Pacific Northwest Bell Tel. Co. v. Port of Seattle, 42057

• Decision Date: 16 December 1971
• Docket Number: No. 42057,42057
• Citation: 80 Wn.2d 59,491 P.2d 1037
• Court: Washington Supreme Court
• Parties: PACIFIC NORTHWEST BELL TELEPHONE COMPANY, a Washington corporation, Respondent, v. PORT OF SEATTLE, a municipal corporation, Appellant.

Page 59

80 Wn.2d 59

491 P.2d 1037

PACIFIC NORTHWEST BELL TELEPHONE COMPANY, a Washington

corporation, Respondent, v. PORT OF SEATTLE, a municipal corporation, Appellant.

No. 42057.

Supreme Court of Washington, En Banc.

Dec. 16, 1971.

Rehearing Denied Feb. 22, 1972.

Reed, McClure, Moceri & Thonn, Hugh A. McClure, William R. Hickman, Seattle, for appellant.

Schweppe, Doolittle, Kurg & Tausend, Thomas R. Beierle, Seattle, for respondent.

SHARP, Associate Justice.

The most important issue presented by this appeal, is whether the principle of liability without fault should be applied for damages caused by the rupture of a water main under the exclusive control of a municipal corporation.

On October 22, 1968, a pipe which formed a part of the fire protection system on terminal 18 of the Port of Seattle suddenly broke, and water from that break ran into a Pacific Northwest Bell Telephone Company manhole, damaging exposed wires therein. The pipe was part of a 1 1/2 to 2 mile system of pipe which supplied water to the fire protection system of the Port of Seattle. The line was composed of 6-foot lengths of 6-inch, 8-inch, and 10-inch cast iron pipe, buried from 3 to 7 feet underground. The break occurred at a depth of approximately 4 to 5 feet. The line carried water at an average pressure of 135 to 150 pounds per square inch. The pipe had been in the ground some 25 years before the incident, and there is evidence that such pipe should last approximately 100 years before needing replacement.

Terminal 18 and this fire protection system had been built by Todd Shipyards, and were purchased from the shipyard by the port in 1965. The only leak in the system, since acquisition by the port, resulted from an earthquake in 1965.

While there appears to be no direct evidence as to what caused this particular break, there is testimony in the record that it may have been caused by land settlement. Terminal 18 was built on hydraulic fill, which apparently has a characteristic of continued settlement over time. The evidence is that the only maintenance work on the system is to repair valves, fittings, and pipes as needed, there being no practical way of inspection for soundness. There is no known mechanical device for inspecting the line from the surface, and visual inspection would require digging down every 6 feet to a depth of 3 to 6 feet over the entire 2 mile system. The testimony was that even after digging up the pipe there would be no way of detecting whether the pipe would break that day, tomorrow, or within 6 months, and, furthermore, such digging around the pipe would increase the probability of breaks in the pipe.

In May, 1969, the telephone company filed a complaint against the port claiming damage due to the broken water pipe and basing liability on four theories: (1) nuisance, (2) trespass, (3) negligence, and (4) absolute liability. A jury trial was held on the question of liability only, and the case submitted to the jury on the theory of negligence. The jury was instructed as to inferences permissible under the doctrine of res ipsa loquitur by instruction No. 9, which reads:

If you find that the ruptured water main was under the exclusive control of the defendant, and that it caused an injury to plaintiff which would ordinarily not have occurred if defendant had used ordinary care, there is an inference, permissible from the occurrence itself, that the injury was caused by the defendant's want of care, that is, its negligence.

This inference of negligence is evidence to be weighed against the defendant's evidence.

If you make these findings, you must therefore find that defendant was negligent unless you also find that the defendant establishes by a preponderance of the evidence that it did use ordinary care and was free of negligence in its maintenance of the water main, and free of negligence in the cause of the rupture of that water main.

Plaintiff took no exception to this, or to any other of the court's instructions.

The jury returned a verdict for defendant. Pacific Northwest Bell Telephone Company made alternative motions for a judgment n.o.v. and for a new trial. The trial judge granted the motion for judgment n.o.v. on the basis that he felt the doctrine of strict liability was applicable. The court also granted plaintiff's alternative motion for a new trial. The Port of Seattle appeals.

This issue was before this court in Kind v. Seattle, 50 Wash.2d 485, 312 P.2d 811 (1957), wherein plaintiff's business property was flooded due to a rupture of a water main owned and maintained by the defendant city. Under substantially the same facts as the present case, the trial court, sitting without a jury, found the city liable under the doctrine of Fletcher v. Rylands, L.R. 1 Ex. 265 (1866). On appeal this court found that whether that doctrine applied need not be decided, and instead affirmed on the basis that 'the defendant failed to sustain the burden of explaining the cause of the break in the main or showing its own freedom from negligence.' The doctrine of res ipsa loquitur was found to be applicable, the court saying, 50 Wash.2d at page 489, 312 P.2d at page 814:

Where a plaintiff's evidence establishes that an instrumentality under the exclusive control of the defendants caused an injurious occurrence, which ordinarily does not happen if those in control of the instrumentality use ordinary care, there is an inference, permissible from the occurrence itself, that it was caused by the defendant's want of care. Nopson v. Wockner, 40 Wash.2d 645, 245 P.2d 1022. Legal control or responsibility for the proper and efficient functioning of the instrumentality which caused the injury and a superior, if not exclusive, position for knowing or obtaining knowledge of the facts which caused the injury, provide a sufficient basis for application of the doctrine. Hogland v. Klein, 49 Wash.2d 216, 298 P.2d 1099. When these circumstances are shown, the plaintiff has made a Prima facie case, and it devolves upon the defendant to produce evidence to meet and offset the effect of the presumption. Hogland v. Klein, Supra.

Here, the water main was under the exclusive control of the defendant city, and the court found as a fact that a break of this sort does not ordinarily occur without the presence of negligence. It further found that the defendant had failed to explain the occurrence, and although it found that the defendant had exercised due care in many respects, the findings reveal that the defendant's evidence fell short of proving its freedom from negligence in regard to the break.

It was under this decision that instruction No. 9 in the present case was formulated. We have reconsidered this question and conclude that the rule from Kind v. Seattle, Supra, is the appropriate rule, that the doctrine of res ipsa loquitur is applicable, and that the principle of liability without fault does not apply.

The doctrine of strict liability for conditions and activities had its beginnings in Fletcher v. Rylands, Supra, wherein water escaped from a reservoir a landowner kept on his property and damaged neighboring coal mines. The landowner was found liable without a showing of fault. The English court set out the rule, which many United States courts have cited as the rule of Fletcher v. Rylands, Supra, in part as follows at page 278:

the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.

On appeal to the House of Lords, this rule was sharply limited to cover only 'non-natural' uses of land, and thus the emphasis was shifted to the abnormal and inappropriate character of the defendant's reservoir in coal mining country, rather than to the mere tendency of all water to escape. Rylands v. Fletcher, L.R. 3 H.L. 330 (1868); see W. Prosser, Law of Torts, § 78 (4th ed. 1971); W. Prosser, Selected Topics on the Law of Torts 135 (1953). The English cases which followed have borne out the interpretation that strict liability is to be confined to things or activities which are extraordinary, exceptional, or abnormal. W. Prosser, Law of Torts § 78 (4th ed. 1971). See also, 2 Harper and James, The Law of Torts § 14.4 (1956) and the material cited in the 1968 supplement to that volume at page 12.

The Restatement has recognized this interpretation and in Restatement (Second) of Torts § 519 (Tent. Draft No. 10, 1964), the principle is stated in terms of abnormally dangerous activities.

(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent such harm.

(2) Such strict liability is limited to the kind of harm, the risk of which makes the activity abnormally dangerous.

As to what constitutes an abnormal activity, § 520 states:

In determining whether an activity is abnormally dangerous, the following factors are to be considered:

(a) Whether the activity involves a high degree of risk of some harm to the person, land or chattels of others;

(b) Whether the gravity of the harm which may result from it is likely to be great;

(c) Whether the risk cannot be eliminated by the exercise of reasonable care;

(d) Whether the activity is not a matter of common usage;

(e) Whether the activity is inappropriate to the place where it is carried on; and

(f) The value of the activity to the community.

Applying these factors to this system, we do not find the activity to be abnormally dangerous. There has never been a break in the system before, absent an earthquake, and the pipe could have been expected to last many more years. It is a system commonly used for fire protection, and its placement underground is, of course, appropriate. We do not find § 519 of the...