No. 27572-4-IIThe Court of Appeals of Washington, Division Two.
Filed: March 4, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County Docket No: 99-2-10463-9 Judgment or order under review Date filed: 06/08/2001
Counsel for Appellant(s), Thaddeus Phillip Iv Martin, Attorney at Law, 1201 Pacific Ave # 2200, P.O. Box 1157, Tacoma, WA 98401-1157.
Karl Lin Williams, Attorney at Law, Griffin Williams PS, 5000 Bridgeport Way W, University Place, WA 98467-2031.
Counsel for Respondent(s), Joseph A. Just, Williams Kastner
Gibbs PLLC, 1301 a St. Ste 900, Tacoma, WA 98402-4299.
Counsel for Respondent/Cross-Appellant, Mark Carl Dean, Kingman Peabody Pierson Fitzharris, 505 Madison St. Ste 300, Seattle, WA 98104.
QUINN-BRINTNALL, A.C.J.
Residents and guests of Yuseph Shabazz were injured when a security guard for an apartment complex sprayed them with pepper spray. The guests appeal[1] an order of summary judgment dismissing their claim for damages against the apartment’s management company for negligent hiring and retention of the security company that employed the guard. Because the trial court properly ruled that there was no legal causation between the management company’s contracting with an unlicensed security company and the subsequent assault by an unlicensed guard whom the security company later hired, we affirm.
FACTS
On December 31, 1998, relatives and friends of Shabazz gathered at his home in the Windstar Apartments in Tacoma. A few minutes before midnight, the apartment’s security guard, Cleburne Kunz, knocked on Shabazz’s door and told him to turn down the music. An argument followed, which ended with Kunz spraying pepper spray into the apartment. Someone telephoned the police. When they arrived, the police ran a check on Kunz and arrested him for an outstanding felony warrant[2] and an outstanding misdemeanor warrant. Kunz was eventually charged with eight counts of assault and reckless endangerment for the pepper spray incident. Neither Kunz nor his employer, Quality Alliance (QA), were licensed at the time of the incident.
Cross-respondent MB Coy Management Co. managed the Windstar Apartments before respondent Tecton Corporation took over the property. In May 1998, approximately seven months before the pepper spray incident, MB Coy contracted with A Better Security Guard Company (ABSC) to provide security for the apartments. Robert Spears was the sole proprietor of ABSC. Both were licensed.
In October of that year, MB Coy learned that ABSC was going out of business and had sold its interests to QA. MB Coy signed a contract with QA to provide security for the Windstar Apartments on November 1, 1998. Spears continued to manage security for the Windstar Apartments as he had for the preceding six months.
On November 4th, Tecton took over management of the apartments from MB Coy. QA continued to provide security and, through Spears, hired Kunz on December 18th. The pepper spray incident occurred on December 31st. Sometime after January 1, 1999, Tecton discovered that QA was not a licensed security agency. QA filed a license application on January 14, 1999, and the State of Washington issued a license on June 1, 1999. In September 1999, the Flemings filed an amended complaint against Tecton, QA, MB Coy, ABSC, Spears, and Kunz. Only MB Coy and Tecton filed appearances. Tecton cross-claimed against MB Coy, and both defendants moved for summary judgment. The trial court granted these motions, dismissing the Flemings’ claims against Tecton and MB Coy with prejudice. Eight of the original 11 plaintiffs appealed, seeking review only of that portion of the summary judgment that dismissed Tecton. Tecton cross-appealed against MB Coy.
ANALYSIS
Summary judgment is proper only when the pleadings, affidavits, and depositions on file demonstrate that there is no issue of material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c). A material fact is one that affects the outcome of litigation. Ruff v. County of King, 125 Wn.2d 697, 703, 887 P.2d 886 (1995). In reviewing the decision of the trial court, we engage in the same inquiry as the trial court. Marincovich v. Tarabochia, 114 Wn.2d 271, 274, 787 P.2d 562 (1990). We consider all facts and all reasonable inferences from them in the light most favorable to the nonmoving party. Van Dinter v. City of Kennewick, 121 Wn.2d 38, 44, 846 P.2d 522 (1993).
Here, the nonmoving party is the Flemings; summary judgment was proper if the Flemings failed to establish any facts that would support an essential element of their negligence claim. See Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989).
Viewed in the light most favorable to the Flemings, the facts demonstrate that in November 1998, Tecton failed to adequately investigate the license status of QA before entering into a contract for security guard services. After entering into the contract with Tecton, QA hired an unlicensed security guard, who assaulted the Flemings.
In order to prove negligence, a plaintiff must prove duty, breach, a resulting injury, and proximate causation between the breach and the injury. Schooley v. Pinch’s Deli Mkt., Inc., 134 Wn.2d 468, 474, 951 P.2d 749 (1998) (citing Pedroza v. Bryant, 101 Wn.2d 226, 228, 677 P.2d 166 (1984)).
As a preliminary matter, we note that the Windstar residents, the Shabazzes, did not appeal the trial court’s summary judgment order, and their interests are not before us. Additionally, unlike the Shabazzes who were Tecton’s tenants, the Flemings were social guests. Our courts have consistently held that social guests are licensees, not invitees. See Younce v. Ferguson, 106 Wn.2d 658, 668-69, 724 P.2d 991 (1986) (reaffirming premises liability categories and specifically holding that social guests are licensees); Memel v. Reimer, 85 Wn.2d 685, 688-89, 538 P.2d 517 (1975) (adopting Restatement’s explanation of the duty owed to licensees in place of old `wanton and willful misconduct’ standard); Home v. N. Kitsap Sch. Dist., 92 Wn. App. 709, 718, 965 P.2d 1112
(1998) (explaining that licensees include social guests). Thus, the arguments and cases the Flemings cite on the duties landlords and businesses owe their invitees do not apply, and it is not clear whether Tecton owed the Flemings any duty.[3]
Assuming, without deciding, that Tecton had a duty to investigate the status of QA’s license, we turn to the question of whether the evidence viewed in the light most favorable to the Flemings establishes that Tecton’s failure to do so[4] proximately caused the Flemings’ injuries. If so, then material issues of disputed fact exist that require vacation of the trial court’s order on summary judgment. If not, we must affirm the trial court’s summary judgment order.
Proximate cause consists of cause in fact and legal cause. Christen v. Lee, 113 Wn.2d 479, 507, 780 P.2d 1307 (1989). Cause in fact is cause but for which the incident would not have happened. Christen, 113 Wn.2d at 507. Legal cause is cause that warrants legal liability as a matter of social policy. Christen, 113 Wn.2d at 508. A cause is `proximate’ only if it is both a cause in fact and a legal cause. Channel v. Mills, 77 Wn. App. 268, 273, 890 P.2d 535 (1995).
We agree with the trial court that the Flemings failed to establish legal cause. To prove legal causation, the Flemings must prove that Tecton’s failure to investigate and learn of QA’s lack of a license caused the Flemings’ injuries. The Flemings argue that this issue requires a determination of forseeablility of harm that must be made by a jury. But the undisputed evidence before the trial court at summary judgment established that had Tecton investigated QA’s license in November 1998, it would have learned that QA was not licensed. It would also have learned that Spears and ABSC had been licensed until the QA buy-out. Moreover, the evidence before the trial court established that both Spears and QA were eligible to be licensed and were in fact licensed by the State of Washington when they completed their licensing applications after the events in question.[5]
When Tecton entered into the contract for security services with QA, Kunz was not yet QA’s employee. A party is not liable for harm that is not foreseeable; ‘[t]he formula applicable to a finding of negligence is whether or not the general type of danger involved was foreseeable.’ Berglund v. Spokane County, 4 Wn.2d 309, 319, 103 P.2d 355 (1940). [T]here can be no liability where the harm is unforeseeable, if `foreseeability’ refers to the general type of harm sustained. It is literally true that there is no liability for damage that falls entirely outside the general threat of harm which made the conduct of the actor negligent. The sequence of events, of course, need not be foreseeable. The manner in which the risk culminates in harm may be unusual, improbable and highly unexpectable, from the point of view of the actor at the time of his conduct. And yet, if the harm suffered falls within the general danger area, there may be liability, provided other requisites of legal causation are present.
Berglund, 4 Wn.2d at 319-20 (emphasis added) (quotations omitted). We hold that reasonable minds could not differ on the question of the foreseeability of harm resulting from a management company’s failure to learn that an otherwise eligible security company had failed to complete the paperwork necessary to obtain a license and transfer the personal license of its manager from his former company. See e.g., State v. Lopez, 93 Wn. App. 619, 970 P.2d 765 (1999) (underage driver’s failure to acquire a license or driver’s training not proximate cause of fatal automobile accident and insufficient basis to establish criminal negligence necessary for vehicular homicide charge).
Cases from other jurisdictions have reached the similar conclusion that a lack of a license does not cause the damaging injury. For example, West Virginia’s Supreme Court held that hiring a person to do work who was not licensed to do such work was not sufficient to establisih negligent hiring as a matter of law. Kizer v. Harper, 561 S.E.2d 368 (W.Va. 2001). In Kizer, a cable company employee filed a claim for injuries sustained in a fall from a utility pole while stringing cable. 561 S.E.2d at 371. The plaintiff alleged that the homeowner’s son was negligent in hiring an unlicensed electrician who failed to hook up a circuit breaker to neutral wire. Kizer, 561 S.E.2d at 372 n. 6. To support his claim, the plaintiff cited to a state statute requiring a license to perform electrical work. Kizer, 561 S.E.2d at 373. The court observed that the statutory violation was not enough to prove negligent hiring by the defendant as a matter of law because the plaintiff still had to show that the statutory violation proximately caused his injuries.[6] Kizer, 561 S.E.2d at 373.
In an Illinois case, the court held that hiring an unlicensed plumber who caused a fire did not make the defendant liable. Huber v. Seaton, 542 N.E.2d 464 (Ill.App.Ct. 1989). Specifically, a fire occurred at a townhouse that the defendant owned and the plaintiffs occupied. Huber, 542 N.E.2d at 465. The plaintiffs alleged that the fire was caused by the negligence of a plumber/independent contractor hired by the defendant. Huber, 542 N.E.2d at 465. The contractor left the valve open on a propane torch that he set down, allowing gas to escape and causing the fire. Huber, 542 N.E.2d at 465. Since the defendant never checked to see if the plumber was licensed to perform plumbing work, the plaintiff claimed negligent hiring by the defendant. Huber, 542 N.E.2d at 465. The court found that the plaintiff failed to establish sufficient facts to show that the statutory violation was proximately related to the negligent act of leaving a propane torch valve open. Huber, 542 N.E.2d at 466. The court ruled, therefore, that the trial court erred in instructing the jury about the statutory violation. Huber, 542 N.E.2d at 466.
Moreover, Tecton had no duty to oversee and investigate the hiring decisions of its independent contractor. It was Spears’ decision to hire Kunz, made on December 18, 1998, not Tecton’s decision to assume the contract with QA, made on November 18, 1998, that placed the Flemings in contact with the person who eventually assaulted them. Neither Tecton nor MB Coy had responsibility or control over the hiring decisions of their independent contractor, QA. Moreover, Tecton’s knowledge of the status of QA’s license at the time it entered into a contract for security services is irrelevant to the subsequent decision to hire Kunz.
Assuming, without deciding, that Tecton owed a duty to the Flemings as licensees, its failure to investigate the status of QA’s security company license before contracting with it to provide security services was not the legal cause of the Flemings’ injuries, and the trial court properly granted Tecton summary judgment. Because we affirm the trial court’s order of summary judgment, we do not reach Tecton’s cross-appeal.
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.
Because `the invitee enters the business premises for the economic benefit of the business,’ such a `special relationship’ exists between business owners and their invitees. Nivens v. 7-11 Hoagy’s Corner, 133 Wn.2d 192, 202, 943 P.2d 286 (1997). But a licensee does not enter the premises for the economic benefit of the owner. As to Tecton, the Flemings were licensees, not invitees, and under Nivens, Tecton owed them no duty to provide security. Nor is the Flemings’ negligence per se argument persuasive.
The Flemings cite RCW 18.170.060 and RCW 18.170.030. But neither of these statutes nor any other in chapter 18.170 RCW (security guards) creates a specific `statutory duty’ on the part of those hiring a security guard company to hire a licensed company.
The Flemings also cite Douglas v. Freeman, 117 Wn.2d 242, 258, 814 P.2d 1160 (1991), a case in which our Supreme Court held a negligence per se jury instruction appropriate. But Douglas was filed before the Tort Reform Act was passed in 1986 (see Douglas, 117 Wn.2d at 258 n. 34). That act abolished negligence per se except in the case of the violation of a few specific statutes, those of chapter 18.170 RCW not being among them:
A breach of a duty imposed by statute, ordinance, or administrative rule shall not be considered negligence per se, but may be considered by the trier of fact as evidence of negligence; however, any breach of duty as provided by statute, ordinance, or administrative rule relating to electrical fire safety, the use of smoke alarms, or driving while under the influence of intoxicating liquor or any drug, shall be considered negligence per se. Former RCW 5.40.050 (1986).
None of the provisions in chapter 18.170 RCW applies to Tecton. Thus, it did not breach a `statutory duty.’
For purposes of this appeal, however, we assume, without deciding, that Tecton acquired a common law duty to competently hire a qualified security agency once it elected to hire the independent contractor to provide security for the apartment complex. See Sorenson v. Keith Uddenberg, Inc., 65 Wn. App. 474, 479, 828 P.2d 650 (1992) (explaining that even if business owner ordinarily has no duty to protect against a certain hazard, `if a mitigation of the hazard is undertaken, a duty arises to perform that mitigation in a nonnegligent manner’).