Brown v. MacPherson's Inc.

• Decision Date: 09 January 1975
• Docket Number: No. 43054,43054
• Citation: 85 Wn.2d 17,530 P.2d 277
• Parties: John F. BROWN, Jr., and Pricilla J. Brown, his wife, et al., Petitioners, v. MacPHERSON'S INC. et al., Petitioners, and Nason Properties, Inc., et al., Respondents.
• Court: Washington Supreme Court

Page 17

85 Wn.2d 17

530 P.2d 277

John F. BROWN, Jr., and Pricilla J. Brown, his wife, et al., Petitioners, v. MacPHERSON'S INC. et al., Petitioners, and Nason Properties, Inc., et al., Respondents.

No. 43054.

Supreme Court of Washington, En Banc.

Jan. 9, 1975.

Rehearing Granted April 1, 1975.

Krutch, Lindell, Donnelly, Dempcy & Legeschulte, Richard F. Krutch, Jerome R. Cronk, Olwell, Boyle & Hattrup, Lee Olwell, Karr, Tuttle, Koch, Campbell, Mawer & Morrow, Robert P. Piper, Stephen C. Ellis, Seattle, Richard A. Mueller, Lynnwood, for petitioners.

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, Lynnwood, Slade Gorton, Atty. Gen., Angelo Petruss, Asst. Atty. Gen., Olympia, Flanders, Flanders & Trolson, R. L. Flanders, Hugh Allen McClure, Seattle, Wendell C. Carlson, Leavenworth, for respondents.

WRIGHT, Associate Justice.

This is an appeal by plaintiffs Dean, Stoen, Lunde and Edgers from an order of dismissal entered under Rule CR 12(b). The State of Washington was dismissed as a defendant in the actions instituted by said plaintiffs. Our sole consideration in this appeal is whether the complaints of the named plaintiffs failed 'to state a claim upon which relief can be granted' as against the State of Washington.

The facts as affect this appeal can be stated briefly. This being a dismissal under Rule CR 12(b) the only matters considered are those stated in the complaints of the appellant-plaintiffs as amended by answers to interrogatories. It should be noted the trial court specifically refused to consider the motions as applications for summary judgment under rule CR 56.

In the early morning hours of January 24, 1971 an avalanche thundered down the slopes of the Cascade Mountains near the Stevens Pass Highway leaving death and destruction in the Yodelin development. There were avalanches later; one January 26, 1971 and another nearly a year later on January 19, 1972. We are concerned only with the tragic events of January 24, 1971.

On December 11, 1968 the Real Estate Division of the Department of Motor Vehicles was warned of danger at the Yodelin development by one Dr. Edward LaChapelle, a professor on the faculty of the University of Washington and a recognized expert in matters relating to avalanches.

The allegations in the Edgers' complaint as against the State of Washington are substantially representative of the allegations in all of the complaints of those plaintiffs who are appellants herein. Such allegations are as follows:

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.

(TR. 22)

We shall refrain from extending this discussion beyond that which is necessary to decide the matter now before the court. These consolidated cases will be tried and another appeal could quite possibly follow. We are, therefore, faced with somewhat the same situation which confronted this court in Hofto v. Blumer, 74 Wash.2d 321, 444 P.2d 657 (1968) when the court said at page 327, 444 P.2d at page 661:

We think it would be improper for us to discuss at this time the merits of the contentions of the parties which are fully stated in the briefs. To do so might have the effect of prejudging this case when it comes on for trial. As yet respondents have not had occasion to file an answer to that the factual issues have not been framed at this time.

The only department or agency of the State of Washington involved herein is the Real Estate Division of the Department of Motor Vehicles. The powers and duties of that division are set forth in RCW 18.85. The act in force at the time herein relevant was passed in 1951 with amendments and additions in 1953.

The land development act, RCW 58.19, was not passed until 1973 and has no application to this litigation. It was adopted as chapter 12, Laws of 1973, 1st Ex. Sess. Many of the provisions of that act were clearly inspired by the tragedies which gave rise to these cases.

Further, an examination of RCW 18.85.040, which gives the powers and duties to the director of the department of motor vehicles over the real estate licensees, will show he had absolutely no authority to do the acts which appellants contend he should have done. The only other source of authority in the real estate division is the real estate commission, which by RCW 18.85.085 and RCW 18.85.090 is given power to set up educational conferences, act in an advisory capacity and give examinations for applicants for licenses as salesmen or brokers.

The real estate division, lacking the power to do those things which are in question here, can not be liable for a failure to do same. The order of dismissal of the State of Washington in those cases wherein the appellants were plaintiffs is, therefore, affirmed.

HALE, C.J., and ROSELLINI and HUNTER, JJ., concur.

STAFFORD, J., concurs in the result.

UTTER, Associate Justice (dissenting).

The trial court's grant of the State's motion to dismiss under CR 12(b)(6) can be affirmed only if 'it is clear beyond doubt from a reading of the complaint that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' Higgins v. State, 70 Wash.2d 323, 325, 422 P.2d 836, 837 (1967). The majority concludes plaintiffs could not support a claim against the State because they cannot show that its agents had the power to avert this tragedy. I do not agree. There are two theories of liability in plaintiffs' complaints under which State officers could be shown to have had the power to prevent plaintiffs' injuries and to have exercised that power negligently. I would therefore reverse.

Plaintiffs' allegations against the State consist not only of those in the portion of their complaints quoted by the majority, but also of general averments that their damages were 'proximately caused by the concealment, misrepresentations, breach of warranty, and/or negligence' of the State and the several other defendants. These contentions as supplemented by answers to an interrogatory put by the State, incorporated into the complaints by amendment, which read substantially as follows:

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

Plaintiffs have further elaborated upon their allegations in argument here and in the court below by putting forth a statement of 'hypothetical facts' which they contend would entitle them to relief if proven under their complaints. These 'facts' are, of course, not technically before the court, as no matter outside the pleadings may be considered on a motion for dismissal under CR 12(b)(6). Stevens v. Murphy, 69 Wash.2d 939, 421 P.2d 668 (1966). But the test on a CR 12(b)(6) motion is whether plaintiffs could prove Any state of facts which would entitle them to relief. Since these 'hypothetical facts' are not patently false and could be proven within allegations well pled, they may be considered as a set of facts on which plaintiffs might prevail in determining whether they can survive defendant's dismissal motion. Cf., Callaway v. Hamilton Nat'l Bank, 90 U.S.App.D.C. 228, 195 F.2d 556 (1952). ¹

Plaintiffs' 'hypothetical' factual allegations portray a sequence of events beginning with the notification of the avalanche danger given the Real Estate Division by Dr. Edward LaChapelle, mentioned by the majority. They claim that, after this notification, one Mr. Tonnon, an agent of the Division, told Dr. LaChapelle that the problem was being taken care of, and that in reliance on this Dr. LaChapelle refrained from himself warning plaintiffs. Plaintiffs further allege that Mr. Tonnon later met to discuss the matter with Mr. MacPherson, plaintiffs' relator, and gave him the false impression that no danger existed,...