Kresser v. The Boeing Co.
| Decision Date | 13 December 2010 |
| Docket Number | No. 64301-1-I,64301-1-I |
| Court | Washington Court of Appeals |
| Parties | CRAIG KRESSER and PAULA KRESSER, husband and wife, Appellants, v. THE BOEING COMPANY, a foreign corporation; KRIS A. JANSSEN and JANE DOE JANSSEN, husband and wife, and the marital community composed thereof, Respondents. |
SPEARMAN, J. — Craig Kresser informed his Boeing supervisor, Kris Janssen, that he "did not feel well, he was light-headed, dizzy, and that he had no feeling in his left hand and was unable to pick up objects with the left hand." Janssen told Kresser to "take it easy" until his shift ended in one hour. Kresser went home following his shift and suffered a stroke sometime that evening. Kresser and his wife sued Boeing. Finding no set of facts consistent with the Kressers' complaint show Boeing violated any duty of an employer to keep a safe workplace, we affirm the trial court's order dismissing the case under CR 12(b)(6).
Approximately one hour before his shift ended at Boeing, Craig Kresser informed his temporary supervisor, Kris Janssen, that he "did not feel well, he was light-headed, dizzy, and that he had no feeling in his left hand and was unable to pick up objects with the left hand." Janssen replied to Kresser "that his shift was nearly over and so he should just take it easy until he could leave for home." Kresser "went home following his shift."
The next morning, his family found him and called an ambulance. The symptoms Kresser had reported were the result of a transient ischemic attack (TIA, also known as a "mini-stroke") restricting the flow of blood to his brain. By the time Kresser reached Harborview Medical Center at 8:00 a.m., the opportunity for early medical intervention had passed. According to the complaint, Kresser "was beyond the 3 hour time window for tissue plasminogen activator (tPA) and the 6 hour window for neuroangio intervention and other stroke treatment" known to reduce the risk of permanent damage.
The Kressers sued Boeing and Janssen for failure to provide a safe workplace in violation of various WISHA regulations; failure to call for medical assistance in violation of Boeing policies; failure to make reasonable provisions for medical assistance for foreseeable emergencies; and negligent training of temporary supervisors. Defendants filed a CR 12(b)(6) motion to dismiss on grounds that none of the duties imposed on Washington employers by statute, regulation, or common law, required Boeingsupervisors to accurately diagnose and assess the severity of an employee's medical symptoms. The trial court granted the motion, and the Kressers appeal.
A dismissal under CR 12(b)(6) is for "failure to state a claim upon which relief can be granted." "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." Halvorson v. Dahl, 89 Wn.2d 673, 674, 574 P.2d 1190 (1978). "This weeds out complaints where, even if what the plaintiff alleges is true, the law does not provide a remedy." McCurry v. Chevy Chase Bank, FSB, 169 Wn.2d 96, 101, 233 P.3d 861 (2010). We review de novo the propriety of a trial court's dismissal of an action under CR 12(b)(6). Burton v. Lehman, 153 Wn.2d 416, 422, 103 P.3d 1230 (2005).
The Kressers contend Boeing breached a common law duty to provide a safe workplace by failing to "recognize and respond to" symptoms of a possible stroke. We disagree. None of the cases cited by the Kressers hold that an employer's duty to provide a safe workplace is so broad as to require the employer "to recognize and respond to" symptoms of a possible stroke. Rather, in each of the cases cited by the Kressers, the duty to provide a safe workplace was breached because the employee's injury or illness was actually related to or caused by conditions of employment.
Two of the cases involve bodily injury caused by the foreseeable criminal conduct of third parties. In Nivens v. 7-11 Hoagy's Corner, 133 Wn.2d 192, 943 P.2d 286 (1997), after a customer was assaulted by a group of youths at a 7-11 with a history of violence in the parking lot, the Supreme Court held that businesses have a duty to take reasonable steps to protect business invitees from reasonably foreseeable criminal conduct by third parties. Nivens, 133 Wn.2d at 194-95. In Bartlett v. Hanover, 9 Wn. App. 614, 513 P.2d 844 (1973) (rev'd on other grounds, 84 Wn.2d 426, 526 P.2d 1217 (1974)), a motel manager who had previously been robbed on the job was shot in the head. The court held that "employer has a duty to make reasonable provision against foreseeable dangers of criminal misconduct to which the employment exposes the employee." Bartlett, 9 Wn. App. at 621. Here, there is no allegation of foreseeable third party criminal conduct, nor any allegation of danger of TIA or stroke caused by Kresser's employment at Boeing.
The Kressers also cite Hoffman v. Gamache, 1 Wn. App. 883, 465 P.2d 203 (1970) and McCarthy v. Dep't of Social & Health Services, 110 Wn.2d 812, 759 P.2d 351 (1988). But again, in both of these cases, a duty existed because the injury suffered by the employee was caused by conditions of employment. In Hoffman, the plaintiff lost two fingers in chopper blades in defendants' hop-picking machine after protective glass had been removed by the employer. Hoffman, 1 Wn. App. at 886. In McCarthy, not only was the plaintiff's pulmonary disease caused by exposure to tobacco smoke in the workplace, but the employer knew about the exposure andrefused to make any accommodations to ameliorate the exposure. McCarthy, 110 Wn.2d at 822. Here, by contrast, there is no similar duty because there is no allegation that Kresser's TIA or stroke was caused by his employment at Boeing.
In sum, none of the cases cited by the Kressers hold that an employer's duty to provide a safe workplace is so broad as to require the employer "to recognize and respond to" symptoms of a possible stroke.
The Kressers next argue Boeing breached duties to provide a safe workplace under the Washington Industrial Safety and Health Act ("WISHA") and various regulations promulgated there under. The Kressers, however, simply make the bare allegation that Boeing violated multiple statutes and regulations without providing meaningful argument, citation to authority, or explanation as to how Boeing's actions violated duties specified in those statutes and regulations. See Opening Brief at 23-25. In general, "[p]assing treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration." Holland v. City of Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290 (1998) (citing State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992)). But even if we were to consider the issue, we reject Kresser's arguments.
The Kressers contend Washington Administrative Code ("WAC") sections 296126-094, 296-800-11010, and 296-800-11035 required Boeing "to recognize and respond to" his symptoms. Those regulations read as follows:
The purpose of these regulations is not to transform an employer into a guarantor of an employee's good health. Rather, the purpose is to ensure employers maintain a safe workplace environment, so that employees do not become injured on the job. Indeed, in the statute itself, the legislature clearly stated the purpose of WISHA:
To continue reading
Request your trial