Lewis v. Krussel, 24599-0-II.

Decision Date16 June 2000
Docket NumberNo. 24599-0-II.,24599-0-II.
CourtWashington Court of Appeals
PartiesDawn A. LEWIS and Darold Teitzel, Appellants, v. Gary and Nancy KRUSSEL, husband and wife, Respondents.

John Dore Schumacher, Aberdeen, for Appellants.

R. Alan Swanson, Swanson, Parr, Cordes, et al., Olympia, for Respondents.

SEINFELD, J.

During a windstorm, two large healthy hemlock trees fell on the home of Dawn Lewis and Darold Teitzel. Lewis and Teitzel sued Gary and Nancy Krussel, who owned the property on which the trees had been growing. Because there was no evidence that the Krussels had any reason to believe that these particular trees posed a hazard, the trial court granted the Krussels' motion for summary judgment. On appeal, Lewis and Teitzel urge us to hold that a landowner who has notice that other trees of the same species have fallen has a duty to remove his healthy trees. We decline to so hold and, thus, affirm.

FACTS

Lewis and Teitzel live on property adjacent to that of the Krussels in a residential area of Grays. Harbor County. On December 3, 1995, two of the Krussels' large hemlock trees fell over during a windstorm, damaging the roof on the Lewis/Teitzel house.

In January 1997, Lewis and Teitzel filed a complaint for damages against the Krussels. Both sides filed summary judgment motions.

Lewis and Teitzel supported their motion with the parties' depositions. Gary Krussel acknowledged that windstorms had knocked down other trees on his property and other property nearby in previous years. He also said that one tree on his property or a neighbor's property fell on or near a neighbor's truck some years previously. During severe windstorms, including the one on December 3, 1995, he would have his mother stay at his house instead of in her mobile home that was set among the trees. About a week after the windstorm at issue here, another windstorm had knocked a tree onto his mother's mobile home.

Gary Krussel stated that the trees that damaged the Lewis/Teitzel house were natural growth and that he had no reason to believe that they were any more dangerous than any other trees on his property under normal conditions. He could not recall participating in discussions with Lewis regarding the latter's concerns about the trees but said if such discussions took place, they probably related to a different parcel in the neighborhood, which had a "terrible problem" with falling trees. Krussel also testified that after the damage to the Lewis/Teitzel house he cut down other hemlock trees located near their house upon the recommendation of the local utility district.

Teitzel said that he and Lewis expressed concern to the Krussels about the trees toppling over in the wind. Lewis stated that she expressed concerns to Krussel about the trees swaying in the wind and that both Gary and Nancy Krussel told her that they would do something about the trees. Lewis also testified that after the trees fell on their roof, Gary Krussel said something to the effect that he should have done something sooner about the trees.

The Krussels supported their motion for summary judgment with the declaration of Doug Truax, a professional forester who inspected the stump of one of the fallen trees. Truax stated that he found no evidence of rot or disease in the stump or other trees. He concluded that the tree that fell on the Lewis/Teitzel house was no more dangerous than any other tree standing on the Krussels' property. Truax stated that even healthy trees blow over in heavy winds and that there was no way for the Krussels to determine beforehand whether any one of their trees would fall over.

The trial court granted summary judgment in favor of the Krussels and dismissed the Lewis/Teitzel claims. Lewis and Teitzel moved for reconsideration and filed an affidavit by a meteorologist who provided data from a recording station located about three miles from their home. The meteorologist reported that data showed that the maximum sustained wind at that location on the night in question was 25.7 mph with a maximum gust to 38.7 mph. The meteorologist concluded that such winds were "fairly common" at that location during that particular time of year and did not constitute an "extraordinary" or "highly unusual wind event."

The trial court denied the motion to reconsider. Lewis and Teitzel appeal.

DISCUSSION

Preliminarily, the Krussels note that Lewis and Teitzel did not assign error to the trial court's conclusion that there was no genuine issue of material fact. They suggest that Greater Harbor 2000 v. City of Seattle, 132 Wash.2d 267, 937 P.2d 1082 (1997), may have overruled the established standard of review of a summary judgment ruling. We conclude that it did not.

Greater Harbor, a plurality decision, involved an appeal from a summary judgment. Two justices reasoned that the appellant's failure to assign error to the trial court's "finding" that the case did not involve a genuine issue of material fact rendered such finding a verity, supporting summary judgment in favor of the respondent. Greater Harbor, 132 Wash.2d at 279,937 P.2d 1082. But a larger plurality of justices decided Greater Harbor on ripeness grounds. 132 Wash.2d at 285,937 P.2d 1082. Consequently, Greater Harbor did not alter the traditional rule that the trial court's findings on summary judgment are superfluous and this court need not consider them. See Concerned Coupeville Citizens v. Town of Coupeville, 62 Wash.App. 408, 413, 814 P.2d 243 (1991)

; Donald v. City of Vancouver, 43 Wash.App. 880, 883, 719 P.2d 966 (1986).

Here, Lewis and Teitzel assigned error to the trial court's granting of summary judgment and identified issues arising from that action. Thus, we follow the established standard of review in considering this case, engaging in the same inquiry as the trial court. Bishop v. Miche, 137 Wash.2d 518, 523, 973 P.2d 465 (1999). We consider the facts and reasonable inferences from the facts in the light most favorable to the nonmoving party. Bishop, 137 Wash.2d at 523, 973 P.2d 465; Taggart v. State, 118 Wash.2d 195, 199, 822 P.2d 243 (1992). And we review questions of law de novo. Bishop, 137 Wash.2d at 523, 973 P.2d 465.

Summary judgment is proper where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Bishop, 137 Wash.2d at 523, 973 P.2d 465; Taggart, 118 Wash.2d at 198-99, 822 P.2d 243. A material fact is one that affects the outcome of the litigation. See Greater Harbor, 132 Wash.2d at 279,

937 P.2d 1082.

I. Elements of Negligence

Lewis and Teitzel appear to base their claims in both nuisance and negligence. The Krussels contend that this court should confine its review to the negligence claim because it forms the basis for the nuisance claim.

"In Washington, a `negligence claim presented in the garb of nuisance' need not be considered apart from the negligence claim." Atherton Condominium Apartment-Owners Ass'n Bd. v. Blume Dev. Co., 115 Wash.2d 506, 527, 799 P.2d 250 (1990) (quoting Hostetler v. Ward, 41 Wash.App. 343, 360, 704 P.2d 1193 (1985)). "In those situations where the alleged nuisance is the result of the defendant's alleged negligent conduct, rules of negligence are applied." Atherton, 115 Wash.2d at 527, 799 P.2d 250 (citing Hostetler, 41 Wash.App. at 360, 704 P.2d 1193).

Here, Lewis and Teitzel ground their nuisance claim on the Krussels' inaction with regard to the fallen trees. In other words, the nuisance is the result of negligence. Atherton, 115 Wash.2d at 528, 799 P.2d 250. Accordingly, we do not consider the nuisance claim apart from the negligence claim. Atherton, 115 Wash.2d at 528, 799 P.2d 250.

"The elements of a negligence cause of action are the existence of a duty to the plaintiff, breach of the duty, and injury to plaintiff proximately caused by the breach." Hertog v. City of Seattle, 138 Wash.2d 265, 275, 979 P.2d 400 (1999) (citing Degel v. Majestic Mobile Manor, Inc., 129 Wash.2d 43, 48, 914 P.2d 728 (1996)). "Existence of a duty is a question of law." Hertog, 138 Wash.2d at 275, 979 P.2d 400 (citing Schooley v. Pinch's Deli Market, Inc., 134 Wash.2d 468, 474, 951 P.2d 749 (1998)).

There is no dispute that the offending trees toppled from the Krussels' land and damaged the Lewis/Teitzel house. The dispositive issue is whether Krussel had a duty to remove the healthy trees before they fell.

II. Duty of Landowner

The general thrust of the Lewis/Teitzel argument is that hemlock trees are inherently prone to toppling over and, thus, the Krussels were under a duty to cut down any of their hemlock trees that could fall on the Lewis/Teitzel house. But this theory is tantamount to a strict liability standard for the owners of hemlock trees. Neither the evidence nor the law support this proposition.

The few strict liability authorities cited by Lewis and Teitzel do not apply in the fallen tree context. See, e.g., Vern J. Oja & Assoc. v. Washington Park Towers, Inc., 89 Wash.2d 72, 76-77, 569 P.2d 1141 (1977) (holding that pile driving on construction site was abnormally dangerous activity warranting strict liability for damage caused to adjoining property). Louisiana is the only state we find that imposes strict liability for the fall of defective trees. See Loescher v. Parr, 324 So.2d 441, 445 (La.1975)

. But Louisiana law does not apply here because its liability there arises from statute. Loescher, 324 So.2d at 445. Consequently, we apply general negligence standards.

"A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another." W. Page Keeton et al, The Law of Torts § 53, at 356 (5th ed.1984). With respect to a defendant's duty to others, liability is based on "misfeasance," affirmative misconduct or, in more limited circumstances, "nonfeasance," passive inaction or failure to take steps to protect...

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