Brown v. MacPherson's, Inc.

530 P.2d 277, 85 Wash. 2d 17, 1975 Wash. LEXIS 845

• Court: Washington Supreme Court
• Decided: January 9, 1975
• Docket: 43054
• Status: Published

Opinions

Wright, J.

This is an appeal by plaintiffs Dean, Stoen, Lunde and Edgers from an order of dismissal entered under CR 12(b). The State of Washington was dismissed as a defendant in the actions instituted by said plaintiffs. Our sole consideration in this appeal is whether the complaints of the named plaintiffs failed “to state a claim upon which relief can be granted” as against the State of Washington.

The facts as affect this appeal can be stated briefly. This being a dismissal under CR 12(b) the only matters considered are those stated in the complaints of the appellant-plaintiffs as amended by answers to interrogatories. It should be noted the trial court specifically refused to consider the motions as applications for summary judgment under CR 56.

In the early morning hours of January 24, 1971, an avalanche thundered down the slopes of the Cascade Mountains near the Stevens Pass Highway leaving death and destruction in the Yodelin development. There were avalanches later; one January 26, 1971, and another nearly a year later on January 19, 1972. We are concerned only with the tragic events of January 24,1971.

On December 11, 1968, the Real Estate Division of the Department of Motor Vehicles was warned of danger at the Yodelin development by one Dr. Edward LaChapelle, a professor on the faculty of the University of Washington and a recognized expert in matters relating to avalanches.

The allegations in the Edgers’ complaint as against the State of Washington are substantially representative of the allegations in all of the complaints of those plaintiffs who' are appellants herein. Such allegations are as follows:

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 warn-' ing 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 specifically, 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.

TR. 22

We shall refrain from extending this discussion beyond that which is necessary to decide the matter now before the court. These consolidated cases will be tried and another appeal could quite possibly follow. We are, therefore, faced with somewhat the same situation which confronted this court in Hofto v. Blumer, 74 Wn.2d 321, 444 P.2d 657 (1968) when the court said at page 327:

We think it would be improper for us to discuss at this time the merits of the contentions of the parties which are fully stated in the briefs. To do so might have the effect of prejudging this case when it comes on for trial. As yet respondents have not had occasion to file an answer so that the factual issues have not been framed at this time.

The only department or agency of the State of Washington involved herein is the Real Estate Division of the Department of Motor Vehicles. The powers and duties of that division are set forth in RCW 18.85. The act in force at the time herein relevant was passed in 1951 with amendments and additions in 1953.

The Land Development Act of 1973, RCW 58.19, was not passed until 1973 and has no application to this litigation. It was adopted as chapter 12, Laws of 1973, 1st Ex. Sess. Many of the provisions of that act were clearly inspired by the tragedies which gave rise to these cases.

Further, an examination of RCW 18.85.040, which gives the powers and duties to the director of the Department of Motor Vehicles over the real estate licensees, will show he had absolutely no authority to do the acts which appellants contend he should have done. The only other source of authority in the real estate division is the real estate commission, which by RCW 18.85.085 and RCW 18.85.090 is given power to set up educational conferences, act in an advisory capacity and give examinations for applicants for licenses as salesmen or brokers.

The real estate division, lacking the power to do those things which are in question here, can not be liable for a failure to do same. The order of dismissal of the State of Washington in those cases wherein the appellants were plaintiffs is, therefore, affirmed.

Hale, C.J., and Rosellini and Hunter, JJ., concur. Stafford, J., concurs in the result.