Wenatchee Wenoka Growers Ass'n v. Krack Corp., 44920

• Decision Date: 23 March 1978
• Docket Number: No. 44920,44920
• Citation: 89 Wn.2d 847,576 P.2d 388
• Court: Washington Supreme Court
• Parties: WENATCHEE WENOKA GROWERS ASSOCIATION, a Washington Corporation, Respondent, v. KRACK CORPORATION, an Illinois Corporation, Appellant, Puget Sound Engineering, Inc., Washington Corporation, Respondent, Food Industries Research & Engineering, Inc., et al., Respondents.

Page 847

89 Wn.2d 847

576 P.2d 388

WENATCHEE WENOKA GROWERS ASSOCIATION, a Washington Corporation, Respondent, v. KRACK CORPORATION, an Illinois Corporation, Appellant Puget Sound Engineering, Inc., Washington Corporation, Respondent Food Industries Research & Engineering, Inc., et al., Respondents.

No. 44920.

Supreme Court of Washington, En Banc.

March 23, 1978.

Gavin, Robinson, Kendrick, Redman & Mays, William H. Mays, Joel Smith, Yakima, for appellant.

Pinckney M. Rohrback, Robert J. Reynolds, Yakima, Kargianis & Austin, Daniel F. Sullivan, Robert Waitt, Seattle, for respondent.

STAFFORD, Associate Justice.

This is an appeal from a summary judgment dismissing appellant Krack Corporation's claim for contribution from respondent Food Industries Research & Engineering, Inc. (Food).

Wenatchee Wenoka Growers Association (Wenatchee) leases its refrigerated storage facilities to fruit growers in the Wenatchee Valley. In 1971 Wenatchee retained Food to design an additional controlled atmosphere storage facility and to supervise its installation. Food's design required refrigeration units manufactured by Krack. The Krack units were installed by Puget Sound Engineering (Puget), a subcontractor.

Following installation, the unit manufactured by Krack developed leaks which allowed ammonia gas to escape. The gas caused extensive damage to the apples stored in Wenatchee's warehouse. The refrigeration system as designed by Food did not contain an automatic device for detecting ammonia leaks although such equipment was available and might have prevented some of the resulting apple damage.

Wenatchee sued Krack and Puget, alleging negligence, breach of warranty and strict liability. Puget filed a third-party claim against Food. Food then sued Krack. Krack responded by asserting a claim for contribution from Food based on Food's alleged defective design of the controlled atmosphere system.

Before trial but after discovery, Food's motion for summary judgment dismissing Krack's contribution claim was granted. After the case had gone to trial but before Wenatchee rested, Krack and Wenatchee settled. Wenatchee's remaining claims were then disposed of, but the record does not clearly disclose the nature of the disposition. Puget then nonsuited Food on the third-party action.

Although somewhat complicated procedurally, the only issue before us concerns the propriety of the summary judgment dismissing Krack's claim for contribution against Food. Krack appeals and urges us to abandon the long-standing rule prohibiting claims for contribution between or among joint tortfeasors. At this time, on this record, and based on the briefs submitted, we are not persuaded the rule should be abandoned.

Krack first suggests contribution between tortfeasors is the natural corollary of the comparative negligence principle expressed in RCW 4.22.010. We agree the comparative concept of RCW 4.22.010 expresses a new public policy in this state. See also Godfrey v. State, 84 Wash.2d 959, 530 P.2d 630 (1975). Yet, we are not fully convinced that this comparative concept compels abrogation of the no-contribution rule.

Comparative negligence and contribution both represent serious attempts to achieve greater fairness in tort law. But, the underlying policy considerations of each are quite different. See, e. g., Comment, Comparative Negligence, 49 Wash.L.Rev. 705 (1974); W. Prosser, Law of Torts § 50 (4th Ed. 1971); C. R. Heft & C. J. Heft, Comparative Negligence Manual § 12.0 (1976); Leflar, Contribution & Indemnity Between Tortfeasors, 81 U.Pa.L.Rev. 130 (1932); Reath, Contribution Between Persons Jointly Charged for Negligence Merryweather v. Nixon, 12 Harv.L.Rev. 176 (1898).

Comparative negligence is directed at compensating one who has suffered a tort-related loss. Prosser, Comparative Negligence, 51 Mich.L.Rev. 465 n.2 (1953). Comparative negligence means comparison of the negligence of the plaintiff and the defendant. Amend v. Bell, 89 Wash.2d 124, 570 P.2d 138 (1977); Bradley v. Maurer, 17 Wash.App. 24, 29, 560 P.2d 719 (1977). One who has suffered damages is allowed to seek recovery even though his own negligence may have proximately caused the injury complained of. RCW 4.22.010; Godfrey v. State, supra.

Contribution, on the other hand, is directed at equitably distributing between or among tortfeasors the responsibility for paying those damages suffered by the injured party. See Prosser, Law of Torts at 307; Commissioners' Prefatory Note (1939 Act), Uniform Contribution Among Tortfeasors Act, 12 U.L.A. 60 (1975). Contribution, unlike comparative negligence, is neither related to the damages an injured party is entitled to receive nor to the question of whether that injured party should receive less than his full damages suffered from a tort-related loss.

In short, allowing the injured party an opportunity to recover from the tortfeasor (comparative negligence) and permitting an equitable distribution of damages between or among joint tortfeasors (contribution) pertain to interests wholly unrelated. Thus, we cannot agree that contribution necessarily follows as the corollary of comparative negligence.

Krack next urges that we follow the lead of other states that have adopted contribution. Yet, it suggests no prototype for our consideration. Given the myriad of issues necessarily raised by adopting the theory of contribution, we are sympathetic with the failure to offer any kind of model or consistent theory for guidance. The approaches other states have taken to the issues raised by contribution are not only extremely varied, but exceedingly inconsistent.

A prime example of the diversity among the states is reflected in the differing approaches suggested by the Uniform Law Commissioners in the 1939 and 1955 versions of the Uniform Contribution Among Joint Tortfeasors Act. 12 U.L.A. 57-107 (1975). The 1939 version of the Act contained an optional section 2(4) allowing consideration of degrees of fault among joint tortfeasors. 12 U.L.A. at 57. On the other hand, the 1955 version abandons the "degree of fault" option in favor of an equitable adjustment among the tortfeasors. 12 U.L.A. at 87-88. Several states follow the optional provision of the 1939 Act. See Ark.Stat.Ann. § 43-1002; 10 Del.Code Ann. § 6301; Haw.Rev.Stat.1968 § 663-12; Idaho Code Ann. § 6-803; S.Dak.Comp. Laws 1967 § 15-8-15; Utah Code Ann.1953 § 78-27-40(2); Wyo.Stat.Ann.1957 § 1-7.3(c). Other states have adopted the 1955 version but have retained the "degree of fault" option of the 1939 Act. See Fla.Stat.Ann. § 768.31(3); Or.Rev.Stat. § 18.445. Still others have enacted the 1955 version including the equitable adjustment of damage liability between joint tortfeasors. See Alaska Stat.1962 § 9.16.020; Nev.Rev.Stat. § 17.295.

Other states follow an equal division rule for adjusting damage liability among joint tortfeasors. See Ga.Code Ann. § 105-2012; Miss.Code Ann.1972 § 85-5-5. California, with certain judicially imposed exceptions, follows a "pro rata share" or "equal shares" method for adjusting damage liability between those tortfeasors paying more than a pro rata share of a joint judgment. Cal.Civ.Proc.Code §§ 875-877. New York applies an "equitable share" concept. N.Y.C.P.L.R. § 1402. New Jersey has even another solution. See N.J.Stat.Ann. § 2A:53A-1, et seq.

Kansas has virtually abolished joint and several liability. Kan.Stat.Ann. § 60-258a. And, New Hampshire and Vermont arguably have also abolished joint and several liability under their contribution schemes. See N.H.Rev.Stat.Ann. § 507:7-a; Vt.Stat.Ann.1959, Title 12, § 1036.

Even those courts which have judicially abandoned the rule prohibiting contribution between or among joint tortfeasors have had difficulty assessing the magnitude of change thereby generated. For example both Wisconsin and Maine judicially allowed contribution as early as 1918. See Ellis v. Chicago & N.W. Ry., 167 Wis. 392, 167 N.W. 1048 (1918); Hobbs v. Hurley, 117 Me. 449, 104 A. 815 (1918). In 1918, both courts considered the "equal share" or "pro rata" method of apportionment to be judicially warranted. But, both courts subsequently modified their damage distribution rules in favor of a relative fault system. Bielski v. Schulze, 16 Wis.2d 1, 114 N.W.2d 105 (1962); Packard v. Whitten, 274 A.2d 169 (Me.1971). In fact, many courts first considering the issues surrounding contribution focus solely upon the prohibition's theoretical underpinnings, rather than its practical complications. See, e. g., George's Radio v. Capital Transit Co., 75 U.S.App.D.C. 187, 126 F.2d 219 (1942); Best v. Yerkes, 247 Iowa 800, 77 N.W.2d 23 (1956); Goldman v. Mitchell-Fletcher Co., 292 Pa. 354, 141 A. 231 (1928); Ankeny v. Moffett, 37 Minn. 109, 33 N.W. 320 (1887).

We have examined the various approaches taken by other states with the hope of arriving at the most equitable approach to this factually and legally entangled appeal. Aside from the questions which surround the primary problems of the theory prohibiting contribution, concerns about joint and several liability, and distribution among tortfeasors of the damage liability, Krack also injects the question of products liability into the appeal; that is: should there be contribution between or among joint tortfeasors regardless of the degree or nature of the tortfeasor's fault? Krack suggests contribution should be permitted not solely between negligent joint tortfeasors, but also between joint tortfeasors whose liability to the injured party is premised in negligence and in strict liability theories. ...