SPEARMAN, C.J.
¶ 1 This appeal concerns a lawsuit filed by 14 families (Appellants) against Menasha Forest Products Corporation (Menasha)
¶ 2 On January 7, 2009, a warm and unusually heavy rain storm (commonly known as a "Pineapple Express") occurred throughout Western Washington, aimed mainly at the Central Cascade Range. Over 1500 landslides in Western Washington were associated with the event. This lawsuit arises out of three such slides that occurred in Lewis County, in or near Glenoma, Washington: (1) the "Martin Road Slide," (2) the "Lunch Creek Slide," and (3) the "Rainey Creek Slide." Each Appellant owns property that was damaged by one of those landslides or a combination thereof. Menasha logged an area associated with the Martin Road Slide in 2001.
¶ 3 The Appellants filed a complaint against a number of defendants, including Menasha and Zepp, on November 4, 2010 and an amended complaint on July 28, 2011, alleging causes of action for negligence, nuisance, trespass, and strict liability. On May 4, 2012, they moved for summary judgment on their strict liability claim. The trial court denied the motion and effectively dismissed the strict liability claim. Menasha then filed a motion for partial summary judgment to dismiss the plaintiffs' nuisance and trespass claims. Defendants Pope Resources, Port Blakely-Island Timber, and Zepp joined the motion. The trial court dismissed the Appellants' claims for nuisance and trespass. It later granted Zepp's separate motion for summary judgment on the negligence claim.
¶ 4 In February 2012, the trial court bifurcated for trial the negligence claims related to the Martin Road Slide from the claims related to the Lunch Creek and Rainey Creek slides. The 11 plaintiff families impacted only by the Martin Road slide were scheduled to be in trial first against Menasha and B & M Logging, Inc. The second trial would have included the remaining plaintiffs and all defendants. B & M Logging settled prior to trial. The first trial against Menasha lasted six weeks. On December 14, 2012, the jury found that Menasha was not negligent and returned a verdict in Menasha's favor. Menasha then settled the claims made against it by the plaintiffs who were to be involved in the second trial. Defendants Port Blakely and Pope Resources also settled following the first trial with plaintiffs who had made claims against them. Because all of the claims to be heard in the second trial were either settled, or in the case of Zepp, dismissed on summary judgment the second trial was not necessary.
¶ 5 The Appellants appeal from the trial court's orders dismissing their claims for strict liability, nuisance, and trespass against Menasha and Zepp and their claims for negligence against Zepp. They do not appeal the verdict finding that Menasha was not negligent.
¶ 6 This court reviews summary judgment de novo. Highline Sch. Dist. 401 v. Port of Seattle, 87 Wn.2d 6, 15, 548 P.2d 1085 (1976). Summary judgment is appropriate when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." CR 56(c). "The initial burden is on the moving party to show there is no genuine issue of material fact." American Exp. Centurion Bank v. Stratman, 172 Wn.App. 667, 673, 292 P.3d 128 (2012) (citing Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005)). If the moving party makes this showing, "the burden shifts to the nonmoving party to establish specific facts which demonstrate the existence of a genuine issue for trial." Kendall v. Douglas, Grant, Lincoln, and Okanogan Counties Public Hosp. Dist. No. 6., 118 Wn.2d 1, 8-9, 820 P.2d 497 (1991). "When determining whether an issue of material fact exists, the court must construe all facts and inferences in favor of the nonmoving party." Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008).
¶ 7 Appellants argue that clearcutting steep, unstable slopes directly above residential properties is an abnormally dangerous activity subject to strict liability. Washington courts recognize the doctrine of strict liability as set forth in RESTATEMENT (SECOND) OF TORTS §§ 519 and 520 (1977). Klein v. Pyrodyne Corp., 117 Wn.2d 1, 6, 810 P.2d 917 (1991). "One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm." RESTATEMENT (SECOND) OF TORTS § 519(1) (1977). Whether an activity is "`abnormally dangerous'" is a question of law. Klein, 117 Wash.2d at 6, 817 P.2d 1359. We consider six factors in determining whether an activity is abnormally dangerous:
RESTATEMENT (SECOND) OF TORTS § 520 (1977). Furthermore,
Klein, 117 Wash.2d at 7, 817 P.2d 1359 (quoting RESTATEMENT (SECOND) OF TORTS § 520, cmt. f (1977)).
¶ 8 No court in Washington or elsewhere has imposed strict liability for timber harvest activities. The only known case to consider the question is In re Flood Litigation, 216 W.Va. 534, 607 S.E.2d 863 (2004). There, the Supreme Court of Appeals of West Virginia, applying the six Restatement (Second) of Torts § 520 factors, summarily rejected plaintiffs' claim that extracting and removing coal and timber produced conditions that created an abnormally high risk of flash flooding for which defendants should be strictly liable for damages:
216 W.Va. at 545, 607 S.E.2d at 874.
¶ 9 Here, Appellants argue that all six RESTATEMENT (SECOND) TORTS § 520 factors weigh in favor of strict liability. Defendants contend that all six factors weigh against strict liability.
¶ 10 Appellants urge us to define the activity subject to strict liability as "clearcutting on steep, unstable slopes directly above a residential area." They contend that this
¶ 11 The parties dispute whether logging creates a risk of landslides in general and specifically whether it did so in this case. Appellants have presented evidence, that logging can increase the risk of landslides through loss of root strength, hydrological affects caused by removal of the tree canopy, and the inability of forestry scientists to accurately identify the riskiest areas for logging. In contrast, Respondents have presented evidence that landslides are endemic to the Glenoma area, that Appellants' homes are built on an "alluvial fan" consisting of the sediments derived from landslides and debris flows over many years, and that "landslides and debris flow have and will continue to occur [in the Glenoma area] fairly frequently in geological time." CP at 966. The record also shows there were hundreds of landslides throughout Western Washington associated with the January 7, 2009 storm event that were apparently unrelated to logging because they occurred in areas of mature forest that had not been logged for many years.
¶ 12 However, even accepting appellants' contention that logging increases the risk that a landslide may occur, the extent of that risk is fairly debatable in light of other contributing factors. Moreover, to the extent logging increases the risk of landslides, the risk of harm from those landslides is lower when the activity is conducted in a rural area as compared to a densely populated area.
¶ 13 "If the potential harm is sufficiently great, however, as in the case of a nuclear explosion, the likelihood that it will take place may be comparatively slight and yet the activity be regarded as abnormally dangerous. Others, such as the storage of explosives, necessarily involve major risks unless they are conducted in a remote place...." RESTATEMENT (SECOND) TORTS § 520, cmt. g. Appellants argue that the magnitude of the harm resulting from landslides is necessarily severe. We agree that this is so in some instances. But the extent of the risk of harm from a particular activity cannot be divorced from the location in which the activity occurs. Generally, when logging occurs in rural, less populated areas, to the extent landslides result, there is less potential for great harm to occur. We conclude that this factor weighs against imposing liability without the need for a finding of negligence.
¶ 14 "Most ordinary activities can be made entirely safe by the taking of all reasonable precautions; and when safety cannot be attained by the exercise of due care there is reason to regard the danger as an abnormal one." RESTATEMENT (SECOND) TORTS § 520 cmt. h.
¶ 16 Here, there is evidence in the record that even when exercising the highest degree of due care, logging in rural areas may increase the risk of landslides. Similar to the risk of spray drift when applying pesticides by helicopter
¶ 17 But, as in Crosby, there is also evidence that many causes may contribute to the risk of landslides. The steepness of the slope, the presence of a "rain on snow" zone, the occurrence of an exceptional storm event, the effectiveness of applicable governmental logging regulations, and the extent to which those regulations are adhered to, together or individually, may cause a landslide. The record shows that the occurrence of landslides is seldom the work of one factor. As the Crosby Court noted, under these circumstances the imposition of strict liability is inappropriate and any liability should fall upon the party shown to be at fault. We conclude that this factor weighs against imposing liability without the need for a finding of negligence.
¶ 18 "An activity is a matter of common usage if it is customarily carried on by the great mass of mankind or by many people in the community." RESTATEMENT (SECOND) TORTS § 520 cmt. i. Certain activities, such as driving a car, are in such general use that they are not considered abnormally dangerous despite the unavoidable risk of serious harm. Id. Activities that are not a matter of common usage include "driving a tank, blasting, the manufacture, storage, transportation, and use of high explosives, and drilling for oil. The deciding characteristic is that few persons engage in these activities." Klein, 117 Wash.2d at 9, 817 P.2d 1359.
¶ 19 Commercial logging requires specialized equipment, skills, and permits. Logging is a commercially significant industry in Washington. But people not employed in the industry do not customarily engage in this activity. Similarly, in Langan, the Court held that this factor weighed in favor of strict liability because even though crop dusting is prevalent in the Yakima area, few people engage in it. Langan, 88 Wash.2d at 864, 567 P.2d 218. This factor weighs in favor of imposing strict liability.
¶ 20 This factor takes into consideration the nature of the locality where the activity is taking place. For example, blasting operations or storage tanks filled with flammable
¶ 21 Appellants argue that clearcutting on steep, unstable slopes is an inappropriate activity when performed directly uphill of a residential area. However, it is entirely appropriate to conduct commercial logging operations in a rural area, particularly one that had likely been logged at least twice during the past century. Moreover, Washington State forestry laws and regulations provide a detailed set of forest practices rules that permit logging under a wide variety of conditions. See Forest Practices Act, chapter 76.09 RCW and Forest Practices Board, Title 222 WAC.
¶ 22 "Even though the activity involves a serious risk of harm that cannot be eliminated with reasonable care and it is not a matter of common usage, its value to the community may be such that the danger will not be regarded as an abnormal one. This is true particularly when the community is largely devoted to the dangerous enterprise and its prosperity largely depends upon it." RESTATEMENT (SECOND) TORTS § 520, cmt. k.
¶ 23 Appellants argue that any economic impact would be very small because only a small fraction of Washington timberland consists of steep, unstable slopes above residential communities. Respondents contend that the chilling effect on Washington's logging industry would be severe. But no evidence in support of the Respondents' contention appears in the record before us.
¶ 24 In sum, four out of six section 520 factors weigh against imposing strict liability for logging. Strict liability is appropriate where the "dangers and inappropriateness for the locality are so great that, despite any usefulness it may have for the community, it should be required as a matter of law to pay for any harm it causes, without the need of a finding of negligence." RESTATEMENT (SECOND) TORTS § 520, cmt. f. The remaining two factors do not weigh heavily enough to overcome our conclusion that logging is not an activity subject to strict liability. We therefore hold that the trial court did not err in dismissing Appellants' strict liability claim.
¶ 25 Plaintiffs argue that the trial court erred in dismissing their nuisance claim as duplicative of their negligence claim.
¶ 26 A nuisance is "an unreasonable interference with another's use and enjoyment of property...." Kitsap County v. Allstate Ins. Co., 136 Wn.2d 567, 592, 964 P.2d 1173 (1998). Nuisance "consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either annoys, injures or endangers the comfort, repose, health or safety of others, offends decency... or in any way renders other persons insecure in life, or in the use of property." RCW 7.48.120.
¶ 27 Nuisance can be based upon intentional, reckless, or negligent conduct.
¶ 28 Appellants argue that they asserted a nuisance claim independent of their negligence claim because the nuisance was the result of Respondents' intentional act of cutting down trees. Appellants misinterpret the meaning of "intentional act" in this context. "[N]uisance dependent upon negligence consists of anything lawfully but so negligently or carelessly done or permitted as to create a potential and unreasonable risk of harm which, in due course, results in injury to another." Hostetler, 41 Wash.App. at 359, 704 P.2d 1193. In contrast, tortious intent is found where "the actor desires to cause the consequences of his act, or ... believes that the consequences are substantially certain to result from it." RESTATEMENT (SECOND) TORTS § 8A (1965); Bradley, 104 Wash.2d at 682, 709 P.2d 782.
¶ 29 Appellants' second amended complaint alleged that "[t]he manner in which Defendants clearcut and built roads on the slopes above the plaintiffs' residences constituted a nuisance to the plaintiffs" and proximately caused their properties to be inundated by landslides and debris flows. CP at 25. Appellants asserted that "the flooding was caused by a series of unintended debris jams formed by logging debris and other materials that accumulated water and then violently exploded into flash floods" and that "defendants failed to use due care in managing their properties and conducting their logging and related activities." CP at 6 (emphasis added).
¶ 30 "A party's characterization of the theory of recovery is not binding on the court. It is the nature of the claim that controls." Pepper, 73 Wash.App. at 546, 871 P.2d 601. Nowhere in the second amended complaint did appellants allege that Respondents' logging activities were unlawful or that Respondents intended to cause harm. Rather, the nuisance claim was grounded in the same facts and allegations as the negligence claim. The trial court did not err in dismissing the nuisance claim as duplicative.
¶ 31 Appellants argue that the trial court erred in dismissing their trespass claim as duplicative of their negligence claim.
¶ 32 "Trespass occurs when a person intentionally or negligently intrudes onto or into the property of another." Jackass
¶ 33 Here, Appellants' second amended complaint alleged in part that "Defendants' negligent logging activities precipitated the physical invasion of plaintiffs' properties by landslides, logging debris, boulders, mud, rocks, gravel, and water." CP at 25. The claim was grounded in negligence. As with nuisance, "[w]e treat claims for trespass and negligence arising from a single set of facts as a single negligence claim." Pruitt, 116 Wash.App. at 554, 66 P.3d 1111 (citing Pepper, 73 Wash.App. at 546-47, 871 P.2d 601.)
¶ 34 As with the nuisance claim, Appellants argue that they satisfied the requirements for intentional trespass based on Respondents' intentional act of cutting down trees. We disagree. The "intent element of trespass can be shown where the actor `knows that the consequences are certain, or substantially certain, to result from his act.'" Price ex rel. Estate of Price v. City of Seattle, 106 Wn.App. 647, 660, 24 P.3d 1098 (2001) (citing Bradley, 104 Wash.2d at 691, 709 P.2d 782). Even viewed in the light most favorable to Appellants, the nonmoving party, there is no evidence in the record that Respondents knew or were substantially certain that their logging activities would result in a landslide. The trial court did not err in dismissing the trespass claim as duplicative of the negligence claim.
¶ 35 The Plaintiffs argue that the trial court erred in dismissing their negligence claim against Zepp on summary judgment. They assert that Zepp's compliance with laws, permits, industry standards, and the terms of his contract does not shield him from liability for negligence as a matter of law.
¶ 36 To prove negligence, a plaintiff must show (1) the existence of a duty to the plaintiff, (2) a breach of that duty, (3) a resulting injury, and (4) the breach is a proximate cause of the injury. Crowe v. Gaston, 134 Wn.2d 509, 514, 951 P.2d 1118 (1998). The existence of a duty is a question of law. Suter v. Virgil R. Lee & Son, Inc., 51 Wn.App. 524, 528, 754 P.2d 155 (1988).
¶ 37 Zepp points out that he is a logger, not a geomorphologist or hydrologist. He contends that he did not have a duty to take additional steps to ensure that logging the land was reasonable because he lacks the expertise (and is not, as a logger, expected to have the expertise) to know whether logging the land would have caused landslides. Rather, it was reasonable for him to log in accordance with a forest practices application that was reviewed and approved by experts at the Department of Natural Resources. We agree.
¶ 39 Pursuant to RAP 14.2 and RAP 18.1(b), Menasha requests an award of reasonable attorney's fees, costs, and expenses on appeal as allowed under RAP 14.3. RAP 14.2 provides for an award of costs to the party that substantially prevails on review, and RAP 14.3 defines which types of expenses are allowed as costs. RAP 18.1(b) requires "more than a bald request for attorney fees." Richards v. City of Pullman, 134 Wn.App. 876, 884, 142 P.3d 1121 (2006). Menasha makes no argument as to why attorney fees under RAP 18.1 are proper. Therefore, Menasha is entitled only to an award of allowable costs and expenses under RAP 14.2 and 14.3.
¶ 40 Affirmed.
WE CONCUR: LEACH, J., and GROSSE, JPT.