Halvorson v. Dahl

CourtUnited States State Supreme Court of Washington
Citation89 Wn.2d 673,574 P.2d 1190
Docket NumberNo. 44492,44492
PartiesJudith HALVORSON, Individually, and as Administratrix of the Estate of Rodney Vern Halvorson, Deceased, Appellant, v. John B. DAHL and Jane Doe Dahl, his wife, and Emilia "Billie" Dahl, and John Doe Dald, her husband, and the City of Seattle, Respondents.
Decision Date16 February 1978

Arnold J. Barer, Seattle, for appellant.

Douglas N. Jewett, City Atty., Philip M. King, Asst. City Atty., Seattle, for respondents.

UTTER, Associate Justice.

Appellant challenges the dismissal of her complaint against respondent City of Seattle. She is the widow of a man who died in a fire in a Seattle hotel in May 1976. Defendants Dahl owned the hotel. Appellant also joined respondent city as a defendant, based on the alleged failure of city officials to enforce the building, housing, and safety codes and the alleged connection between that failure and the fire. After the filing of appellant's complaint, respondent city moved for dismissal under CR 12(b)(6), and the motion was granted. We reverse the trial court and conclude plaintiff's complaint states a claim upon which relief can be granted.

I. Procedural Issues

Respondent city maintains that only plaintiff-appellant's amended complaint, and no other allegations of fact, can be considered by this court on appeal. Specifically, the city asserts (1) appellant's presentation of additional facts on appeal is improper, and (2) appellant's failure properly to plead the city ordinances upon which appellant relies destroys her claim. Neither assertion is well founded.

On a 12(b)(6) motion, a challenge to the legal sufficiency of the plaintiff's allegations must be denied unless no state of facts which plaintiff could prove, consistent with the complaint, would entitle the plaintiff to relief on the claim. Brown v. MacPherson's, 86 Wash.2d 293, 545 P.2d 13 (1975); Grimsby v. Samson, 85 Wash.2d 52, 530 P.2d 291 (1975); Hofto v. Blumer, 74 Wash.2d 321, 444 P.2d 657 (1968); Barnum v. State, 72 Wash.2d 928, 435 P.2d 678 (1967). Therefore, any hypothetical situation conceivably raised by the complaint defeats a 12(b)(6) motion if it is legally sufficient to support plaintiff's claim. As this court has previously stated, there is no reason why the " 'hypothetical' situation should not be that which the complaining party contends actually exists." Brown v. MacPherson's,supra, 86 Wash.2d at 298 n. 2, 545 P.2d at 17. In Brown, this court also sanctioned the presentation of "hypothetical" facts which were not part of the formal record; such facts are allowed to form the "conceptual backdrop for the legal determination." Brown at 298 n. 2, 545 P.2d at 17. Because the legal standard is whether any state of facts supporting a valid claim can be conceived, there can be no prejudice or unfairness to a defendant if a court considers specific allegations of the plaintiff to aid in the evaluation of the legal sufficiency of plaintiff's claim. Thus, we find nothing improper in appellant's additional allegations of fact made initially upon this appeal.

Respondent, citing CR 9(i), also maintains that the appellant's complaint was fatally insufficient for failure to include the titles and dates of enactment of the ordinances upon which appellant relies. This contention might be valid if made in the context of a summary judgment in which the record contained no adequate reference to a specific statute. It is, however, invalid as applied to a 12(b)(6) motion involving, as it does, proceedings in which submission of evidence in any form is neither expected nor required. The specific ordinances relied upon by appellant may come before the court under the "hypothetical facts" rule. The rules of civil procedure, adopted largely to avoid resolution of lawsuits on technical matters alone, cannot be used here to dispose of this case short of the merits.

II. The Viability of Appellant's Claim

Appellant asserts that the city is liable for the death of her husband. In support of her legal position, appellant offers specific factual allegations in the form of hypothetical facts. According to these allegations, the city had been aware of the code violations existing in the hotel for at least 6 years prior to the fire. The city had embarked upon programs of enforcement of the building, housing, and safety codes upon several occasions, but had never followed through to force the owners of the hotel to bring the structure into compliance. As we must on a 12(b)(6) motion, we accept the plaintiff's allegations as true for the purposes of this appeal. Grimsby v. Samson, supra; Barnum v. State, supra.

Appellant invites this court to adopt the emerging new rule that building and housing codes in general impose a duty upon municipalities, assertible in tort, adequately to enforce the codes. Several courts have embraced this rule recently. Adams v. State, 555 P.2d 235 (Alaska 1976); State v. Jennings, 555 P.2d 248 (Alaska 1976); Coffey v. Milwaukee, 74 Wis.2d 526, 247 N.W.2d 132 (1976); Dutton v. Bognor Regis Urban District Council, (1972) 1 Q.B. 373. Appellant states a claim for relief even under the traditional rule, however, and we need not decide whether to adopt the new rule.

The traditional rule is that municipal ordinances impose a duty upon municipal officials which is owed to the public as a whole, so that a duty enforceable in tort is not owed to any particular individual. Duran v. Tucson, 20 Ariz.App. 22, 509 P.2d 1059 (1973); Hoffert v. Owatonna Inn Towne Motel, Inc., 293 Minn. 220, 199 N.W.2d 158 (1972); Stigler v. Chicago,48 Ill.2d 20, 268 N.E.2d 26 (1971). This court embraced the traditional rule prior to the repeal of sovereign immunity. See, e. g., Goggin v. Seattle,48 Wash.2d 894, 297 P.2d 602 (1956). The Court of Appeals as recently as 1976 applied this traditional rule. Georges v. Tudor, 16 Wash.App. 407, 556 P.2d 564 (1976).

The traditional rule has an exception, however, which is applicable in this case. Liability can be founded upon a municipal code if that code by its terms evidences a clear intent to identify and protect a particular and circumscribed class of persons. Stranger v. New York State Elec. & Gas Corp., 25 A.D.2d 169, 268 N.Y.S.2d 214 (1966); Motyka v. Amsterdam, 15 N.Y.2d 134, 256 N.Y.S.2d 595, 204 N.E.2d 635 (1965). The Seattle Housing Code is such a statute, and appellant states a claim under it.

The special nature of the housing code is found in Chapter 27.04, in the declaration of purpose. 1 While most codes are enacted merely for purposes of public safety or for the general welfare, 2 this section identifies "conditions and circumstances . . . dangerous and a menace to the health, safety, morals or welfare of the occupants of such buildings and of the public" and...

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