Hurley v. Port Blakely Tree Farms L.P.

Decision Date30 June 2014
Docket NumberNo. 71430-9-I,71430-9-I
CourtCourt of Appeals of Washington
PartiesJEROME C. HURLEY and BESSIE M. HURLEY, husband and wife; WESLEY A. STANCIL and ZELLA E. MORAN, husband and wife; FRANK J. METTLER and LINDA E. METTLER, husband and wife; SHAWN HAMPTON and CHARITY HAMPTON, husband and wife, individually, and as guardians for their minor children EMARY and ELEXCIOUS HAMPTON; ANTON K. SWAFFORD and DOROTHY E. SWAFFORD, husband and wife; MARK DANTINNE, a single man; JON and DAGNE NORD, husband and wife; DEANNA LESTER, a single woman; DE LILA E. WALKER, a widow; JAMES K. REDMON and BETTY REDMON, husband and wife; ALICE REDMON, a widow; MICHAEL WOOD and KIMBERLY WOOD, husband and wife, individually, and guardians for their minor child, Bryce Wood; MARTIN E. SPRINKLE, a single man and LINDA SPRINKLE, a single woman; MARTIN L.J. SPRINKLE, a single man; AARON SPRINKLE, a single man; and STEPHEN P. REA, a single man; ANNA GAY GAROUTTE, a single woman; APRIL HURLEY, a single woman; and EDWARD THOMAS and MARTHA THOMAS, husband and wife Plaintiffs/Appellants, v. PORT BLAKELY TREE FARMS L.P. a Washington limited partnership; B & M LOGGING, INC., a Washington corporation; RAINIER TIMBER COMPANY, INC., an inactive Delaware corporation; RAINIER LOG COMPANY, INC., an inactive Delaware corporation; RAINIER TIMBER COMPANY, LLC, a company managed by THE CAMPBELL GROUP, LLC that is not registered with the Washington Secretary of State; ISLAND TIMBER COMPANY, Defendants. THE CAMPBELL GROUP, LLC, a Delaware corporation; MENASHA FOREST PRODUCTS CORPORATION, an inactive Delaware corporation; a Washington limited partnership; DON ZEPP, d/b/a/ DON ZEPP LOGGING, and POPE RESOURCES, a Delaware Limited Partnership Defendants/Respondents.


SPEARMAN, C.J. — This appeal concerns a lawsuit filed by 14 families (Appellants) against Menasha Forest Products Corporation (Menasha)1 and Don Zepp Logging (Zepp) (collectively "Respondents") after their properties in or near Glenoma, Washington were damaged by three landslides that occurred during a storm on January 7, 2009. The trial court dismissed the Appellants' claims for strict liability, trespass, and nuisance against Menasha and Zepp on summary judgment, as well as their negligence claims against Zepp. We affirm.


On January 7, 2009, a warm and unusually heavy rain storm (commonly known as a "Pineapple Express") occurred throughout Western Washington,aimed mainly at the Central Cascade Range. Over 1500 landslides in Western Washington were associated with the event. This lawsuit arises out of three such slides that occurred in Lewis County, in or near Glenoma, Washington: (1) the "Martin Road Slide," (2) the "Lunch Creek Slide," and (3) the "Rainey Creek Slide." Each Appellant owns property that was damaged by one of those landslides or a combination thereof. Menasha logged an area associated with the Martin Road Slide in 2001.2 Zepp logged an area associated with the Lunch Creek Slide between January and April of 2006.3

The Appellants filed a complaint against a number of defendants, including Menasha and Zepp, on November 4, 2010 and an amended complaint on July 28, 2011, alleging causes of action for negligence, nuisance, trespass, and strict liability. On May 4, 2012, they moved for summary judgment on their strict liability claim. The trial court denied the motion and effectively dismissed the strict liability claim. Menasha then filed a motion for partial summary judgment to dismiss the plaintiffs' nuisance and trespass claims. Defendants Pope Resources, Port Blakely-lsland Timber, and Zepp joined the motion. The trial court dismissed the Appellants' claims for nuisance and trespass. It later granted Zepp's separate motion for summary judgment on the negligence claim.

In February 2012, the trial court bifurcated for trial the negligence claims related to the Martin Road Slide from the claims related to the Lunch Creek and Rainey Creek slides. The 11 plaintiff families impacted only by the Martin Roadslide were scheduled to be in trial first against Menasha and B&M Logging, Inc. The second trial would have included the remaining plaintiffs and all defendants. B&M Logging settled prior to trial. The first trial against Menasha lasted six weeks. On December 14, 2012, the jury found that Menasha was not negligent and returned a verdict in Menasha's favor. Menasha then settled the claims made against it by the plaintiffs who were to be involved in the second trial. Defendants Port Blakely and Pope Resources also settled following the first trial with plaintiffs who had made claims against them. Because all of the claims to be heard in the second trial were either settled, or in the case of Zepp, dismissed on summary judgment the second trial was not necessary.

The Appellants appeal from the trial court's orders dismissing their claims for strict liability, nuisance, and trespass against Menasha and Zepp and their claims for negligence against Zepp. They do not appeal the verdict finding that Menasha was not negligent.


This court reviews summary judgment de novo. Highline Sch. Dist. 401 v. Port of Seattle, 87 Wn.2d 6, 15, 548 P.2d 1085 (1976). Summary judgment is appropriate when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." CR 56(c). "The initial burden is on the moving party to show there is no genuine issue of material fact." American Exp. Centurion Bank v. Stratman, 172 Wn. App. 667, 673, 292 P.3d 128 (2012) (citing Vallindigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005)). If the moving party makes this showing, "the burden shifts to the nonmoving party to establish specific facts which demonstrate the existenceof a genuine issue for trial." Kendall v. Douglas, Grant. Lincoln, and Okanogan Counties Public Hosp. Dist. No. 6., 118 Wn.2d 1, 8-9, 820 P.2d 497 (1991). "When determining whether an issue of material fact exists, the court must construe all facts and inferences in favor of the nonmoving party." Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008). "[W]here reasonable minds could reach but one conclusion from the admissible facts in evidence, summary judgment is appropriate." Hiatt v. Walker Chevrolet Co., 120 Wn.2d 57, 66-67, 837 P.2d 618 (1992).

Strict Liability

Appellants argue that clearcutting steep, unstable slopes directly above residential properties is an abnormally dangerous activity subject to strict liability. Washington courts recognize the doctrine of strict liability as set forth in RESTATEMENT (SECOND) OF TORTS §§ 519 and 520 (1977). Klein v. Pyrodyne Corp., 117 Wn.2d 1, 6, 810 P.2d 917 (1991). "One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm." RESTATEMENT (SECOND) OF TORTS § 519(1) (1977). Whether an activity is "'abnormally dangerous'" is a question of law. Klein, 117 Wn.2d at 6. We consider six factors in determining whether an activity is abnormally dangerous:

(a) existence of a high degree of risk of some harm to the person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and
(f) extent to which its value to the community is outweighed by its dangerous attributes.

RESTATEMENT (SECOND) OF TORTS § 520 (1977). Furthermore,

[a]ny one of [the six factors] is not necessarily sufficient of itself in a particular case, and ordinarily several of them will be required for strict liability. On the other hand, it is not necessary that each of them be present, especially if others weigh heavily. Because of the interplay of these various factors, it is not possible to reduce abnormally dangerous activities to any definition. The essential question is whether the risk created is so unusual, either because of its magnitude or because of the circumstances surrounding it, as to justify the imposition of strict liability for the harm that results from it, even though it is carried on with all reasonable care.

Klein, 117 Wn.2d at 7 (quoting RESTATEMENT (SECOND) OF TORTS § 520, cmt. f (1977)).

No court in Washington or elsewhere has imposed strict liability for timber harvest activities. The only known case to consider the question is In re Flood Litigation, 216 W.Va. 534, 607 S.E.2d 863 (2004). There, the Supreme Court of Appeals of West Virginia, applying the six Restatement (Second) of Torts § 520 factors, summarily rejected plaintiffs' claim that extracting and removing coal and timber produced conditions that created an abnormally high risk of flash flooding for which defendants should be strictly liable for damages:

This Court simply does not believe that the day to day activities of Defendants necessarily create a high risk of flash flooding. Also, we are convinced that any increased risk of flooding which results from Defendant's extractive activities can be greatly reduced by the exercise of due care. In addition, extractive activities such as coal mining and timbering are common activities in southern West Virginia. Finally, we are unable to conclude that the great economic value of some of these extractive activities is outweighed by their dangerous attributes.

216 W.Va. at 545, 607 S.E.2d at 874.

Here, Appellants argue that all six RESTATEMENT (SECOND) TORTS § 520 factors weigh in favor of strict liability. Defendants contend that all six factors weigh against strict liability.

(a): Existence of a high degree of risk of some harm to the person, land or chattels of others.

Appellants urge us to define the activity subject to strict liability as "clearcutting on steep, unstable slopes directly above a...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT