Klossner v. San Juan County

605 P.2d 330, 93 Wash. 2d 42, 1980 Wash. LEXIS 1250
CourtWashington Supreme Court
DecidedJanuary 17, 1980
Docket46010
StatusPublished
Cited by23 cases

This text of 605 P.2d 330 (Klossner v. San Juan County) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Klossner v. San Juan County, 605 P.2d 330, 93 Wash. 2d 42, 1980 Wash. LEXIS 1250 (Wash. 1980).

Opinions

Williams, J.

Petitioner San Juan County appeals from a decision of the Court of Appeals which reversed the trial court's order granting summary judgment and dismissing respondent Patricia Klossner's action brought under the wrongful death and survival statutes, RCW 4.20.020 and RCW 4.20.060. Klossner v. San Juan County, 21 Wn. App. 689, 586 P.2d 899 (1978). We affirm the Court of Appeals.

Respondent's husband, Dean L. Klossner, died as a result of injuries sustained when his truck left the road in San Juan County. Respondent thereafter instituted an action against petitioner individually and in her capacity as both personal representative of the estate of her deceased husband and guardian ad litem for decedent's minor children and his unadopted stepchildren. In her complaint respondent alleged negligence in the design, construction, and maintenance of the road, its shoulder, and the adjoining ditch. She further alleged petitioner failed to post adequate warning signs when it knew or should have known that the shoulder was incapable of supporting the weight of a truck.

Both parties engaged in pretrial discovery by way of interrogatories. Thereafter, petitioner moved for summary judgment and in support of the motion attached its interrogatories to respondent along with her answers. Respondent, in opposition to the motion, filed her interrogatories to the petitioner along with its answers. No other documents were filed in support of or in opposition to the motion.

Neither respondent's complaint nor her answers to petitioner's interrogatories were based on her personal knowledge. Similarly, petitioner's answers to respondent's interrogatories were not based on personal knowledge. Nor did either set of documents show that the affiant was competent to testify to the matters stated therein. On the basis of that record, petitioner contended in its motion that there [44]*44was no genuine issue as to any material fact regarding liability and that respondent's action was improperly brought on behalf of the decedent's stepchildren, since they were not entitled to recover under this state's wrongful death and survival statutes. The motion for summary judgment was granted.

On appeal, the Court of Appeals reversed the trial court. In the majority opinion, the court held that reasonable inferences could be drawn from respondent's answers to the interrogatories which would raise an issue of material fact regarding negligence. Klossner v. San Juan County, supra at 693-94. In an opinion concurring in the result, two judges added that petitioner failed to meet its burden of showing there was no material issue of fact, because allegations contained in the documents filed in support of the motion were based on hearsay and thus inadmissible under CR 56(e).1 Klossner v. San Juan County, supra at 695-96 (Andersen, A.C.J., concurring in the result). All three judges agreed that the wrongful death and survival statutes did not allow recovery by the decedent's unadopted stepchildren, and the court affirmed that portion of the summary judgment order which dismissed the claims of the stepchildren. We granted San Juan County's petition for review. Klossner v. San Juan County, 91 Wn.2d 1022 (1979).

Affidavits submitted in support of a motion for summary judgment must be made on personal knowledge, set forth admissible evidentiary facts, and affirmatively show that the affiant is competent to testify as to his or her averments. CR 56(e); Meadows v. Grant's Auto Brokers, [45]*45Inc., 71 Wn.2d 874, 431 P.2d 216 (1967). Answers to interrogatories may be considered in ruling on a motion for summary judgment, as long as such answers satisfy the other requirements of CR 56 and contain admissible material. American Linen Supply Co. v. Nursing Home Bldg. Corp., 15 Wn. App. 757, 551 P.2d 1038 (1976). Affidavits or answers to interrogatories verified on belief only and not on personal knowledge do not comply with CR 56(e) and therefore fail to raise an issue as contemplated by the rule. Stringfellow v. Stringfellow, 53 Wn.2d 639, 335 P.2d 825 (1959).

Petitioner contends it presented uncontroverted evidence that there was no eyewitness to the accident. It then argues that having done so it is incumbent upon the respondent to present evidence raising a material issue of fact on the question of petitioner's negligence. Since respondent's answers to interrogatories were not based on personal knowledge, petitioner concludes that they were therefore inadmissible for that purpose.

Presumably, the evidence on whether there was an eyewitness to the accident was contained in either of the parties' answers to the interrogatories or the pleadings, for they were the only evidentiary documents considered by the trial court in ruling on the motion for summary judgment. Those are the same documents which petitioner on the one hand relies on to establish the nonexistence of an eyewitness to the accident, but on the other contends respondent cannot use to establish facts creating an issue, because they are not based on personal knowledge. Obviously, petitioner may not have it both ways. Indeed, it may not have it either way, for none of the documents satisfies CR 56(e). They were not made on personal knowledge nor did they affirmatively show that the affiant was. competent to testify to the matters stated therein. Thus, they were inadmissible in evidence. It follows that petitioner failed to meet its burden of proving there was no material issue of fact. See Morris v. McNicol, 83 Wn.2d 491, 519 P.2d 7 (1974). Accordingly, as the Court of Appeals held, the trial [46]*46court erred in granting petitioner's motion for summary judgment.

Respondent brought this action on behalf of decedent's children from a prior marriage, the children born to her and the decedent, and her own children who had not been adopted by decedent. The trial court dismissed all claims brought on behalf of the decedent's unadopted stepchildren on the ground that they were not beneficiaries under the wrongful death and survival statutes.2

Respondent contends that the purpose of the statutes is to provide a remedy for the family of the deceased commensurate with the loss sustained through his death. Hedrick v. Ilwaco Ry. & Nav. Co., 4 Wash. 400, 403, 30 P. 714 (1892). Moreover, she claims this purpose has been furthered by a recent trend in the law extending to stepchildren those rights accorded natural and adopted children. She concludes, therefore, that the wrongful death and survival statutes, being remedial in nature, should be liberally construed to include stepchildren as beneficiaries.

Respondent is correct in declaring that there is a trend in the law enhancing the rights of stepchildren. It is [47]

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Bluebook (online)
605 P.2d 330, 93 Wash. 2d 42, 1980 Wash. LEXIS 1250, Counsel Stack Legal Research, https://law.counselstack.com/opinion/klossner-v-san-juan-county-wash-1980.