Re v. Tenney, 9482-1-III

• Decision Date: 19 December 1989
• Docket Number: No. 9482-1-III,9482-1-III
• Citation: 56 Wn.App. 394,783 P.2d 632
• Parties: Patricia Joan RE, Personal Representative for the Estate of Terry Gene Re, Appellant, v. Martin Milo TENNEY and Jane T. Doe Tenney, husband and wife, and the marital community composed thereof; County of Walla Walla, Defendants, Cargill Incorporated, Respondent.
• Court: Washington Court of Appeals

Page 394

56 Wn.App. 394

783 P.2d 632

Patricia Joan RE, Personal Representative for the Estate of Terry Gene Re, Appellant, v. Martin Milo TENNEY and Jane T. Doe Tenney, husband and wife and the marital community composed thereof County of Walla Walla, Defendants Cargill Incorporated, Respondent.

No. 9482-1-III.

Court of Appeals of Washington Division 3, Panel One.

Dec. 19, 1989.

Gerald Miller, Miller & Reed, Vancouver, for appellant.

Michael Mitchell, Richard Monahan, Roach, Monahan & Lowry, Walla Walla, for respondent.

SHIELDS, Judge.

Patricia Joan Re, as personal representative of her husband's estate, filed a wrongful death and survival action against Martin Tenney, Cargill, Inc., and Walla Walla County, alleging two causes of action based upon negligence and nuisance. Cargill moved for summary judgment dismissal and the trial court granted it. Ms. Re appeals; we affirm.

Cargill operates a grain elevator on approximately 8 acres at the intersection of Grain Terminal Road ¹ and 2nd Street. That intersection is the scene of severe congestion during August when trucks park on both shoulders of the road, waiting to offload grain at the elevator. On August 5, 1986, Terry G. Re was fatally injured while riding his motorcycle southbound on Grain Terminal Road 1/2 mile north of the elevator. As Mr. Re approached a tractor-trailer rig driven by Martin Tenney, also traveling southbound, he attempted to pass on the left. At that moment, Mr. Tenney began to cross the center line intending to park on the left-hand shoulder further down Grain Terminal Road until he could offload at the grain elevator. Mr. Re attempted to cut back into the right lane of traffic, but collided with the right rear corner of Mr. Tenney's trailer, sustaining fatal injury to his chest. At the time of the collision, the speed of Mr. Tenney's truck was 10 to 15 m.p.h., the speed of the motorcycle was 45 to 50 m.p.h. and the posted speed was 25 m.p.h. The trial court concluded Cargill did not owe a duty of care to Mr. Re and that Cargill was under no obligation to post signs on the public roadway warning of congestion.

The first issue raised is whether Cargill owed a duty to prevent its business invitees from using the roadway as a staging area, which Mrs. Re asserts it did, or a duty to warn travelers on the public highway adjacent to its property of the possibility of congestion, which Cargill asserts it did not.

Mrs. Re contends an occupier of land cannot create a dangerous condition on an abutting roadway without incurring liability for foreseeable injury, citing Misterek v. Washington Mineral Products, Inc., 85 Wash.2d 166, 531 P.2d 805 (1975); Collais v. Buck & Bowers Oil Co., 175 Wash. 263, 266, 27 P.2d 118 (1933); Shamhart v. Morrison Cafeteria Co., 159 Fla. 629, 32 So.2d 727, 2 A.L.R.2d 429 (1947). Cargill responds that it had no control over the public roadway or the independent drivers who delivered the grain and therefore owed no duty to the traveling public.

Whether a duty is owed to one who is injured is a question of law. Youngblood v. Schireman, 53 Wash.App. 95, 99, 765 P.2d 1312 (1988) (citing Pedroza v. Bryant, 101 Wash.2d 226, 228, 677 P.2d 166 (1984)). Generally, an abutting property owner must use and keep his premises in a condition so adjacent public ways are not rendered unsafe for ordinary travel. Collais. The duty, however, is imposed only when correction of the unsafe condition is within the owner's control, as in Kelly v. Gifford, 63 Wash.2d 221, 386 P.2d 415 (1963), or responsibility, as in Groves v. Tacoma, 55 Wash.App. 330, 777 P.2d 566 (1989) and Stone v. Seattle, 64 Wash.2d 166, 391 P.2d 179 (1964).

In Kelly, the court held the owner of a developed business center was not responsible for excess surface water which drained from its property and flooded a public highway, causing the plaintiff's brakes to fail. Kelly, 63 Wash.2d at 223, 386 P.2d 415, noted the county had the duty to provide adequate drainage, a matter not within the control of the property owner.

In Groves, the plaintiff sued the City of Tacoma for injuries resulting from a slip and fall on a public sidewalk. The sidewalk spanned a private driveway which provided access to medical offices used by the business invitees of property owners abutting the private driveway. The City filed a third party complaint against the property owners asserting that the use by the business invitees damaged the sidewalk and created the hazard. The City's complaint was dismissed for failure to state a cause of action on a CR 12(b)(6) motion. The court reversed the dismissal, noting that if the driveway were a private one, and if the special use by the owner's business invitees had damaged the sidewalk making it hazardous to pedestrian traffic (even though considered factually remote), the owners could be responsible for the damage and then liability would attach. The undisputed use of the right of way by Cargill and its business invitees as a staging area to offload grain may thus be viewed as a special use of a public roadway. The duty not to permit a traffic obstruction depends upon whether its correction is within the control of Cargill.

Here, the evidence discloses Cargill knew the trucks were using the shoulders of the roadway as a staging area before offloading grain at the elevator. It also knew the two lanes of Grain Terminal Road were occasionally reduced to one. However, Cargill could neither erect "No Parking" signs on a public highway nor enforce them; that duty, as noted in Kelly, is imposed on the county which has exclusive control of public highways and is responsible for erecting highway signs. In that regard, the trial court did not err.

In responding, Mrs. Re relies on RCW 47.32.120 ² which makes it unlawful as a public nuisance for any business to obstruct the right of way of a state highway....