Impero v. Whatcom County

• Court: Washington Supreme Court
• Writing for the Court: DONWORTH; FINLEY, C.J., HUNTER, J., and LANGENBACH
• Citation: Impero v. Whatcom County, 71 Wn.2d 438, 430 P.2d 173 (Wash. 1967)
• Decision Date: 15 June 1967
• Docket Number: No. 38783
• Parties: George IMPERO, Respondent, v. WHATCOM COUNTY, a Municipal Corporation, and Great Western Lumber Co., a Corporation, Appellants.

Page 438

71 Wn.2d 438

430 P.2d 173

George IMPERO, Respondent, v. WHATCOM COUNTY, a Municipal Corporation, and Great Western Lumber Co., a Corporation, Appellants.

No. 38783.

Supreme Court of Washington, Department 2.

June 15, 1967.

Richard A. Nelle, Pros. Atty., Leslie A. Lee, Deputy Pros. Atty., Bellingham, for Whatcom County.

Miracle, Treadwell & Pruzan, Howard P. Pruzan, Seattle, for Great Western.

David E. Rhea, Bellingham, for respondent.

DONWORTH, Judge.

Plaintiff, George Impero, was injured October 29, 1963, when he fell into a drainage sump which was located partly on a Whatcom County road right of way and partly on land owned by the Great Western Lumber Company.

Plaintiff filed a claim for damages against the county on December 12, 1963. At a regular meeting of the Board of Whatcom County Commissioners on December 13, 1963, the county rejected the claim.

Plaintiff thereupon instituted the present action in superior court against the defendant county, later joining defendant Great Western Lumber Company as a party defendant in an amended complaint. The trial was commenced February 17, 1965, and resulted in a jury verdict in the amount of $25,000 in favor of plaintiff against both defendants. After their respective motions for a new trial were denied, judgment was entered on the verdict against both defendants. Each defendant has appealed.

Appellant Whatcom County will be referred to as the county and appellant Great Western Lumber Company will be designated as Great Western.

The facts giving rise to the action are as follows: Great Western is the owner of property adjacent to the county right of way on Goodwin Road, a Whatcom County highway. Prior to May 12, 1961, a drainage problem existed on the land owned by Great Western, which resulted in some overflow of water and mud onto the county road. At that time, drainage was provided for the county road by ditches along the right of way. Prior to that date, an oral agreement was reached between the county and Great Western whereby a new drainage system was to be constructed which would eliminate the drainage problem on Great Western property, as well as provide against the overflow onto the county right of way. Under that agreement, Great Western was to provide the necessary materials, and the county crews were to plan the system and perform the work necessary to its installation. The work was completed on or about May 12, 1961.

The portion of the system involved in this action is a drainage sump, located in front of Great Western's office building. Its placement was such that the greater portion of it was on the county right of way. When asked the reason for selecting this location, Leroy C. Grunhurd, assistant county engineer who had been in charge of the installation of the drainage system, testified that it was because the close proximity of the lumber company's office building to the right of way prevented the use of heavy equipment to install the sump wholly on Great Western property. He testified that, in addition, placement of the sump nearer the office building would have damaged the sidewalks on Great Western property.

Physically, the sump consisted of a large hole into which a concrete tile approximately 36 inches in diameter was vertically placed. Several inches down from the top of the tile, on the inside was a ledge or lip. ¹ It was on this ledge that the cover, originally provided for the sump, rested.

Under the agreement with the county, Great Western was to provide and maintain an adequate cover for the sump. A cover was constructed, as noted above, to fit inside the tile on the ledge or lip. The cover itself was constructed on heavy mesh wire, additionally supported by two angle iron cross members.

Following the installation of the drainage system, it was discovered that this sump was not functioning properly due to the fact that the tile extended out of the hole, above the ground, approximately 6 inches, and hence surface waters could not get into it.

Exhibit No. 7

Great Western contacted the county, and requested that they correct the difficulty. This the county did by breaking off that portion of the tile that extended above the ground. The result of this alteration, however, was that the lid was no longer securely held in place by the sides of the tile rising above the ledge on which it rested.

Respondent, George Impero, was an independent logger at Maple Falls. In the fall of 1963, he was selling logs to Great Western. On October 29, 1963, he contacted Great Western's bookkeeper, Mrs. Irene Benjamin, indicating a desire to check some of the records of log deliveries that had been made by him to Great Western. Because of Mrs. Benjamin's daytime work schedule, arrangements were made whereby Mr. Impero would pick her up at her home in Nooksack that evening and the two of them could go to Great Western's offices to check the records without interruptions.

Mr. Impero arrived at Mrs. Benjamin's home between 7 and 7:30 p.m., and they proceeded in his car from there to Great Western's offices. On their arrival, Mr. Impero parked his car on the county right of way in front of the office, near a wooden sidewalk 8 feet long that leads directly to the office entrance (see exhibit No. 14) because the parking lot used by employees working on the night shift was full at the time.

About 9:15 p.m., after their business in the office was completed, Mr. Impero went ahead to the car while Mrs. Benjamin put away the records and locked them up. Both testified that it was dark in front of the office since there was no direct light in the outer yard. It was raining and windy.

Exhibit No. 14.

In proceeding from the office to his car, Mr. Impero departed from the wooden walkway and went across the area to the right of the way, where the drainage sump was located.

On direct examination, Mr. Impero testified that:

She (Mrs. Benjamin) suggested that I drive up * * * there is a garage--as you drive up there there is quite an area between the buildings where you can turn around and come back down the road * * * I said that it would be a good idea because she mentioned it was muddy on the road and raining, quite a bit of traffic there during the day that keeps kind of muddy, and she mentioned it was raining bard enough she would get her feet wet, she didn't want to, so I walked back out to the car and stepped off the sidewalk and started walking back to the door of my car and being left-handed I reached for the door of my car like that (demonstrating), stepped backwards to swing the door open and as they say, that was it. I disappeared--ended up in that sump.

Being unable to gain the attention of any of the millworkers who were working in the mill, Mrs. Benjamin helped respondent out of the sump and, after assisting him back into the office building, called Dr. Spady of Everson.

After examining respondent, Dr. Spady referred the case to Dr. Rinne, a physician and surgeon in Bellingham, because he felt that respondent needed the attention of a specialist. An examination by Dr. Rinne disclosed a rupture of the Achilles' tendon. Since the Achilles' tendon does not replace itself, a surgical operation was arranged, and the tendon was sewn back together. The testimony of Dr. Rinne, who performed the operation, indicated, however, that despite the repair of the tendon, respondent probably would continue to experience difficulty in performing his logging operations.

Mr. Impero testified concerning his difficulty in working in the woods with the injured ankle, and that, accordingly, he was compelled to employ additional workmen in order to complete his contract with the United States Forest Service to cut and remove certain timber within a specified time.

Appellant Whatcom County first assigns as error the failure of the trial court to give its proposed instruction No. 10. Since no argument on this assignment is contained in the brief, DeHeer v. Seattle Post-Intelligencer,60 Wash.2d 122, 372 P.2d 193 (1962), and the proposed instruction is not set forth therein, Frohlich v. Metropolitan Chem. Co., 61 Wash.2d 66, 377 P.2d 443 (1962), the court will not consider the assignment. Rule on Appeal 42(g)(1) (iii) and Rule on Appeal 43, RCW Vol. O.

The county's second assignment of error relates to the trial court's failure to grant its motion for a new trial. In support of this assignment, appellant first contends that there was no evidence or reasonable inference from the evidence to justify the verdict and that it is contrary to law.

Its first argument in support of this contention is that the condition of the sump, which allegedly resulted in the injury to respondent, had not existed a sufficient length of time before the accident to give the county constructive notice.

This argument is answered fully by Batten v. South Seattle Water Co., 65 Wash.2d 547, 398 P.2d 719 (1965), a case strikingly similar to the present case in many respects.

The Batten case involved an insecurely positioned lid of a water meter box which gave way when the plaintiff stepped on it, thereby causing her fall and the resulting injuries. The water meter box was installed by the county on the unimproved portion of the public right of way beyond the shoulder and drainage ditch, and next to a street signpost which was located in the street about 18 inches from the property line. The lid was positioned in a slight recess, the top of the lid being flush with the top of the concrete rim, which, in turn, was generally flush with the surrounding ground. The lid, however, was too small, thus preventing a snug fit in the recess, thereby permitting a small amount of lateral movement and creating a crack around the lid where dirt and gravel could lodge. There was no direct evidence concerning the condition of the lid on the day in question other than that the lid had been in position earlier. The South Seattle Water Company was held liable for plaintiff's injury,...