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Behla v. R.J. Jung, LLC

Court of Appeals of Washington, Division 3

December 3, 2019

JAMES F. BEHLA, Appellant,
v.
R.J. JUNG, LLC, a Washington Limited Liability Company; JENNIFER JUNG and JOHN DOE JUNG, and the marital community thereof, Respondents.

          FEARING, J.

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).

         This 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.

         FACTS

         This 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.

         Since 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.

         In 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.

         On 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 wherever.

Clerk's Papers (CP) at 52.

         James 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.

         After 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 his deposition:

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. . . .

         CP at 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.

         PROCEDURE

         James 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 motion.

         LAW AND ANALYSIS

         The 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 ...


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