Herberg v. Swartz, 44851

• Decision Date: 13 April 1978
• Docket Number: No. 44851,44851
• Citation: 89 Wn.2d 916,578 P.2d 17
• Parties: Marlin J. HERBERG, d/b/a Red's Shoe Service, Respondent, v. Russell B. SWARTZ and Jane Doe Swartz, husband and wife, Defendants, Real Estate Consultants, Inc., a Washington Corporation, Appellant, D. R. Carrell and John Carrell, d/b/a Carrell Trucking, et al., Respondents, City of Yakima, Washington, Respondent.
• Court: Washington Supreme Court

Page 916

89 Wn.2d 916

578 P.2d 17

Marlin J. HERBERG, d/b/a Red's Shoe Service, Respondent, v. Russell B. SWARTZ and Jane Doe Swartz, husband and wife, Defendants, Real Estate Consultants, Inc., a Washington Corporation, Appellant,

D. R. Carrell and John Carrell, d/b/a Carrell Trucking, et

al., Respondents,

City of Yakima, Washington, Respondent.

No. 44851.

Supreme Court of Washington,En Banc.

April 13, 1978.

Halverson, Applegate, McDonald, Bond, Grahn, Wiehl & Almon, David H. Putney, Yakima, for appellant.

Velikanje, Moore & Shore, Warren L. Dewar, Jr., Yakima Legal Center, Nashem, Prediletto, Brooks, Schussler & Halpin, Don W. Schussler, Lyon, Beaulaurier, Aaron, Weigand & Suko, J. Hugh Aaron, Gavin, Robinson, Kendrick, Redman & Mays, Dennis L. Fluegge, Yakima, for respondents.

STAFFORD, Justice.

Appellant Real Estate Consultants, Inc., appeals a judgment entered on a jury verdict in two actions which were consolidated for trial. We affirm.

Appellant purchased the Chieftain Hotel in August of 1973. On October 19, 1973, the hotel was inspected for compliance with the state's minimum fire and life safety standards for transient accommodations. Although approximately 23 state fire code violations were discovered, appellant was given 5 1/2 months to correct them.

Two months later, on December 19, 1973, an arson fire was started on the hotel's first floor. At this time most of the fire code deficiencies were still uncorrected. Appellant notified the City of Yakima (City) fire department sometime in the midafternoon and evacuated all tenants. Before the fire department could arrive the fire had spread throughout the hotel. The fire's rapid spread was caused by at least five, and potentially by twenty, of the uncorrected fire code deficiencies. One serious deficiency in particular, open pipe chases which ran vertically and horizontally throughout the building, accelerated and spread the fire, acting as a series of open chimney flues.

That evening the fire mushroomed from the pipe chases into the attic, causing the roof to collapse. Thereafter efforts to suppress the fire were limited to the exterior of the building.

The fire continued to burn throughout the evening and into that night. At 3 a. m. on December 20, the east wall collapsed. By the afternoon of December 20, the fire was creating such a hazard that the City determined demolition of the remaining walls was necessary. Consequently, appellant engaged Carrell Trucking (Carrell) to reduce the walls to a safe level. ¹

Carrell arrived with the demolition equipment that evening and worked on the south wall until 10 or 11 p. m. at which time inadequate visibility prevented further demolition efforts. That night the fire destroyed the supporting structure of the remaining walls. The next morning, December 21, Carrell resumed demolition efforts. However, Carrell discontinued all but standby work at noon following a disagreement with appellant concerning liability coverage to protect Carrell. After 8 hours of negotiation, Carrell and appellant executed a written contract to indemnify Carrell. ² Thereafter, Carrell resumed full demolition efforts on the west wall. By that time the fire had burned in excess of 50 hours. After ravaging the hotel the fire was eventually contained.

After Carrell had demolished the west wall, only the north wall and the centrally-located elevator shaft remained standing. As Carrell began demolition of the elevator shaft, the crane's cable became entangled. During efforts to extricate the cable from the shaft, the north wall collapsed and fell on the adjoining store owned by respondent Herberg.

In one action respondent tenants sued appellant for loss of their personal property. Appellant asserted a common-law claim for indemnity against the City based upon the City's alleged active negligence in its fire fighting procedures and its failure to contain the fire.

In a second action respondent Herberg sued appellant and Carrell alleging negligence. Appellant, in turn, asserted common-law indemnity claims against both the City and Carrell. Carrell, thereafter asserted its written contract of indemnity against appellant and also sought common-law indemnity from the City.

The two actions were consolidated for trial. Prior to trial, the court entered a summary judgment that the written indemnity contract between Carrell and appellant was supported by consideration. The court also granted a summary judgment that appellant was negligent per se for operating the hotel in violation of RCW 70.62. On the day of trial, but prior to the presentation of evidence, Carrell's motion to dismiss appellant's common-law indemnity claim was granted. Thereafter, Herberg took a voluntary nonsuit in his action against Carrell.

During trial, and in response to respondents' motions to exclude evidence of the superseding or intervening negligence of the City and Carrell, appellant's common-law indemnity claim against the City was dismissed and the evidence was excluded. With all claims against the City and Carrell having been dismissed, settled, or nonsuited, the consolidated actions were submitted to the jury with appellant as the sole defendant.

The jury returned verdicts for both respondent hotel tenants and respondent Herberg. The court entered judgment on the verdicts and later denied appellant's motions for judgment n. o. v. or for a new trial. The Court of Appeals certified the appeal to this court.

Appellant assigns error to the following actions of the trial court: (1) granting summary judgment that appellant was negligent per se; (2) dismissing appellant's indemnity claim against the City; (3) enforcing the indemnity agreement between Carrell and appellant; (4) excluding evidence of alleged superseding or intervening negligence of the City and Carrell; (5) improperly instructing the jury on proximate causation and apportionment of liability; and, (6) failing to strike the tenants' damage testimony and incorrectly instructing the jury on this issue. Appellant also urges us to adopt a rule that will permit contribution or apportionment of liability among tortfeasors.

We turn first to the determination that appellant was negligent per se for operating the hotel in violation of the minimum fire and life safety standards promulgated under the Transient Accommodations Act, RCW 70.62.290. Appellant asserts that its duties to the tenants and to Herberg should have been tested by the common law standards of sections 343, 353, 364 and 366 of the Restatement (Second) of Torts (1965). It is argued that under those sections the reasonableness of appellant's actions during the 2 months preceding the fire would have presented a question of material fact. Thus, appellant urges, summary judgment was inappropriate. We disagree.

The concept of negligence per se permits a court to substitute legislatively required standards of conduct for lesser common law standards of reasonableness. Bayne v. Todd Shipyards Corp., 88 Wash.2d 917, 568 P.2d 771 (1977); Kness v. Truck Trailer Equip. Co., 81 Wash.2d 251, 501 P.2d 285 (1972); Restatement (Second) of Torts § 286 (1965). As W. Prosser in Law of Torts, § 36 (4th ed. 1971) states at page 190:

When a statute provides that under certain circumstances particular acts shall or shall not be done, it may be interpreted as fixing a standard for all members of the community, from which it is negligence to deviate.

Thus, if a defendant violates an applicable statutory duty, the court may properly instruct the jury that the defendant was in fact negligent. Goodell v. ITT-Federal Support Serv., Inc., 89 Wash.2d 488, 493, 573 P.2d 1292 (1978); Kness v. Truck Trailer Equip. Co., supra, 81 Wash.2d at 258, 501 P.2d 285; Prosser, supra, § 36 at page 200. If the statutory duty applies, lesser common law duties necessarily become irrelevant. See Moore v. Dresden Investment Co., 162 Wash. 289, 298 P. 465, 77 A.L.R. 1258 (1931).

It is clear that at the time the arson fire was discovered appellant was still in violation of several state fire and life safety standards. Further, the undisputed evidence considered on summary judgment demonstrates that at least five of these violations caused the fire to spread. These are the only facts material to a determination of whether appellant was negligent per se. Consequently, whether summary judgment was proper depends on whether the trial court properly adopted the statutory standards as the duty required of appellant.

We said in Bayne v. Todd Shipyards Corp., supra, 88 Wash.2d at page 920, 568 P.2d at page 773, and in Kness v. Truck Trailer Equip. Co., supra, 81 Wash.2d at page 257, 501 P.2d 285:

The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part

(a) to protect a class of persons which includes the one whose interest is invaded, and

(b) to protect the particular interest which is invaded, and

(c) to protect that interest against the kind of harm which has resulted, and

(d) to protect that interest against the particular hazard from which the harm results.

Thus, we must determine whether the fire and life safety standards were intended to protect either or both the tenants and Herberg.

RCW 70.62.200 provides that the purpose of the Act is "to promote the protection of the health and welfare of individuals using such accommodations . . ." Further, the fire marshal is specifically directed to promulgate rules and regulations and to enforce the fire and life safety standards. See RCW 70.62.290; WAC 248-144-035; WAC 212-12-010(1)(g). These standards were adopted to provide "the highest degree of public safety from fire" consistent with normal use and occupancy of the building. WAC 212-12-010(2). Each of the applicable standards is mandatory. Respondent tenants were residents of the transient accommodation and were harmed by the very danger...