SURVEY OF WASHINGTON LAW*

CONTENTS

Title Page T ORTS ...... 366 FAMILY LAW ...... 380 GOVERNMENT ...... 386 PROCEDURAL LAW ...... 392 ...... 400 CONSTITUTIONAL LAW ...... 406 PROPERTY ...... 411 BusnEss LAW AND ESTATES ...... 412

TORTS

NEGLIGENCE -Blood Transfusions In Reilly v. King County Central Blood Bank, Inc., 6 Wn. App. 172, 492 P.2d 246 (1971), the Washington Court of Appeals held that in the absence of statutory protection the supplying of human blood for a fee constitutes a sale which would fall within the purview of the doctrine of strict liability as defined in Ulmer v. Ford Motor Co.1 The plaintiff, during the course of treatment following surgery, received transfusions of blood collected, typed and supplied by the defendant. The defendant charged a fee for the blood it supplied. The plaintiff contracted hepatitis and brought an action alleging the source of the illness to be the blood supplied by the defendant and that the defendant should therefore be held strictly liable in . The defendant contended that it could not be held strictly liable in tort because: (1) the Restatement (Second) of § 402A (1965) requires a sale; 2 and, (2) the Washington court in

* This is the first time that the Survey of Washington Law section has appeared in the spring issue. It is presently the belief of our law review staff that a more fre- quent digest of recent Washington decisions provides a better service to our readers. In the present issue we have noted significant cases decided during the second half of 1971, and in addition have included a brief comment on the community property changes enacted by the Washington Legislature during the 1972, second extraordinary session. See p. 381 infra. We would like to hear from our readers your opinion of the value of the Survey of Washington Law section, and if worth-while, then suggestions for its improvement. 1 75 Wn. 2d 522, 452 P.2d 729 (1969). 2 RESTATEMENT (SEcoND) OF TORTS § 402A (1965) provides, in part that: "(1) One who sells any product in a defective condition unreasonably dangerous to the user ... is subject to liability .... ." (emphasis added) 366 TORTS

Gile v. Kennewick Public Hosp. Dist.8 followed the holding of Perlmutter v. Beth David Hospital4 by characterizing the supplying of blood as a part of the hospital medical service rather than as a sale. The Reilly court distinguished the Giles decision as being based upon the nonprofit hospital's statutory immunity from tort claims5 and, therefore, the reference to Perlmutter was dictum. The court held the instant transaction to have all the attributes of a sale and the attempt to characterize it as a service was only for the purpose of attempting to avoid strict liability. The court stated, "We believe it both unrealistic and unfair to make such a characterization." 6 Since the transaction was a sale the defendant was held liable under the doctrine of strict liability. However, defendants in actions that arise subsequent to the effective date of legislation enacted in 1971 may be able to escape strict liability.' The legislation was designed to provide "immunity from implied warranties and civil liability for blood transfusions, ' by declaring the supplying of blood to be a service and by explicitly taking it out from under the implied warranties of Wash. Rev. Code ch. 62A, and by removing civil liability where willful or negligent conduct cannot be proven. However, the immunity from the strict liability holding in Reilly will not be available in all circumstances. The immunity applies only to the contraction of malaria or hepatitis and it will not apply to any transaction in which the blood donor receives compensation. 9 Since there are diseases other than malaria and hepatitis which may be transported from one person to another by blood transfusions and there are some "blood suppliers" that do compensate their donors, the Reilly decision serves as a red flag to the industry that a damage recovery based upon strict liability is now a reality.

8 48 Wn. 2d 774, 296 P.2d 662 (1956). 4 308 N.Y. 100, 123 N.E.2d 792 (1954). 5 WASr. REv. CODE § 70.44.060(8), was amended in 1967 to delete this immunity. 6 Reilly v. King County Central Blood Bank, Inc., 6 Wn. App. 172, 175, 492 P.2d 246, 248 (1971). 7 WASH. REv. CODE § 70.54.120 (1971) provides in part: The procurement, processing, storage, distribution, administration, or use of whole blood, plasma, blood products and blood derivatives for the purpose of injecting or transfusing the same, or any of them, into the human body is declared to be, for all purposes whatsoever, the rendition of a service by each and every person, firm, or corporation participating therein, and is declared not to be covered by an implied warranty under the Uniform Commercial Code, Title 62A RCW, or otherwise, and no civil liability shall be incurred as a result of any such acts, except in the case of willful or negligent conduct .... (emphasis added). 8 Ch. 56 § 1, [19711 Wash. Sess. Laws 91. 9 WASH. REv. CODE § 70.54.120 (1971). GONZAGA LAW REVIEW [Vol. 7

Res Ipsa Loquitur-Elements In Zukowsky v. Brown, 79 Wn. 2d 586, 488 P.2d 269 (1971), the supreme court reevaluated the elements creating the inference known as . The court did not alter the substance of the formula for determining whether the inference exists; rather it clarified how the formula should be applied. In Zukowsky, plaintiff was injured while she was a guest on the defendant's pleasure boat. She was sitting on a bench-type seat which suddenly collapsed, throwing her to the deck and causing her injuries. Expert testimony was received concerning what may have happened, but the cause of the collapse remained uncertain. The trial court had refused plaintiff's requested instruction on res ipsa loquitur. The court of appeals affirmed on the basis that a necessary element of the doctrine was not present. The supreme court also affirmed, holding that the elements of res ipsa loquitur were present but that the instruction should still not have been given, basing its opinion on procedural grounds.' The formula used in prior Washington cases to determine when the elements of res ipsa loquitur have been met, is: Further proof of negligence is not essential to take a case to the jury or to overcome challenges to the sufficiency of the where (1) the accident or occurrence producing the injury is of the kind which ordinarily does not happen in the absence of someone's negligence, (2) the injuries are caused by an agency or instrumentality within the exclusive control of the defendant, and (3) the injury-causing accident or occurence is not due to any voluntary action or contribution on the part of the plaintiff." Examining the formula, the court first states that the inference of negligence must be legitimate, more than mere conjecture,' 2 and the circumstances must be of a kind that do not ordinarily occur unless someone is negligent.' 3 In examining the second element, the court held that evidence which would support a legitimate inference that the defendant was negligent is generally reflected in a requirement that the instrumentality which caused the damage or injury be in the "actual or constructive control" of the defendant.'4 Concerning

10 For a discussion of the court's handling of the procedural effect of giving a res ipsa loquitur instruction, see p. 394 infra. 11 Zukowsky v. Brown, 79 Wn. 2d 586, 593, 488 P.2d 269, 274 (1971), citing Homer v. Northwest Pac. Beneficial Ass'n Hosp., Inc., 62 Wn. 2d 351, 382 P.2d 518 (1963). 12 Hupford v. Cicovich, 47 Wn. 2d 905, 290 P.2d 709 (1955). 13 Anderson v. Harrison, 4 Wn. 2d 265, 103 P.2d 320 (1940); Haydon v. Bay City Fuel Co., 167 Wash. 212, 9 P.2d 98 (1932). 14 Hogland v. Klein, 49 Wn. 2d 216, 298 P.2d 1099 (1956). Spring, 1972] TORTS

the third element, the court stated that on occasion an affirmative such as assumption of the risk or may be shown by the plaintiff's own evidence. In such a circumstance it is error to think that the plaintiff's evidence must absolutely preclude the possibility of a defense based on plaintiff's conduct. In other words plaintiff need merely show an inference of defendant's negligence; he need not exonerate himself of all contribution to the injury. Only after all the evidence is in and after it has been shown as a matter of law that the plaintiff is precluded by his own con- tribution should the issue be kept from the jury, as in any other case where the plaintiff's evidence failed as a matter of law. 5 The court, applying the formula to the facts held that the plaintiffs were entitled to the benefits of the inference of negligence but not the res ipsa loquitur instruction."

Joint Tortfeasor & Concurrent Tortfeasor Distinguished In Litts v. Pierce County, 5 Wn. App. 531, 488 P.2d 785 (1971), the court distinguished joint tortfeasors from concurrent tortfeasors by defining the obligations imposed upon each type. Plaintiff had been injured in a two car accident. In exchange for $15,000 the plaintiff gave the driver of the other car and his insurer a release. Plaintiff also brought action against Pierce County, alleging her injuries were the result of negligent acts or omissions of the county. Pierce County was granted a summary judgment on the theory that release of the other tortfeasor worked as a release of all joint tortfeasors.Y Upholding the validity of the release the court approached the larger problem of distinguishing joint tortfeasors from concurrent tortfeasors by defining the respective liabilities incurred by each and the effect of a release of one of the tortfeasors upon the liability of the others. The court determined that the term "joint" tortfeasor is to be reserved for those who have acted in concert,"8 that in such cases there is only one cause of action,19 and that release of one "joint" tortfeasor is a release of all.20 Where the tortfeasors' independent

15 Zukowsky v. Brown, 79 Wn. 2d 586, 596, 488 P.2d 269, 275 (1971). See also Miles v. St. Regis Paper Co., 77 Wn. 2d 828, 467 P.2d 307 (1970). 16 See note 10 supra. 17 5 Wn. App. at 538, 488 P.2d at 790. 18 Id. at 536, 488 P.2d at 789. 19 Id. at 537, 488 P.2d at 789. This terminology parallels Prosser's use of the term "concerted action." Paossu, HANDBoox op T= LAW oF TORTS § 43, at 258 (3d ed. 1964). 20 5 Wn. App. at 537, 488 P.2d at 789. GONZAGA LAW REVIEW [Vol. ? negligent acts concur to produce the injury to a third person, they are properly termed "concurrent" tortfeasors.2' The nature of the obligation that arises is termed by the civil law as "solidary ' '22 or by the as joint and several. As such, there are as many causes of action as there are concurrent tortfeasors, and the release of one only releases the others pro tanto,23 unless the release of one is intended as a release of all. To meet the latter situations as they may occur the court adopted the rule that: [A] release by an injured party of one of several concurrent tort- feasors, whose obligation is solidary [several] does not release the other concurrent tort-feasors unless it can be established as a fact either (1) that the injured party intended to release all tort-feasors or (2) that the release constituted satisfaction of the obligation.24 Utilizing the intent to release test or satisfaction test the court determined that the release given by Litts to the driver of the other automobile and his insurer neither indicated the required intent nor satisfied the obligation. Hence the summary judgment for defendant was error.

Ordinary Use of Land In Pacific Northwest Bell Telephone Co. v. Port of Seattle, 80 Wn. 2d 59, 491 P.2d 1037 (1971), the Washington Supreme Court was once again presented with the issue of whether the principle of strict liability should be applied for caused by the rupture of a water main under the exclusive control of a municipal corpora- tion. The issue was first before the court in the 1957 case of Kind v. Seattle, 5 where the trial court applied the doctrine of strict lia- bility but the supreme court chose to affirm upon other grounds, thus leaving unresolved the question of liability without fault. The facts involved in the instant case were relatively un- disputed. In 1965 the defendant, Port of Seattle, acquired a pre- viously installed fire protection system consisting of a labyrinth of underground water mains. The mains, comprised of a series of underground water pipes of various sizes, were buried at depths

21 Id. at 536, 488 P.2d at 789. 22 A term of civil-law origin, signifying that the right or interest spoken of is joint or common. A "solidary obligation" corresponds to a "joint and several" obligation in the common law; that is, one for which several debtors are bound in such a way that each is liable for the entire amount, and not merely for his proportionate share .... BLAcK's LAW DICnONARY 1565 (rev. 4th ed. 1968). 23 5 Wn. App. at 538, 488 P.2d at 789. See PROssER, HANDBOOK OF TME LAW OF ToRTs, §§ 45-46 (3d ed. 1964). 24 5 Wn. App. at 538, 488 P.2d at 790. For a discussion of the intent test see Annot., 73 A.L.R.2d 403, 422-431 (1960). 25 50 Wn. 2d 485, 312 P.2d 811 (1957). Spring, 1972] TORTS of three to seven feet. At the time of purchase the pipes had been in the ground approximately 22 years, and evidence solicitated at the trial indicated the probable life span of such pipes to be ap- proximately 100 years. On October 22, 1968 a pipe which formed part of the fire protection system broke, and the water escaping from the break did considerable damage to plaintiff telephone company's underground electrical wiring network. The telephone company commenced an action against Port of Seattle, and a jury trial was held upon the issue of liability only. Plaintiff sought instructions to the jury on the issues of negligence and strict liability but the case was submitted solely upon the theory of negligence, with an instruction on the doctrine of res ipsa loquitur2 6 The jury returned a verdict for defendant, and plaintiff made alternative motions for judgment n.o.v. or a new trial. The trial court granted both motions on the basis that the doctrine of strict liability was applicable. In reversing, the supreme court held that strict liability was inapplicable under the facts, since the defendant's use of the land was not "extraordinary, exceptional, or abnormal. ' 27 The court invoked the ancient decision of Rylands v. Fletcher,28 which limited absolute liability to those cases of non-natural uses of land.29 In refusing to apply liability without fault the court drew support from various holdings in other jurisdictions based upon similar or identical factual patterns.8 0 The appellant, Northwest Bell, had asked the court to adopt the "cost spreading" rationale employed by various other courts"' in upholding strict liability under such circumstances. This de facto equitable theory is predicated upon the consideration that one party can better stand the loss than the other. Dissenting, Judge Finley urged adoption of the strict liability principle, finding the majority's failure to adopt it as symptomatic

26 The trial disclosed no direct evidence as to what caused the particular break. For a brief discussion of the propriety of ever submitting a res ipsa loquitur instruction to a jury see p. 394 infra. 27 80 Wn. 2d at 63, 491 P.2d at 1039. 28 L.R. 3 H.L. 330 (1868). This decision limited the lower court holding, Fletcher v. Rylands, L.R. 1 Ex. 265 (1866), which found the landowner liable, under any circumstances, without fault. 29 In its analysis of whether the use was non-natural or abnormal the court utilized the principles set out in RESTATEMENT (SECOND) OF TORTS § 519 (Tent. Draft No. 10, 1964). 3o See Grace & Co. v. Los Angeles, 168 F. Supp. 344 (S.D. Cal. 1958); Quigley v. Hibbing, 268 Minn. 541, 129 N.W.2d 765 (1964); Interstate Sash & Door Co. v. Cleve- land, 81 Ohio App. 127, 73 N.E.2d 236 (1947) ; Midwest Oil Co. v. Aberdeen, 69 S.D. 343, 10 N.W.2d 701 (1943); McCord Rubber Co. v. St. Joseph Water Co., 181 Mo. 678, 81 S.W. 189 (1904). 31 Bierman v. New York, 60 Misc. 2d 497, 302 N.Y.S.2d 696 (1969); Lubin v. Iowa City, 257 Iowa 383, 131 N.W.2d 765 (1964); Bridgeman-Russell Co. v. Duluth, 158 Minn. 509, 197 N.W. 971 (1924). GONZAGA LAW REVIEW [Vol. 7 of "an unwarranted judicial reluctance to develop and to expand the law to fill an existing void as to legal remedies, and to meet a social need in a limited category of uniquely appropriate cases."82 Judge Finley expressed the belief that the Port of Seattle, as a municipal corporation, should be required to compensate those who suffer damage, regardless of fault, viewing such compensation as a normal expense incurred in serving the public.

Dejense-Volenti Non Fit Injuria In Simpson v. May, 5 Wn. App. 214, 486 P.2d 336 (1971), the court of appeals upheld a defense of volenti non fit injuria where plaintiff, Simpson, and his companions were engaged in a friendly fight with cattail heads, and he was injured when a flying cattail struck him in the eye. Plaintiff contended that the doctrines of volenti and of assump- tion of risk were identical.' Both, he alleged, were abolished; as- sumption of risk by the 1962 decision in Siragusa v. Swedish Hos- pital, 5 and volenti five years later in Carabba v. Anacortes School District 103.88 The court of appeals did not directly refute plaintiff's equation of the two defenses, but stated instead that Carabbamerely refused to apply volenti non fit injuria where the other party was negligent or incompetent, and did not abolish the doctrine. The court outlined the elements of the volenti defense. The plaintiff must know of and appreciate the danger and must volun- tarily to expose himself to it. This burden of proof is on the defendant, and its merits are ordinarily decided by the jury."' From the facts, the court decided that each participant in the fight assumed the risk of being struck, and that since the "rules of the game" were followed, there was no extraordinary unforeseeable

32 80 Wn. 2d at 68, 491 P.2d at 1042. 83 Quaere whether the majority would have found the dissent more attractive had the plaintiff been a small individual home owner in like circumstances? Moreover, a similar inquiry might be made with respect to the jury's failure to draw the inference of negligence under the doctrine of res ipsa loquitur. 34 W. PRosssR, HAsmBoOK oF Tun LAW O1 ToRTS § 67, at 450 (3d ed. 1964) states that volenti is merely another court-created term for . Another commentator refers to volenti as assumption of risk's "infamous Latin cousin." Smith, The Last Days of Assumption of the Risk, 5 Goiu. L. REv. 191 (1970). 85 60 Wn. 2d 310, 373 P.2d 767 (1962). Siragusa specifically abolished assumption of risk in master-servant relationships. Its impact, however, extends beyond this limit. "Substitute the word 'plaintiff's' for the word 'servant's' and the word 'defendant's' for the words 'his master's'... and you have the proposition for which this article stands." Smith, The Last Days of Assumption of the Risk, 5 Gomzr. L. Rav. 191, 197. See also Feigenbaum v. Brink, 66 Wn. 2d 125, 401 P.2d 642 (1965) (landlord-tenant). 36 72 Wn. 2d 939, 435 P.2d 936 (1967). 87 Hogenson v. Service Armament Co., 77 Wn. 2d 209, 461 P.2d 311 (1969). Spring, 1972] TORTS risk which would defeat the defense. While the decision of the court is fairly clear regarding the elements of the volenti non fit injuria defense, there was no clear distinction made between it and the assumption of the risk defense.

Statute of Limitations-ProfessionalMalpractice Discovery Rule In Kundahl v. Barnett, 5 Wn. App. 227, 486 P.2d 1164 (1971), an appeal was made from an award of damages for professional resulting from an improperly performed land survey. In upholding the decision of the trial court, the court of appeals ap- plied the "time-of-reasonable-discovery" rule in deciding when the three year began to run. Prior judicial determination was that an action accrued at the time the negligent breach of duty occurred and not when the damage was or reasonably should have been discovered. This legal deter- mination was consistently applied until Ruth v. Dight.8 In Ruth a specific exception was applied to a medical malpractice suit in which a sponge, left in a patient during an operation, was not dis- covered until some twenty years after the operation. A "discovery rule" was adopted in medical malpractice suits whereby the action did not accrue and the statute of limitations did not begin to run until the patient discovered, or in the exercise of reasonable care should have discovered, the injury. The Kundahi court reasoned that there was "no distinction between the medical and other professions insofar as application of the discovery rule is concerned"3 9 and that "[t] he injustice caused by the strict definition of 'accrual' can be avoided by the application of the discovery rule."40 The chances of a landowner discovering errors in a survey made of his land before a subsequent survey is made are ever more remote than the possibility of a patient discovering the presence of a sponge prior to infection or other complications. The court felt it improper to limit application of the discovery rule to one profession when there are other situations, involving other professions, where it may be equally difficult to detect malpractice prior to the running of the statute. Although decisionally Kundahl recognizes only one further ex- ception to the rule governing the time at which an action for a negli- gent breach of duty accrues, the court suggests that a similar excep-

38 75 Wn. 2d 660, 453 P.2d 631 (1969). 89 5 Wn. App. at 231, 486 P.2d at 1167. 40 Id. at 231-32, 486 P.2d at 1167. GONZAGA LAW REVIEW [Vol. 7 tion may and should be made in all situations involving professional malpractice. 41

Disclosure During Treatment-Continuous Treatment The established rule is that a continuous and substantially unin- terrupted course of treatment for a particular illness tolls the statute of limitations for medical malpractice., 2 However, this rule does not extend to a continuous course of non-negligent treatment after dis- closure of a prior negligent operation. In Koenig v. Group Health Co-op., 5 Wn. App. 836, 491 P.2d 702 (1971), a medical malpractice action was commenced for the negligent removal of a nerve thought to be a tumor. The operation occurred eight years before commencement of the instant action and the surgeon, employed by the defendant, fully disclosed his conduct to the plaintiff. The trial court's granting of defendant's motion for summary judgment was affirmed on appeal. Plaintiff's contention was that, since she had received a con- tinuous and uninterrupted course of treatment from other Group Health doctors within three years preceding commencement of the action, her case was within the continuous treatment rule and therefore tolled the statute of limitations. The court, distinguishing the facts in the instant case, limited the rule to negligence which occurs during, not prior to, continuous treatment and said that " 'during' implies a continuing negligence." 3 The court noted that this decision was consistent with the 1971 legislative amendment to Wash. Rev. Code ch. 4.16" which limited commencement of medical malpractice actions to three years from the date of the alleged wrongful act, or one year from the time that the plaintiff discovers the injury, whichever period expires last, but conceded that Koenig would have limited application in light of that amendment.

DAMAGES Joint and Several Liability-Burden of Damage Apportionment In Fugere v. Pierce, 5 Wn. App. 592, 490 P.2d 132 (1971), the plaintiff was injured when her automobile was struck by an on-

41 The 1971 legislature with the enactment of WASH. RED. CoDE § 4.16.350 modi- fied the rule in Ruth by providing that an action for medical malpractice must be commenced within three years after the wrongful act or one year after its discovery, whichever period expires last. See 7 Gowz. L. Rav. 162 (1971). Quaere whether the court will extend the same limitation periods to other professional malpractice situa- tions in a similar manner to that utilized for the extension of the discovery rule or whether the court will await legislation? 42 Samuelson v. Freeman, 75 Wn. 2d 894, 454 P.2d 406 (1969). 43 5 Wn. App. at 837-38, 491 P.2d at 703. 44 WASH. REy. CODE § 4.16.350 (1971). Spring, 1972] TORTS coming car and then, within seconds, by another car approaching from the rear. The injury sustained was single and indivisible; it could not be segregated or attributed specifically to either vehicular impact. However, instructions to the jury permitted the apportion- ment of damages between the two successive tortfeasors. Although the jury verdict was for the plaintiff, she sought a new trial, claim- ing that in these circumstances she should be able to obtain a judgment against each tortfeasor for the full amount, and that the burden of proof in apportioning damages must be borne by the defendants. The court of appeals referred to the dicta in prior Washington cases," which suggest that Washington would be "inclined to adopt the California rule of Summers v. Tice" . . . imposing joint and several liability when plaintiff's evidence tends to show that it is impossible to segregate the damage caused by independent tort- feasors, but giving the latter the opportunity to apportion the damage if they can.' 47 Although this rule had never been adopted in its entirety in Washington, several decisions indicated that it would be if the proper circumstances for its application arose.4 The court of appeals pointed out that the majority view in cases similar to Fugere is the application of joint and several liability according to the "single indivisible injury rule." This rule is stated by the court of appeals to be: Although independent tort-feasors generally are not jointly and sever- ally liable where their acts caused distinct and separate injuries, or where some reasonable means of apportioning the damages is evident, the negligent driver of an automobile in the successive impact has been held jointly and severally liable for all of plaintiff's injuries if the injuries are "indivisible" and the liability therefore cannot be allocated with reasonable certainty to the successive collisions.49 Hence, each tortfeasor is held jointly and severally liable when colli- sions in rapid succession result in a single injury and there is no substantial evidence to apportion the damage caused by each colli- sion. The court of appeals approved the California rule in Summers, declaring that "in a multiple impact situation, where the conduct of

45 Madigan v. Teague, 55 Wn. 2d 498, 348 P.2d 403 (1960) ; Hufford v. Cicovich, 47 Wn. 2d 905, 290 P.2d 709 (1955). 46 33 Cal. 2d 80, 199 P.2d 1 (1948). 47 55 Wn. 2d 498, 502 n.2, 348 P.2d 403, 405 n.1 (1960). 48 See Scott v. Rainbow Ambulance Serv., Inc., 75 Wn. 2d 494, 452 P.2d 220 (1969); Smith v. Rodene, 69 Wn. 2d 482, 418 P.2d 741 (1966); Madigan v. Teague, 55 Wn. 2d 498, 348 P.2d 403 (1960); Hufford v. Cicovich, 47 Wn. 2d 905, 290 P.2d 709 (1955) ; Young v. Dille, 127 Wash. 398, 220 P. 782 (1923). 49 5 Wn. App. 592, 597-98, 490 P.2d 132, 135 (1971). GONZAGA LAW REVIEW [Vol. 7 two or more automobile drivers combines to bring about harm to the plaintiff, the burden of proving that the harm can be separated falls upon those defendants who contend that it can be apportioned."5 This is in conformance with the rule adopted in Restatement (Second) of Torts § 433B(2) (1965).51

Wrongful Death of Minor-Mental Anguish and Parental Grief In Wilson v. Lund, 80 Wn. 2d 91, 491 P.2d 1287 (1971), an action to recover damages for the wrongful death of a minor, the Washington Supreme Court held that Wash. Rev. Code § 4.24.010 (1967)52 authorizes the recovery of damages for parental mental anguish and emotional suffering. Plaintiffs brought this action for the wrongful death of their son in a riding mishap at defendant's dude ranch. Plaintiffs recovered $12,500 but appealed, asserting that the trial court's refusal to allow psychiatric evidence to establish the mother's mental anguish and emotional suffering as an element of recoverable damages was re- versible error. Prior to 1967 the statute provided that a parent could bring an action for the wrongful death of a child but did not define a measure of recovery." Although early decisions limited damages to pecuniary loss,55 this standard had been loosely applied.56 In 1967 the in- adequacy of damages limited to pecuniary loss was recognized in Lockhart v. Besel,57 where the supreme court extended recovery to

50 Id. at 599, 490 P.2d at 136. 51 REsTAThmwT (SEcom) OF ToaTs § 433B(2) (1965) states: Where the tortious conduct of two or more actors has combined to bring about harm to the plaintiff, and one or more of the actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such actor. 52 WASr. REV. CODE § 4.24.010 (1967) provides: A father, or in case of his death or desertion of his family, the mother may maintain an action as plaintiff for the injury or death of a minor child, or a child on whom either is dependent for support, and the mother for the injury or death of an illegitimate minor child, or an illegitimate child on whom she is dependent for support. In such an action, in addition to damages for medical, hospital, medication expenses, and loss of services and support, damages may be recovered for the loss of love and companionship of the child and for injury to or destruction of the parent-child relationship in such amount as, under all the circumstances of the case, may be just. 5 See 3 GoNz. L. REv. 220 (1968); 43 WASH. L. REv. 654 (1968). 54 Ch. 191, [1927] Wash. Sess. Laws 241 provided: A father, or in case of his death or desertion of his family, the mother may maintain an action as plaintiff for the injury or death of a minor child, or a child on whom either is dependent for support, and the mother for the injury or death of an illegitimate minor child, or an illegitimate child on whom she is dependent for support. 55 Hedrick v. Uwaco R.&N. Co., 4*Wash. 400, 30 P. 714 (1892). 56 See, e.g., Skeeis v. Davidson, 18 Wn. 2d 358, 139 P.2d 301 (1943). 57 71 Wn. 2d 112, 426 P.2d 605 (1967). Spring, 1972] TORTS include loss of companionship but expressly excluded parental grief, mental anguish and suffering from the damage measurement. Shortly after the decision in Lockhart v. Besel, the legislature amended the statute providing for recovery of damages for "loss of love and companionship of the child and for injury to or destruction of the parent-child relationship ... "58 The Wilson court, in considering the amended statute, stated: We construe the language "loss of love ... and .. injury to or destruction of the parent-child relationship" to provide recovery for parental grief, mental anguish and suffering as an element of damages intended by the legislature to be recoverable under appropriatecircum- stances in cases involving the wrongful death of or injury to a child.59 The court further stated that "recovery for mental anguish is the only category of damages which we can conceive could have been intended by the legislature in enacting the disputed statutory phrase." 60 The court recognized: (1) that advances in psychiatric- psychological knowledge have decreased the probability of specula- tion and the problems of proof of such injuries just as advanced medical knowledge has made it possible to award damages for intangible-physical injuries; (2) that damages would have to be proved by competent, often expert, testimony in all cases and the defense would be equally able to counter with their own expert testimony; and, (3) that the often expressed fear of run-away damage awards is largely illusory in view of the trial court's power to reduce excessive damage awards or order a new trial. In essence, the Washington court relied upon unique statutory language to overrule former case law and significantly expand the elements of recovery for the wrongful death of a minor child.

LANDLORD AND TENANT Exculpatory Clauses in Lease In McCutcheon v. United Homes Corp., 79 Wn. 2d 443, 486 P.2d 1093 (1971), the Washington Supreme Court held that an ex- culpatory clause in a landlord-tenant lease which absolved the land- lord of liability for tenant injuries proximately caused by his negli- gence is contrary to the public interest and contrary to the duty imposed upon a landlord to use reasonable care to maintain common areas and is, therefore, void. The two plaintiffs brought suit alleging the landlord's negligence.

58 WASH. REV. CODE § 4.24.010 (1971). 59 80 Wn. 2d 91, 96, 491 P.2d 1287, 1290 (1971). 60 Id. at 99, 491 P.2d at 1292. GONZAGA LAW REVIEW [Vol. 7

Since their actions presented identical issues the actions were con- solidated on appeal. Both plaintiffs were injured in "common areas"'" appurtenant to premises leased in multiple unit dwellings. One plain- tiff was injured falling down an unlighted stairway; the other was injured when an outside stairway step pulled loose causing him to fall. Both had executed, with the defendant, lease forms that con- tained the following exculpatory clause: [N]either the Lessor, nor his Agent, shall be liable for any injury to Lessee, his family, guests, or employees or any other person entering the premises or the building of which the demised premises are a part.62 Defendant asserted that the plaintiffs had voluntarily agreed upon the terms of the lease, that such an agreement relates solely to private affairs and is not of public interest, hence the parties should be given full freedom to . The argument has been found persuasive in other jurisdictions,' but it was not accepted by the Washington court. The court took judicial notice that the leasing of apartments has become a major commercial enterprise in Washington, as indi- cated by the number of rental units in the State, and as such directly concerns hundreds of thousands of people. Any decision construing the effectiveness of the lease's exculpatory clause could affect thou- sands of those tenants. "Under these circumstances it cannot be said that such exculpatory clauses are 'purely a private affair' or that they are 'not a matter of public interest.' 64 Such exculpatory clauses are within the public's interest. An exculpatory clause is placed in a lease in order to avoid a tenant's action based upon the landlord's negligence. Such clauses are not illegal per se. 5 "However, when applied to a specific situa-

61 The court terms as common areas "approaches, common passageways, stair- ways and other areas under the lessor's dominion and control, but available for the tenants use." 79 Wn. 2d 443, 445, 486 P.2d 1093, 1094 (1971). 62 Id. at 444-45, 486 P.2d at 1094. 63 Wheeler, Lacey & Brown, Inc., v. Baker, 269 Ala. 293, 112 So. 2d 461 (1959) (plaintiff tripped and fell on faulty uneven common walkway); Kirshenbaum v. Gen- eral Outdoor Advertising Co., 258 N.Y. 489, 180 N.E. 245 (1932) (leaking roof damaging lessee's merchandise). For a general discussion concerning the acceptance of exculpatory clauses see 49 Am. JuR. 2d Landlord and Tenant §§ 869-73 (1970). 64 79 Wn.2d at 450, 486 P.2d at 1097. 65 The court did not consider leases for business purposes where property damage is caused by the landlord's negligence. An exculpatory clause was held valid in Kershen- baum v. General Outdoor Advertising Co., 258 N.Y. 489, 180 N.E. 245 (1932) and, Cannon v. Bresch, 307 Pa. 31, 160 A. 595 (1932), both of which involved property damage under a business lease. Also: A bargain for exemption from liability for consequences of negligence not falling greatly below the standard established by law for the protection of others against unreasonable risk of harm, is legal.... 79 Wn.2d at 447, 486 P.2d at 1095 citing RESTATEMENT OF CoNRmAcrs § 574, at 1079 (1932) (emphasis by the court). Spring, 1972] TORTS tion, one may be exempt from liability for his own negligence only when the consequences thereof do not fall greatly below the standard established by law."8 Common law imposes upon the landlord an affirmative duty to use reasonable care to inspect and to repair the common areas under his control and dominion but available for the use of tenants. 7 A lease clause which enables the lessor to escape liability for injuries to his lessee caused by the lessor's own negli- gence is below the standard of reasonable care imposed upon the landlord by common law. "[B] y virtue of an exculpatory clause in a lease, the standard ceases to exist ... [or it] destroys the concept of negligence in the landlord-tenant relationship."68 The court deter- mined that exculpatory clauses immunizing the lessor from liability for injuries to his tenants due to his own negligence are of public interest and directly conflict with the common law duties imposed upon the landlord, and as such will not be upheld by the courts of Washington. The decision was confined to the situation in which the injured lessee is a tenant in a multi-family dwelling complex. Whether an exculpatory clause remains effective to avoid liability for property damage to such tenants and whether it will remain effective to avoid liability for personal or property damage in a business lease situa- tion are undecided. The holding apparently will not be applied to the rental of single dwellings since in that situation the landlord seldom retains dominion over "common areas."

66 79 Wn. 2d at 447, 486 P.2d at 1095. 67 PROSSER, HANDBOOK OF THE LAw oF TORTS § 63 (3d ed. 1964); RESTATEMENT (SEco D) or ToRTs § 360 (1965). 68 79 Wn. 2d at 447-48, 486 P.2d at 1096.