New Meadows Holding Co. by Raugust v. Washington Water Power Co.
| Decision Date | 17 February 1983 |
| Docket Number | 4687-III-7 and 4763-III-6,Nos. 4644-III-3,s. 4644-III-3 |
| Citation | 659 P.2d 1113,34 Wn.App. 25 |
| Parties | NEW MEADOWS HOLDING COMPANY, by Harvey RAUGUST, Trustee, Respondent, v. WASHINGTON WATER POWER COMPANY, Appellant. Mark T. BROWN, Respondent, v. WASHINGTON WATER POWER COMPANY, Appellant. NEW MEADOWS HOLDING COMPANY, by Harvey RAUGUST, Trustee, Plaintiff, v. WASHINGTON WATER POWER COMPANY, Appellant, and Pacific Northwest Bell and Cable Way, Inc., Respondents. NEW MEADOWS HOLDING COMPANY, by Harvey RAUGUST, Trustee, Appellant, v. WASHINGTON WATER POWER COMPANY, Defendant, and Pacific Northwest Bell and Cable Way, Inc., Respondents. |
| Court | Washington Court of Appeals |
Thomas C. McKinnon, Cartano, Botzer, Larson & Birkholz, Seattle, Karen Keeney, American Gas Ass'n, Arlington, Va., for amicus curiae in No. 4644-III-3.
Fred O. Montoya, Edward A. Dawson, Dawson & Meade, Spokane, for respondent in No. 4644-III-3 and appellant in No. 4763-III-6.
Bryan P. Harnetiaux, Robert Whaley, Winston & Cashatt, Spokane, for Washington State Trial Lawyers Assn.
Richard E. Hayes, MacGillivray & Jones, Spokane, for respondent in Nos. 4687-III-7 and 4763-III-6.
On December 31, 1978, Mark Brown sustained serious burns when the home he rented from New Meadows Holding Company and owner Harvey Raugust (New Meadows) was destroyed by a fire. The fire began when Mr. Brown attempted to light his oil stove and unknowingly ignited natural gas leaking into his home underground from a damaged gas line several blocks away. The gas leak was allegedly caused in 1971 when Cableway, Inc. (Cableway), laying underground telephone cable for Pacific Northwest Bell (PNB), damaged a 2-inch gas transmission line owned by Washington Water Power (WWP). Several lawsuits ensued.
1. New Meadows sued WWP, PNB and Cableway. WWP answered and sought indemnity by cross claim from PNB and Cableway. PNB brought separate summary judgment motions against New Meadows and WWP asserting that both the claim and cross claim were barred by the statutes of limitation in RCW 4.16.300-.320. New Meadows did not contest that motion; WWP did contest it. Both judgments were granted. New Meadows and WWP appealed.
2. Mr. Brown sued WWP. New Meadows joined with him and amended its complaint to add a strict liability count.
Both plaintiffs, New Meadows and Mr. Brown, 1 were granted summary judgment on the issue of strict liability. WWP sought discretionary review, which was granted. RAP 2.3(b). The appeals were placed on a parallel perfection schedule to be heard on the same day
These appeals present two issues:
1. Whether New Meadows' claim and WWP's cross claim against PNB are barred by RCW 4.16.300-.320 2 because more than 6 years elapsed since the project was substantially completed.
2. Whether strict liability for abnormally dangerous activities should extend to natural gas companies for damages allegedly caused by a third party's interference with underground gas mains.
New Meadows did not contest PNB's motion for summary judgment; it has thus waived any claim it may have asserted against PNB. 3 Curtis v. Seattle, 97 Wash.2d 59, 639 P.2d 1370 (1982); Shelton v. Farkas, 30 Wash.App. 549, 635 P.2d 1109 (1981). This court will not consider arguments raised for the first time on appeal. The court's dismissal of New Meadows' action against PNB is affirmed.
The only remaining question on this issue is whether this statute of limitation bars WWP's cross claim for indemnity should WWP be found liable in maintaining its gas line.
The purpose for such legislation was succinctly stated in Nevada Lakeshore Co. v. Diamond Elec., Inc., 89 Nev. 293, 511 P.2d 113, 114 (1973):
The apparent purpose of NRS 11.205 [parallel statute to RCW 4.16.300-.320] is to afford ultimate repose and protection from liability for persons engaged in the designing, planning and construction of improvements to realty. Without protection such persons would be subject to liability for many years after they had lost control over the improvement or its use or maintenance.
Our courts have construed these statutes to bar claims for negligent construction brought after the 6-year period. Yakima Fruit & Cold Storage Co. v. Central Heating & Plumbing Co., 81 Wash.2d 528, 503 P.2d 108 (1972); Rodriguez v. Niemeyer, 23 Wash.App. 398, 595 P.2d 952 (1979).
WWP strenuously argues the construction statute of limitation does not apply to claims for damage to adjacent property and contends the proper statute of limitation is RCW 4.16.080(1). 4 WWP is correct. In Vern J. Oja & Assocs. v. Washington Park Towers, Inc., 89 Wash.2d 72, 75-76, 569 P.2d 1141 (1977), the court stated In those cases involving damage to real property arising out of construction or activity on adjacent property, the cause of action accrues at the time the construction is completed if substantial damage has occurred at that time. If the damage has not occurred when the construction is completed, the action accrues when the first substantial injury is sustained thereafter.
Although WWP may have been substantially damaged when the gas line was struck (a question not answered here), New Meadows did not sustain damage until the fire occurred. New Meadows and Mr. Brown had no cause of action prior to the fire and should not be held to a statute of limitation designed to encompass only parties directly involved in the construction project. This reasoning is buttressed by Gazija v. Nicholas Jerns Co., 86 Wash.2d 215, 543 P.2d 338 (1975), where the court stated only the infliction of actual and appreciable damages causes an action to accrue. Gazija's logic clearly applies to this situation. Here the property was several blocks away from the underground gas line; damage to Mr. Brown and New Meadows did not result for 7 years. These parties had no notice of any potential risk, much less actual damage, until the fire occurred. The trial court erred in applying RCW 4.16.300-.320; the proper statute of limitation is RCW 4.16.080(1).
PNB's reliance on Washington Natural Gas Co. v. Tyee Constr. Co., 26 Wash.App. 235, 611 P.2d 1378 (1980), is misplaced. There, the issue of damage to adjacent property was not raised. Instead, Washington Natural Gas Co. argued RCW 4.16.300-.320 did not apply because laying cable was not an improvement upon real property. The court held that it was. 5 The facts there indicate Washington Moreover, Washington Natural Gas Co. is inapplicable because the present action did not arise from "any improvement upon real property." RCW 4.16.300. Neither the telephone cables nor the gas line were located upon New Meadows' property and therefore cannot be termed "betterments which are of a permanent nature and which add to the value of the property as real property." Siegloch v. Iroquois Mining Co., 106 Wash. 632, 636, 181 P. 51 (1919). In Washington Natural Gas Co. v. Tyee Constr. Co., supra, the lines were laid in a housing subdivision, directly adding to the value of that land and enhancing its use. The record indicates New Meadows' home, located 2 blocks away from the gas main line and telephone cables, was heated by oil. Nothing in the record shows the lines involved here were in any manner affixed to New Meadows' realty. See Yakima Fruit & Cold Storage Co. v. Central Heating & Plumbing Co., supra.
Natural Gas Co. was aware of the construction and, had it [659 P.2d 1117] used reasonable diligence, Gazija v. Nicholas Jerns Co., supra, it would have been aware of the damage much earlier than 9 years.
WWP, joined by counsel for Washington Natural Gas Company (WNG) and the American Gas Association (AGA), as amici curiae, contend the trial court erred in holding them strictly liable 6 for damages caused by the gas The doctrine of strict liability for abnormally dangerous activities was adopted in Washington as long ago as Patrick v. Smith, 75 Wash. 407, 134 P. 1076 (1913) (). In Pacific Northwest Bell Tel. Co. v. Port of Seattle, 80 Wash.2d 59, 491 P.2d 1037 (1971), the court adopted Restatement (Second) of Torts § 520 (1977), as a guide in deciding what activity should be considered abnormally dangerous. We follow that analysis here.
leak. Present Washington law imposes a negligence standard. Richey & Gilbert Co. v. Northwestern Natural Gas Corp., 16 Wash.2d 631, 134 P.2d 444 (1943); Senske v. Washington Gas & Elec. Co., 165 Wash. 1, 4 P.2d 523 (1931)
Section 520 states:
In determining whether an activity is abnormally dangerous, the following factors are to be considered:
(a) existence of a high degree of risk of some harm to the person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and
(f) extent to which its value to the community is outweighed by its dangerous attributes.
Comment f to § 520 states that all six factors are to be considered. While it is not necessary that all elements be present, ordinarily several are required for strict liability.
In the case at bar, several of the elements are present. Natural gas creates a high degree of risk and there is a likelihood of great harm should gas escape from gas lines. 7 Second, the activity--transmission of natural gas by underground lines--is a matter of common usage which is appropriate to the place where it is carried on. The AGA brief notes that:
In the context of these facts, however, the final four elements are missing. Comment h to § 520 points out the inability to eliminate risk means that unavoidable risk remains even after
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