No. 27401-9-II.The Court of Appeals of Washington, Division Two.
Filed: August 9, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Pierce County, No. 002041859, Hon. Katherine M. Stoltz, May 4, 2001, Judgment or order under review.
Counsel for Appellant(s), John L. Orlandini, Talbot Orlandini Waldron
Hemmen, 6711 Regents Blvd West, Tacoma, WA 98466.
Counsel for Respondent(s), John F. Sullivan, Attorney At Law, P.O. Box C-90016, Suite 1900, Bellevue, WA 98009-9016.
Max N. Peabody, Perry Hiscock Piersokn Kingman Peabody, 505 Madison Suite 300, Seattle, WA 98104.
Christopher S. Clemenson, Kingman Peabody Pierson Fitzharris, 505 Madison St. Ste 300, Seattle, WA 98104.
QUINN-BRINTNALL, A.C.J.
Betty Cheng, as trustee of the Cheng Family Trust, leased a building and equipment owned by the trust to All Seasons Living Centers Associates, L.P. (All Seasons), a management corporation, for the purpose of operating the Park Rose Care Center, Inc., a nursing home facility. Woodrow Wheeler was a resident at the facility. Wheeler died after falling from a wheelchair in which he was improperly restrained. Wheeler’s family (collectively the `Estate’) sued Cheng and All Seasons for wrongful death. The suit against Cheng was dismissed on summary judgment. The Estate appealed. We affirm Cheng’s summary judgment and award her attorney fees on appeal but we remand to the trial court to determine the appropriate sanctions against the Estate for filing a frivolous lawsuit.
FACTS
Woodrow Wheeler was a resident of the Park Rose Care Center since January 1994. He fell out of his wheelchair on January 17, 1998, and subsequently died. The family was told that Wheeler had been `left in the hallway in a wheelchair without a safety restraint.’ Clerk’s Papers at 77. The coroner ruled that the cause of death was accidental.
Cheng is the trustee of the Cheng Family Trust. The trust owns the land, building, and all of the personal property of the nursing home. The trust leased the premises to All Seasons to operate Park Rose Care Center nursing home. After All Seasons went into bankruptcy, Martini Investments, L.L.C. leased the premises and operated the facility. Neither Cheng nor the trust operate the nursing home.
Woodrow Wheeler’s sons, Michael and Bruce Wheeler, as well as his estate and wife Viola (collectively the `Estate’) sued Park Rose, All Seasons, and Cheng in Pierce County Superior Court for personal injury and wrongful death. The trial court granted Cheng’s motion for summary judgment. The Estate appeals, claiming that Cheng owed a non-delegable duty of care to Wheeler, that All Seasons and Park Rose were Cheng’s agents, and that Cheng owed Wheeler a duty of care under the public use exception of landlord-tenant law. Cheng cross-appeals the trial court’s order dismissing her claim for sanctions for a frivolous lawsuit and requests attorney fees on appeal.
ANALYSIS
We review summary judgment rulings de novo. Sinks v. Russell, 109 Wn. App. 299, 301, 34 P.3d 1243 (2001). Summary judgment is proper if, viewing the facts in the light most favorable to the nonmoving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999). The court should grant summary judgment if reasonable persons could reach but one conclusion. CPL, L.L.C. v. Conley, 110 Wn. App. 786, 790-91, 40 P.3d 679 (2002) (citing Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982)).
Did Cheng owe Park Rose residents a non-delegable duty?
The elements of a negligence action are duty to plaintiff, breach of that duty, proximate cause between breach and injury, and resulting harm. Hutchins v. 1001 Fourth Ave. Assoc., 116 Wn.2d 217, 220, 802 P.2d 1360 (1991). Duty is a question of law that we review de novo. Hutchins, 116 Wn.2d at 220; Faulkner v. Racquetwood Vill. Condo. Ass’n, 106 Wn. App. 483, 486, 23 P.3d 1135, review denied, 145 Wn.2d 1011
(2001). Generally, there is no duty to protect a third party from intentionally harming another unless a special relationship exists between the defendant (Cheng) and the third party (All Seasons) or the foreseeable victim of the third party’s conduct (all Park Rose residents). See Niece v. Elmview Group Home, 131 Wn.2d 39, 43, 929 P.2d 420
(1997).
The Estate argues that the owner of the nursing home has a non-delegable duty of care to his or her patients. The Estate relies on Niece and Pedroza v. Bryant, 101 Wn.2d 226, 677 P.2d 166 (1984).
In Niece, the court reviewed several health care cases that established a special relationship between a vulnerable patient and a care provider. The court noted that case law first held that hospitals owe a patient a duty to protect against reasonably foreseeable internal harms, and it subsequently held that a nursing home owed a duty to protect residents against foreseeable harms including harms by visitors. The Niece court then concluded that Elmview owed a duty to protect its vulnerable patient against a staff member’s sexual assault. 131 Wn.2d at 47. In Pedroza, the court expanded the corporate negligence doctrine. It held that a hospital can be liable for the negligent performance of a physician who is given privileges at that facility. `Hospitals are also in a superior position to monitor and control physician performance.’ Pedroza, 101 Wn.2d at 231.
But Niece and Pedroza do not help the Estate. These cases place the duty on the organization that operates the facility, chooses the staff, or allows visitors to enter. This is not such a case. Cheng does not operate nor control the facility; she is the landlord. She owns the building and the land. Her duty to this vulnerable resident population is satisfied when she contracts with a licensed care provider.[1] Cheng does not maintain the nursing home license and does not provide residential care.
The Estate asserts that Cheng is linked to the operation of Park Rose. It argues that the lease provision `Landlord is the owner’ and the opinion of the decedent’s son as a real estate agent that Cheng paid far more than the property’s market price, prove that Cheng owns the income stream from the property and, therefore, operates Park Rose. But these speculative statements do not satisfy the Estate’s burden to identify a genuine disputed issue of material fact that Cheng operated the nursing home.
Because there was no evidence that Cheng operated the nursing home, the trial court properly granted summary judgment to Cheng.
Vicarious liability
The Estate argues that Cheng purchased the nursing home for two to three times its value, and that, therefore, she owned more than just the land, building, and personal property. It asserts that she purchased the `business of the nursing home’ and is vicariously liable. Br. of Appellant at 8-9. Vicarious liability imposes liability on the employer for torts arising from the employee’s acts when he or she is acting on the behalf of the employer. Niece, 131 Wn.2d at 48. Whether a particular act falls within the scope of the supervisor’s employment depends on proof of the employer’s express direction or on facts and circumstances that imply direction or authority. Snyder v. Med. Serv. Corp. of Eastern Washington, 145 Wn.2d 233, 248-49, 35 P.3d 1158 (2001) (Ireland, J., dissenting).
Vicarious liability arises in a principal-agent relationship when the principal directs the agent to take certain actions. Here, Cheng did not direct the nursing home management entity to take or refrain from certain actions. She merely rented the space to the entity.
The Estate claims that Cheng demonstrated operational control by being named in various sections of the lease, reserving a right to audit the tenant’s books, requiring that the tenant assign the proceeds of business interruption insurance to Cheng, and naming herself as the additional insured on the general liability policy. But our review of the lease establishes that the lease did not create any agency relationship between Cheng and Park Rose Care Center.
Vicarious tort liability does not apply. Ostensible agency The Estate argues in the alternative that Cheng is liable for negligence by All Seasons under a theory of ostensible agency. Where a physician is found not to be the actual agent of the hospital, the hospital may still be held responsible for his malpractice under the holding out or ostensible agency theory. Adamski v. Tacoma Gen. Hosp., 20 Wn. App. 98, 112, 579 P.2d 970 (1978).
One who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care or skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such. Adamski, 20 Wn. App. at 112
(quoting Restatement (Second) of Agency § 267, at 578 (1958)).
The Estate argues that Cheng was liable under a theory of ostensible agency because Cheng `has given the impression that Park Rose Care Center is a `skilled care nursing facility’ . . . [and] [t]hrough her purchase of the business and her retention of control as reflected in the lease, she has put her agents in business in a particularly hazardous endeavor.’ Br. of Appellant at 15.
But no evidence supports the Estate’s claim that Park Rose is Cheng’s agent. Cheng exercised no control over the actions of the Park Rose facility in providing care. In fact, Cheng was legally forbidden from exercising control because she is not licensed to operate a nursing home facility. Cheng cannot be the principal in a supposed principal-agent relationship. The Estate provided no evidence that Cheng held herself out as the principal under a theory of ostensible agency. In Adamski, the patient received poor care in the hospital’s emergency room, only to have the hospital disclaim liability later for the physician’s negligence. 20 Wn. App. at 102. Here, Cheng made no action or presentation that she was in charge of the day-to-day operations of the facility or the care given there. And the Estate cannot claim justifiable reliance or ostensible agency.
Public Use Exception
The Estate next argues that a nursing home owner/landlord should have a duty of care to nursing home residents under a public use exception.
A landlord will be liable to a tenant for harm caused by latent or hidden defects in the leasehold that existed at the commencement of the leasehold, of which the landlord had actual knowledge and of which the landlord failed to inform the tenant. Frobig v. Gordon, 124 Wn.2d 732, 735, 881 P.2d 226 (1994). `The duty and liability of the invitor-lessor do not, as a rule, extend to matters having to do merely with the lessee’s management or operation of premises which would be safe except for such management or operation, at least where the lessee is in sole actual control.’ Frobig, 124 Wn.2d at 736 (citations omitted). If a landlord, with actual or constructive knowledge of a defect in the premises, leases them for a purpose involving the admission of the public, then he is subject to liability for injuries to the public caused by the defect. Regan v. City of Seattle, 76 Wn.2d 501, 504, 458 P.2d 12
(1969).
The Estate argues that a nursing home owner/landlord owes a duty of care to nursing home residents and that Cheng breached her duty by failing to keep the premises free from the risks associated with bankrupt management. But as Cheng points out, the Estate does not allege that the deceased’s injuries occurred as a result of a `defective property condition.’ Br. of Respondent at 9.
The Estate did not suggest that a property defect caused Woodrow Wheeler to fall from the wheelchair. The claims are for personal injury and wrongful death caused by All Season’s negligent care, not from its accounting practices and not from the condition of Cheng’s property. Because the Estate’s claim is unrelated to ownership of the property, Cheng’s participation in the trust and her responsibility for the physical property could not have caused Wheeler’s death. The trial court properly dismissed Cheng at summary judgment.
CR 11 Sanctions
A court’s determination that counsel violated CR 11 is reviewed under an abuse of discretion standard. Johnson v. Mermis, 91 Wn. App. 127, 135, 955 P.2d 826 (1998). Three conditions must be met before CR 11 sanctions apply: namely that the pleading, motion, or memorandum must not be well grounded in fact; it must not be well grounded in law; and viewed objectively, the attorney must have failed to make a reasonable inquiry into the factual or legal basis of the action. Cascade Brigade v. Econ. Dev. Bd. for Tacoma-Pierce County, 61 Wn. App. 615, 619, 811 P.2d 697
(1991). The rule’s purpose is to deter baseless filings, not filings that may have merit. Bryant v. Joseph Tree, Inc., 119 Wn.2d 210, 220, 829 P.2d 1099 (1992).
Sanctions are mandatory once a court determines that CR 11 has been violated. Washington State Physicians Ins. Exch. Ass’n v. Fisons Corp., 122 Wn.2d 299, 355, 858 P.2d 1054 (1993). But the court has discretion to determine what sanction is appropriate. `In making its determination, the trial court should use its discretion to fashion `appropriate’ sanctions.’ Fisons, 122 Wn.2d at 355.
Here, the trial court found all three requirements under CR 11.[2]
Therefore, it erred by not imposing sanctions. Thus, we remand to the trial court to determine and impose an appropriate sanction in this matter. Likewise, the Estate wholly failed to present sufficient evidence to justify its filing of a claim against Cheng. And because we hold there were no debatable issues on appeal, we award Cheng attorney fees in an amount to be determined by our commissioner. See Mahoney v. Shinpoch, 107 Wn.2d 679, 691, 732 P.2d 510 (1987) (appeal is frivolous if there are no debatable issues upon which reasonable minds might differ and it is so devoid of merit that there is no possibility for reversal).
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.
WE CONCUR: SEINFELD, J., BRIDGEWATER, J.