Lakey v. Puget Sound Energy, Inc.
176 Wash. 2d 909
| Wash. | 2013Background
- Homeowners own property near a Puget Sound Energy substation and allege EMF exposure constitutes nuisance and trespass.
- PSE replaced the old substation with a larger, dual-transformer facility requiring a zoning variance from Kirkland; variance approved by hearing examiner and City Council.
- Homeowners filed suit in King County Superior Court after substation went online in 2010, asserting health fears and interference with use of their property.
- PSE moved to dismiss under CR 12(b)(6); trial court ordered Frye hearing to evaluate Carpenter's EMF-related expert testimony.
- During Frye, Carpenter offered epidemiology-based conclusions; PSE offered epidemiologists Lee and Israel critiquing his methods.
- Trial court excluded Carpenter under Frye/ER 702 and granted summary judgment to PSE; court also held LUPA applied to inverse condemnation claim against the City.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Carpenter’s testimony was properly excluded under Frye/ER 702 | Lakey contends Carpenter’s EMF health-link claims are admissible as non-novel epidemiology. | PSE argues Carpenter’s methods were unreliable and not generally accepted. | ER 702 exclusion upheld; Frye not satisfied for Carpenter |
| Whether the trial court correctly granted summary judgment on the nuisance claim | Homeowners argue there exists material facts on reasonableness and fear of EMF effects. | PSE maintains the social utility of the substation outweighs any interference. | Summary judgment affirmed; no genuine issue on reasonableness |
| Whether LUPA applies to the inverse condemnation claim against the City | Homeowners contend LUPA should not govern their damages claim seeking compensation. | City asserts LUPA exclusive review for land use decisions bars the damages claim. | LUPA does not govern inverse condemnation claim |
| Whether the City is liable under inverse condemnation after Phillips | Phillips allows some governmental liability for inverse condemnation in permitting contexts. | City must not be liable for permit approvals absent direct taking or damage by a public project. | City not liable; Phillips controls that permit approvals alone do not support inverse condemnation |
Key Cases Cited
- Anderson v. Akzo Nobel Coatings, Inc., 172 Wn.2d 593 (Wash. 2011) (Frye applies to novel theories; epidemiology methods may be generally accepted)
- State v. Copeland, 130 Wn.2d 244 (Wash. 1996) (framework for admissibility of expert testimony under Frye/ER 702)
- State v. Cauthron, 120 Wn.2d 879 (Wash. 1993) (ER 702 admissibility; reliability and helpfulness balance)
- Phillips v. King County, 136 Wn.2d 946 (Wash. 1998) (permitting decisions and inverse condemnation; public duty doctrine)
- Morin v. Johnson, 49 Wn.2d 275 (Wash. 1956) (nuisance factors; social utility vs interference balance)
- Highline School District No. 401 v. Port of Seattle, 87 Wn.2d 6 (Wash. 1976) (degree of community dependence and reasonableness factors in nuisance)
- Pepper v. J.J. Welcome Construction Co., 73 Wn.App.523 (Wash. App. 1994) (inverse condemnation via permitting decisions and public duty discussion)
- James v. Kitsap County, 154 Wn.2d 574 (Wash. 2005) (LUPA exclusive review and vesting rights context)
- Mercer Island Citizens for Fair Process v. Tent City 4, 156 Wn.App.393 (Wash. App. 2010) (damages claims tied to LUPA challenges may be dismissed if LUPA applies)
- Asche v. Bloomquist, 132 Wn.App.784 (Wash. App. 2006) (nuisance and land use claims interplay with LUPA)