Appeal from Superior Court of King County. Docket No: 93-2-19537-1. Date filed: 06/05/95. Judge signing: Hon. Charles V. Johnson.
Petition for Review Denied July 8, 1997,
Authored by Susan R. Agid. Concurring: William W. Baker, Faye C. Kennedy.
The opinion of the court was delivered by: Agid
AGID, J. -- John Doe, formerly an oiler on a Washington State ferry, appeals the trial court's order granting summary judgment to the State of Washington, Department of Transportation (WSDOT), on his claims for sexual harassment under RCW 49.60, negligence under the Jones Act, and unseaworthiness under maritime common law. He also appeals from the trial court's order denying his request for attorney fees under his claim for maintenance and cure. We affirm.
Doe began working for the Washington State Ferries (WSF) as an oiler in 1973. From September 1990 to September 14, 1992, he was assigned to a single ferry vessel on which the events giving rise to this action occurred. Throughout this period, his supervisor frequently engaged in vulgar and disgusting behavior with strong sexual overtones, much of it directed at Doe. For example, the supervisor held objects such as bananas, zucchini and sausages between his legs and asked Doe if he "wanted it," gave him two zucchini and told him his girlfriend could use them when she was with him, and shoved a banana in Doe's pocket and said, "I got something for you." The supervisor also made derogatory remarks about women and others, deliberately mispronounced supervisors' names in an offensive manner, spoke of using guns to harm others and brought guns aboard the vessel, and belched and passed gas while Doe and others were eating.
In August 1992, Doe complained about his supervisor's conduct to WSF officials, who immediately placed the supervisor on administrative leave and launched an internal investigation. As a result of the investigation, the supervisor was disciplined for violating WSF regulations, including his constant use of profanities, vulgarities and inappropriate sexual references, bringing guns on board the vessel, allowing a pornographic movie to be viewed on watch, and pulling up deck plates while oilers Doe and a coworker were changing lube oil filters on the main engines.
In September 1992, Doe consulted his regular physician about symptoms including anxiety and sleeplessness. The doctor referred Doe to a psychiatrist, who recommended temporary medical leave and declared Doe unfit for duty. Doe was on medical leave from September 23, 1992, to July 26, 1993. During this time, the psychiatrist continued to treat him for depression. Doe submitted a claim for maintenance and cure in January 1993, and filed a statutory claim for damages against WSF in May 1993.
In August 1993, Doe filed this action asserting claims for sexual harassment, negligence, unseaworthiness and maintenance and cure. *fn2 Both parties moved for summary judgment on some or all of Doe's claims. On January 6, 1995, the trial court dismissed Doe's claims for sexual harassment, negligence, and unseaworthiness. His maintenance and cure claim was tried to the bench in February 1995. The court awarded Doe $10,113.36 maintenance and cure. It denied his request for an award of attorney fees, finding that WSF's failure to pay maintenance and cure was not arbitrary, willful, or recalcitrant. Doe appeals.
Summary Judgment Standard
In reviewing a summary judgment order, the reviewing court engages in the same inquiry as the trial court, construing facts and reasonable inferences from them in the light most favorable to the nonmoving party. Mountain Park Homeowners Ass'n, Inc. v. Tydings, 125 Wash. 2d 337, 341, 883 P.2d 1383 (1994). The trial court should grant summary judgment only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Mountain Park, 125 Wash. 2d at 341. A material fact is one upon which the outcome of the litigation depends. Eriks v. Denver, 118 Wash. 2d 451, 456, 824 P.2d 1207 (1992). When reasonable minds can reach but one Conclusion, questions of fact may be determined as a matter of law. Ruff v. King County, 125 Wash. 2d 697, 704, 887 P.2d 886 (1995). More than mere possibility or speculation is required to successfully oppose summary judgment. Pelton v. Tri-State Memorial Hosp., Inc., 66 Wash. App. 350, 355, 831 P.2d 1147 (1992).
The moving party bears the initial burden of showing the absence of an issue of material fact. Young v. Key Pharmaceuticals, Inc., 112 Wash. 2d 216, 225, 770 P.2d 182 (1989). If the moving party is a defendant and meets this initial showing, the inquiry shifts to the plaintiff. If, at this point, the plaintiff "'fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial'," the trial court should grant the motion. Young, 112 Wash. 2d at 225 (quoting Celotex Corp. ...