauer, 84 Wash.2d 975, 530 P.2d 254 (1975); Wells v. Vancouver, 77 Wash.2d 800, 467 P.2d 292 (1970).

Regardless of the reason, the insertion of the phrase made the instruction confusing and it should not have been given in that form. Plaintiff in support of the instruction cites three cases: Berglund v. Spokane County, 4 Wash.2d 309, 103 P.2d 355 (1940); Hoseth v. Preston Mill Co., 49 Wash. 682, 96 P. 423 (1908); Jordan v. Seattle, 30 Wash. 298, 70 P. 743 (1902). None of these three cases is applicable to a definition of proximate cause.

2. Chapter 17.24

The trial court gave three instructions premised on the provisions of chapter 17.24 of the Bremerton Municipal Code. Instruction 20 recited a part of section 17.24.100; instruction 22 set forth a portion of section 17.24.130; and instruction 23 stated a portion of WAC 296-155-300 as adopted by section 17.24.340.

Chapter 17.24 is entitled "Construction on Public Property." Section 17.24.010 Purpose. The purpose of this chapter is to provide minimum standards, requirements, and rules and regulations governing the installation, excavation in public properties for any utility system or other purpose within the city, and movement of traffic, maintenance of safety and protection of existing improvements during such work.

Section 17.24.020 Scope. All work done with respect to a utility system or other purpose up to the property line or to a meter, shall comply with the requirements of this chapter.

In order to interpret the above two sections and the entire chapter we have carefully read and examined each section of the chapter.

Section 17.24.030 contains the definitions:

(2) "Construction" or "Construct" means constructing, laying, maintaining ... and using a gas distribution system.

(3) "Distribution system," "system," and/or "lines" ... includes the gas pipes, conduits, poles and wires, sewer and water pipe lines, ... in anyway appertaining to utilities.

(6) "Permittee" means any person, company, partnership or corporation, or its successors and assigns, holding a franchise or permission by ordinance to construct, lay, maintain, and operate over, across, upon, along, and under the present and future streets, alleys, sidewalks, curbs, roads, highways, thoroughfares, parkways, bridges, viaducts, public property, public improvements, and other places in the city a system of pipes, pipe lines, water mains, power conduits, underground wiring, gas mains, laterals, conduits, feeders, regulators, meters, fixtures, connections and attachments, appurtenances, and appliances incidental thereto or in any way appertaining thereto for the purpose of transporting, transmitting, distributing, selling, and supplying gas for heating, lighting, power, and any and all domestic, commercial, and industrial purposes and other reasons and purposes to inhabitants, persons, firms, associations, and corporations within the city for public, domestic, and industrial use, and other purposes.

(11) "Utility" or "utility system" means any gas, oil, water, sewer, light, power, telephone, television, steam, burglar alarm, distribution system, pipes, or pipe lines, conduits, poles and wires, or other facilities necessary or appertaining thereto, and railroads both public and private, ....

All of the other sections relate solely to the construction, excavation, trenching, tunneling, and backfilling required for the installation, maintenance, repair, and replacement of utilities as defined in section 17.24.030(11).

Section 17.24.010 is not well drawn but after a review of the definitions and the provisions of the other sections of the chapter, we interpret that section as follows:

The purpose of this chapter is to provide minimum standards, requirements and rules and regulations governing the (1) installation, (2) excavation in public property for any utility system or other purpose within the city, and (3)(a) movement of traffic, (b) maintenance of safety, and (c) protection of existing improvements during such work.

Thus, "for any utility system or other purpose" relates back to "excavation in public property." Plaintiff contends that the phrase "other purpose" standing alone brings the defendants within section 17.24.010, but she neglects to read the entire section which indicates that the phrase "or other purpose" relates back to the word "excavation."

This was a simple case in which negligence was claimed in the erection and maintenance of fences and a diagonal panel which surrounded a building site on private property. There is no evidence of any excavation on public property for a utility or other purpose. The use of the phrase "other purpose" in section 17.24.010, however, is intriguing. In reviewing the entire chapter we find these words used only in section 17.24.030(6) wherein "permittee" is defined, and in each instance it is used in reference to the transmission and distribution of gas by a utility. From our review of the entire chapter we are compelled to the conclusion that it is directed to the regulation of utilities in the construction and installation on public properties.

Instruction 20 ³ is a part of the first section of 17.24.100, from which is deleted "all of which shall be approved by the city engineer", and a sentence from the second paragraph. However, the entire section is devoted to the placing of barricades, signs, lights and flares around an excavation, and to the proper intervals between such lights, flares and obstructions along the trenches. As has been set forth above, there were no excavations or trenches in the case at bench.

Instruction 22 ⁴ is a portion of the first paragraph of section 17.24.130 from which has been removed "and whenever a trench crosses the roadway." Again, that section alludes to a trench in the roadway which does not appear in the evidence in this case. The instruction also refers to the "permittee." We have set forth above the definition of a permittee (17.24.030(6)). The defendants do not qualify as permittees under this definition. The plaintiff does not claim that the defendants were in the utility business, or that they dug, excavated or trenched for the installation, laying or maintenance of any pipes, wires, water mains, power conduits, sewers or gas mains as...