Wells v. City of Vancouver

• Decision Date: 02 April 1970
• Docket Number: No. 39771,39771
• Citation: 467 P.2d 292,77 Wn.2d 800
• Parties: Clyde WELLS, Respondent, v. CITY OF VANCOUVER, a municipal corporation, Appellant.
• Court: Washington Supreme Court

Page 800

77 Wn.2d 800

467 P.2d 292

Clyde WELLS, Respondent, v. CITY OF VANCOUVER, a municipal corporation, Appellant.

No. 39771.

Supreme Court of Washington, En Banc.

April 2, 1970.

R. DeWitt Jones, Pros. Atty., Vancouver, for appellant.

Boettcher, LaLonde, Kleweno, Lodge & Ladley, John L. LaLonde, Vancouver, for respondent.

McGOVERN, Justice.

The highest wind speeds recorded at any time in the area of Vancouver, Washington, occurred on October 12, 1962.

After being advised of those anticipated high winds plaintiff proceeded to the municipal airport to check the security of his airplane. While there, he inspected his airplane and assisted others in moving and anchoring theirs. He said that the wind was blowing from the east but was not exceptionally strong. When he was north of the hangar in question, at about 5:25 p.m., he said that he heard a 'tearing sound'; he turned, looked, and saw the hangar roof lifting into the air; he claimed that pieces of plywood were rising some 50 feet into space and that parts of the roof were 'falling like leaves'. He testified that he started to run but, although some 250 feet from the hangar, was hit on the right leg by a piece of the falling plywood. His leg was fractured.

Plaintiff brought suit against the city for the damages which he sustained and rested his case on the proposition that the city was negligent in the structural design of the disintegrated hangar, a part of which had struck him. He argued that the applicable building code in effect at the time of construction required that the hangar be erected with a vertical parts wind resistance factor of 15 pounds per square foot, but that the hangar doors failed in fact when the wind pressure against them was only 11.2 pounds per square foot.

It was the testimony of plaintiff's chief witness, a consulting civil engineer, that the wind in the hangar doors, and that the internal pressure of the wind, once inside, was such that it lifted the building off its foundation. This he attributed to the faulty building design and to improper anchorage of the walls' vertical studs. He said that the lifting of the building caused it to wrench, twist, and then disintegrate. He further testified that the building as constructed would fail when the speed of the wind against it reached 58 miles per hour. He claimed that a proper standard of good engineering practice in the area would have called for a building designed to resist wind pressures up to 81 miles per hour. This he determined by referring to the area's previously recorded high wind velocity of 61 miles per hour and then attaching to it an additional 20 miles per hour factor to allow for higher gusts.

A professional meteorologist, plaintiff's witness, testified that the 5:25 p.m. anemometer readings at the Portland International Airport, 3.4 miles east of the Vancouver Municipal Airport, indicated an east wind velocity of 14 miles per hour, with gusts to about 20 miles per hour. Four minutes later, the meteorologist said, the recorded wind speed jumped to approximately 59 miles per hour. It was at this point, plaintiff argues, that the hangar proved deficient and failed. It would not have been inadequate, he argues, if it had been properly constructed.

At the close of plaintiff's case, when his motion for nonsuit was denied, defendant introduced testimony to the effect that the applicable code did not require doors on the structure involved, and that no violations of either the code or standards of good hangar construction had occurred.

Upon conclusion of all the evidence, defendant moved for a directed verdict. The motion was denied, the case submitted to the jury and a plaintiff's verdict was returned. This appeal followed.

Defendant first assigns error to the trial court's denial of its motion for a directed verdict and to the denial of its motion for a new trial or, in the alternative, for a judgment notwithstanding the verdict. It argues these assignments of error on the theory that an act of God caused the building to disintegrate. Defendant contends that it could not reasonably have foreseen that the building would be struck by such a violent windstorm and, therefore, any negligence which might have occurred could not be a legal, or proximate cause of plaintiff's injury.

We recently stated that foreseeability is not an element of proximate cause. Rikstad v. Holmberg, 76 Wash.Dec.2d 265, 456 P.2d 355 (1969). 'Proximate cause' necessitates only a sufficiently close, actual, causal connection between the complained-of conduct and the resulting injury. The issue of causation in this case was properly submitted to the jury under the standard instruction (WPI 15.01) defining 'proximate cause' in terms of 'direct sequence' and making no reference to the issue of foreseeability.

While foreseeability is not appropriately considered as part of the causation issue, it is useful in determining the limits of the defendant's duty and the reasonableness of the defendant's conduct. In Rikstad we said (at 268, 456 P.2d at 357) that if a plaintiff is to have his case submitted to the jury then he must first produce substantial evidence to demonstrate that:

(1) there is a statutory or common-law rule that imposes a Duty upon defendant to refrain from the complained-of conduct and that is designed to protect the plaintiff against harm of the general type; (2) the defendant's conduct violated the duty; and (3) there was a sufficiently close, actual, causal connection between defendant's conduct and the actual damage suffered by plaintiff.

Determination of the duty issue is not exclusively a function of the court. Here the court properly instructed the jury on the common-law rule that defendant, as a property owner, owed the plaintiff, as an invitee, the duty of exercising ordinary care. Generally, the duty to use ordinary care is bounded by the foreseeable range of danger. It is for the jury to decide whether a general field of danger should have been anticipated. McLeod v. Grant County School Dist. No. 128, 42 Wash.2d 316, 255 P.2d 360 (1953). In the instant case, the issue of whether the increased dangers inherent in such a violent windstorm were reasonably foreseeable was properly put before the jury by instruction No. 8, which read in part:

One who is under a duty to protect others against injury cannot escape liability for injuries to the person or property of such others on the ground that it was caused by an act of God, unless the natural phenomenon which caused the injury was so far outside the range of human experience that ordinary care did not require that it should be anticipated or provided against, and it is not sufficient that such phenomena are unusual or of rare occurrence.

The issue as to whether defendant's conduct violated the duty imposed by common law was properly presented to the jury with an instruction stating that an engineer or designer is guilty of negligence if he fails to apply the skill and learning which is required of similarly situated engineers or designers in his community.

In addition to the common law basis for negligence, the plaintiff also argues that defendant was guilty of negligence per se because the hangar was neither designed nor constructed as required by the applicable building code in effect at the time of construction. The scope of the duty imposed by statutory rule is a matter of law. The duty extends only to persons in the class intended to be protected by the statute or ordinance, and only to those persons who suffer harm from a hazard which was intended to be prevented by compliance with the statute or ordinance. Morgan v. State, 71 Wash.2d 826, 430 P.2d 947 (1967); Raffensperger v. Towne, 59 Wash.2d 731, 370 P.2d 593 (1962).

Those provisions of the City of Vancouver building code which plaintiff alleges were violated in the construction of the hangar provide in part:

Sec. 2307. (a) General. Buildings and structures and every portion thereof shall be designed and constructed to resist the wind pressure as specified in this Section. All bracing systems both horizontal and vertical shall be designed and constructed to transfer the wind loads to the foundations.

(b) Wind Pressure. For purposes of design the wind pressure shall be taken upon the gross area of the vertical projection of buildings and structures at not less than 15 pounds per square foot for those portions of the building less than sixty feet (60 ) above ground * * *

Defendant argues that the jury should not have been instructed as to those provisions because the provisions are intended only to protect persons injured by toppling or collapsing buildings and the plaintiff was not within this class of persons. We do not agree. We believe that the provisions were intended to protect all persons who might be injured by flying debris as a result of a building's failure to withstand wind pressures below the minimum resistance factor, regardless of whether the wind caused the building to collapse or to explode. Since the plaintiff produced expert testimony that the hangar did not satisfy those provisions and that this defect caused the building to explode, the trial court was correct in submitting those provisions and this theory of negligence to the jury. The jury was then left with the task of determining whether the defendant's conduct violated those provisions. Also, the jury was asked whether the violation, if any, was a proximate cause of the injury, that is, whether there was a sufficiently close causal connection between the violation and the injury and whether the injury would not have occurred but for the violation.

The record indicates that plaintiff produced sufficient evidence to get instructions on both theories of negligence before the jury. The jury was properly instructed as to the law and there is ample evidence in the record to support the verdict of the jury. The judgment is affimed.

HUNTER, C.J., and WEAVER, ROSELLINI, HAMILTO...