WESTERN NATIONAL ASSURANCE COMPANY v. PUGET SOUND ENERGY INC (2011)

BACKGROUND

We apply the usual standard of review for summary judgment.²  Where the defendant shows there is an absence of an issue of material fact, the burden shifts to the plaintiff, who has the burden at trial.³  If the plaintiff cannot make a showing sufficient to establish the existence of an element essential to that party's case, the defendant's motion for summary judgment should be granted.⁴

A negligence claim requires the plaintiff to establish duty, breach, causation, and damages.⁵  Western does not point to any act or omission by PSE that might constitute breach or support causation.   Instead, Western emphasizes PSE's duty as a utility company in control of high voltage lines to exercise a very high degree of care to ensure its lines would not fall and cause a serious accident.⁶  PSE does not dispute its duty.   But a negligence claim requires evidence of breach and causation.

Western asserts there is an issue of material fact as to whether PSE took measures to ensure that power lines do not remain energized if they fall.   But Western presented no evidence showing what measures, if any, were available to PSE in this regard.   Without such evidence, Western's assertion is mere speculation.   Nor does Western explain how PSE's failure to employ these unidentified measures caused the damage.

Western failed to furnish evidence establishing the elements of a prima facie case for negligence.   Summary judgment was appropriate.

Motion for Reconsideration

We review the denial of a motion for reconsideration for abuse of discretion.⁷  A court abuses discretion when its decision is manifestly unreasonable or based upon untenable grounds or untenable reasons.⁸  An error of law constitutes abuse of discretion.⁹  Whether res ipsa loquitur applies to a particular case is a question of law reviewed de novo.¹⁰

Western asserted the doctrine of res ipsa loquitur for the first time in its motion for reconsideration.   A plaintiff may not propose new theories that could have been raised before entry of an adverse decision.¹¹  But to the extent the court considered Western's new argument, its conclusion was correct.

The doctrine of res ipsa loquitur allows an inference of negligence if the plaintiff establishes three elements:

(1) The occurrence producing the injury was of a kind that ordinarily does not occur in the absence of negligence;

(2) The injury was caused by an agency or instrumentality within the exclusive control of the defendant;  and

(3) The injury-causing occurrence was not due to any contribution by the injured party.[12]

Where res ipsa loquitur applies, it spares the plaintiff the requirement of proving specific acts of negligence and shifts the burden to the defendant to show reasonable care could not have prevented the injury.¹³

Regarding the first element, Western simply asserts that general experience and observation teaches that in the absence of negligence, an electrical wire would not fall in a windstorm, remain electrified, and cause damage to property.¹⁴  We disagree.   Common experience does not supply the necessary link between PSE's high duty and the occurrence here, i.e., that power lines fall in high winds and remain electrified only where proper care is lacking.¹⁵

Western also fails to provide support for the second and third elements.   Western discusses the applicable definition of “exclusive control,” ¹⁶ but does not present evidence that this legal concept applies here.   Western altogether neglects to discuss whether the Jeretzkys' conduct may have contributed to the occurrence.

Western fails to show that res ipsa loquitur has any application to these circumstances.   The court properly denied reconsideration.

Affirmed.¹⁷

WE CONCUR:

FOOTNOTES

FOOTNOTE.  

FN2. Appellate courts review decisions on motions for summary judgment de novo.  Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005).   Summary judgment is affirmed when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law.  Id;  CR 56(c).  All facts and reasonable inferences are considered in the light most favorable to the nonmoving party, and summary judgment is appropriate only if, from all the evidence, reasonable persons could reach but one conclusion.  Id..  FN2. Appellate courts review decisions on motions for summary judgment de novo.  Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005).   Summary judgment is affirmed when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law.  Id;  CR 56(c).  All facts and reasonable inferences are considered in the light most favorable to the nonmoving party, and summary judgment is appropriate only if, from all the evidence, reasonable persons could reach but one conclusion.  Id.

FN3. Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989)..  FN3. Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989).

FN4. Id..  FN4. Id.

FN5. Citoli v. City of Seattle, 115 Wn.App. 459, 478, 61 P.3d 1165 (2002)..  FN5. Citoli v. City of Seattle, 115 Wn.App. 459, 478, 61 P.3d 1165 (2002).

FN6. Utility companies in control of high voltage lines have a duty to exercise “the highest degree of care human prudence is equal to” to ensure no serious accidents occur as a result of negligence.  Keegan v. Grant Cnty. PUD Dist. No. 2, 34 Wn.App. 274, 279, 661 P.2d 146 (1983) (7,620 volts);  see also Frisch v. PUD Dist. No. 1 of Snohomish Cnty., 8 Wn.App. 555, 557, 507 P.2d 1201 (1973) (7,200 volts);  Scott v. Pacific Power & Light Co., 178 Wash. 647, 650, 35 P.2d 749 (1934) (6,600 volts);  Brashear v. Puget Power & Light Co., Inc., 100 Wn.2d 204, 211, 667 P.2d 78 (1983) (120 volts not “high voltage”).   PSE's 7,200/12,470 volt power lines are “high voltage.”   See id..  FN6. Utility companies in control of high voltage lines have a duty to exercise “the highest degree of care human prudence is equal to” to ensure no serious accidents occur as a result of negligence.  Keegan v. Grant Cnty. PUD Dist. No. 2, 34 Wn.App. 274, 279, 661 P.2d 146 (1983) (7,620 volts);  see also Frisch v. PUD Dist. No. 1 of Snohomish Cnty., 8 Wn.App. 555, 557, 507 P.2d 1201 (1973) (7,200 volts);  Scott v. Pacific Power & Light Co., 178 Wash. 647, 650, 35 P.2d 749 (1934) (6,600 volts);  Brashear v. Puget Power & Light Co., Inc., 100 Wn.2d 204, 211, 667 P.2d 78 (1983) (120 volts not “high voltage”).   PSE's 7,200/12,470 volt power lines are “high voltage.”   See id.

FN7. Go2Net, Inc. v. C I Host, Inc., 115 Wn.App. 73, 88, 60 P.3d 1245 (2003)..  FN7. Go2Net, Inc. v. C I Host, Inc., 115 Wn.App. 73, 88, 60 P.3d 1245 (2003).

FN8. Id..  FN8. Id.

FN9. King v. Olympic Pipeline Co., 104 Wn.App. 338, 355, 16 P.3d 45 (2000)..  FN9. King v. Olympic Pipeline Co., 104 Wn.App. 338, 355, 16 P.3d 45 (2000).

FN10. Pacheco v. Ames, 149 Wn.2d 431, 436, 69 P.3d 324 (2003)..  FN10. Pacheco v. Ames, 149 Wn.2d 431, 436, 69 P.3d 324 (2003).

FN11. Wilcox v. Lexington Eye Inst., 130 Wn.App. 234, 241, 122 P.3d 729 (2010)..  FN11. Wilcox v. Lexington Eye Inst., 130 Wn.App. 234, 241, 122 P.3d 729 (2010).

FN12. Curtis v. Lein, 169 Wn.2d 884, 891, 239 P.3d 1078 (2010).   The Jeretzkys are the “injured party” for the purpose of this analysis because Western took an assignment of claim.   See Krueger v. Tippett, 155 Wn.App. 216, 229 P.3d 866 (2010)..  FN12. Curtis v. Lein, 169 Wn.2d 884, 891, 239 P.3d 1078 (2010).   The Jeretzkys are the “injured party” for the purpose of this analysis because Western took an assignment of claim.   See Krueger v. Tippett, 155 Wn.App. 216, 229 P.3d 866 (2010).

FN13. Curtis, 169 Wn.2d at 894 (quoting Pacheco, 149 Wn.2d at 441–42)..  FN13. Curtis, 169 Wn.2d at 894 (quoting Pacheco, 149 Wn.2d at 441–42).

FN14. A plaintiff may also satisfy the first element by showing the injury is so palpably negligent that it may be inferred as a matter of law, or when proof by experts in an esoteric field creates an inference that negligence caused the injuries.   See id. at 891–92.   Western does not argue that either of these conditions is applicable here..  FN14. A plaintiff may also satisfy the first element by showing the injury is so palpably negligent that it may be inferred as a matter of law, or when proof by experts in an esoteric field creates an inference that negligence caused the injuries.   See id. at 891–92.   Western does not argue that either of these conditions is applicable here.

FN15. Western disputes there was a “windstorm” on October 4, 2011.   But PSE reported having to repair 29 power outages in the area that day due to “high winds.”   Western provides no contrary evidence..  FN15. Western disputes there was a “windstorm” on October 4, 2011.   But PSE reported having to repair 29 power outages in the area that day due to “high winds.”   Western provides no contrary evidence.

FN16. Exclusive control refers to the legal responsibility for the proper functioning of the instrument that caused the damage and a superior position for knowing of the facts leading to the damage.  Hogland v. Klein, 49 Wn.2d 216, 219, 298 P.2d 1099 (1956)..  FN16. Exclusive control refers to the legal responsibility for the proper functioning of the instrument that caused the damage and a superior position for knowing of the facts leading to the damage.  Hogland v. Klein, 49 Wn.2d 216, 219, 298 P.2d 1099 (1956).

FN17. Western fails to cite any law under which it may be entitled to attorney fees as required by RAP 18.1.   We thus do not discuss the issue and decline to award fees..  FN17. Western fails to cite any law under which it may be entitled to attorney fees as required by RAP 18.1.   We thus do not discuss the issue and decline to award fees.

Ellington, J.—Western National Assurance Company sued Puget Sound Energy for negligence.   A negligence claim requires proof of breach and causation.   Western furnished neither, and summary judgment for PSE was appropriate.   We affirm.   In October 2008, high winds hit the Anacortes area.   Puget Sound Energy (PSE) responded to 29 power outages that night.   At one point, a live PSE power line fell onto the Jeretzky family home.   It melted the wiring;  destroyed outlets, switches, and fixtures;  burned the fence;  and caused the driveway's aggregate surface to explode.   The Jeretzkys were insured by Western National Assurance Company (Western), which paid for the damages, took an assignment of claim, and sued PSE for negligence.   PSE moved for summary judgment contending Western could identify no acts or omissions by which PSE had breached a duty, nor show how such alleged conduct caused damage.1  Western responded, but submitted no evidence of breach or causation.   The trial court granted summary judgment for PSE and dismissed Western's lawsuit.   Western moved for reconsideration, arguing for the first time that an inference of negligence was available under the doctrine of res ipsa loquitur.   The motion was denied.   Western asks this court to reverse the trial court's order granting summary judgment and its denial of reconsideration and to remand the case with instructions to apply res ipsa loquitur.   DISCUSSION Motion for Summary Judgment FN1. PSE also claims immunity from liability under Puget Sound Energy Electric Tariff G, Schedule 80, Rule 12.   Given our disposition, we need not reach this issue.