Each month I send out an Appellate Law Update to lawyers of various persuasions in Whatcom and Skagit Counties. It’s a summary of some cases that is intended to bring attention to recent developments in the law regarding civil procedure, evidence, torts, and insurance law. While a lawyer will have a more technical interest in these kinds of things, the cases are interesting for that most mysterious of all phenomena: human nature. Below is a summary of November cases from this year, concerning an elderly farmer who got rammed by a ram, a WSP patrolman Tased for demonstrative purposes, and a case where an older woman played David to a corporate Goliath and won. I hope you enjoy.
The Ladies Like Those Bad Boys
Mr. Rhodes, an 82 year old farmer, was attacked by his neighbor’s ram and spent 16 days in the hospital. He asked the court to reconsider the longstanding rules in Washington, consistent with the Restatement (Second) of Torts, Sections 508 and 518, that: 1) strict liability applies only when the owner had knowledge that the animal was vicious and 2) if the animal was not known to be vicious, the owner is only liable if he is negligent in failing to prevent the harm (the amount of care required being commensurate with the character of the animal). In Mr. Rhodes’ case, it was undisputed that the ram’s owner was not liable under either theory.
Mr. Rhodes asked the court to rely on Comment e to Section 23 of Restatement (Third) of Torts, which notes that courts might wish to give consideration to particular genders or breeds of a species that involve danger levels uncommon to the species itself and find that rams are inherently dangerous and strict liability should attach. The court found that the virility which makes rams dangerous is necessary for their role as studs and declined to change the law: “the high temper normal to stud animals is so inseparable from their usefulness for breeding purposes that they are not” subject to strict liability.
Rhodes v. MacHugh, Court of Appeals, Division III, No. 32509-1-III
Evil Corporation Can’t Evict Little Old Lady from Mobile Home
Savvy Ms. Tison negotiated a maximum yearly rent increase of $10.00 when she moved into a mobile home park. The deal was in writing, but not acknowledged (not notarized or recorded). An evil corporation purchased the park and proceeded to jack up the rent in violation of the deal. When Ms. Tison wouldn’t pay anything beyond the $10.00 increase, the evil corporation tried to evict her arguing among other things that the rent cap provision violated the statute of frauds.
The Court noted that two statutes of frauds could arguably apply; the general tenancies statute of frauds (RCW 59.04) and the more specific statute of frauds in the Mobile Home Landlord-Tenant Act (RCW 59.20.060). The rent cap violated the general statute because it was not acknowledged, but not the general statute which does not require acknowledgement. The Court held that the statute of frauds in the MHLTA applied and that the rent cap provision was valid.
Western Plaza LLC v. Tison, Supreme Court No. 90170-1
If You Need Another Reason to Hate Towing Companies…
Mr. Rush’s car was towed and impounded by Top Notch Towing. At the contested impound hearing the judge ruled that the impound was illegal. However, before the hearing even took place, Top Notch’s owner sold the car to himself at auction for $1.00. Mr. Rush sued for conversion and violation of the CPA. After Top Notch did not appear, a default judgment was entered. More than a year later, Top Notch moved 1) to vacate the default judgment and 2) for summary judgment on the CPA claim. The trial court granted both motions. The Court of Appeals reversed on the CPA issue and affirmed vacating the default judgment.
Regarding the default judgment, the issue was whether Top Notch moved to vacate more than one year after a final judgment. Per CR 60(b), a motion to vacate under sections 1, 2 or 3 is time barred if made “more than one year after the judgment, order or proceeding was entered or taken.” The problem for Mr. Rush was that while more than a year had passed from when the default judgment was entered, it was not a final judgment. This is because Mr. Rush had named other defendants in his lawsuit and those claims had not been resolved when the default judgment was entered. Per CR 54(b) the court may enter a final judgment against one party in a multi-party case, but only upon written findings that there is no reason for delay. This was not done and so the one-year clock didn’t start to run.
Mr. Rush had better luck on his CPA claim. The court does a nice job of setting forth what constitutes “unfair” or “deceptive” conduct. When Top Notch’s owner sold Mr. Rush’s car to himself for $1.00 prior to the impound hearing, he created an issue of material fact as to whether his conduct was “unfair” or “deceptive”. The Court also found sufficient evidence of “public interest impact”; an element of a CPA claim. The issue is whether the situation involves a public transaction or a private dispute. The Court found this to be a public transaction, noting that a 3rd party called Top Notch to request that Mr. Rush’s car be towed. Mr. Rush had no choice but to interact with the tow company.
Rush v. Top Notch Towning, Court of Appeals, Division I, No. 72424-0-1
Sad Case of Child Abuse
Doctors concluded that ARB, an infant, was probably abused and that he is permanently disabled. Through a guardian, ARB sued DSHS for returning him to his parents after a suspicious broken arm. A jury found DSHS negligent, but not a proximate cause of his injuries. On appeal, DSHS argued that the instruction on its duty was in error, while ARB argued that it was improper to give an instruction on superseding cause. The Court of Appeals agreed with both arguments and remanded for a new trial. There was nothing groundbreaking in the decision; because ARB’s injuries were a foreseeable consequence of DSHS’s negligence, a superseding cause instruction was not proper. Regarding duty, the proper statement of the law is “DSHS has a duty not to conduct a biased or faulty investigation that leads to a harmful placement decision”, not “a negligent investigation that leads to a harmful placement.”
ARB v. DSHS, Court of Appeals, Division II, No. 45748-2-II
It’s Gotta Be True, I Read It On The Internet
It appears that Mr. Sommer was not impressed with Life Designs Ranch, a substance abuse program. He set up a website with an address similar to the real one that explicitly detailed his dismay. Life Designs sued for defamation, tortious interference with a business expectancy and invasion of privacy (false light). The Court of Appeals affirmed the trial court’s dismissal of these claims on summary judgment.
Regarding the defamation claim, the Court noted the “dearth” of case law in the realm of websites. Important factors were: 1) Mr. Sommer did not attempt to pass his website off as Life Design’s official website, 2) there was a link to the official website, and 3) the website suggested opinions, not facts.
Life Designs also argued that putting up a hyperlink to an allegedly defamatory website constituted republication of defamatory content. The Court adopted Federal case law and held that a mere link does not constitute republication. There is a good review of the elements of each of these causes of action.
Life Designs Ranch v. Sommer, Court of Appeals, Division III, No. 32922-4-III
Don’t Taze Me, Bro!
Trooper Michelbrink was injured after being intentionally shot with a Taser as part of his WSP training. He sued, claiming the “deliberate intention” exception to the rule that you can’t sue your employer for negligence. The trial court denied WSP’s motion for summary judgment finding there were issues of material fact as to whether the WSP had actual knowledge that an injury was certain to occur from being shot and whether WSP willfully disregarded that knowledge. The first time around, the Court of Appeals “liberally interpreted” the deliberate intention exception and affirmed the trail court, but that case was remanded in light of Walston v. Boeing, 181 Wn.2d 391 (2014), which held that the exception must be narrowly interpreted. The second time around, the Court of Appeals came to the same conclusion using the “narrow” interpretation.
Michelbrink v. WSP, Court of Appeals, Division II, No. 44035-1-II.