McDermott v. Kaczmarek, No. 235--41064--I

• Court: Court of Appeals of Washington
• Writing for the Court: JAMES
• Citation: 2 Wn.App. 643,469 P.2d 191
• Docket Number: No. 235--41064--I
• Decision Date: 11 May 1970
• Parties: George F. McDERMOTT, Appellant, v. Stanley KACZMAREK and Katherine Kaczmarek, his wife, and John A. Thomson and Jane Doe Thomson, his wife, Respondents.

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2 Wn.App. 643 469 P.2d 191 George F. McDERMOTT, Appellant,
v.
Stanley KACZMAREK and Katherine Kaczmarek, his wife, and
John A. Thomson and Jane Doe Thomson, his wife, Respondents. No. 235--41064--I. Court of Appeals of Washington, Division 1, Panel One. May 11, 1970.

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[469 P.2d 192] Richard G. McCann, Seattle, for appellant.

J. R. Woolston, Seattle, for respondents.

JAMES, Chief Judge.

George McDermott's 7-year-old son Perry went, uninvited, to play on the Thomsons' land. While playing with two companions near the top of a cliff, Perry fell to his death. McDermott's wrongful death action against the Thomsons was dismissed on their motion for summary judgment. McDermott appeals.

The facts are not in dispute. The trial judge concluded that under no legal theory could McDermott prevail.

McDermott's two legal theories are these: that the Thomsons' failure to fence their property pursuant to RCW 78.12.010 was negligence as a matter of law and that the Thomsons were negligent in maintaining an 'attractive nuisance' on their land.

The Thomsons' land is unimproved. It fronts on the same street as McDermott's home, which is nearby. About 30 years ago rock was quarried from the Thomsons' land by one of their predecessors in interest. The quarry operation left an exposed, rocky cliff approximately 40 feet high. The base of the cliff is at the level of the street on which McDermott's home is located. The contour of the cliff is

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generally concave, opening onto the street roughly in the form of a bowl. The presence of the cliff is apparent from all directions. The [469 P.2d 193] parties agree that the two photographs reproduced with this opinion accurately portray the area as it was at the time of the tragedy.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

[469 P.2d 194] Perry was a trespasser. The Thomsons would ordinarily owe him only the duty to refrain from willfully or wantonly

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injuring him. See Mail v. M. R. Smith Lumber & Shingle Co., 47 Wash.2d 447, 287 P.2d 877 (1955). McDermott must rely upon exceptions to this basic rule.

In support of his first theory, McDermott relies upon RCW 78.12.010:

Any person or persons, company, or corporation who shall hereafter dig, sink or excavate, or cause the same to

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be done, or being the owner or owners, or in the possession, under any lease or contract, of any shaft, excavation or hole, whether used for mining or otherwise, or whether dug, sunk or excavated for the purpose of mining, to obtain water, or for any other purpose, within this state, shall, during the time they may be employed in diggins, sinking or excavating or after they have ceased work upon or abandoned the same, erect, or cause to be erected, good and substantial fences or other safeguards, and keep the same in good repair ground such works or shafts sufficient to securely guard against danger to persons and animals from falling into such shafts or excavations.

It is McDermott's position that the statute applies to the Thomsons' rock quarry and that under the statutory provisions, the Thomsons were required to surround the quarry with a protective fence.

The statute was enacted during the 1889--1890 legislative session. It was entitled 'Fencing of Mines and Shafts' and designated 'An Act to secure persons and animals from danger arising from mining.' Although we agree with McDermott that in a general dictionary sense a 'quarry' can be a 'mine,' we are satisfied that RCW 78.12.010 does not apply to the Thomsons' abandoned rock quarry.

If McDermott is to prevail on his first theory, it must be because the exposed face of the Thomsons' quarry is an 'excavation' within the meaning of the statute. We find that the word 'excavation' does create some uncertainty as to the scope of the statute. In resolving this ambiguity, we resort to the usual rules of statutory construction.

The primary rule of statutory construction is that courts must ascertain and declare the intention of the legislature. Krystad v. Lau, 65 Wash.2d 827, 400 P.2d 72 (1965); See generally 50 Am.Jur. Statutes § 223 (1944). The intent must be determined primarily from the language of the statute itself. Words must be given their commonly understood meaning if possible. See generally 50 Am.Jur. Statutes § 238 (1944). Where, as here, there is uncertainty, we must resort to other recognized rules of statutory construction. Krystad v. Lau, Supra.

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Inasmuch as the statute creates a duty and a corresponding right where none existed at common law, it must be strictly construed. In other words, the duty imposed must be precisely limited to that intended by the legislature.

In this state there is also a general statute, (section 143 Rem.Comp.Stats.) (P.C. § 8252), which is pertinent. It provides:

'The common law, so far as it is not inconsistent with the Constitution and laws of the United States, or of the state of Washington, nor incompatible with the institutions and condition of society in this state, shall be the rule of decision in all the courts of this state.'

We have held that any law in derogation of the common law should be strictly construed. (Citations.)

In re Estate of Tyler, 140 Wash. 679, 684, 250 P. 456, 458 (1926).

Two additional rules of statutory construction apply. The doctrine of noscitur a sociis is that

the meaning of particular terms in a statute may be ascertained by reference to words associated with them in the statute. Where two or more words of analogous meaning are employed together in a statute, they are understood to be used in their cognate sense, to express [469 P.2d 195] the same relations and give color and expression to each other. It is also a familiar policy in the construction of terms of a statute to take into consideration the meaning naturally attaching to them from the context, and to adopt that sense of the words which best harmonizes with the context.

(Footnotes omitted.) 50 Am.Jur. Statutes § 247 (1944).

The doctrine of ejusdem generis is that

General and specific words in a statute which are associated together, and which are capable of an analogous meaning, take color from each other, so that the general words are restricted to a sense analogous to the less general. * * * The general words are deemed to have been used, not to the wide extent which they might bear if standing alone, but as related to words of more definite and particular meaning with which they are associated.

(Footnotes omitted.) 50 Am.Jur. Statutes § 249 (1944).

We note that the following critical words were juxtaposed

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in the statute: 'dig, sink or excavate;' 'shaft, excavation or hole;' 'dug, sunk or excavated;' 'digging, sinking or excavation;' and 'such works or shafts.'

Applying the companion doctrines of noscitur a sociis and ejusdem generis, we conclude that the potential breadth of the word 'excavate' must be limited by the words 'shaft' and 'hole'.

The statute upon which McDermott relies, RCW 78.12.010, was construed in Dernac v. Pacific Coast Coal Co., 110 Wash. 138, 188 P. 15 (1920). There the court considered the meaning of the words 'falling into said shaft or excavation.' Although the ruling in Dernac is not determinative of the issue in this case, we note the following language, which we consider to be instructive and consistent with the construction we give the word 'excavation:'

In (interpreting the statute), it is proper to have in mind the evils which the passage of the statute were intended to remedy. Unguarded excavations on private property were a source of danger, and Unless some warning of their existence or safeguards were afforded they were constant menaces to the lives and limbs of Persons using the property and unaware of their existence. This is especially true in mining districts, and on this account the statute was passed in this state, and similar statutes have been passed in other states where mining operations are carried on. In view of the language of this statute and the dangerous results which were sought to be prevented, it cannot be said that the statute means, when it says that the guards are for the...