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Mendez v. Gibson

November 12, 1996

ANTONIO MENDEZ, JR., APPELLANT,
v.
C.V. GIBSON AND JANE DOE GIBSON, HIS WIFE, IF ANY THERE BE, RESPONDENTS.



Appeal from Superior Court of Franklin County. Docket No: 94-2-50061-1. Date filed: 08/24/95. Judge signing: Hon. Philip M. Raekes.

Authored by Dennis J. Sweeney, C.j. Concurring: Philip J. Thompson, J., John A. Schultheis, J.

The opinion of the court was delivered by: Sweeney

SWEENEY, C.J. Antonio Mendez, Jr., rented a house from C. V. Gibson. On April 13, 1993, a fire destroyed the home. Mr. Mendez sued Mr. Gibson claiming negligence for failing to install a smoke detection device. Following a bench trial, the court dismissed Mr. Mendez's claim with prejudice. It concluded that while failure to provide a smoke detection device is negligence per se, Mr. Mendez had not proved that the failure to supply a smoke detection device proximately caused his damages. Mr. Mendez appeals.

Discussion

The facts are undisputed and review is therefore de novo. Shafer v. Board of Trustees of Sandy Hook Yacht Club Estates, Inc., 76 Wash. App. 267, 273, 883 P.2d 1387 (1994), review denied, 127 Wash. 2d 1003 (1995). Mr. Gibson was required to install a smoke detection device in the house. RCW 48.48.140(1), (3). His failure to do so is negligence per se. RCW 5.40.050. To recover, Mr. Mendez must prove that the breach of duty was a proximate cause of the resulting injury. Potter v. Wilbur-Ellis Co., 62 Wash. App. 318, 323-24, 814 P.2d 670 (1991); Barber v. Reinking, 68 Wash. 2d 139, 143, 411 P.2d 861 (1966).

In Potter, the question was whether the breach of a statutory duty constituting negligence per se proximately caused the resulting injury. Potter, 62 Wash. App. at 323-24. We concluded that the plaintiff "must prove that 'but for' the [act constituting negligence per se], the damage would not have occurred." Id. at 324. There, the defendant's failure to register the pesticide as required by statute did not proximately cause the damage to the lawns where the pesticide was administered. Id. at 324.

Here, the court found that installation of a smoke detection device would not have prevented Mr. Mendez's damages. That finding is not challenged and is therefore a verity on appeal. Professionals 100 v. Prestige Realty, Inc., 80 Wash. App. 833, 841, 911 P.2d 1358 (1996).

The case cited by Mr. Mendez, Yurkovich v. Rose, 68 Wash. App. 643, 847 P.2d 925, review denied, 121 Wash. 2d 1029, 856 P.2d 382 (1993), is not on point. In Yurkovich, the court was asked to decide whether the trial court erred when it decided the defendant was negligent as a matter of law; proximate cause was not an issue. See id. at 646-54.

The court properly dismissed Mr. Mendez's claim and its decision is affirmed.

A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.

Sweeney, C.J.

WE CONCUR:

Thompson, J.

Schultheis, ...


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