Youngblood v. Schireman

• Decision Date: 30 December 1988
• Docket Number: No. 20941-8-I,20941-8-I
• Citation: 765 P.2d 1312,53 Wn.App. 95
• Parties: , 25 A.L.R.5th 807 Torinda YOUNGBLOOD, a single woman, Appellant, v. Loren SCHIREMAN and Charlene Schireman, husband and wife, and their marital community, Respondents, Gary Schireman, a single person, Defendant.
• Court: Washington Court of Appeals

Page 95

53 Wn.App. 95

765 P.2d 1312, 25 A.L.R.5th 807

Torinda YOUNGBLOOD, a single woman, Appellant, v. Loren SCHIREMAN and Charlene Schireman, husband and wife, and their marital community, Respondents, Gary Schireman, a single person, Defendant.

No. 20941-8-I.

Court of Appeals of Washington,

Division 1.

Dec. 30, 1988.

Russ Juckett, Everett, for Torinda Youngblood.

H. Scott Holte, Anderson, Hunter, Dewell, Baker & Collins, P.S., Everett, for Loren and Charlene Schireman.

SWANSON, Judge.

Torinda Youngblood appeals the summary judgment order dismissing her negligence claim against Loren and Charlene Schireman, husband and wife, and their marital community for injuries she sustained in an assault upon her in their home by their adult son, Gary Schireman.

This appeal presents these issues: (1) whether the parents are liable for negligence when their resident adult son assaults his girlfriend in their home if they fail to protect her against, or warn her of, their son's abusive behavior when he drinks liquor; (2) whether the parents are liable to the appellant for their conduct in transporting her to the hospital emergency room following an assault upon her in their home; and (3) whether terms should be assessed for a frivolous appeal.

In October 1983, 18-year-old Youngblood began going out with 21-year-old Gary Schireman, who was then living at his parents' home. Before February 5, 1984, Youngblood had been to the Schiremans' home a number of times and had stayed overnight, sleeping in Gary's bedroom while he slept in the living room.

On February 5, 1984, after he got off from work at about 11:00 or 12:00 p.m., Gary met Youngblood at a birthday party, where he had a beer. After about 15 to 20 minutes, the two went to a friend's house, where Gary drank liquor. Later they went to the Schiremans' home, where Gary had a couple of alcoholic drinks and the two watched television for about 45 to 60 minutes until they went to sleep. According to Youngblood, they had no arguments before going to bed. Youngblood testified in her deposition that Gary's parents were in bed when she and Gary arrived at their home.

According to Youngblood, Gary had gotten a blanket and pillow and was sleeping on the couch in the living room when he came into the bedroom and started yelling at her. Then he walked out, came back in and said something to the effect of "Fine, if you are going to be that way, get out of my house" as he grabbed her arm and yanked her out of bed. When she asked him what he was doing and told him to leave her alone, he calmed down and told her to go back to bed and he would leave her alone. She then said that if he was going to be that way she was going to leave, and she started to put her clothes on and got back into the bed. Gary walked out and came back again and started yelling and punching her in the back, head and mouth while she screamed. The respondents came running into the room and the father tried to pull Gary away from her. According to Youngblood, Gary said that since he had knocked her teeth out, he might as well kill her, and proceeded to hit her again until the father got him calmed down.

Youngblood ran into the bathroom, where the mother handed her a wet wash cloth which she placed over her mouth and noticed that there was blood all over. Upon discovering that one of her bottom teeth had come out, she found it in Gary's room and placed it in her pocket. Gary's father said that he would take her to the hospital, but on the way to the garage Gary appeared, saying that he wished to talk to her, and he pushed her into a small bathroom where Youngblood sat on the toilet and cried while Gary spoke angrily to her and yelled at her. After Youngblood got into the car, the father went back into the house for a while and then came out and drove her to the hospital. Youngblood claimed that on the way the father told her to say that she had fallen down and also said that he knew that something like that was going to happen.

As a result of the assault four of Youngblood's top teeth were knocked out and a bottom tooth came out completely and she sustained injury to her gums. She pressed criminal charges against Gary, who pleaded guilty to simple assault. She commenced a civil suit against the respondents and Gary seeking damages for her injuries stemming from the assault. Upon the respondents' motion, an amended summary judgment order of dismissal was entered in their favor. ¹

DUTY TO WARN OR PROTECT AGAINST HARM BY A THIRD PERSON

Summary judgment is proper where the pleadings, depositions, affidavits and admissions on file show that no genuine issue of material fact exists and that the moving party is entitled to a judgment as a matter of law. Hartley v. State, 103 Wash.2d 768, 774, 698 P.2d 77 (1985); Knott v. Liberty Jewelry & Loan, Inc., 50 Wash.App. 267, 270, 748 P.2d 661, review denied, 110 Wash.2d 1024 (1988). Making the same inquiry as the trial court, the appellate court must view the facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party; summary judgment should be granted only if reasonable persons could reach but one conclusion from all of the evidence. Knott, at 270-71, 748 P.2d 661. The questions here are whether a genuine material factual issue exists and, if not, whether the respondents are entitled to a judgment as a matter of law.

Actionable negligence has these elements: (1) the existence of a duty owed to the complaining party, (2) a breach thereof, (3) a resulting injury, and (4) a proximate cause relation between the claimed breach and the resulting injury. Pedroza v. Bryant, 101 Wash.2d 226, 228, 677 P.2d 166 (1984). "Foreseeability determines the extent and scope of duty." Knott v. Liberty Jewelry & Loan, supra 50 Wash.App. at 271, 748 P.2d 661. The threshold determination of whether the defendants owed a duty to the complaining party is a question of law. Pedroza v. Bryant, supra.

Youngblood contends that the respondents were negligent in failing to protect her against injury inflicted by their resident adult son in their home. Generally a person has no duty to prevent a third party from causing physical harm to, or committing a criminal act against, another. Petersen v. State, 100 Wash.2d 421, 426, 671 P.2d 230 (1983); Blenheim v. Dawson & Hall, Ltd., 35 Wash.App. 435, 442, 667 P.2d 125, review denied, 100 Wash.2d 1025 (1983). An exception to the general rule of nonliability arises where a "special relationship exists between the defendant and either the third party or the foreseeable victim of the third party's conduct." Petersen v. State, supra; Blenheim v. Dawson & Hall, supra; see Restatement (Second) of Torts § 315 (1965).

Special relations which give rise to a duty to aid or protect another include that between a common carrier and passenger, e.g., Zorotovich v. Washington Toll Bridge Auth., 80 Wash.2d 106, 491 P.2d 1295 (1971); tavern keeper and patron, e.g., Waldron v. Hammond, 71 Wash.2d 361, 428 P.2d 589 (1967); and landowner and invitee, e.g., McKinnon v. Washington Fed. Sav. & Loan Ass'n, 68 Wash.2d 644, 650, 414 P.2d 773 (1966). See Restatement (Second) of Torts § 314A. In Petersen v. State, supra, a special relationship was found between a state psychiatrist and a patient at a state mental hospital, imposing upon the State a duty to protect foreseeable victims against injury stemming from the patient's mental problems, where the State had full control over the patient at the hospital and wrongfully released him. Hartley v. State, supra 103 Wash.2d at 783, 698 P.2d 77.

Youngblood does not argue that a "special relation" of this nature exists here but rather that the respondents failed in their duty to warn her of their son's abusive behavior when he drank liquor. She relies upon Restatement (Second) of Torts § 342, which was adopted in Memel v. Reimer, 85 Wash.2d 685, 691, 538 P.2d 517 (1975), and which provides:

A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if,

(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and

(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and

(c) the licensees do not know or have reason to know of the condition and the risk involved.

Memel, at 689, 538 P.2d 517; Younce v. Ferguson, 106 Wash.2d 658, 667-68, 724 P.2d 991 (1986).

This standard of care imposes a "duty to exercise reasonable care toward licensees where there is a known dangerous condition on the property which the possessor can reasonably anticipate the licensee will not discover or will fail to realize the risks involved." Younce, at 667, 724 P.2d 991. If a duty exists, it is met by making the condition safe or by giving a warning of the danger. Younce, at 668, 724 P.2d 991.

A licensee is "a person who is privileged to enter or remain on land only by virtue of the possessor's consent," Restatement (Second) of Torts § 330, and includes a social guest. Younce v. Ferguson, supra. The parties agree that Youngblood was a licensee.

Citing Pietila v. Congdon, 362 N.W.2d 328, 333 (Minn.1985), the respondents claim that a criminal act committed by an unknown person does not constitute a "condition" of the land. Nevertheless, in Younce v. Ferguson, supra 106 Wash.2d at 667-69, 724 P.2d 991, our state Supreme Court applied the Restatement § 342 standard of care where the minor plaintiff was injured when she was struck by a car driven by another minor on the defendants' property where minors were drinking alcoholic beverages at a high school "kegger" party.

In Barmore v. Elmore, 83 Ill.App.3d 1056, 38 Ill.Dec. 751, 752-03, 403 N.E.2d 1355, 1356-57 (1980), the licensee plaintiff who was stabbed by the...