Weatherbee v. Gustafson

• Decision Date: 03 February 1992
• Docket Number: No. 26742-6-I,26742-6-I
• Citation: 64 Wn.App. 128,822 P.2d 1257
• Parties: , Prod.Liab.Rep. (CCH) P 13,278 Wanda WEATHERBEE, Appellant, v. Lennart K. GUSTAFSON and Judi A. Gustafson, his wife; Gustafson Builders Corp., a Washington corporation; and Pittway Corp., a foreign corporation, Respondents.
• Court: Washington Court of Appeals

Page 128

64 Wn.App. 128

822 P.2d 1257, Prod.Liab.Rep. (CCH) P 13,278

Wanda WEATHERBEE, Appellant, v.Lennart K. GUSTAFSON and Judi A. Gustafson, his wifeGustafson Builders Corp., a Washington corporation; and Pittway Corp., a foreign corporation, Respondents.

No. 26742-6-I.

Court of Appeals of Washington Division 1.

Feb. 3, 1992.

Kirk R. Wines, Seattle, for appellant.

Lish Whitson, Helsell, Fetterman, Martin Todd & Hokanson, Merrick Hofstedt & Lindsey, Thomas V. Harris, Seattle, for respondents.

KENNEDY, Judge.

AppellantWanda Weatherbee appeals the trial court's grant of summary judgment to the manufacturer and installer of a smoke alarm which she claims was defective and that the defect was a proximate cause of injuries she received during a fire in her home.We reverse.

I

On the night of December 25, 1984, appellant was at her home with a companion, Mr. Chase.Sometime that night the appellant lit a votive candle and placed it in the headboard of her waterbed.The appellant's pillow apparently came into contact with the candle and began to burn.Appellant testified that she believed that this occurred when she shifted her position and the pillow was moved.Appellant testified that she was awake at this time, and that her companion was also awake.However, Mr. Chase stated in deposition that he had been asleep and that he was awakened by the presence of smoke.

Upon noticing appellant's pillow in flames, Mr. Chase testified that he attempted to move the pillow, and it exploded.Molten fragments landed on the appellant, and as a result she was burned.Although she was awake before the pillow exploded, appellant testified at deposition that she did not feel any heat or smell or see any smoke until after the pillow exploded.Appellant testified that she did smell smoke when she stood up and after she had been burned, but that generally, her sense of smell was not very good.

Prior to this incident, appellant had contracted with respondentGustafson Builders Corp., owned by respondents Lennart and Judi Gustafson, to perform substantial remodeling of her house.The remodeling occurred in September and October of 1984.A new smoke detector, a "First Alert" model manufactured by respondentPittway Corp., was installed at this time.

Appellant filed the instant suit on August 14, 1987, alleging negligence on the part of the manufacturer and the installer of her smoke detector.Appellant claims that the smoke detector was not installed or tested properly and was non-functioning at the time of the fire.The smoke detector was located in the hallway across from the appellant's bedroom door, and the bedroom door was open at the time of the fire.

On June 11, 1990, respondent Gustafson filed a motion for summary judgment claiming that the allegedly defective installation of the smoke alarm could not be considered the proximate cause of the appellant's injuries.On June 12, 1990, respondent Pittway filed a similar motion, also claiming that the allegedly defective smoke alarm could not be considered the proximate cause of the appellant's injuries.Summary judgment was granted to Gustafson on July 2,1990, and to Pittway on July 3, 1990.Appellant filed a motion for reconsideration and filed with it a personal declaration regarding several of the facts pertinent to the incident.The motion for reconsideration was denied on July 27, 1990.This appeal followed.

II

In determining whether an order of summary judgment is correct, this court is to engage in the same inquiry as the trial court.Rhea v. Grandview Sch. Dist. J.T 116-200, 39 Wash.App. 557, 559, 694 P.2d 666(1985).A motion for summary judgment should be granted if there is no genuine issue of material fact or if reasonable minds could reach only one conclusion on that issue based upon the evidence construed in the light most favorable to the non-moving party.Sea-Pac Co. v. United Food and Comm'l Workers Local Union 44, 103 Wash.2d 800, 802, 699 P.2d 217(1985).The granting of summary judgment is proper if the non-moving party, after the motion is made, fails to establish any facts which would support an essential element of its claim.Young v. Key Pharmaceuticals, Inc., 112 Wash.2d 216, 225, 770 P.2d 182(1989)(citingCelotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265(1986)).The burden is on the non-moving party to make out a prima facie case concerning an essential element of the claim if the moving party first shows that there is an absence of evidence to support the non-moving party's case.Young, supra;see alsoHash v. Children's Orthopedic Hosp., 110 Wash.2d 912, 915, 757 P.2d 507(1988).

Respondent claims that appellant failed to establish any facts which would support a finding that the allegedly defective smoke alarm was the proximate cause of her injuries, and thus under Young the burden shifted to her and summary judgment was properly entered.In Young this state's Supreme Court adopted the reasoning in Celotex Corp., 477 U.S. at 325, 106 S.Ct. at 2553-54, by explicitly stating that if the moving party in a summary judgment action shows the absence of an issue of material fact on an essential element of a claim, the burden shifts to the non-moving party to demonstrate the existence of an issue of material fact in order to avoid summary judgment.Young, 112 Wash.2d at 225, 770 P.2d 182.

Finding that a pharmacist's testimony can never be competent evidence as to the proper standard of care of a physician practicing a medical specialty, and that the only evidence as to the proper standard of care which plaintiff had presented was in the form of an affidavit from a pharmacist, the Young court ruled that the plaintiff had failed to establish a material fact as to breach of duty and affirmed the summary judgment.Young, 112 Wash.2d at 227-28, 770 P.2d 182.

Although the test of summary judgment was approached somewhat differently, neither the Celotex court nor the Young court altered the historic rules regarding summary judgment.As reasoned by the court in Young, where a party fails to demonstrate an issue of material fact, " 'there can be "no genuine issue as to material fact,"[under CR 56] since a complete failure of proof concerning an essential element of the nonmoving party's case...