JAMES F. BEHLA, Appellant,
R.J. JUNG, LLC, a Washington Limited Liability Company; JENNIFER JUNG and JOHN DOE JUNG, and the marital community thereof, Respondents.
We have frequently said that, if there is nothing more
tangible to proceed upon than two or more conjectural
theories under one or more of which a defendant would be
liable and under one or more of which a plaintiff would not
be entitled to recover, a jury will not be permitted to
conjecture how the accident occurred. Gardner v.
Seymour, 27 Wn.2d 802, 809, 180 P.2d 564 (1947).
appeal asks whether a claimant presents a question of fact as
to causation of injuries in order to defeat the
defendant's summary judgment motion. The claimant lost
awareness from a fall and found, when he regained
consciousness, a coiled cable near him. He asserts that the
cable caused his fall. Because of these facts and other
attended facts, we answer the question in the affirmative. We
reverse the summary judgment dismissal granted the
claimant's landowner in a premises liability suit based
on the stretching of the cable across a parking lot.
appeal arises from injuries sustained by James Behla on the
evening of March 2, 2014, when he fell on property owned by
RJ. Jung LLC (R.J. Jung). Behla sues R.J. Jung and its owner,
Jennifer Jung, in negligence. We refer to the defendants
collectively as R.J. Jung. The dispute between the parties on
appeal concerns the cause of the fall.
the early 2000s, James Behla has operated a rafting guide
service on the White Salmon River. Beginning in the early
2000s, Behla frequently shopped at White Salmon's BZ
Corner Grocery Store, then owned by the Gross family. The
Gross family kept a shed on the edge of the parking lot,
which shed the family offered to permit Behla to use if he
repaired it. Behla repaired the shed, installed lighting in
and outside of the building, and laid gravel for a parking
lot on both sides of the shed. Thereafter he used the shed to
store rafting equipment for his business. Behla parked a bus
near the shed. Presumably he employed the bus to ferry
customers along the river.
approximately 2003, R.J. Jung, owned by Jennifer Jung and her
now deceased husband, purchased BZ Corner Grocery Store. R.J.
Jung thereafter rented the shed to James Behla for $1, 000
annually. In 2013, Behla, at the direction of R.J. Jung,
moved his bus so that Jung could place a recreational vehicle
in the lot. R.J. Jung desired employees to use the RV. Behla
moved the bus nearer to his storage shed.
March 2, 2014, at 10:00 p.m., James Behla went to his shed on
R.J. Jung's property to perform inventory and move
rafting equipment. One inch of snow blanketed the ground. The
only light shone from gas pumps 150 feet away from the shed.
Behla ambled to the shed to activate an exterior light switch
on the outside of the building. Behla flipped the light
switch, but no lights appeared. He then sauntered toward the
bus to check its locks. After checking the locks, Behla
returned to the shed. According to Behla:
And-and I turned and walked back to the walk-through door of
the building. Next thing I knew, I was lying on the ground
with a stabbing, like a knife in the back, of my lower spine,
my head banged up, my shoulder aching and blood coming out
Clerk's Papers (CP) at 52.
Behla regained consciousness on a concrete slab in front of
the shed door. Behla's right hip struck the slab. His
body lay in a skiff of snow on the gravel.
realizing that he fell and sustained injuries, James Behla
scanned the area to determine the cause of his fall. He saw a
black cable the diameter of his thumb. This cable ran 125
feet and sent power between the shed's breaker box and
the recreational vehicle parked on the R. J. Jung property.
Behla did not see the cable before falling, but, when
examining it after, saw that part of the cable curled and
rose above the ground. After viewing the cable, Behla
concluded: "my foot caught it, and it pitched me
forward, and my head hit first and then my left hand and arm
and then my butt and back hit the concrete slab, and I was
laying on my right side." CP at 27. Behla testified in
I am not certain, 'cause I never saw it [the cable] until
I woke up on the ground and went back and looked to see what
I had tripped over. . . .
53. The coiled cable rose high enough for his foot to catch
thereon. Behla did not directly testify that the cable lay in
the pathway that he tread to the shed, but we draw reasonable
inferences from other testimony and from photographs to reach
this factual conclusion for purposes of RJ. Jung's
summary judgment motion.
Behla sued RJ. Jung and Jennifer Jung for failure to exercise
reasonable care in maintaining the rented premises. RJ. Jung
filed a motion for summary judgment dismissal and argued that
Behla cannot prove proximate causation because his theory of
liability relies on conjecture. RJ. Jung did not argue the
impossibility of Behla's tripping on the cable, but
contended that other causes were as likely the cause of the
fall. The trial court granted RJ. Jung's summary judgment
principal question on appeal is whether James Behla presents
an issue of fact, in order to defeat R.J. Jung's summary
judgment motion, as to whether the cable stretched across
R.J. Jung's parking lot caused Behla's ...