Brown v. MacPherson's, Inc.

545 P.2d 13, 86 Wash. 2d 293, 1975 Wash. LEXIS 782

Opinions

Utter, J.

These consolidated lawsuits were filed to recover damages for the loss of life and property that resulted from an avalanche in the Yodelin area of Stevens Pass in early 1971. They name as defendants Nason Properties and Wendell Carlson, the owners and developers of the Yodelin area; MacPherson’s, Inc., and William MacPherson, the real estate brokers for the project; Chelan County, which approved the platting of the area and issued building permits for the development; and the State of Washington, whose real estate division of the Department of Motor Vehicles acquired information regarding the avalanche danger in the area but allegedly failed to take proper action thereon.

Shortly before the cases came to trial, the State filed a motion to dismiss the claims against it under CR 12 (b) (6), on the grounds that the plaintiffs’ complaints did not state a claim upon which relief could be granted. The trial court granted this motion as to appellants Edgers, Dean, Stoen and Lunde, but denied it as to the other plaintiffs. On the original appeal from this ruling we upheld the trial court’s action on the basis of our determination that the State’s agents had no statutory duty or authority to act to prevent the injuries appellants incurred. Brown v. MacPherson’s, Inc., 85 Wn.2d 17, 530 P.2d 277 (1975). On rehearing we reverse the trial court, and hold that appellants could obtain relief if they can prove their allegation that the .State’s agents gratuitously assumed a duty to act on their behalf and then breached that duty to appellants’ detriment.

Appellants’ complaints provide only the briefest outline of their grounds for seeking damages from the State, alleging little beyond the three elements of negligence: duty, breach, and consequent damage. No one questions that appellants’ have been terribly damaged; the only issue raised by the State’s dismissal motion is whether that damage could possibly be attributed to the breach of a duty owed them by the State or its agents. Essentially, the appellants claim that the State’s agents breached three types of duty owed them: the common-law duties to act on a gratuitous promise and to act with care, and the statutory duty to carry out the functions assigned the real estate division by the provisions of RCW 18.85. We adhere to our determination in the original hearing of this appeal that the provisions of RCW 18.85 by themselves imposed no duty to appellants on the real estate division. But we hold that there is a possible state of facts, which appellants claim they can establish, under which the State could be found to have assumed a common-law duty to act on appellants’ behalf and to act with care, and to have contributed to appellants’ losses by failing to perform that duty.

These common-law theories of the State’s liability are outlined in two portions of appellants’ complaints. First, in their original pleadings appellants alleged that the State had wrongfully failed to convey information it had received regarding the risk of avalanches in the Yodelin area to- those who it knew were endangered thereby. This allegation is contained in a paragraph of each complaint, of which the following excerpt from that of appellant Robert B. Edgers, executor of the estates of Kay Barton Edgers and Nancy Prentiss Edgers, is typical:

8. Involvement of State of Washington.

The State of Washington was specifically warned of the extreme hazard of avalanche danger at the Yodelin development and, although it communicated such warning to Defendants MacPherson’s, William MacPherson, Nason Properties and Wendell Carlson, it failed to give any such warning to the general public or the known owners and occupants of the Yodelin property and specif ically, failed to give such warning to the Edgers who the State knew or should have known from the information imparted to it to be in extreme danger of loss of their lives and property.

Second, appellants’ complaints, as amended by motion of the trial court, included answers to an interrogatory by the State, which further described the State’s allegedly tortious inaction and added the claim that the State’s agents acted negligently in communicating with MacPherson’s, Inc., further enhancing the danger to appellants. Again, the Edgers’ answer is representative:

The State Op Washington,

1. While It and its officials and agents:

a. Had specific knowledge of facts and circumstances showing that an extreme avalanche hazard existed in the area of the Edgers cabin at Yodelin, that winter time inhabitants thereof were in imminent danger and while its officials held the actual belief that such hazard existed

b. Had the authority, power and duty to intervene, give or require warnings, and prevent a disaster

c. Had given assurances to others that it would intervene which were relied upon

d. And while the Edgers and others similarly situated were justifiably complacent in the common belief that the State would not permit such a real estate development in a hazardous area

2. It Failed To:

a. Give any warning thereof or to divulge any of the information it had regarding the danger to any of the Edgers household or to any other owners or inhabitants of the Yodelin Development

b. Require the realtor, MacPhersons, Inc., or the developer, Nason Properties, Inc., to warn the Edgers or other owners or inhabitants of Yodelin

c. Suspend, revoke or deny the license of MacPhersons, Inc., or to take other appropriate and authorized legal action against the realtor and/or developer

d. Complete its investigation of the avalanche hazard in a proper manner or to require adequate avalanche information from MacPhersons or Nason Properties

e. Adequately communicate with MacPhersons and Nason Properties and led them to believe that it had confidential information from which it was satisfied no avalanche hazard existed — an impression upon which ' they relied to the ultimate detriment of the Edgers

On the basis of these pleadings alone it is extremely difficult to determine whether or not appellants have stated a claim against the State on which relief could be granted. On a CR 12(b) (6) motion, no matter outside the pleadings may be considered (Stevens v. Murphy, 69 Wn.2d 939, 421 P.2d 668 (1966)), and the court in ruling on it must proceed without examining depositions and affidavits which could show precisely what, if anything, the plaintiffs could possibly present to entitle them to the relief they seek. Ordinarily, whenever a complaint is facially adequate and the possibility of obtaining relief depends on the factual showing the plaintiff can make, a dismissal motion should be treated as a motion for summary judgment, if only to keep the court from having to act completely in the dark as to the actual nature of the plaintiff’s cause of action.

Without the benefit of an actual factual showing, we can only speculate as to what, if anything, appellants might prove which would entitle them to relief. In order to prevent our speculations from straying too far from reality, however, the factual background of appellants’ claim has been described informally and “hypothetically” by their counsel in argument here and the court below. We need not determine that the story related by counsel is true, or even that it is supported by some evidence, to use it as a context for consideration of the State’s dismissal motion.¹ All we need decide is whether the facts described, if established, would entitle appellants to relief under the allegations in their complaints. If they would, they constitute a state of facts which would entitle appellants to relief, and would therefore be adequate to justify denial of the CR 12(b) (6) motion, which cannot be granted if any state of facts could exist under which the plaintiff’s claim could be sustained. Cf. Callaway v. Hamilton Nat’l Bank, 195 F.2d 556 (D.C. Cir. 1952).²

The relevant “hypothetical” factual basis of appellants’ claim lies in an alleged series of communications between one Mr. Tonnon, an agent of the real estate division, Dr. Edward LaChapelle, a noted avalanche expert, and William MacPherson, the real estate broker of the Yodelin development. These began, appellants claim, when Dr. LaChapelle informed Mr. Tonnon that appellants’ cabins were in a high-risk avalanche area, and Mr. Tonnon responded in a manner which led Dr. LaChapelle justifiably to believe that the division would deal with the matter and convey his warning to appellants, causing him to refrain from taking further action to warn appellants himself. Later, they say, Mr. Tonnon met with Mr. MacPherson and others, and led them to erroneously believe that his information indicated no avalanche danger existed, and the developers therefore did not act to protect appellants, either. Finally, appellants contend, the State terminated its involvement in the matter without informing them of the avalanche danger or Dr. LaChapelle of the fact that it was proceeding no further. As a result of all this, appellants claim they were deprived of the opportunity to be forwarned of their danger by either Dr. LaChapelle or Mr. MacPherson, and were thus unable to avoid the losses they suffered when the avalanche that had been predicted actually occurred.

In the context of this “hypothetical” factual background, appellants’ complaints state possible causes of action against the State under two different theories of negligence. The first can be found in paragraphs 1 (a) and (c) and 2 (e) of the answers to interrogatory quoted above. There appellants allege essentially that the State’s agents undertook to prevent the avalanche damage by conferring with MacPherson’s, Inc., in effect to rescue appellants from their danger, but in the process of attempting to do so negligently misled Mr. MacPherson and thus made appellants’ situation worse. We find that, if proven, the substance of these allegations would entitle appellants to relief on a theory of misfeasance.

One who undertakes, albeit gratuitously, to render aid to or warn a person in danger is required by our law to exercise reasonable care in his efforts, however commendable. Jay v. Walla Walla College, 53 Wn.2d 590, 595, 335 P.2d 458 (1959); French v. Chase, 48 Wn.2d 825, 830, 297 P.2d 235 (1956). If a rescuer fails to exercise such care and consequently increases the risk of harm to those he is trying to assist, he is liable for any physical damages he causes. Spaulding v. United States, 455 F.2d 222 (9th Cir. 1972); Hill v. United States Fid. & Guar. Co., 428 F.2d 112 (5th Cir. 1970); United States v. Gavagan, 280 F.2d 319 (5th Cir. 1960); Owl Drug Co. v. Crandall, 52 Ariz. 322, 80 P.2d 952 (1938); Zelanko v. Gimbel Bros., 158 Misc. 904, 287 N.Y.S. 134 (1935), aff’d, 247 App. Div. 867, 287 N.Y.S. 136 (1936); Sheridan v. Aetna Cas. & Sur. Co., 3 Wn.2d 423, 437-39, 100 P.2d 1024 (1940); Restatement (Second) of Torts § 323(a) (1965); W. Prosser, Torts § 56 (4th ed. 1971). If the State’s agents, acting out of concern for the safety of appellants and others similarly situated, negligently or intentionally conveyed the impression that the danger of avalanches was less than it was to Mr. MacPherson (or anyone else), causing him to refrain from action on appellants’ behalf he otherwise would have taken, the State is answerable for any damage caused by that misimpression.

Appellants’ second theory of liability is contained in paragraph 8 of their original complaints and paragraphs 1 and 2 (a) of their answers to interrogatory. It rests on the allegation that Dr. LaChapelle refrained from warning appellants of their danger, as he otherwise would have done, in reliance on the representation by the State’s agents that they would take care of the matter. If proven, this representation and Dr. LaChapelle’s reasonable reliance on it would create a duty to warn appellants which the State assumed but did not perform. Under this theory the State would be liable for its agents’ nonfeasance.

The common law of torts has long distinguished between “acts” and “omissions,” refusing to impose liability for the latter, even though the line between the two is far from easy to draw. See W. Prosser, Torts § 56, at 339-40 (4th ed. 1971). Persons who gratuitously promised to perform a service for another in need and failed to fulfill that promise were not held to account by ancient law. See, e.g., Thorne v. Deas, 14 N.Y. 84 (1809). But this harsh rule has been eroded along several lines, the most prominent of which involves promises which induce reliance, causing the promisee to refrain from seeking help elsewhere and thereby worsening his or her situation. This court recognized that inaction may create liability in such circumstances in Sheridan v. Aetna Cas. & Sur. Co., supra. There the defendant insurance company voluntarily undertook to inspect a hotel elevator and make periodic reports to the city on its safety; the hotel owners relied on the defendant and did not themselves make inspections. The reports were not made as required by ordinance and the elevator malfunctioned, injuring the plaintiff. The ordinance requiring the reports was held admissible to establish the extent of the assumed duty, and the omission in making them was therefore held to be a basis for the plaintiff’s cause of action. Sheridan v. Aetna Cas. & Sur. Co., supra at 440.

Although we have not since directly addressed the ques tion of tortious omissions, other courts have continued to extend the duty to act imposed by reliance on a gratuitous promise. Even where an offer to seek or render aid is implicit and unspoken, a duty to make good on the promise has been found by most courts if it is reasonably relied upon. Stanturf v. Sipes, 447 S.W.2d 558 (Mo. 1969); Wilmington Gen. Hosp. v. Manlove, 54 Del. 15, 174 A.2d 135 (1961); Abresch v. Northwestern Bell Tel. Co., 246 Minn. 408, 75 N.W.2d 206 (1956). In other cases a duty to act has been found to have been created by reliance not by the person to whom the aid is to be rendered, but by another who, as a result of the promise, refrains from acting on that person’s behalf. In Dudley v. Victor Lynn Lines, Inc., 48 N.J. Super. 457, 138 A.2d 53 (1958), rev’d on other grounds, 32 N.J. 479, 161 A.2d 479 (1960), the plaintiff’s wife remained with plaintiff, who was ill, relying on the defendant’s offer to seek medical help. Defendant broke his word and no help came; he was held liable for plaintiff’s resultant death. United States v. Gavagan, supra, involved a promise by a Coast Guard officer to save a sinking boat. Because other boats might have rescued its crew had then-owners not relied on this promise, the court decided that the government was liable to the estates of the men who drowned when the Coast Guard failed to act. In Fair v. United States, 234 F.2d 288 (5th Cir. 1956), a military officer told plaintiff’s bodyguards he would warn them before a mental patient who had threatened her life was discharged from an Air Force hospital. The patient was released without the notification being given and killed the plaintiff; the government was held liable for the breach of its agent’s promise. See also Donald v. Garry, 19 Cal. App. 3d 769, 97 Cal. Rptr. 191 (2d Dist. Ct. App. 1971); Restatement (Second) of Torts § 324A. (c) (1965); W. Prosser, Torts § 56, at 347 (4th ed. 1971).

The State argues, however, that its agents could not have assumed a duty to appellants because they had no power to do what they allegedly impliedly promised to do —warn appellants of their danger. In order to support this claim it asks us to strictly construe the provisions of RCW 18.85 and hold that the powers of the real estate division and its agents are limited to those explicitly granted it in that chapter. We do not take so narrow a view the power of state officers. The authority given the division to investigate real estate' brokers and to make the findings from such investigations available to the public (see RCW 34.04.020) implicitly includes the ability to communicate with interested or affected persons in the course or at the end of such investigations. This implicit power supplements the inherent power of all state officials to properly communicate with the public regarding matters of state business. Cf. Gold Seal Chinchillas, Inc. v. State, 69 Wn.2d 828, 833, 420 P.2d 698 (1966).

The legal authority of the State’s agents to contact appellants thus was clear. But even if it were not, the State would be liable for its agents’ failure to warn appellants of their danger if they had assumed a duty to do so within the scope of their employment. No special permission is necessary, either for public officials or private individuals, to warn others of some peril to them when a legal duty has been assumed to do so. The law does not require statutory authorization to inform a person that he or she is in mortal danger.

The issues in this case are in many ways similar to those in Fair v. United States, supra. There, too, the government argued that it could not be liable for its agents’ failure to warn the decedent that her life was threatened because the agent had no express authority to give such warnings. The court in Fair rejected that contention and held that the powers of government officers are not so limited, that their legal responsibilities are not so different from those of private citizens. It ruled that the governmental agents can obligate themselves to act gratuitously on another’s behalf and bind their employer to that obligation if it is made in the course of their employment. Fair v. United States, supra at 296. To hold otherwise would be to establish that, because of the finite statutory authority it gives its agents, the government can escape responsibility for their breach of the moral and legal duty to keep their official word. We refuse to make such a rule here.

Reversed.

Finley, Hamilton, Brachtenbach, and Horowitz, JJ., concur.

Footnotes

1

Counsel for respondent stated in oral argument that the “hypothetical facts” presented by appellants are patently false. There is nothing in the record before us, however, which supports that claim. Appellants’ counsel quoted portions of several affidavits and depositions in his briefs before the trial court which give credence to his version of the facts.

2

Proper consideration of “hypothetical facts” does not deemphasize the distinction between motions under CR 12(b)(6) and summary judgment motions under CR 56. A summary judgment motion calls upon the court to determine from the pleadings and supporting documents whether any genuine issue of material fact exists requiring a trial. Morris v. McNicol, 83 Wn.2d 491, 519 P.2d 7 (1974). A CR 12(b) (6) motion questions only the legal sufficiency of the allegations in a pleading. But since this legal determination cannot always be made in a vacuum, it may be necessary to postulate factual situations which might form the basis for the pleading. No reason appears why one such “hypothetical” situation should not be that which the complaining party contends actually exists. The court need not find that any support for the alleged “facts” exists or would be admissible at trial, as it should on a summary judgment motion. The question under a CR 12(b)(6) motion is basically a legal one, and the “facts” are considered only as a conceptual backdrop for the legal determination.