Campbell v. City of Bellevue

January 9, 1975.] 43053. En Banc. [Nos. Respondent v. Executor, Douglas as Campbell,

Robert Appellant. Bellevue, Of Respondent, Douglas Executor, as Campbell, Robert Saunders, Petitioner. Richard McKelvy, Frederick Henke, Evenson & Betts and Skeel, Douglas petitioner. Dunham, V. Betts and S. for Groshong, Day Ronald McCutcheon, Geisness & and W. Groshong George (of Montgomery, Purdue, Ferrer and R. Blankinship Austin), respondent. & for foregoing appeal an causes, J. The Hamilton, argu- petition for for a were consolidated certiorari, writ disposition. ment and principal wrongful personal in- cause, death and

jury by (respondent) plaintiff action, was initiated Campbell, wife’s Robert D. as executor of his deceased guardian claiming Eric, estate and as of his minor son agents negligently of the executed their Bellevue pertinent duties under an adverse electrical codes. From judgment, appealed. has judgment.

We affirm the plaintiff, The facts are somewhat unusual. The his wife family running proximity lived in close to a creek through property George neighbor, of a L. Mr. Schafer. premises lights Schafer had electric and about the years placed creek, which had been there before. some lights These were controlled switches the Schafer garage. residence In the late circuit in the breaker wiring fall of on one of there a fire next to the was Campbell caretaker of light Mr. advised the fixtures. Struebing, of the bare- James residence, Mr. the Schafer notify the proximity did not the fire. He ness of wires Subsequently, noted that City building department. he had taken. corrective measures been in the raccoon was observed 15, 1971, March dead

On responding police notified and when creek. The Camp- neighbor of the that when a arrived, officer he noted sought creek she from the bells to extract the raccoon Later, the Schafers’ received an electrical shock. when removal, he said stream caretaker undertook the task of whereupon resi- “hot” he returned to the Schafer still following breaker, dence off the and turned circuit neighbor, Campbell and his the raccoon was retrieved. Mr. they City’s telephoned the Hanson, Mr. Robert testified building department Sharpe, and talked Mr. Andrew inspector, concerning the electrical the electrocution Campbell Sharpe raccoon. Mr. he also stated informed Mr. any telephonic Sharpe of the 1970fire incident. Mr. denied Campbell conversation with Mr. recall talk- and could not ing testifying, Hanson, to Mr. however, that he received message morning concerning on 16, 1971, the of March the incident. Sharpe

At about 9:30 a.m. on March Mr. and his supervisor premises administrative went to the Schafer and inspected wiring. Sharpe the outdoor At time, Mr. wiring leading light observed the that from the house to a fixture in the creek did not conform electrical code re- quirements and it that was deteriorated at creek bank. wiring He made tests and found electrically energized. not was then that inspection approxi- This consumed mately during Sharpe 20 minutes the course of Mr. did not determine the nature and extent of the outdoor lighting system lights which included several underwater floodlights along and both stream, banks of the as well as wiring. considerable underwater no one was then Since tag home, a red was affixed to the front door the resi- advising “Wiring running that: thru creek is unsafe dence

and constitutes threat life. This situation have to will immediately be corrected the service will be discon- nected.” No action was taken to sever or otherwise discon- nect wiring, the outdoor and no corrective measures were on the red specified tag.

The next Mr. had a conversa- morning Sharpe telephone tion caretaker, with the Mr. he although Sharpe thought to Mr. and talking Schafer. He emphasized danger that the outdoor had be disconnected and wiring further utilized until had been it installed properly inspected. He was assured and, this would be done accord- to Mr. he ing Hanson, reassured him that had problem been Thereafter, corrected. 6, 1971, before Mr. August made no Sharpe further inspection, stating although he drove past the on it property occasions, appeared several that the were premises unoccupied. caretaker, to the red and to response tag his

telephone conversation with Mr. switched off the Sharpe, last two circuit breaker switches on the circuit breaker panel and placed electrical over them. he tape He stated procedure followed this because he did not know which of the two switches controlled the outdoor system and lighting an electrically operated Thereafter, door. it garage when was necessary to door, both open garage switches turned on.

On August 6, 1971, the caretaker opened door garage for the purpose unloading and furniture storing garage. During re- unloading process, the switches mained on. In the six, meantime Eric Campbell, age cousin were creek. Eric into playing slipped creek and received a paralyzing electrical shock. His cousin summoned mother, Eric’s Barbara who, Jean Campbell, Eric, attempting to rescue received a similar electrical shock and fell into the stream. removal from Upon the stream Eric survived; his mother did not. instituted Mr. Schafer, the care- against

This action Mr, trial, and Prior taker, City. Mr. Struebing, the and Mr. were dismissed on Struebing voluntarily Schafer proceeds of which sue, not to the aof covenant the basis any judg- against ultimate to be credited settlement City. Allega- against proceeded the then The action ment. City principally negligence against the revolved tions of Sharpe, inspector, inad- Mr. claims that the electrical about system following lighting inspected equately outdoor the otherwise dis- incident, failed then sever the raccoon system, up on corrective mea- failed follow connect through Campbells advisedly and ill assured the sures, neighbor, had been cor- Mr. the situation Hanson, rected. allegations, support

In evidence was admitted (1) the effect that under the a more thor- circumstances: inspection ough on March would have revealed wiring the extensive underwater and further nonconform- ity increasing requirements danger- with electrical code propensities system; City’s (2) ous of the electrical practice inspection code and standards of electrical in the community required system that the lead wire to the redtagged; (3) severed and and and the State electri- specific cal codes fixed times within which corrective action be taken inspection practice pre- and standards electrical follow-up procedure. scribed definite by At the conclusion the trial evidence, court, jury instructions Nos. 14 submitted to the fol- lowing ordinances: prohibited.

Unauthorized connections It is unlawful to connect any to current, installation, electric electrical extension equipment, thereof or electrical until a lawful permit for such work has been and the obtained installa- inspected tion has been approved building official agent. or his authorized safeguard persons property order from the

danger improperly incident unsafe or installed electri- equipment, building immediately cal sever official shall unlawfully made connection of equipment to the electrical current if he finds that such severing safey is essential to maintenance and the of hazards. elimination Municipal (Ordinance § § 163,

Bellevue Code 16.32.090 No. 1956); 9, June prior building

Unsafe official shall installations. The authority equipment inspect, any previously have the installed regulated by code, electrical even such as is though may it have installed in accordance been city regulations. with former find such in- he Should equipment manifestly stallation or or unsafe to life be property, he shall serve written notice to the owner user thereof that such exist and unsafe conditions and/or period sixty must be eliminated within a of not to exceed days. requirements complied If such are not with within time, he stated shall disconnect or cause to be discon- equipment. nected, the current from such installation or building After the tion or the official has disconnected such installa- equipment current, from the electric caused or any person disconnection, it shall be unlawful for equipment reconnect such installation or to the electric approval building of current without the official. Municipal (Ordinance § § Code 16.32.110 Bellevue No. 12,1956). . 11,June

These instructions were followed instructions respectively, jury 18, which, informed Nos. 17 and that negligence a of ordinances violation such would constitute inspector as and that an electrical a matter law owed comply recognized with such ordinances and with practice, failing standards electrical which would consti negligence. assignment tute No error has been directed they instructions, to these hence constitute the law of the Quick Brown Co., case. Mix 454 P.2d 205 Wn.2d upon jury There is substantial evidence which the predicated finding City’s agents could have negligent imposed by failing perform the ordi duties negli practice, nances and standards electrical gence proximate in turn cause of the unfortu constituted injury nate and death. City appeal, it however, on this is that theme immunity carrying from out when cloaked

is responsibilities Hence, under its electrical code. its - plaintiff’s as claim must fall a matter of law. contends theory nonliability, support of its first points reading provision electrical code as fol- its lows: city responsibility. chapter shall not Limitation of This any responsibility person construed to lessen the installing ap- owning, operating wires,

pliances, apparatus, equipment, for dam- construction or ages anyone injured by therein, shall the to defect nor City any employee thereof, Bellevue, held liable of or be injury damage resulting non-compli- any for or from the any provisions ance of electrical installation with of this code. (Ordinance Municipal § § 16.32.120 No. 163, Code

Bellevue 12,1956). June City agree cannot with that ordinance No. We 16.32.120) immunity (§ affords under the circumstances exempt goes of no further than to this case. The ordinance City liability arising from of the bare existence of out purport noncomplying electrical installation. It does not to liability agents of its relieve the for conduct tortious carrying opera in or ordinance-mandated ministerial out by might liable tional duties1 for which it otherwise be virtue of cannot be analo RCW 4.96.010.2The ordinance gized to and 19.28.340,3 or with RCW which clothes the State 1Evangelical State, 246, 407 United Brethren Church v. 67 Wn.2d P.2d political quasi municipal corporations, subdivisions, mu 2“A11 and acting governmental nicipal corporations state, or whether proprietary damages arising capacity, of their out shall be liable for agents conduct, officers, or tortious employees or of their the tortious conduct they private person or to the if same extent as corporation: by filing Provided, law the time allowed That within maintaining any required precedent claim shall be a condition any specifying be for claims shall action. laws the content such liberally compliance construed so that substantial therewith will satisfactory.” deemed RCW 4.96.010. chapter 3“Nothing to relieve in this be construed any contained will injury responsibility person for or or from or lessen the damage any by resulting property person caused or from defect or by any any performed person any or in electrical work said nature in by operated owned, controlled, installed, equipment or used agent, Washington, officer, him; or the state nor shall immunity agents for a broader acts and with officers its pursuant performed the state electrical code. App. State, Nerbun v. Wn. next turns to Loger Washington (1973), Timber

506 P.2d 873 (1973), App. 509 P.2d 1009 Inc., Prods., 8 Wn. they proposition that state stand for the asserts support inspect a cause of can “there is no mandatory statutory language inspite [sic] of action allega knowledge cases involved the condition.” Both Department employed by safety inspectors tions that pur inspect site the accident Labor and Industries failed 4 In RCW 49.16.120. and in accordance with suant on a construction involved occurred Nerbun, the accident dismantling “false- involved were site while the workmen by job superintendent of their work” at the direction days disapproved earlier some 30 method which had been Loger, safety inspector. plaintiff by work the state injured and unsafe a defective man was in a sawmill guarded or hooded accordance saw which was not by inspected safety had not been state standards and which year. safety inspectors of Resolution state for more than of on the conclusion each case in favor of the turned State legislative Appeals of the intent the Court it was not spot inspec- enacting safety authorizing and standards liability by any employee assuming reason thereof incur or be held as inspection consequence any inspection, permission, of or of certificate approval given provided, herein, or or herein authorized or issued or as by pur- consequence things performed of done or reason of acts any provision chapter.” suant this RCW 19.28.340. industries, 4“It shall director of labor and through by safety to enforce the safe means of the division safety inspect place, orders, to device and educational standards and engaged every employer in extrahazard establishment or work of (other mines) necessary, ous work than coal often as it is deemed as ascertaining every purpose year, but not less than once for the safety appli place, whether the safe device and educational standards analyze being complied investigate cable thereto are and to remedy provide all serious accidents to workmen in order prevent repetition only same, of the in the establishment not occurred, like in all other establishments.” but also the accident RCW 49.16.120.

9 liability of a upon the failure impose for the State tions to inspec- discretionary perform act safety inspector clearly distinguishable therefore, are cases, tion. These inspection inwas fact an where situation the instant from dangerous highly found condition was out, carried operational dictated remedies the ministerial exist, and performed, City’s i.e., sever- by electrical code were not disconnecting the ser- ing connection the electrical and/or days. within 60 corrected if condition vice lastly vigorously City its enactment contends that inspection safety regulations provisions for general responsi only give rise to a broad and enforcement large bility public mem than to individual rather to the at City general public. failure asserts, a Thus, the bers inspect its electrical code creates no or enforce City plaintiff. support directs contention, as to authorities from other attention to numerous our Loger. jurisdictions5 relies as well as Nerbun and upon principally York, of New from cases from the State 4.96.010,ab statutes, 4.92.0906and RCW our RCW whence immunity rogating sovereign Tacoma, Kelso were drawn. v. 2 913, 63 390P.2d Wn.2d particular quarrel have no this time with

We at general premise upon on which the cases relied negligent performance governmental or dis stand, of a i.e., cretionary police power duty for the benefit enacted 5Among upon Beacon, 51, those relied v. 295 cases are: Steitz N.Y. App. 704, (1945); Amsterdam, 64 N.E.2d 163 342 Rivera v. 5 Div. A.L.R. 637, York, 563, (1958); 2d 174 N.Y.S.2d 530 Carroll v. New 37 Misc. 2d (Sup. 1962); Motyka 134, Amsterdam, 234 N.Y.S.2d 954 Ct. 15 N.Y.2d 635, Amsterdam, (1965); 204 N.E.2d 256 Messineo v. 17 N.Y.S.2d 595 Stranger (1966); N.Y.2d 215 N.E.2d v. New N.Y.S.2d Co., App. (1966); York Elec. & Gas Div. 2d 268 N.Y.S.2d Beach, (Fla. 1967); Modlin v. Miami 201 2d v. Owatonna So. 70 Hoffert Motel, Inc., 220, (1972); Inn Towne 293 Minn. N.W.2d 158 Duran v. 199 Tucson, App. 22, 20 Ariz. 509 P.2d 1059 acting governmental Washington, 6“The state of in whether its or proprietary capacity, damages arising shall be liable for out its private person as if it a or to the same extent tortious conduct corporation.” 4.92.090. RCW 10

public large imposes liability part no on the at a munici- pality running public. to individual members Never- running explicitly implicitly theless, we note that either or through leading some cases cited is the exception general they espouse, thread of an to the rule i.e., relationship developed where exists has an between injured plaintiff agents municipality creating of the perform particu- a mandated act for the benefit persons persons, liability may lar or class of then tort arise. example, Motyka For Amsterdam, 15 134, N.Y.2d (1965), 139, 204 N.E.2d N.Y.S.2d wherein it negligent department inspection contended a fire under safety damage, denying municipal codes caused the court in liability passing: observed in In municipalities, the case of defendants, as of other liability

tort has been held to exist where there has been relationship some part on the of the defendant to the plaintiff creating duty to use due care for the benefit of particular persons persons or classes of . . . but we gone have general liability never far so as to hold that a public exists damage to the for civil in event of failure to supply adequate police protection. or fire Stranger App. v. New York Elec. & Co., Gas Div. (1966), 2d again involving 172, 268 N.Y.S.2d 214 an allegedly faulty safety inspection, fire the court in deter- mining that no part arose therefrom on the municipality commenting noted, on the case H.R. Moch Co. v. Rensselaer Water Co., 247 N.Y. 159 N.E. (1928): 896, 62A.L.R. Assuming, tously] [acting gratui- nevertheless, the rule might apply, contended for otherwise it seems * * * “query clear that the answer to the whether putative wrongdoer point has advanced to such as have launched a force or instrument harm, or has stopped where inaction is at most a refusal to an become good”

instrument for . . . is to be found the sec- legal relationship, ond alternative. A albeit a one, neutral municipality as between and the existed decedent relationship personalized, could not be and that

H city employ- liability by changed one of reason governmental performance functions of the routine ees’ imperfectly assigned well or them. . . . Whether governmental city employees’ performed, acts were employment pursuant and, even to their acts undertaken if as to evoke the rule of they such, they assumed, it nevertheless could be abundantly Moch, clear that is it gave rise to no in no or added risk and resulted new obligation upon plain- situation new or different tiff’s intestate could or rely, did to her harm. App. distinguishing 173, Div. York, v. New 282 In Runkel (1953); Homelsky, App. Runkel v. 286 123 485 N.Y.S.2d 145 1101, 729, 857, N.Y.S.2d 3 N.Y.2d N.E.2d aff’d, Div. 145 (1957), municipal tort 23, 166 307 which fixed N.Y.S.2d statutorily Stranger duty, upon a mandated court stated: appellant’s theory dependence on

Further, excludes mandatory duty statutory a and in his the breach of brief upon duty that, act, he states “There no it was anyway negligently.” acted did so Stranger supra & New York Elec. Gas Co., v. at 173.

Again, App. Tucson, 22, in Duran v. 20 Ariz. 509 25, (1973), quoting from a P.2d 1059 the court noted Con- necticut case: public pub perform

“. . a . The failure of a officer to duty wrong only lic can constitute an individual when person public duty some can that in in show individual, volved a himself as an and that also special peculiar injury by he has suffered a its reason [Leger Kelley, nonperformance.” v. 110 A.2d 636 (Conn. 1954), Super. Ct. 116 aff’d, Conn. A.2d (1955).] general exception to the illustrative Somewhat York, New 28 N.Y.2d cases of Smullen rule are the (1971), v. New 19 city and Runkel 763, N.Y.S.2d 268 N.E.2d inspec- supra. Smullen, In sewer construction York, safety contrary shoring require to a trench failed tor city finding requiring liable, court such. rule stated: city correctly asserts that there can be no munici-

pal liability perform general protective for failure to governmental inspector’s function; that an to as- failure liability [citing certain a violation cannot confer cases]. question goes beyond here, however, the basic fail- perceive ure to a violation. Here a blatant violation exis- categorical regulations ted; permit inspec- did not judgment tor to form proceeded but he nevertheless wrongly adjudged do so and the trench to be safe and by knowing presence stood decedent, while of his approval, perilous entered into the situation. supra Smullen v. York, New at 70-71. city’s building inspector,

In contrary Runkel, the to safety requirements, danger arising failed to abate a of out dilapidated the finding municipal existence of a In house. injured trespassers, minor the court stated: open An abandoned structure which is so rotted and dilapidated danger collapse may it that is in imminent of trap said to “inherently dangerous” constitute a or an instrumentality explo- which is in same the class as an sive substance, material, inflammable a live electric wire spring gun. Injury or though by any person, sustained even trespasser, inherently he be a due to such an dangerous instrumentality, may be said to have been by caused the wanton or intentional or inhuman act of responsible the one for its existence or its removal and liability, provided: (a) will him in cast that care “com- mensurate with the risk involved” has not been taken to guard against injury; (b) the that the accident was “foreseeable”—as it was here because of the structure’s proximity public highway. to the supra York, Runkel v. New at 176. legislature abrogating

The state, in munici immunity by way pal painted 4.96.010, RCW with Evangelical brush. United broad Brethren Church v. State, Evangelical 67 Wn.2d 407 P.2d 440 In we held negligent agents falling that acts or omissions state into category “operational” the or “ministerial” functions— involving not executive or administrative discretion—to be performed pursuant statutory gave direction rise to sov ereign liability. inspector City’s case, the instant the underwater nonconforming the to and knew

alerted thereby created danger the extreme and of lighting system stream in to the proximity residents neighboring City’s the comply failed Yet, inspector question. and .110) Code 16.32.090 Municipal §§ ordinances (Bellevue system the lighting he or disconnect sever directing code with electrical into brought compliance until it was only designed These requirements. requirements more particu- for the but protection general public persons or class of larly for the benefit of those persons involved, cate- danger within ambit residing readily into his fall. neighbors gory plaintiff we find Accordingly, municipal liability.

The of a cause, petition No. arises out companion by Court plaintiff Superior post require supersedeas bond ac- pending appeal principal tion. trial court granted plaintiff’s petition.

sought review Chief Justice way certiorari. The stayed the trial court’s order and over to set matter hearing on the merits case. principal

The City contends no is bond supersedeas required itof to stay execution of ap- judgment against pending it In peal. of to RCW support contention, City points 4.92.080, which provides:

No bond shall Washington be the state of required of for any purpose in case of courts of any any state be, of of shall Washington and state Washington on orders, proper injunctions entitled to showing, any and of writs notwith- whatever nature without bond standing provisions existing requiring statute any that bonds be furnished by private parties. v. Hockley Hargitt, 1123 337, 82 510 P.2d Wn.2d a

(1973), question county the need for a bond post in relation to injunction an Con- seeking was presented. effect cerning the 4.92.080, RCW we said: need correctly County held that King court The trial the state RCW 4.92.080 since exempts a bond post 14 posting prosecutor a bond in

from action. was county proceeding arm of the a under state statute. The is but an Spokane state. State ex rel. v. DeGraff, 143 (1927). essentially P. 371 A Wash. 255 statute com- parable to RCW 4.92.080 construed State ex rel. (1911), Lamb, Thrash v. excuse 237 Mo. 665 S.W. county prosecutor posting from a bond when anomaly proceeding on behalf of the state. It be an would posting imposing from a while free the state bond such upon political requirement its subdivision whose life and authority from derive the state. Hockley Hargitt, supra at 347. political as

Cities, counties, like subdivisions, consti being an arm of the state from tute whence their authority Centralia, flow. Lauterbach v. Wn.2d P.2d We see no rational reason for distinction, applicability between then, 4.92.080to cities as RCW well as counties. supersedeas imposing

The trial court’s order re- bond pending City’s quirement appeal accordingly is vacated. Hale, C.J., Finley, Rosellini, Hunter, Utter, JJ., concur. Brachtenbach, (dissenting) appellant, City J. dissent. The

Wright, —I charged negligence part Bellevue, is on one its employees alleged proper for an failure to make inspection. duty city upon is There no common-law perform inspections private property. on In the absence providing inspections, either statute anor ordinance for only inspec- there not would no to make such an absolutely authority tion, there no would be such make inspection. Any duty, upon an therefore, rest must a statute or ordinance. relating inspections

The statute to electrical is RCW By inspection requirements spe- 19.28. RCW 19.28.360state cifically apply do not within certain cities and towns, that any city having requiring equal is, an ordinance an or inspection. no higher There is contention standard that exemption granted by fall the fails to within Bellevue 19.28.360. RCW city inspector position of Bellevue

The of electrical the city powers ordinance, his and duties created is ques- by the The installation in established ordinance. are city was made before that area was within the herein tion only authority inspec- and, therefore, of Bellevue Municipal come from Bellevue Code 16.32.110 tor would 9) (ordinance prior § No. 163 entitled “Unsafe installa- authority inspector tions.” of an that under section is requiring limited to the service of a notice written correc- days. tion of the unsafe condition within not Only than more comply may after failure with the notice inspector case, disconnect. the instant had he immedi- ately power wiring, disconnected the from the outside he trespasser. may would have been a How, ask, I be employee liable because its which, done, did do an act if not would have been unlawful? why

There is a further reason cannot liable in a long situation as such this. The rule has been in this city state that a will not be liable for failure enforce its leading jurisdiction Kitsap A ordinances. case is County Transp. Co. v. Seattle, 673, 75 Wash. P. 476 city forbidding Therein the an had ordinance dumping Bay. into refuse the waters of Elliott Plaintiff’s steamship damaged by contact with certain timbers piles unlawfully placed in the water. problem page court stated the as follows at 674: question The sole here for determination is whether city, exercising control over harbor and Bay city waters of Elliott in front Seattle, of the is damages port liable in for failure of the warden en- provided force an ordinance keeping for the

harbor free from debris. pages Further, the court said at 677-78: general city civilly The neglect rule is is not liable for part respect on the of its officers in Municipal Corpo- Dillon, In 4

enforcement ordinances. (5th ed.), § 1627,it is rations said: creating, “Unless there be a valid contract or a statute liability, municipal corporation declaring, bound is a bylaws, perfect to secure a execution its relat- responsible public powers, civilly ing for it is not to its neglect duty part respect of its on the officers neglect inju- although such results in enforcement, their ries private persons would otherwise not have happened.” Weg- same effect include other cases to the

Numerous (1929); Fluckiger State, P. v. 154 Wash. miller (1918), Goggin P. 456 330, 174 v. Seattle, v. 103 Wash. (1956). 297P.2d 602 48 Wn.2d Seattle, both of which cases effect, cases same Two recent safety inspections, App. State, v. are Nerbun 8 Wn. involve Washington Loger (1973) Timber 506 P.2d 873 App. 921, Wn. 509 P.2d Prods., Inc., 8 stated, should I believe action For the reasons against Bellevue, and, the defendant dismissed as therefore, I would reverse. specially (concurring con- J. dissent) Stafford, — I questions portion dissent which

cur with city advisability holding its for inaction of em- liable ployees the facts herein. under the attendant circumstances disconnection

Under system, required offending notice, without trespass by city employees. amounted to have would dignity on the act, rise to the How such can city, accept. part is difficult

Case Details

Case Name: Campbell v. City of Bellevue

Court Name: Washington Supreme Court

Date Published: Jan 9, 1975

Citation: 530 P.2d 234

Docket Number: 42993, 43053

Court Abbreviation: Wash.