Martini v. Paul Post

• Decision Date: 26 November 2013
• Docket Number: No. 43484–9–II.,43484–9–II.
• Citation: 313 P.3d 473
• Court: Washington Court of Appeals
• Parties: Thomas MARTINI, individually and as the personal representative of the Estate of Judith Abson; Deborah Svancara; Kimberly Svancara, a minor; and Christina Svancara, a minor; Appellants, v. Paul POST, individually, Respondent.

313 P.3d 473

Thomas MARTINI, individually and as the personal representative of the Estate of Judith Abson; Deborah Svancara; Kimberly Svancara, a minor; and Christina Svancara, a minor; Appellants,

v.Paul POST, individually, Respondent.

No. 43484–9–II.

Court of Appeals of Washington, Division 2.

Nov. 26, 2013.

John Robert Connelly Jr., Anna Liese Price, Micah R. Lebank, Connelly Law Offices, Tacoma, WA, for Appellants.

Margaret Yvonne Archer, Attorney at Law, Tacoma, WA, for Respondent.

PENOYAR, J.

¶ 1 Thomas Martini appeals the trial court's dismissal of his negligence action against his landlord Paul Post for his wife's, Judith Abson's, death after a fire in their rented house. Martini filed the negligence action against Post individually and on behalf of Abson and her three daughters. Before the fire, Martini had repeatedly asked Post to repair windows that were inoperable because they were painted shut. Abson died of smoke inhalation after the inoperable windows prevented her from escaping the fire. The trial court granted Post's motion for summary judgment on the issue of cause in fact and then denied Martini's motion for reconsideration.

¶ 2 Martini appeals, arguing that (1) summary judgment was improper because there are genuine issues of material fact regarding whether Post's failure to repair the windows was the cause in fact of Abson's death, and (2) the trial court erred when it denied his motion for reconsideration given the new evidencehe submitted and the court accepted, demonstrating Abson attempted to open a window and expert testimony opining that Abson would have survived if she had been able to open a window. We reverse the trial court's denial of Martini's motion for reconsideration because the new evidence creates a genuine issue of material fact regarding Abson's cause of death and remand for trial.

FACTS

I. Background

¶ 3 Beginning in 2006, Abson and Martini leased a house from Post. During the initial walk through of the house, Martini noticed the windows in the northeast bedroom could not be opened and he requested that Post repair them. After his initial request, Martini requested that Post repair the windows in the northeast bedroom on at least two more occasions, but Post never repaired them.

¶ 4 In the early morning of February 27, 2007, a fire began in the home's basement. Two houseguests and Abson were awake and noticed the fire. One of the houseguests awoke Martini, who gathered the three children and ushered them outside. Both of the houseguests who initially discovered the fire also safely exited the house.

¶ 5 In the course of the fire, Abson, one of her daughters, and a third houseguest became trapped on the second floor. Abson was trapped in the back side of the house and was eventually found in the northeast bedroom, which was the room with inoperable windows. Martini heard Abson yelling from an upstairs bedroom in the back of the house before the fire fighters arrived at the house.

¶ 6 Abson's daughter and the houseguest were trapped in the southeast bedroom. While trapped, Abson's daughter heard Abson yell from the back of the second floor to get out of the house. Abson's daughter and the houseguest opened a window and took turns sticking their heads out of the window to breathe fresh air. When the fire fighters arrived, they immediately rescued Abson's daughter and the houseguest using a ground ladder.

¶ 7 Abson's daughter and the houseguest told the fire fighters that Abson was still in the house. Two fire fighters reentered the house through a second floor window. They found the door to the northeast bedroom ajar. The fire fighters opened the door and found Abson unconscious on the floor. Due to Abson's size and her condition, the fire fighters were unable to exit with Abson through a window via a ground ladder. After other fire fighters gained control of the first floor fire, the fire fighters exited with Abson using the house stairs and she was transported to the hospital. Resuscitation efforts were not successful and Abson was pronounced dead at the hospital. An autopsy showed Abson died from smoke inhalation.

¶ 8 After the fire, the City of Tacoma fire investigator noted the presence of hand prints and marks around the east window in the northeast bedroom, where Abson was trapped. In his complaint, Martini alleged there was evidence of hand prints around the window. In his motion for reconsideration, he provided a photograph that showed markings around the window.

¶ 9 A certified fire and explosion investigator, Noel Putannsuu, inspected the northeast room and found the window on the east wall to be inoperable. He stated that he (a 210 pound, 6 foot 2 inch tall man) could not open the window with reasonable or even forceful effort, and thus, Abson would have been unable to open the window while trapped in the northeast bedroom. The window along the north wall had been removed by the time he conducted his investigation.

II. Procedural History

¶ 10 Martini filed a negligence action against Post. Post moved for summary judgment, alleging that (1) Martini could not produce evidence that the window in the northeast bedroom was painted shut at the time of the fire; (2) because Martini and Abson were aware that the window was painted shut, Post could not be liable under Washington law; and (3) Martini failed to produce evidence that any negligence by Post was the proximate cause of Abson's death.

¶ 11 Martini responded, arguing that (1) Post is liable for Abson's death because he breached the Residential Landlord Tenant Act's (RLTA) implied warranty of habitability ¹ and violated building requirements of the Tacoma Municipal Code; ² and (2) because her daughter survived by opening a window, Abson also would have survived if the windows in the northeast bedroom had not been painted shut. Martini supported his response with Putannsuu's expert testimony. Putannsuu testified that Abson would have been unable to open the window and that Post “should have ensured that the window was open-able with minimal effort by an average person when the tenants moved in.” Clerk's Paper's (CP) at 64.

¶ 12 The trial court granted summary judgment on the ground that Martini failed to prove the cause in fact element of proximate cause and stated Martini failed to present sufficient evidence to show that “ ‘but for’ the negligence of the defendants, [Abson] would not have died.” CP at 165. Martini moved for reconsideration under CR 59(a)(7)-(9), arguing that Abson would have survived the fire but for Post's failure to repair the inoperable windows, and Post's failure was the legal cause of Abson's death. In his motion for reconsideration, Martini also introduced new evidence of hand prints around the window in the northeast bedroom and a declaration from Dr. Kiesel, who performed Abson's autopsy, testifying that Abson would have survived if she had been able to open a window and breathe fresh air.

¶ 13 Post filed a motion to strike the new evidence, arguing that (1) it is improper to introduce new evidence on reconsideration under CR 59(a)(7)-(9); (2) Dr. Kiesel was not qualified to testify regarding whether someone could survive in a burning house; and in the alternative, (3) Dr. Kiesel's opinion was based on speculation. Post also responded to Martini's motion for reconsideration, arguing that (1) the newly introduced evidence should not be considered, (2) the marks on the window in the northeast bedroom do not create a question of fact with regard to causation, and (3) Dr. Kiesel's declaration does not support Martini's motion for reconsideration.

¶ 14 During oral argument on the motion for reconsideration, Martini's attorney handed the court a photograph of the window in the northeast bedroom that showed evidence of a mark on the wall next to the window, which Martini contends is Abson's hand print. Post objected to the introduction of the photograph; however, the trial court allowed it. In a letter to counsel, the trial court noted that it reviewed the photograph of the window and Dr. Kiesel's declaration and stated that it was going to deny Martini's motion for reconsideration. However, in the actual order denying the motion for reconsideration, the trial court listed Dr. Kiesel's declaration as a document reviewed but not the photograph. Martini timely appeals.

ANALYSIS

I. Proximate Cause

¶ 15 Martini argues that the trial court erred when it denied his motion to reconsider the summary judgment in Post's favor because the new evidence Martini submitted with his motion for reconsideration in addition to the evidence he previously submitted in opposition to Post's motion for summary judgment creates an issue of fact. Post responds that, even if all the evidence can properly be considered on appeal, the evidence is too speculative to support overturning the trial court's denial of reconsideration. We hold it was manifestly unreasonable to deny Martini's motion for reconsideration because the trial court had accepted evidence on reconsideration that created a genuine issue of material fact regarding the cause of Abson's death.

A. Standard of Review

¶ 16 Summary judgment is proper if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” CR 56(c). We construe all facts and the reasonable inferences from those facts in the light most favorable to the nonmoving party. Jones v. Allstate Ins. Co., 146 Wash.2d 291, 300, 45 P.3d 1068 (2002). We review a trial court's denial of a motion for reconsideration and its decision to consider new or additional evidence presented with the motion to determine if the trial court's decision is manifestly unreasonable or based on untenable grounds. Weyerhaeuser Co. v. Commercial Union Ins. Co., 142 Wash.2d 654, 683, 15 P.3d 115 (2000); Chen v. State...