Schuck v. Beck, 37213-8-III

CourtCourt of Appeals of Washington
Writing for the CourtFEARING, J.
PartiesFELIX W. SCHUCK, a single individual Respondent, v. GORDON BECK and JANE DOE BECK, individually, as well as the marital community thereof; TIM JACKSON and ROBERTA JACKSON, individually, as well as the marital community thereof; IBEX CONSTRUCTION, INC., a Washington corporation; INLAND NORTHWEST EQUIPMENT AUCTION, INC., d/b/a REINLAND AUCTIONEERS, a) 16 Washington corporation; REINLAND, INC., ) d/b/a/ REINLAND EQUIPMENT AUCTION, an Idaho corporation; REINLAND PROPERTIES, L.L.C., an Idaho limited !ability company; THOMAS REINLAND and KUNY A REINLAND, individually, as well as the marital community thereof; ASHLEY REINLAND and JOHN DOE REINLAND, individually, as well as the marital community thereof; and JOHN DOE 1-5, entities or individuals, Petitioners.
Decision Date19 October 2021
Docket Number37213-8-III

FELIX W. SCHUCK, a single individual Respondent,
v.

GORDON BECK and JANE DOE BECK, individually, as well as the marital community thereof; TIM JACKSON and ROBERTA JACKSON, individually, as well as the marital community thereof; IBEX CONSTRUCTION, INC., a Washington corporation; INLAND NORTHWEST EQUIPMENT AUCTION, INC., d/b/a REINLAND AUCTIONEERS, a) 16 Washington corporation; REINLAND, INC., ) d/b/a/ REINLAND EQUIPMENT AUCTION, an Idaho corporation; REINLAND PROPERTIES, L.L.C., an Idaho limited !
ability company; THOMAS REINLAND and KUNY A REINLAND, individually, as well as the marital community thereof; ASHLEY REINLAND and JOHN DOE REINLAND, individually, as well as the marital community thereof; and JOHN DOE 1-5, entities or individuals, Petitioners.

No. 37213-8-III

Court of Appeals of Washington, Division 3

October 19, 2021


FEARING, J.

Where damage is sustained by the latter through the nonculpable activities of the former, who should bear the loss the man who caused it or a 'third person', as Judge

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Hand says, 'who has no relation to the explosion, other than that of injury'?" Langan v. Valicopters, Inc., 88 Wn.2d 855, 860, 567 P.2d 218 (1977) (quoting Loe v. Lenhardt, 227 Or. 242, 253, 362 P.2d 312 (1961)).

Unfortunately interesting appeals often arise from tragedy.

This appeal asks whether the trial court properly granted, in part and only in part, summary judgment to defendants Tom Reinland, his wife, and his related companies (collectively Tom Reinland), who sold scrap metal to Pacific Steel & Recycling (Pacific) for recycling. Plaintiff Felix Schuck, an employee of Pacific, suffered injuries when the puncture of a metal cylinder tank sold by Tom Reinland suddenly released chlorine. Schuck brought suit against supplier Reinland asserting negligence claims based on common law and the Restatement (Second) of Torts, an absolute liability claim for engaging in an abnormally dangerous activity, and a statutory claim under the Hazardous Waste Management Act (HWMA), chapter 70.105 RCW.

Tom Reinland moved for summary judgment on all claims and the trial court granted partial summary judgment dismissal of Schuck's negligence claim under Restatement (Second) of Torts § 392 (Am. Law Inst. 1965) and absolute liability claims based on the Restatement (Second) of Torts §§ 519 and 520 (Am. Law Inst. 1977). The trial court denied summary judgment as to Schuck's claims based on the Restatement (Second) of Torts § 388 (Am. Law Inst. 1965), the Hazardous Waste Management Act, and common law negligence. Reinland appeals the denial of dismissal of the three claims, and Schuck cross appeals on the claims which the trial court rejected.

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We affirm in part and reverse in part the superior court's ruling. We hold that Tom Reinland is entitled to summary judgment on the common law negligence claim and the Hazardous Waste Management Act claim. We hold that Reinland is not entitled to summary judgment under Restatement (Second) of Torts §§ 388, 392, 519, and 520. We instead grant summary judgment to Schuck on his claim of absolute liability, based on an abnormally dangerous activity, under Restatement (Second) of Torts §§ 519 and 520. Our ruling on absolute liability renders decisions on other claims unnecessary. Nevertheless, we address the other causes of action because of the difficulty faced in assessing whether Tom Reinland engaged in an abnormally dangerous activity and, in turn, the possibility of reversal of our decision by the Washington Supreme Court. The numerous theories of liability asserted by Felix Schuck prolong this opinion.

FACTS

This appeal concerns the handling of a cylindrical chlorine tank owned at the time of the tragedy by Tom and Kunya Reinland and removed from property owned by Tim and Robert Jackson. Because we review a summary judgment order, we remove the facts from summary judgment affidavits and deposition testimony.

Tim and Roberta Jackson owned five acres of land located on North Regal Street in Spokane. The Jacksons operated Ibex Construction on the property. L&S Tire Company leased part of the property and stockpiled mounds of old tires thereon. The acreage also functioned as a junkyard for used cars, heavy equipment, railroad box cars,

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and other detritus. A large metal cylindrical tank filled with chlorine sat by the north fence on the property. The sealed cylinder tank had valves and displayed a tag with the word "'chemicals.'" Clerk's Papers (CP) at 252-53, 273.

Tom and Kunya Reinland own and manage Reinland Equipment Auction. Reinland Equipment Auction purchases chattel to sell at auctions.

In 2015, Tim and Roberta Jackson planned to retire and desired to neaten the junk yard on their North Regal Street property. Tim Jackson, on behalf of Ibex Construction, and Tom Reinland entered an agreement, under which Reinland purchased all chattel on the North Regal property. Before consummating the agreement, Reinland visited the Jackson property three times, although he denies walking the entire property.

On July 31, 2015, Ibex Construction signed a bill of sale that transferred to Tom Reinland "chippers, loader, tools, shop equipment, misc., [and] scrap iron" found on the Jackson land. CP at 236. Reinland paid $32, 500 for the chattel. Under the agreement, Reinland could remove anything sellable from the property with few exceptions. Jackson informed Reinland not to remove equipment stored in one building and not to touch items with a green "x" thereon. Jackson never warned Reinland of any hazardous material located at the property, and Reinland never inquired about dangerous objects. Under the purchase contract, Reinland incurred no obligation to remove any objects.

Thereafter a Reinland Equipment Auction crew of Tom Reinland, Ashley Reinland, and a man only identified as Nathan spent eight days scrutinizing chattel on the

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Jackson North Regal Street property. The trio did not examine every object, however, nor conduct an inventory. None of the three walked the full property. The triad focused on shop items, railroad cars, vehicles, a loader, and chattel at the front of the land near Regal Street.

During the eight-day reconnaissance, Tom Reinland never spotted any hazardous material on the North Regal property. He never saw the cylindrical chlorine tank that gives rise to this lawsuit. During a deposition, Reinland testified that, if he had seen the chlorine tank or a sealed tank with a valve, he would have ordered his crew not to move the tank. The presence of valves would have signaled to Reinland that the tank may contain an unknown substance. According to Reinland, he would salvage a valved tank only if the valve is missing, he can see inside the cylinder, and the cylinder is empty.

Scott Sander, the owner of land lessee L&S Tire Company, knew of the presence of the chlorine tank. According to Sander, the tank resided on the Jackson property for eighteen years. Sander testified that he would have contacted a company that handles industrial gases before touching the tank. He also would have read the information located on the tank's tag, although no one asked whether he saw the chemical warning or any valves on the tank when perusing the property.

Tom Reinland hired Gordon Beck, a recycler, to assist with removing salvageable scrap metal from the North Regal property. The two agreed on a 60/40 split, 60 percent to Beck and 40 percent to Reinland, of income accrued from recycled materials.

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Reinland informed Beck that all objects with a green "x" must remain on the property, but Beck could send for recycling all other salvageable scrap.

Gordon Beck arranged to sell the scrap on the Jackson land to Pacific Steel & Recycling. On August 12, 2015, Gordon Beck brought his excavator onto the Jackson property. Beck loaded chattel, from the yard, with the excavator onto a truck owned by Pacific and operated by Pacific employee, Don Bond. Beck loaded the chlorine tank onto the truck. According to Beck, he found the dirty chlorine tank half buried. Beck did not see any valves on the tank.

Kyle Miller, a friend of Gordon Beck, watched as Beck loaded the chlorine tank onto the Pacific truck. Miller testified that the large tank was not buried and could easily be seen by someone walking on the Jackson property. The tank rested horizontally on the land. During his deposition, Miller did not indicate whether he saw any valves or chemical warnings on the tank or whether such features could be easily seen.

Don Bond drove the Pacific Steel & Recycling truck, loaded with the chlorine tank and other objects, to Pacific's scrap facility in Spokane Valley. Bond never inspected the tank to determine if any placard or other notation identified the contents of the tank. Bond acknowledged that Pacific trained him on company safety policies and procedure. Under one policy, he must not accept sealed tanks. Under another policy, he must carefully review whether a tank is sealed. He must not allow a sealed tank to enter Pacific's scrap yard. Bond did not closely inspect the chlorine tank because he had

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worked with Gordon Beck before and Beck had never before delivered an unsafe object to Pacific.

On arrival at Pacific Steel & Recycling's facility, Don Bond notified Pacific's scale operator that he was delivering a load of mixed iron from Gordon Beck. After weighing the truck, Bond drove toward the shear. A shear, a stationary machine, chops steel. Beck notified the Pacific crane operator, Ed Dumaw, that his truck contained mixed iron from Gordon Beck. Dumaw's duties included loading the shear with metal scrap for processing. Dumaw instructed Bond to back the truck toward the shear. Dumaw, with the crane, lifted the tank from the dump truck, rotated the tank, and placed it in the shear's hopper. Theodore Lister, Pacific's shear operator, testified that Ed Dumaw rotated the tank for the purpose of examining it for safety.

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