Loger v. Washington Timber Products, Inc.

• Decision Date: 07 May 1973
• Docket Number: No. 1524--I,1524--I
• Citation: 509 P.2d 1009,8 Wn.App. 921
• Parties: Edwin H. LOGER, Appellant, v. WASHINGTON TIMBER PRODUCTS, INC., a corporation, and State of Washington, Respondents, and State of Washington, Cross-Appellant, and Publishers Forest Products, Inc., Respondent.
• Court: Washington Court of Appeals

Page 921

8 Wn.App. 921

509 P.2d 1009

Edwin H. LOGER, Appellant, v. WASHINGTON TIMBER PRODUCTS, INC., a corporation, and State of Washington, Respondents and State of Washington, Cross-Appellant and Publishers Forest Products, Inc., Respondent.

No. 1524--I.

Court of Appeals of Washington, Division 1, Panel Two.

May 7, 1973.

Phillipps & Young, Kenneth E. Phillipps, Everett, for appellant.

Slade Gorton, Atty. Gen. of Washington, Angelo R. Petruss, Asst. Atty. Gen., Olympia, for respondent/cross-appellant State of Washington.

Lenihan, Ivers, Jensen & McAteer, Carl P. Jensen, Seattle, for respondent Publishers Forest Products, Inc.

CALLOW, Judge.

The parties to this action are Edwin H. Loger, an injured workman; the State of Washington; and Publishers Forest Products, Inc., the employer. The appeal is from the order of the trial court dismissing the workman's complaint against the state. The issues raised are whether (a) the court erred in considering the interrogatories, depositions and admissions on file in ruling upon the motion of the state to dismiss the action, and (b) whether the state is liable for a workman's personal injury if the injury is proximately caused by a failure of the Safety Division of the Department of Labor and Industries to perform safety inspections, enforce safety standards, or notify an employer of a working condition which is in violation of safety standards.

On December 31, 1970, Edwin Loger was employed at a sawmill owned and operated by Publishers Forest Products, Inc., in Snohomish County. In performing his duties, his left hand was injured when it came in contact with a saw. His claim is that the machinery was in an unreasonably dangerous defective condition because of the lack of any guard or hood, contrary to safety standards set forth in RCW 49.20.010 and the Washington Administrative Code §§ 296--78--300, 296--78--315, and 296--78--330. His complaint recites that the state was negligent in that the Department of Labor and Industries failed to inspect the sawmill, where the plaintiff was employed in the year prior to his injury, as required by RCW 49.16.120, 49.20.040, 43.22.050(1); failed to discover the unsafe and dangerous condition of the saw which had existed for many years; and failed to enforce the safety standards of the Department of Labor and Industries concerning sawmills contrary to the provisions of RCW 49.16.120, 49.20.040 and 43.22.050(1). The complaint further alleges failure of the department to investigate like injuries to workmen in order to prevent other injuries contrary to RCW 49.16.120 and that these failures permitted unsafe working conditions which caused the injury to the workman.

The trial court recited that it considered the answers to the interrogatories, depositions and admissions on file in ruling on the motion by the state to dismiss the action following the opening statement of the plaintiff. The plaintiff claims that the trial court treated the motion for dismissal as a motion for summary judgment when it considered matters outside the pleadings on the motion to dismiss; and, therefore, it should have been incumbent upon the defendant to comply with the requirements of CR 56.

When a motion to dismiss for failure to state a claim upon which relief may be granted is made at the conclusion of a plaintiff's opening statement, the trial court may grant the motion only if it is clear beyond doubt that no set of facts could be proven that would entitle the plaintiff to relief upon the claim. Higgins v. State, 70 Wash.2d 323, 422 P.2d 836 (1967); Sherwood v. Moxee School Dist., 58 Wash.2d 351, 363 P.2d 138 (1961). In Halvorson v. Birchfield Boiler, Inc., 76 Wash.2d 759, 458 P.2d 897 (1969), we find at page 760, 458 P.2d at page 898:

A motion to dismiss based on the failure of the complaint and the opening statement to state a claim upon which relief can be granted, can be granted only where it is clear beyond doubt from reading the complaint, hearing the opening statement, and considering offers of proof that plaintiffs cannot prove facts which would entitle them to relief. See Hofto v. Blumer, 74 Wash.2d 321, 444 P.2d 657 (1968). Accordingly, we must accept each of plaintiffs' allegations, claims and offers of proof as verities for the purpose of viewing the correctness of the trial court's ruling of dismissal.

A party moving for judgment on the pleadings admits, for the purposes of the motion, all facts well pleaded. Hodgson v. Bicknell, 49 Wash.2d 130, 298 P.2d 844 (1956). The motion will be denied if there are any issues of fact. Mayflower Air-Conditioners, Inc. v. West Coast Heating Supply, Inc., 54 Wash.2d 211, 339 P.2d 89 (1959).

When a motion is made at the completion of the plaintiff's opening statement claiming the absence of any basis upon which relief could be granted, the motion may be considered under CR 12(c) without treating it as a motion for summary judgment under CR 56 if the court can say that no matter what facts are proven within the context of the claim, the plaintiffs would not be entitled to relief. In such a situation, the presentation of evidence, whatever it might be, would be immaterial. No purpose would exist for treating the motion for judgment on the pleadings as one for summary judgment and granting an opportunity to present factual evidence pertinent under CR 56 if whatever might be proven would be immaterial. If factual evidence in addition to the pleadings was considered and was material to the disposition of the motion for judgment on the pleadings, then the consideration of those matters would convert the motion for judgment on the pleadings into a motion for summary judgment. However, when the content of the interrogatories, depositions and admissions would make no difference to the disposition of the motion, whether considered by the trial court or not, then there is no need to convert the motion under CR 12(b)(6) or CR 12(c) into a motion for summary judgment in order to grant the non-moving party an opportunity to controvert evidence submitted outside the pleadings. The non-moving party plaintiff could not be affected by any element of surprise if there could not exist a state of facts which he could prove to entitle him to relief under his claim. See also Gold Seal Chinchillas, Inc. v. State, 69 Wash.2d 828, 420 P.2d 698 (1966).

In Stevens v. Murphy, 69 Wash.2d 939, 421 P.2d 668 (1966), a motion to dismiss was considered as a motion for summary judgment since affidavits and depositions were considered. The problem of CR 12(c) was encountered which reads:

(c) Motion for Judgment on the Pleadings. After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

The trial court determined there was no material issue of fact and ruled as a matter of law. It was said at page 944, 421 P.2d at page 671:

All of the pertinent material considered by the court upon the issue of parental immunity was placed before the court at the Invitation of all parties to the lawsuit. No error is assigned to the procedure followed by the court in its consideration of this material, which consisted of undenied pleading allegations, an affidavit, a deposition and uncontroverted statements contained in a memorandum submitted upon the motion. Nor do the parties before this court dispute the truth of any fact contained in the material upon which the trial judge based his ruling.

The court held that the parties had reasonable and full opportunity to present material which might bear on the issue; and, therefore, the 'reasonable opportunity' requirement of CR 12(c) was satisfied. In this case, no objection was made to the consideration of the extraneous evidence by the trial court at the time of the argument on the motion. He was allowed to consider the facts alleged in plaintiff's opening statement as well as the facts alleged in the complaint as true and rule on the motion. Possible factual issues presented by the pleadings and opening statement of the plaintiff are never reached if the defendant is entitled to judgment as a matter of law. The trial court therefore, in this case, could consider the interrogatories, deposition and affidavits to enable him to understand the purport of the defendant's motion and rule on the motion presented without reaching or resolving any factual issue whatsoever. There being no factual dispute and the state having admitted the facts alleged in the plaintiff's complaint, the question presented was one of law entirely. Compliance with the formalities of CR 56 was not necessary. Kotarski v. Aetna Cas. & Surety Co., 244 F.Supp. 547 (E.D.Mich.1965). See also 3A L. Orland, Wash. Prac., Author's Comments pp. 10--25 (2d ed. 1968).

We turn to whether the state can be responsible for an injury, a proximate cause of which is a failure of the department to perform its safety enforcement functions. When RCW Title 51 (commonly referred to as the Workmen's Compensation Act or Industrial Insurance Act) was enacted, its purpose was set forth in RCW 51.04.010 which withdrew

all phases of the premises . . . from private controversey . . . to the exclusion of every other remedy, proceeding or compensation, except as otherwise provided in this title; and to that end all civil actions and civil causes of action for such personal injuries and all jurisdiction of the courts of the state over such causes are hereby abolished, except as in this title provided.

This expression of legislative intent was commented upon in Koreski v. Seattle Hardware Co., 17 Wash.2d 421 at page 427, 135 P.2d 860, at page...