No. 35497-7-II.The Court of Appeals of Washington, Division Two.
November 6, 2007.
Appeal from a judgment of the Superior Court for Grays Harbor County, No. 05-2-01463-2, David E. Foscue, J., entered October 9, 2006.
Affirmed
by unpublished opinion per Hunt, J., concurred in by Armstrong and Quinn-Brintnall, JJ.
HUNT, J.
Frederick Cooperrider appeals the trial court’s summary judgment dismissal of his action against the City of Ocean Shores for negligence and trespass based on the flooding of his vacation home when a kitchen pipe froze and burst during a cold winter. In addition, Cooperrider appeals the trial court’s grant of summary judgment on his excessive billing complaint. Cooperrider argues that issues of material fact render summary judgment inappropriate. We affirm.
FACTS I. Background
Frederick Cooperrider owned a vacation home in Ocean Shores. When he moved to the East Coast in 1998, he did not turn off the valve on the customer’s side of the home’s meter to stop the water supply. Between 1998 and 2001, he failed to pay his accumulated base water charges to the City of Ocean Shores.[1] Consequently, the City frequently turned off his water supply.
A. Request to Terminate Water Connectivity Contract
In October 2001, Cooperrider filed a complaint with the City of Ocean Shores, demanding that it terminate his water connectivity contract. In a reply letter, the City explained that (1) customers continue to incur base charges for connection to the water system even if they do not consume any water, and (2) removing his water meter would reduce, but not eliminate, his monthly water charges.[2] The record does not show that Cooperrider asked the City to remove his water meter or that he took further action to terminate his water contract with the City at this time.
In March 2002, Cooperrider filed a small claims action against the City, asserting that he had terminated his water contract and that the City had continued billing him unlawfully. In August 2002, the small claims court ruled in favor of the City, holding that (1) “[t]he contract between the parties incorporates the terms of [Ocean Shores] Municipal Code,” and (2) because the City had followed its municipal code in dealing with Cooperrider, it did not breach its water service contract. The Grays Harbor County superior court dismissed Cooperrider’s subsequent appeal as untimely.
Shortly thereafter, Cooperrider wrote a letter to the City, asking it to disconnect his water services “immediately.” He enclosed a “disconnect fee of $41.50”[3] and four months’ back pay for his water connectivity bill. This check, however, did not cover his debt to the City because he owed eight, not four, months of water connectivity charges.
Nor did Cooperrider’s letter explicitly state that he wanted the City to remove his water meter. Ocean Shores replied to Cooperrider’s letter, asking him to clarify whether he wanted his meter removed. The City’s letter (1) informed Cooperrider of some potential consequences of removing his meter, such as removing his certificate of occupancy, separately disconnecting his sewer service, and independently hiring a contractor to disconnect his vacuum pit from the city system; (2) enclosed a meter-removal request form for him to sign and to return if he wanted his water meter removed; (3) explained that it was planning to change its development fees and that the new charge for re-installing a water meter could possibly cost up to $8,000; (4) notified Cooperrider that he still owed money on his outstanding water connectivity bill; and (5) said that after he tendered the remaining amount owing, the City would remove his water meter.
But Cooperrider never returned the meter removal request form to the City. Nor did he pay the City the remainder of what he owed on his water bill.
B. City Turns Off Water Supply
In October 2001, the City turned off the City-controlled supply valve to Cooperrider’s water meter; it did not, however, remove the meter.
According to the City, its municipal code does not allow it to reconnect water service until the customer pays all past due bills. Thus, because Cooperrider never paid his past due water connectivity bills, no City worker ever reconnected the water service to his vacation home nor was anyone from the City authorized to do so.[4]
In 2003, Cooperrider listed his Ocean Shores home for sale. Consequently, his real estate agent visited the house occasionally that summer.
Sometime in July 2003, someone other than the City turned the City water valve back on at Cooperrider’s residence.[5] In accordance with its municipal code, the City charged Cooperrider a $59 unauthorized reconnection fee.[6] And the City’s utility billing clerk directed the staff to turn off the water again at the Cooperrider residence.
C. Frozen Pipes and Flooding
No one was living in Cooperrider’s Ocean Shores vacation home after he moved back east. And, according to his counsel, he neither turned on the heat the following winter nor instructed his real estate agent to do so. Nor did Cooperrider or anyone else at his direction ever turn off the customer water-supply valve to prevent water from running through the pipe connecting the meter box to his Ocean Shores home.[7] As was the case with other Ocean Shores homes the winter of 2003, apparently the water pipes to Cooperrider’s home froze, ruptured, and flooded the house. In January 2004, Cooperrider contracted a maintenance crew to make repairs on his house in preparation for sale. The maintenance crew discovered extensive flood damage and reported it to Cooperrider.
Cooperrider eventually sold the house at a reduced price because of the flood damage. The City collected Cooperrider’s past due bills from the home-sale escrow account.
II. Lawsuit Against City
Cooperrider sued the City in superior court for negligently allowing his house to flood, for trespass (when the City’s water entered his house without authorization), and for failing to remove his water meter. Both the City and Cooperrider moved for summary judgment.
The superior court denied Cooperrider’s motion, granted the City’s motion, and dismissed Cooperrider’s action with prejudice. Cooperrider appeals.
ANALYSIS
Cooperrider argues that (1) the superior court erred in granting summary judgment dismissal of his negligence action against the City; (2) the doctrine of res ipsa loquitur provides legal authority to sustain his action against the City; and (3) issues of material fact remain as to whether the City is liable to him for trespass and excessive billing, which preclude summary judgment. These arguments fail.
I. Standard of Review
In reviewing summary judgment, we apply the same standard as the trial court. Sanders v. City of Seattle, 160 Wn.2d 198, 207, 156 P.3d 874
(2007). Summary judgment is appropriate only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” CR 56(c). The court must consider all facts submitted and all reasonable inferences in the light most favorable to the nonmoving party. Wilson v. Steinbach, 98 Wn2d. 434, 437, 656 P.2d 1030
(1982). The nonmoving party may not rely on speculation, argumentative assertions that unresolved factual issues remain, or having the trial court consider its affidavits at face value. Seven Gables Corp. v. MGM/UA Entm’t Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986). After the moving party has submitted adequate affidavits, the burden shifts to the nonmoving party to set forth specific facts sufficiently rebutting the moving party’s contentions and disclosing the existence of a material issue of fact. Seven Gables, 106 Wn.2d at 13. The court should grant summary judgment only if, from all the evidence, reasonable persons could reach but one conclusion. Wilson, 98 Wn.2d at 437. Such is the case here.
II. Negligence
Cooperrider contends that (1) the City had a duty to protect his vacation home’s water meter from possible access by third parties, (2) the City breached that duty by allowing easy access to the water meter and negligently failing to protect or to remove his water meter, and (3) one of these omissions proximately caused the flooding of his vacation home. His negligence claim fails.
Negligence comprises the existence of a duty to the plaintiff, breach of that duty, and an injury to plaintiff proximately caused by the breach. Lynn v. Labor Ready, Inc., 136 Wn. App. 295, 306, 151 P.3d 201
(2006). In order to prove an actionable claim for negligence, a plaintiff must first show the existence of a duty. Reynolds v. Hicks, 134 Wn.2d 491, 495, 951 P.2d 761 (1998). The lack of a duty in a negligence case is dispositive; thus, if a plaintiff fails to show that the defendant owed a duty, the claim must fail. See Linville v. State, 137 Wn. App. 201, 213, 151 P.3d 1073 (2007). Because Cooperrider has failed to show that the City owed him the duty he alleges, we need not address his assertions of breach and proximate cause, which depend on the existence of a duty.
A. No Duty
Cooperrider entered into a water service contract with the City, which incorporated the City’s municipal code. Ocean Shores Municipal Code (OSMC) 13.06.070 (2005) provides that the customer “shall provide space for and exercise proper care to protect any city property on his premises. This may include meters. . . .” (emphasis added). Because Cooperrider agreed to assume care of the City’s water meter mounted on his home, he cannot show that the City retained such duty.
B. Palin Distinguished
Cooperrider relies on Palin v. General Construction Co., 47 Wn.2d 246, 287 P.2d 325 (1955), as authority that the City had a duty to protect his water meter. Palin involved a construction company that failed to secure a negligently broken oil tank valve. During the night, an unknown person came onto the construction site and opened the valve, causing leakage of large amounts of oil. The Court held the construction company liable for negligence because the company had knowledge that curious people were on the premises and the company’s knowledge imposed a duty on it to secure the site. Palin, 47 Wn.2d at 249-50.
Palin is distinguishable. Cooperrider provided no evidence that the City had knowledge of curious individuals looking to tamper with his vacation home’s water meter. Furthermore, unlike the company in Palin, the City has a compelling reason to leave residential water meters unlocked?to allow customers access to their meters so they can turn off their water valves when necessary to prevent flooding their homes, especially during natural or other emergencies that increase the likelihood of water pipe rupture.
Allowing residents access to water valves so they can protect their homes from flooding greatly outweighs the danger of an unlikely third party tampering with a water valve, thereby Page 10 potentially causing damage. Such access is not only reasonable for the City to provide, but it also enables home owners to comply with instructions for emergency preparedness, a component of which is to know a home’s water valve’s location and to be able to shut off the water supply to the home.
Cooperrider has failed to establish that the City owed him a duty to protect access to the water meter on his vacation home.[8] Because the lack of such threshold duty is dispositive, we need not address the other negligence elements that Cooperrider asserts. Accordingly, we hold that the trial court properly granted summary judgment dismissal of Cooperrider’s negligence action against the City.
III. Res Ipsa Loquitur
Cooperrider next argues that the doctrine of res ipsa loquitur provides a legal remedy, as an alternative to his negligence claim, and that the trial court erred by refusing to recognize this doctrine to spare him the burden of establishing a prima facie case of negligence. This argument also fails.
The doctrine of res ipsa loquitur provides that, in some circumstances, the mere fact that an accident occurs raises an inference of negligence. Black’s Law Dictionary 1368 (8th ed. 2004). The elements of res ipsa loquitur are: (1) an event that ordinarily does not occur unless someone is negligent, (2) the defendant’s exclusive control over the agency or instrumentality causing the event, and (3) the plaintiff’s lack of a voluntary action or contribution to the event. Douglas v. Bussabarger, 73 Wn.2d 476, 484, 438 P.2d 829 (1968).
Cooperrider alleged in his complaint that the flooding damage was caused by the City’s failure to turn off his water, to remove his water meter, to keep others from accessing the water valves, and otherwise to keep water from entering his home. But Cooperrider fails to establish the second requirement of res ipsa loquitor? the City’s exclusive control over the water meter box and valves that control water to his Ocean Shores vacation home. It is undisputed that (1) the box was located in the right of way in front of Cooperrider’s home; (2) the box contains two shut-off valves, one of which is designed to be easily accessible to the homeowner to turn off in the event of an emergency; and (3) in addition to Cooperrider and the City, some other non-authorized person apparently used this access to turn his water back on after the City turned off the supply to his house.
Thus, the trial court did not err in dismissing Cooperrider’s action for failing to establish res ipsa loquitor applicability.
IV. Trespass
Cooperrider also argues that the City trespassed on his land because it failed to remove his water meter when he requested and that it was the City’s water that entered and damaged his home. This argument also fails.
A trespass is an intentional or negligent intrusion on another’s property. Mielke v. Yellowstone Pipeline Co., 73 Wn. App. 621, 624, 870 P.2d 1005, review denied, 124 Wn.2d 1030 (1994). The plaintiff must show that the defendant trespassed intentionally or negligently. Hughes v. King County, 42 Wn. App. 776, 782, 714 P.2d 316, review denied, 106 Wn.2d 1006 (1986). A person trespasses “if he intentionally (a) enters land in the possession of the other, or causes a thing or a third person to do so, or (b) remains on the land, or (c) fails to remove from the land a thing which he is under a duty to remove.” Bradley v. Am. Smelting Refining Co., 104 Wn.2d 677, 681-82, 709 P.2d 782 (1985) (citing Restatement (Second) of Torts § 158 (1965)).
A. City’s Right of Access
The Ocean Shores Municipal Code gives the City a right of access to the water meter on Cooperrider’s property. OSMC 13.06.140.[9] Cooperrider argues that his letter requesting termination of his water service revoked the City’s right to maintain the water meter on his property.
Cooperrider is incorrect.
On the contrary, as the City notes, Cooperrider never explicitly requested that it remove his water meter. A rational fact finder would find that (1) his “water meter removal request” was ambiguous, unclear, and not explicit; (2) the City acted diligently in requesting clarification; and (3) Cooperrider’s failure to respond to the City’s reasonable clarification request was the sole reason it did not remove the meter. Accordingly, contrary to Cooperrider’s assertions, the record shows that he never revoked the City’s right to have the water meter on his property. We hold that Cooperrider’s own inaction is fatal to his trespass claim.
B. No Negligent or Intentional Act
Nevertheless, we note in addition that trespass requires a negligent or intentional act by the defendant. Hughes, 42 Wn. App. at 780; Mielke, 73 Wn. App. 621. As we explain in the previous section of this analysis, Cooperrider failed to prove that the City’s negligence caused the water to flood his vacation home. Nor has he alleged material facts showing any intentional acts or omissions by the City that caused the water to enter his home unbidden. Thus, his trespass claim fails on this ground as well.
We hold, therefore, that the trial court did not err in granting summary judgment dismissal of Cooperrider’s trespass claim.
V. Excessive Billing
Cooperrider also contends that the City over-billed him after he requested it to remove his water meter and that the City wrongfully collected these over-billings at the closing of his home sale. More specifically, he argues that the City over-billed him because OSMC 13.06.510 allows the City to put only a four-month lien on his house, and the City collected more than four months of outstanding bills. This argument also fails.
A. Standard of Review
Courts retain the ultimate authority to interpret a statute. Franklin County Sheriff’s Office v. Sellers, 97 Wn.2d 317, 325-26, 646 P.2d 113
(1982), cert. denied, 459 U.S. 1106 (1983). Courts interpret municipal ordinances using the same rules as statutes. Sleasman v. City of Lacey, 159 Wn.2d 639, 643, 151 P.3d 990 (2007).
As a reviewing court, we must give effect to the legislative body’s intent. Review begins with the code provision’s plain language. Lacey Nursing Ctr., Inc. v. Dep’t of Revenue, 128 Wn.2d 40, 53, 905 P.2d 338
(1995). We determine legislative intent from the language alone if the code provision is unambiguous. Waste Management v. WUTC, 123 Wn.2d 621, 629, 869 P.2d 1034 (1994).
B. OSMC 13.06.510
Cooperrider relies on OSMC 13.06.510 in asserting that the City can impose a maximum lien of four months on his property. But Cooperrider fails to read the rest of the section, which provides:
A. The city shall have a lien against the premises to which water services were furnished for four months’ charges therefor [sic] due or to become due, but not for any charges more than four months past due.
. . . .
C. The remedies set forth in this section are alternative and supplemental to all other remedies available to the city.
OSMC 13.06.510 (emphasis added). Although this code section limits the City to a four-month lien, this lien is not the City’s sole remedy; on the contrary, the lien expressly supplements other available remedies, such as collecting payment of all outstanding bills through escrow when a home sale closes, as was the case here. OSMC 13.06.510(c).
Furthermore, interpreting the City code as Cooperrider urges?that the City may collect only four months of unpaid water bills?would essentially allow people to obtain years of free water service as follows: A customer could fail to pay his bill for years, then pay four months back fees, and then be free and clear. Adopting this interpretation of the code would lead to absurd results, which we must avoid. Berrocal v. Fernandez, 155 Wn.2d 585, 590, 121 P.3d 82 (2005) (quoting Burton v. Lehman, 153 Wn.2d 416, 423, 103 P.3d 1230 (2005)).[10]
Cooperrider has failed to show that the City over-billed him for his home’s water service. On the contrary, on the record before us, a reasonable trier of fact could find that the City did not bill Cooperrider excessively. Accordingly, we hold that the trial court did not err in granting summary judgment to the City on this claim as well.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, P.J. QUINN-BRINTNALL, J., concur: