Hofto v. Blumer

• Citation: 74 Wn.2d 321,444 P.2d 657
• Decision Date: 22 August 1968
• Docket Number: No. 39543,39543
• Court: United States State Supreme Court of Washington
• Parties: Margaret E. HOFTO, Administratrix of the Estate of Joseph L. Hofto, deceased, Appellant, v. Larry BLUMER and Rita Blumer, husband and wife, d/b/a Gay Construction Company; Robert G. Kaiser and Arlene Kaiser, husband and wife; and Joseph Stafford and Lois J. Stafford, husband and wife, d/b/a Graham Store and Tavern, Respondents.

Page 321

74 Wn.2d 321

444 P.2d 657

Margaret E. HOFTO, Administratrix of the Estate of Joseph L Hofto, deceased, Appellant, v. Larry BLUMER and Rita Blumer, husband and wife, d/b/a Gay Construction Company; Robert G. Kaiser and Arlene Kaiser husband and wife; and Joseph Stafford and Lois J. Stafford husband and wife, d/b/a Graham Store and Tavern, Respondents.

No. 39543.

Supreme Court of Washington, Department 2.

Aug. 22, 1968.

Sterbick, Manza, Moceri, Gustafson & Narigi, Michael S. Manza, Tacoma, for appellant.

Lycette, Diamond & Sylvester, Ralph M. Bremer, Seattle, for respondents.

DONWORTH, Judge. ^*

This is an action to recover damages for wrongful death instituted by the administratrix of the estate of Joseph L. Hofto, deceased, for the benefit of herself (his surviving wife) and two minor children.

In her original complaint the administratrix (herein referred to as appellant) named as defendants Larry Blumer and his wife, doing business as Gay Construction, who owned a certain flatbed truck, which collided with the pickup truck which was being operated by the deceased at the time of his death. Also named as defendants were Robert G. Kaiser (and his wife) who was an employee of defendants Blumer and was driving their flatbed truck at the time of the collision.

These defendants, in answering the complaint, admitted ownership of the flatbed truck and that at the time of the collision it was being operated by their employee in the course of his duties. They denied all allegations of negligence on the part of the employee and affirmatively pleaded two defenses: (1) that the collision was caused by the negligence of an unknown person and (2) that it was caused by the contributory negligence of the deceased.

As a result of the first affirmative defense discovery proceedings were had and an amended complaint was filed in which Joseph Stafford and his wife (herein called respondents) were named as additional defendants.

As briefly stated in appellant's brief, the substance of the allegations in the amended complaint relating to respondents' activities is as follows:

The Amended Complaint realleges the allegations of the first Complaint against the original Defendants, BLUMER and KAISER, and in paragraph VI further alleges that the Respondents STAFFORD prior to and at the time of the collision owned and operated the GRAHAM STORE AND TAVERN which was adjacent to the right of way of the state highway where the collision occurred, and that Respondents negligently created a nuisance and a condition dangerous to the users of the highway, and especially to the decedent, by recklessly and negligently allowing and permitting their patrons to angle park their vehicles on the public right of way so that in leaving the premises of the Respondents said customers were required to back onto the paved portion of the state highway, and that just prior to the fatal collision an unidentified patron of the Respondents did back his vehicle from the parking premises maintained by the Respondents onto the highway into the path of the truck of the Defendants BLUMER.

Respondents filed a motion to dismiss the action as to them on the ground that appellant had failed to state a claim in the amended complaint upon which relief could be granted.

Respondents' motion was orally argued in the trial court and also briefs were submitted. The court then rendered its oral opinion dismissing respondents from the action as follows:

THE COURT: An interesting theory has been presented here and thoroughly explored. I am glad that I have had the opportunity to look at these briefs and check out some of these cases.

I have come to certain definite conclusions and I hold that the Plaintiffs Complaint fails to state a claim upon which relief can be granted as to defendant Stafford.

I hold that there could be nothing proven, no set of facts which would entitle the plaintiff to recover against the defendant Stafford.

I hold that as far as the defendant Stafford is concerned, there is no right to control parking, no duty to control parking, no voluntary exercise of control of parking.

I hold there is no foreseeable consequences that would put the Stafford's on notice that somebody would violate the law, as apparently another party did here.

I hold they did not create the condition, that they are not responsible for the condition, that the encroachment, if any, could not be considered a proximate cause, that there is no nuisance maintained by the defendant Stafford under any statute or common law or State courts.

I hold that the cases of Cain v. Dougherty, 54 Wash.2nd 466, 341 P.2d 879 and Kelly v. Gifford, 63 Wash.2nd, 221, 386 P.2d 415, sustains and supports the Court's position rather than the plaintiff's position.

For that reason the defendant Stafford will be dismissed.

Thereafter the trial court entered an order in accordance with the foregoing opinion and appellant has appealed therefrom to this court.

In order to determine whether or not the trial court was in error in entering its order of dismissal we must consider the pertinent allegations of the amended complaint:

IV

That at all times herein mentioned JOSEPH STAFFORD and LOIS J. STAFFORD were and are now husband and wife, forming a marital community under the Laws of the State of Washington and were and are now conducting a tavern and grocery business known as GRAHAM STORE AND TAVERN, adjacent to State Highway #161 in the vicinity of Graham, Pierce County, Washington, adjacent to the point where the collision hereinafter referred to took place.

V

That on or about the 19th day of November, 1965, the decedent, JOSEPH L. HOFTO, was driving his 1953 Chevrolet pickup truck in a careful and prudent manner in a southerly direction on State Highway #161 in the vicinity of Graham, Pierce County, Washington; that while said decedent was driving his aforesaid vehicle on the right side of the center line and on his portion of said roadway, the defendant, ROBERT G. KAISER, was driving the aforesaid 1963 Chevrolet two-ton flatbed truck owned by the defendants, BLUMER, in a northerly direction in a reckless, careless and unlawful manner and did, in the vicinity of the GRAHAM STORE AND TAVERN aforesaid, cross the center line of said roadway, out of control, and crashed into the approaching vehicle of decedent with a violent impact, causing serious and mortal injuries to the said decedent from which he died a short time thereafter.

VI

That for some time prior to the 19th day of November, 1965 and up to said date, the defendants, STAFFORD, owned and operated GRAHAM STORE AND TAVERN, which store and tavern was adjacent to the highway where said collision occurred and their tavern was next to the right-of-way of said public highway; that they had at said time recklessly and negligently permitted and allowed customers of their tavern and store to angle park their vehicles on the public right-of-way creating a dangerous condition along said highway in that said angle-parked vehicles would back out onto the paved portion of the highway and had to back into the paved portion of the highway in leaving the premises of the said defendant, creating a dangerous condition for users of the highway; that on the date and time aforesaid, just prior to the happening of the aforesaid collision, a patron of defendant, STAFFORD'S tavern whose name is unknown to plaintiff, did back his vehicle from the parking premises maintained by the defendants, STAFFORD, backing his vehicle onto the highway in the path of the defendant BLUMER, truck. That the conduct of the defendants,...