Wanda Weatherbee, Appellant, v. Lennart K. Gustafson, et al, Respondents

64 Wn. App. 128; 822 P.2d 1257; 1992 Wash. App. LEXIS 37; CCH Prod. Liab.
Rep. P13,278
February 3, 1992, Decided
February 3, 1992, Filed

PRIOR HISTORY: Superior Court: The Superior Court for King County, No.
87-2-14039-3, James J. Dore, J., on July 2 and 3, 1990, entered summary
judgments in favor of the defendants.

DISPOSITION: Holding that evidence giving rise to questions of material fact
remained, the court reverses the judgments.

PROCEDURAL POSTURE: Appellant injured party sought review of a decision of
the Superior Court for King County (Washington) that granted summary
judgment in favor of respondents, smoke alarm installer and smoke alarm
manufacturer, in an action filed by the injured party alleging damages
allegedly caused when her pillow caught on fire and the smoke alarm failed
to signal the fire.

OVERVIEW: The injured party and her companion fell asleep with a candle
burning in the bedroom. The candle allegedly came in contact with the
injured party's pillow which began to burn. When the companion attempted to
move the burning pillow, it exploded and burned the injured party. The
injured party filed an action against respondents, alleging that if the
smoke alarm had been installed and working properly the injured party would
not have been harmed. The court reversed the trial court's grant of summary
judgment to respondents. The court held that a reasonable inference could
have been drawn that a working smoke alarm would have been activated and
that if the injured party had been alerted she could have moved away from
the pillow before it exploded. The court held that there was evidence of
material facts to support proximate cause and summary judgment was thus

OUTCOME: The court reversed the decision of the trial court that granted
summary judgment in favor of respondents in the injured party's claim for
damages arising because the smoke alarm in her residence did not allegedly
activate. The matter was remanded for trial.

COUNSEL: Kirk R. Wines, for appellant.

Lish Whitson and Helsell, Fetterman, Martin, Todd & Hokanson; Thomas V.
Harris and Merrick, Hofstedt & Lindsey, for respondents.

JUDGES: Kennedy, J. Webster, A.C.J., and Pekelis, J., concur.

OPINION: Appellant Wanda Weatherbee appeals the trial court's grant of
summary judgment to the manufacturer and installer of a smoke alarm which
she claims was defective and that the defect was a proximate cause of
injuries she received during a fire in her home. We reverse.

I. On the night of December 25, 1984, appellant was at her home with a
companion, Mr. Chase. Sometime that night the appellant lit a votive candle
and placed it in the headboard [*130] of her waterbed. The appellant's
[***2] pillow apparently came into contact with the candle and began to
burn. Appellant testified that she believed that this occurred when she
shifted her position and the pillow was moved. Appellant testified that she
was awake at this time, and that her companion was also awake. However, Mr.
Chase stated in deposition that he had been asleep and that he was awakened
by the presence of smoke.

Upon noticing appellant's pillow in flames, Mr. Chase testified that he
attempted to move the pillow, and it exploded. Molten fragments landed on
the appellant, and as a result she was burned. Although she was awake before
the pillow exploded, appellant testified at deposition that she did not feel
any heat or smell or see any smoke until after the pillow exploded.
Appellant testified that she did smell smoke when she stood up and after she
had been burned, but that generally, her sense of smell was not very good.

Prior to this incident, appellant had contracted with respondent Gustafson
Builders Corp., owned by respondents Lennart and Judi Gustafson, to perform
substantial remodeling of her house. The remodeling occurred in September
and October of 1984. A new smoke detector, a "First Alert" [***3] model
manufactured by respondent Pittway Corp., was installed at this time.

Appellant filed the instant suit on August 14, 1987, alleging negligence on
the part of the manufacturer and the installer of her smoke detector.
Appellant claims that the smoke detector was not installed or tested
properly and was nonfunctioning at the time of the fire. The smoke detector
was located in the hallway across from the appellant's bedroom door, and the
bedroom door was open at the time of the fire.

On June 11, 1990, respondent Gustafson filed a motion for summary judgment
claiming that the allegedly defective installation of the smoke alarm could
not be considered the proximate cause of the appellant's injuries. On June
12, 1990, respondent Pittway filed a similar motion, also claiming [*131]
that the allegedly defective smoke alarm could not be considered the
proximate cause of the appellant's injuries. Summary judgment was granted to
Gustafson on July 2, 1990, and to Pittway on July 3, 1990. Appellant filed a
motion for reconsideration and filed with it a personal declaration
regarding several of the facts pertinent to the incident. The motion for
reconsideration was denied on July 27, 1990. [***4] This appeal followed.

II. In determining whether an order of summary judgment is correct, this
court is to engage in the same inquiry as the trial court. Rhea v. Grandview
Sch. Dist. JT 116-200, 39 Wn. App. 557, 559, 694 P.2d 666 (1985). A motion
for summary judgment should be granted if there is no genuine issue of
material fact or if reasonable minds could reach only one conclusion on that
issue based upon the evidence construed in the light most favorable to the
nonmoving party. Sea-Pac Co. v. United Food & Comm'l Workers Local Union 44,
103 Wn.2d 800, 802, 699 P.2d 217 (1985). The granting of summary judgment is
proper if the nonmoving party, after the motion is made, fails to establish
any facts which would support an essential element of its claim. Young v.
Key Pharmaceuticals, Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct.
2548 (1986)). The burden is on the nonmoving party to make out a prima facie
case concerning an essential element of the claim if the moving party
[**1259] first shows that there is [***5] an absence of evidence to
support the nonmoving party's case. Young; see also Hash v. Children's
Orthopedic Hosp., 110 Wn.2d 912, 915, 757 P.2d 507 (1988).

Respondent claims that appellant failed to establish any facts which would
support a finding that the allegedly defective smoke alarm was the proximate
cause of her injuries, and thus under Young the burden shifted to her and
summary judgment was properly entered. In Young this state's Supreme Court
adopted the reasoning in Celotex Corp., 477 U.S. at 325, by explicitly
stating that if the [*132] moving party in a summary judgment action shows
the absence of an issue of material fact on an essential element of a claim,
the burden shifts to the nonmoving party to demonstrate the existence of an
issue of material fact in order to avoid summary judgment. Young, 112 Wn.2d
at 225.

Finding that a pharmacist's testimony can never be competent evidence as to
the proper standard of care of a physician practicing a medical specialty,
and that the only evidence as to the proper standard of care which plaintiff
had presented was in the form of an affidavit from a pharmacist, [***6] the
Young court ruled that the plaintiff had failed to establish a material fact
as to breach of duty and affirmed the summary judgment. Young, 112 Wn.2d at

Although the test of summary judgment was approached somewhat differently,
neither the Celotex Court nor the Young court altered the historic rules
regarding summary judgment. As reasoned by the court in Young, where a party
fails to demonstrate an issue of material fact, "'. . . there can be "no
genuine issue as to any material fact," [under CR 56] since a complete
failure of proof concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial.'" Young, 112 Wn.2d at
225 (quoting Celotex Corp., 477 U.S. at 322-23).

[3] The Young court simply clarified that to successfully move for summary
judgment a party must demonstrate a lack of evidence or a material fact
which cannot be rebutted. Young, 112 Wn.2d at 225. The evidence and all
reasonable inferences therefrom must still be examined in the light most
favorable to the nonmoving party to determine if there are genuine issues
[***7] of material fact for trial. Young, 112 Wn.2d at 226. In the present
case, unlike Young, the claims of the moving parties did not eliminate
competent evidence in the record from which a finder of fact could draw
reasonable inferences in support of the essential elements of appellant's
claim. Therefore, the burden of proof in the present case did not shift to
the appellant, and summary judgment in favor of respondent was incorrect.

[*133] [4] Respondents Gustafson and Pittway contend that the appellant
failed to provide any competent evidence that even if the smoke alarm were
not properly working, this was a proximate cause of her injury and that this
lack of evidence on a prima facie portion of her claim defeated her claim
under Young. Respondents make a sweeping conclusion that there was a lack of
evidence showing prima facie proximate cause, by merely claiming that there
was no evidence establishing that the smoke alarm would have gone off had it
been working or that Mr. Chase would have acted any differently in throwing
the pillow had the alarm gone off. n1 We disagree.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n1 There is some dispute as to whether this court should consider the
declaration of the appellant filed with her motion for reconsideration to be
part of the factual record, since this affidavit was not presented at the
time the court considered the original motion. According to the trial
court's order dismissing the motion for reconsideration, it was considered
by the trial court, and this court considers all of the evidence before the
trial court. See Rhea. However, the declaration of the appellant in no way
changed the evidence below.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***8]

The respondents claim that the smoke alarm would not have gone off before
the pillow exploded because Ms. Weatherbee testified that she noticed no
smoke and felt no heat until after the explosion, and therefore there would
have been no smoke to set [**1260] off a functioning alarm. However, such
conjecture does not eliminate the reasonable inference that a working smoke
alarm would have gone off. The respondents introduced no evidence that smoke
alarms are ever less sensitive to smoke than human beings or that this alarm
would have been in the present case. Furthermore, respondents ignore the
fact that appellant's companion Mr. Chase testified that he was asleep, and
that smoke actually awakened him and alerted him to the fire danger.

It certainly is a reasonable inference that if there was sufficient smoke to
wake Mr. Chase there would have been sufficient smoke, particularly in the
upper part of the house where smoke travels, to activate the alarm, even if
Ms. Weatherbee did not see or smell the smoke. Although Mr. Chase did not
claim that he would have responded differently had the alarm gone off, it is
also a reasonable inference [*134] that had the alarm alerted [***9] Ms.
Weatherbee, she could have moved before Mr. Chase grabbed her pillow which
then exploded.

Thus, contrary to respondents' contention, there is evidence of material
facts which support proximate causation in the present case. Young does not
stand for the proposition that the respondents can make a bald assertion
unsupported by factual evidence and thereby shift the burden of proof to
appellant, when there is evidence giving rise to questions of material fact
in all parts of her claim. As noted above such evidence is present in this
case. Therefore, we reverse the judgment of the trial court and remand for