Folsom v. Burger King, I-V and J

• Decision Date: 09 July 1998
• Docket Number: I-V and J,D,I-,No. 64479-9,64479-9
• Citation: 135 Wn.2d 658,958 P.2d 301
• Parties: Thorabelle I. FOLSOM, the Personal Representative of the Estate of Robert T. Folsom, Petitioner, v. BURGER KING; Burger King of Spokane, Respondents, Hatter Investments, Inc., Ed Hatter and Jane Doe Hatter, husband and wife, Respondents, Spokane Security System, Inc., Respondent, Robert W. Hanley and Jane Doe Hanley, husband and wife; and John Doesane Doesefendants. Dianna J. HARTVIGSEN, the Personal Representative of the Estate of Dawnya Michelle Calbreath, Petitioner, v. BURGER KING; Burger King Of Spokane, Respondents, Hatter Investments, Inc., Ed Hatter and Jane Doe Hatter, husband and wife, Respondents, Spokane Security System, Inc., Respondent, Robert W. Hanley and Jane Doe Hanley, husband and wife; and John Doesane Doesefendants.
• Court: Washington Supreme Court

Page 658

135 Wn.2d 658

958 P.2d 301

Thorabelle I. FOLSOM, the Personal Representative of the Estate of Robert T. Folsom, Petitioner, v. BURGER KING; Burger King of Spokane, Respondents,

Hatter Investments, Inc., Ed Hatter and Jane Doe Hatter,

husband and wife, Respondents,

Spokane Security System, Inc., Respondent,

Robert W. Hanley and Jane Doe Hanley, husband and wife; and

John Does I-V and Jane Does I-V, Defendants.

Dianna J. HARTVIGSEN, the Personal Representative of the Estate of Dawnya Michelle Calbreath, Petitioner, v. BURGER KING; Burger King Of Spokane, Respondents,

Hatter Investments, Inc., Ed Hatter and Jane Doe Hatter,

husband and wife, Respondents,

Spokane Security System, Inc., Respondent,

Robert W. Hanley and Jane Doe Hanley, husband and wife; and

John Does I-V and Jane Does I-V, Defendants.

No. 64479-9.

Supreme Court of Washington En Banc.

Argued Jan. 13, 1998.

Decided July 9, 1998.

Bryan Harnetiaux, Harbaugh & Bloom, Gary Bloom, Spokane, for Amicus Washington State Trial Lawyers Association.

Mark Vovos, Debra Stephens, Spokane, Moore & Royal, John Moore, Yakima, for Petitioners Folsom, et al.

Reed McClure, Pamela Okano, Seattle, Feltman, Gebhardt, Eymann & Jones, P.S., Richard Feltman, Robert Greer, Spokane, for Hatter Investments, Inc., et al.

Ernest Greco, Mary Parry, Spokane, for Respondent Burger King.

Chase, Hayes & Kalamon, Richard Hayes, Gerald Kobluk, Spokane, for Spokane Security System, Inc.

JOHNSON, Justice.

On May 17, 1992, Blake Pirtle entered a Spokane, Washington Burger King through the back door entrance and murdered employees Dawnya Calbreath and Robert Tod Folsom during a robbery. Pirtle was convicted on two counts of aggravated first degree murder. State v. Pirtle, 127 Wash.2d 628, 904 P.2d 245 (1995). This case involves a lawsuit filed by the estates of the two Burger King employees killed by Blake Pirtle while at work (plaintiffs). Suit was brought against the employer (Hatter, Inc.), the franchisor (Burger King), and the security company (Spokane Security).

The suit against Hatter, Inc. was based on two theories: (1) the acts of Hatter, Inc. were "deliberately intended" to cause injury to the employees such that the employer's immunity under the Industrial Insurance Act is removed and 2) Hatter, Inc. had a separate and distinct persona as landowner. Against Burger King, plaintiffs based their theory of liability on Burger King's retained control over the operation of the franchised restaurant. Finally, the plaintiffs suit against Spokane Security was based on negligence.

All defendants brought motions for summary judgment. Burger King and Spokane Security argued they owed the employees no duty of care. Hatter, Inc. claimed immunity under the Industrial Insurance Act (IIA), RCW Title 51. The trial court granted summary judgment to defendants Burger King and Spokane Security. The trial court granted Hatter, Inc.'s motion for summary judgment on plaintiffs' "dual persona" theory of liability, but found sufficient facts to deny summary judgment on the "deliberate injury" exception to employer immunity. Both Hatter, Inc. and plaintiffs moved for discretionary review, which was granted. We reverse the trial court on the plaintiffs' deliberate intention claim against Hatter, Inc., and affirm the trial court on all other claims.

Due to the separate nature of each claim, we will provide additional facts as we discuss each issue.

ANALYSIS

Before reaching the merits of the parties substantive arguments, we must resolve plaintiffs' procedural issue. The trial court struck portions of an expert witness's affidavit relating to the duty of care or the standard of care in the fast food industry. Specifically, the trial court struck expert opinion that Spokane Security had a duty to remove its equipment after termination of its monitoring contract, and that the failure to do so fell below the standard of care in the security services industry. The trial court also struck expert opinion establishing the reasonable care required of a franchisor with respect to security at a franchised restaurant. The trial court excluded this evidence, concluding parts were legal conclusions, mixed statements of law and fact, invasion of the province of the jury, or opinions lacking proper foundation. The plaintiffs assign error to the trial court's decision and ask us to review the entire record, including those redacted portions, under the de novo standard of review.

Summary judgment is properly granted when the pleadings, affidavits, depositions, and admissions on file demonstrate there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). Hutchins v. 1001 Fourth Ave. Assocs., 116 Wash.2d 217, 220, 802 P.2d 1360 (1991). The burden is on the party moving for summary judgment to demonstrate there is no genuine dispute as to any material fact and reasonable inferences from the evidence must be resolved against the moving party. Lamon v. McDonnell Douglas Corp., 91 Wash.2d 345, 349, 588 P.2d 1346 (1979) (citing Morris v. McNicol, 83 Wash.2d 491, 494-95, 519 P.2d 7 (1974)). The motion should be granted only if, from all the evidence, a reasonable person could reach only one conclusion. Lamon, 91 Wash.2d at 350, 588 P.2d 1346 (citing Morris, 83 Wash.2d at 494-95, 519 P.2d 7). An appellate court engages in the same inquiry as the trial court when reviewing an order for summary judgment. Mountain Park Homeowners Ass'n v. Tydings, 125 Wash.2d 337, 341, 883 P.2d 1383 (1994).

An appellate court would not be properly accomplishing its charge if the appellate court did not examine all the evidence presented to the trial court, including evidence that had been redacted. The de novo standard of review is used by an appellate court when reviewing all trial court rulings made in conjunction with a summary judgment motion. This standard of review is consistent with the requirement that evidence and inferences are viewed in favor of the nonmoving party, Lamon, 91 Wash.2d at 349, 588 P.2d 1346 (citing Morris, 83 Wash.2d at 494-95, 519 P.2d 7), and the standard of review is consistent with the requirement that the appellate court conduct the same inquiry as the trial court. Mountain Park Homeowners Ass'n, 125 Wash.2d at 341, 883 P.2d 1383.

We examined the expert's affidavits regarding the ability of police to respond to a telephone call to the sheriff's office and regarding the duties of the defendants to meet certain security standards. However, we agree with the trial court and affirm the decision to exclude portions of the expert testimony.

Employer Immunity

The trial court found there were genuine issues of material fact regarding the plaintiffs' "deliberate intention" theory under RCW 51.24.020 and, accordingly, denied summary judgment to the employer, Hatter, Inc.

Hatter, Inc. is an Idaho corporation whose only business is to manage and operate Burger King restaurants in the Spokane and northern Idaho area. Edwin Hatter is the sole shareholder of the voting common stock of Hatter, Inc., and both Edwin and Michaele Hatter are employees of Hatter, Inc. Hatter, Inc. employed employees Calbreath and Folsom and, until he was fired, Blake Pirtle. Plaintiffs have presented facts indicating Hatter, Inc. was aware of Blake Pirtle's criminal history and of the security risks the restaurant presented.

Generally, the IIA allows injured workers to receive speedy, no-fault compensation for injuries sustained on the job, and employers are given immunity from civil suits by employees. RCW 51.04.010. An exception to the immunity granted to employers exists where an employer deliberately injures an employee. RCW 51.24.020 reads:

If injury results to a worker from the deliberate intention of his or her employer to produce such injury, the worker or beneficiary of the worker shall have the privilege to take under this title and also have cause of action against the employer as if this title had not been enacted, for any damages in excess of compensation and benefits paid or payable under this title.

Washington courts have required a specific intent to injure in order to sustain a claim under RCW 51.24.020. Nielson v. Wolfkill Corp., 47 Wash.App. 352, 355, 734 P.2d 961 (1987). Mere negligence does not rise to the level of deliberate intention. Delthony v. Standard Furniture Co., 119 Wash. 298, 299-300, 205 P. 379 (1922). Gross negligence and a failure to follow safety procedures does not constitute a specific intent to injure. Peterick v. State, 22 Wash.App. 163, 189, 589 P.2d 250 (1977); Biggs v. Donovan-Corkery Logging Co., 185 Wash. 284, 54 P.2d 235 (1936). Even an act that has substantial certainty of producing injury does not rise to the level of specific intent to cause injury. Higley v. Weyerhaeuser Co., 13 Wash.App. 269, 271-72, 534 P.2d 596 (1975).

Hatter, Inc. recognizes that under RCW 51.24.020 an employee may sue the employer "for all injuries resulting from the 'deliberate intention of [his or her] employer to produce such injury,' " Foster v. Allsop Automatic, Inc., 86 Wash.2d 579, 582, 547 P.2d 856 (1976) (quoting RCW 51.24.020), but argues the plaintiffs' claim does not fit under this statutory exception. Hatter, Inc. argues further that the employer's immunity remains despite the existence of negligence or even gross negligence. Foster, 86 Wash.2d at 581, 547 P.2d 856 (citing Jenkins v. Carman Mfg. Co., 79 Or. 448, 155 P. 703 (1916)). Plaintiffs claim the "deliberate intention" exception of RCW 51.24.020 requires only knowledge that some injury was certain to occur. Plaintiffs allege that exact knowledge of the particular injury that occurred in this case is not necessary. Plaintiffs assert Hatter, Inc. was aware that injury was sure to result from the combination of Blake Pirtle and business practices that "invited him to rob the North Argonne Road Burger King." Reply and Resp. Br. of Pet'rs at 35. However, the facts alleged by pl...