Peterick v. State
| Decision Date | 03 October 1977 |
| Docket Number | No. 3886-I,3886-I |
| Citation | 22 Wn.App. 163,589 P.2d 250 |
| Parties | Judith S. PETERICK, Administratrix of the Estate of James Kenneth Peterick, Appellant, v. STATE of Washington, Rocket Research Corporation, James Mars and Jane Doe Mars, his wife, Respondents. Iris J. WILSON, personally and as personal representative of the Estate of George C. Wilson, and Debbie Wilson, Appellants, v. EXPLOSIVES CORPORATION OF AMERICA et al., Respondents. Judith S. PETERICK, Administratrix of the Estate of James Kenneth Peterick, Appellant, v. EXPLOSIVES CORPORATION OF AMERICA et al., Respondents. |
| Court | Washington Court of Appeals |
Schroeter, Goldmark & Bender, John Goldmark, Lee A. Holley, Wickwire, Lewis, Goldmark, Dystel & Schorr, David C. Crosby, Seattle, for Wilson.
Benson, Chadwick, Stege & Wines, Kirk R. Wines, Seattle, for Peterick.
Merrick, Hofstedt & Lindsey, James M. Lindsey, Jr., Seattle, for Explosives Corp. of America.
Slade Gorton, Atty. Gen., Angelo R. Petruss, Atty. Gen., Olympia, Detels, Draper & Marinkovich, Frank W. Draper, Seattle, for the State.
This is an appeal by the plaintiffs Peterick and Wilson, acting as the representatives of their respective decedents, from the granting of motions for summary judgment brought by the defendants in an action arising out of a fatal explosion at an explosives plant. The action was initiated by the plaintiffs subsequent to their recovery on claims with the Department of Labor and Industries pursuant to RCW Title 51.
On October 13, 1970, an explosion involving a liquid explosive, Astrolite, occurred at the Raging River explosives manufacturing and test site of the Explosives Corporation of America (hereinafter "EXCOA"). James Peterick and George Wilson, both employees of EXCOA, were killed in the explosion. EXCOA, 92 percent of the stock of which was owned by its parent, Rocket Research Corporation (hereinafter "Rocket"), designed, built and operated the Raging River facility. The liquid explosive had been developed by Rocket. The patent to the explosive was assigned to EXCOA by Rocket in exchange for stock.
The State of Washington was the owner of a portion of the land making up the test site, and had leased this section to EXCOA. The Department of Labor and Industries establishes safety regulations for working conditions throughout the state, pursuant to the Industrial Insurance Act. EXCOA, although obligated to follow such regulations, as of October 13, 1970, had not given notice to the responsible state safety inspector that the Raging River plant was ready for final inspection. As a result, the site had not yet been inspected on the date of the accident.
The plaintiffs brought wrongful death actions. The trial court, after reviewing the documents and affidavits submitted pursuant to CR 56 and hearing arguments, granted the motions for summary judgment. The plaintiffs appeal.
The plaintiffs Peterick and Wilson contend that since their cause of action is based upon a claim for wrongful death, the statutory limitation on bringing suit on this matter is governed by RCW 4.16.080(2) () instead of RCW 4.16.130 (). They base their assertion on the proposition that it is the Nature of the underlying cause of action, and not the status or employment of the defendants, that determines which statute of limitations is applicable. While we agree with the proposition, we disagree with its application by plaintiffs here.
The statutory provisions pertinent to this issue read:
4.16.080 Actions limited to three years. Within three years:
(2) An action for taking, detaining, or injuring personal property, including an action for the specific recovery thereof, or for any other injury to the person or rights of another not hereinafter enumerated;
4.16.130 Actions for relief not otherwise provided for. An action for relief not hereinbefore provided for, shall be commenced within two years after the cause of action shall have accrued.
The Washington State Supreme Court, faced with contentions on two prior occasions substantially the same as plaintiffs' in this case, ruled in favor of the application of the 2-year statute of limitations. In the first case, Northern Grain & Warehouse Co. v. Holst, 95 Wash. 312, 163 P. 775 (1917), the plaintiff alleged that licenses to operate the grain warehouse "were issued carelessly, knowingly, and negligently by (public officials) without obtaining a bond from Nichols, and that thereafter the (public officials) permitted Nichols to openly conduct said warehouses as public warehouses without exacting from him a bond," ultimately causing the plaintiff harm. Northern Grain & Warehouse Co. v. Holst, supra at 313, 163 P. at 776. The public officials responded by arguing that their alleged negligent official acts were not the direct cause of plaintiff's injury, and that therefore the 2-year statute of limitations applied. The court agreed and stated:
In the present case the direct liability sought to be enforced does not arise out of the failure of the respondent officials to exact a bond from Nichols. That failure would not have injured appellant had Nichols delivered the wheat called for by its receipts or been able to pay its value. . . . The direct cause of appellant's loss was the default of Nichols, and not the default of respondents.
Northern Grain & Warehouse Co. v. Holst, supra at 319, 163 P. at 778.
In a later case, Constable v. Duke, 144 Wash. 263, 257 P. 637 (1927), the plaintiff alleged that certain state officials failed to make an examination of a bank's financial condition and that they " 'in bad faith, and in dereliction of their duties, wilfully, maliciously, wrongfully, and fraudulently neglected and refused' to close the bank, and suffered it to continue its banking business as a solvent and going concern," resulting in plaintiff's being injured. Constable v. Duke, supra at 264, 257 P. at 637. The public officials in Constable argued that the 2-year statute of limitations applied and that the reasoning of the Northern Grain case was correct and directly in point. The court agreed and held:
That (Constable and Northern Grain ) are the same in principle we have no doubt. The wrong alleged in each case as the foundation of the cause of action is the dereliction of a public officer in the performance of his official duty, and the statute which bars the action in the one case must necessarily bar it in the other. Nor are we persuaded that the question presented was erroneously decided. The case was presented by able counsel, and all of the reasons the appellant now urges for a contrary conclusion were presented in the arguments. These the opinion meets and answers, and, without repeating the reasons there given for our conclusion, we feel that we reached a correct conclusion.
Constable v. Duke, supra 144 Wash. at 266-67, 257 P. at 638.
As the plaintiffs did not file this cause of action against the State until sometime after the expiration of the 2-year limit, these two cases control the matter before us. Just as in Northern Grain and Constable, the plaintiffs base their ultimate injury on defendant state officials failing to perform their official duties. Here, that failure allegedly occurred in connection with the lease of state land and the regulation of explosives manufacturing by EXCOA. Again, similar to the causation hurdle the plaintiffs in the Northern Grain and Constable cases were unable to clear, the plaintiffs here do not establish a causal connection. The requisite direct liability for the 3-year statute of limitations sought to be enforced here does not arise out of the failure of the state officials to perform official duties, for this alleged failure would not have resulted in plaintiffs' injuries had the explosion not occurred. It was the explosion, however it was caused, that was the direct cause of the plaintiffs' injury, Not negligence on the part of state officials. Finally, the plaintiffs failed to present evidence to substantiate their allegations of a continuing injury existing due to any coverup of information concerning the accident by the State. We hold that the 2-year statute of limitations applies, and that the claim against the state officials was properly dismissed. Constable v. Duke, supra; Northern Grain & Warehouse Co. v. Holst, supra.
DID THE STATE OF WASHINGTON, AS OWNER-LESSOR OF THE LAND
Wilson v. EXCOA
COULD THE STATE OF WASHINGTON BE LIABLE FOR ACTIVITIES
The plaintiffs contend that the State as lessor of the premises involved should be held liable, as landlord, for the injuries resulting from the explosion. The plaintiffs base this contention on a theory that when the State retained both the right to inspect and the right to require compliance with specified safety regulations, it removed itself from the ordinary landlord-tenant relationship and became an active participant in EXCOA's explosives manufacturing process, an inherently ultrahazardous activity, thereby making it liable for plaintiffs' damages. We do not agree.
A landlord's liability for injuries resulting from activities of its tenant is limited. This general rule has been expanded on as follows:
Generally, however, the landlord's obligation and liability are limited to the condition of the premises, and the negligence for the results of which the landlord is ordinarily liable must be in the performance of a duty either to make the premises safe before delivery to the lessee or to keep them...
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