Campbell v. City of Bellevue, s. 42993
| Citation | 530 P.2d 234,85 Wn.2d 1 |
| Decision Date | 09 January 1975 |
| Docket Number | Nos. 42993,43053,s. 42993 |
| Parties | Robert Douglas CAMPBELL as Executor of the Estate of Barbara Jean Campbell, Deceased, and as father and quardian of Eric Hughes Campbell, a minor, Respondent. v. The CITY OF BELLEVUE, Appellant. Robert Douglas CAMPBELL as Executor of the Estate of Barbara Jean Campbell, Deceased, and as father and guardian of Eric Hughes Campbell and Monica Louise Campbell, minors, Respondent, v. Richard SAUNDERS, Director of Finance, City of Bellevue, Petitioner. |
| Court | United States State Supreme Court of Washington |
Skeel, McKelvy, Henke, Evenson & Betts, Frederick V. Betts, Douglas S. Dunham, Seattle, for petitioner and appellant.
McCutcheon, Groshong, Geisness & Day, W. Ronald Groshong, Montgomery, Purdue, Blankinship & Austin, R. George Ferrer, Seattle, for respondent.
The foregoing causes, an appeal and a petition for a writ of certiorari, were consolidated for argument and disposition.
The principal cause, a wrongful death and personal injury action, was initiated by the plaintiff (respondent) Robert D. Campbell, as executor of his deceased wife's estate and as guardian of his minor son Eric, claiming that agents of the City of Bellevue negligently executed their duties under pertinent electrical codes. From an adverse judgment, the City has appealed.
We affirm the judgment.
The facts are somewhat unusual. The plaintiff, his wife and family lived in close proximity to a creek running through the property of a neighbor, Mr. George L. Schafer. The Schafer premises had electric lights in and about the creek, which had been placed there some years before. These lights were controlled by switches in the Schafter residence and a circuit breaker in the garage. In the late fall of 1970, there was a fire next to the wiring on one of the light fixtures. Mr. Campbell advised the caretaker of the Schafer residence, Mr. James Struebing, of the bareness of wires in proximity to the fire. He did not notify the city building department. Subsequently, he noted that corrective measures had been taken.
On March 15, 1971, a dead raccoon was observed in the creek. The police were notified and when the responding officer arrived, he noted that when a neighbor of the Campbells sought to extract the raccoon from the creek she received an electrical shock. Later, when the Schafers' caretaker undertook the task of removal, he said the stream was still 'hot' whereupon he returned to the Schafer residence and turned off the circuit breaker, following which the raccoon was retrieved. Mr. Campbell and his neighbor, Mr. Robert Hanson, testified they telephoned the City's building department and talked with Mr. Andrew Sharpe, the electrical inspector, concerning the electrocution of the raccoon. Mr. Campbell also stated he informed Mr. Sharpe of the 1970 fire incident. Mr. Sharpe denied any telephonic conversation with Mr. Campbell and could not recall talking to Mr. Hanson, testifying, however, that he received a message on the morning of March 16, 1971, concerning the incident.
At about 9:30 a.m. on March 16, Mr. Sharpe and his administrative supervisor went to the Schafer premises and inspected the outdoor wiring. At this time, Mr. Sharpe observed that the wiring leading from the house to a light fixture in the creek did not conform to electrical code requirements and that it was deteriorated at the creek bank. He made tests and found that the wiring was not then electrically energized. This inspection consumed approximately 20 minutes during the course of which Mr. Sharpe did not determine the nature and extent of the outdoor lighting system which included several underwater lights and floodlights along both banks of the stream, as well as considerable underwater wiring. Since no one was then home, a red tag was affixed to the front door of the residence advising that: No action was taken to sever or otherwise disconnect the outdoor wiring, and no corrective measures were specified on the red tag.
The next morning Mr. Sharpe had a telephone conversation with the caretaker, although Mr. Sharpe thought he was talking to Mr. Schafer. He emphasized the danger and that the outdoor wiring had to be disconnected and not further utilized until it had been properly installed and inspected. He was assured this would be done and, according to Mr. Hanson, he reassured him that the problem had been corrected. Thereafter, and before august 6, 1971, Mr. Sharpe made no further inspection, stating that although he drove past the property on several occasions, it appeared that the premises were unoccupied.
The caretaker, in response to the red tag and to his telephone conversation with Mr. Sharpe, switched off the last two circuit breaker switches on the circuit breaker panel and placed electrical tape over them. He stated he followed this procedure because he did not know which of the two switches controlled the outdoor lighting system and an electrically operated garage door. Thereafter, when it was necessary to open the garage door, both switches were turned on.
On August 6, 1971, the caretaker opened the garage door for the purpose of unloading and storing furniture in the garage. During the unloading process, the switches remained on. In the meantime Eric Campbell, age six, and a cousin were playing by the creek. Eric slipped into the creek and received a paralyzing electrical shock. His cousin summoned Eric's mother, Barbara Jean Campbell, who, in attempting to rescue Eric, received a similar electrical shock and fell into the stream. Upon removal from the stream Eric survived; his mother did not.
This action was instituted against Mr. Schafer, the caretaker, Mr. Struebing, and the City. Prior to trial, Mr. Schafer and Mr. Struebing were voluntarily dismissed on the basis of a covenant not to sue, the proceeds of which settlement were to be credited against any ultimate judgment. The action then proceeded against the City. Allegations of negligence against the City revolved principally about claims that the electrical inspector, Mr. Sharpe, inadequately inspected the outdoor lighting system following the raccoon incident, failed to then sever or otherwise disconnect the system, failed to follow up on corrective measures, and ill advisedly assured the Campbells through the neighbor, Mr. Hanson, that the situation had been corrected.
In support of the allegations, evidence was admitted to the effect that under the circumstances: (1) a more thorough inspection on March 16, 1971, would have revealed the extensive underwater wiring and further nonconformity with electrical code requirements increasing the dangerous propensities of the system; (2) the City's electrical code and standards of electrical inspection practice in the community required that the lead wire to the system be severed and redtagged; and (3) the State and City electrical codes fixed specific times within which corrective action be taken and standards of electrical inspection practice prescribed a definite follow-up procedure.
At the conclusion of the evidence, the trial court, by instructions No. 14 and 15, submitted to the jury the following City ordinances:
Unauthorized connections prohibited. It is unlawful to connect to the electric current, any electrical installation, extension thereof or electrical equipment, until a lawful permit for such work has been obtained and the installation has been inspected and approved by the building official or his authorized agent.
In order to safeguard persons and property from the danger incident to unsafe or improperly installed electrical equipment, the building official shall immediately sever any unlawfully made connection of electrical equipment to the electrical current if he finds that such severing is essential to the maintenance of safety and the elimination of hazards.
Unsafe prior installations. The building official shall have the authority to inspect, any previously installed electrical equipment such as is regulated by this code, even though it may have been installed in accordance with former city regulations. Should he find such installation or equipment to be manifestly unsafe to life or property, he shall serve written notice to the owner and/or user thereof that such unsafe conditions exist and must be eliminated within a period of not to exceed sixty days. If such requirements are not complied with within the stated time, he shall disconnect or cause to be disconnected, the current from such installation or equipment. After the building official has disconnected such installation or equipment from the electric current, or caused the disconnection, it shall be unlawful for any person to reconnect such installation or equipment to the electric current without the approval of the building official.
Bellevue Municipal Code § 16.32.110 (Ordinance No. 163, § 11; June 12, 1956).
These instructions were followed by instructions Nos. 17 and 18, which, respectively, informed the jury that a violation of such ordinances would constitute negligence as a matter of law and that an electrical inspector owed a duty to comply with such ordinances and with recognized standards of electrical practice, failing which would constitute negligence. No assignment of error has been directed to these instructions, hence they constitute the law of the case. Brown v. Quick Mix Co., 75 Wash.2d 833, 454 P.2d 205 (1969). There is substantial evidence upon which the jury could have predicated a finding that the City's agents were negligent in failing to perform duties imposed by the ordinances and standards of electrical practice, which negligence in turn constituted a proximate cause of the unfortunate injury and death.
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