Division Three of the Washington Court of Appeals recently weighed the duty owed by a property owner to a scrap metal worker. Schuck v. Beck et al, 36754-1-III (April 21, 2020). The scrap metal worker alleged that the property owner owed a duty under common law negligence theories and strict liability for engaging in abnormally dangerous activities. The Appellate Court found that the property owner did not owe a duty to the worker.
The property owner had a five-acre parcel of industrial property containing several buildings. Some of the building he leased. He also operated his construction company on a portion of the property. The owner entered into an agreement with an auctioneer for the purchase of “chippers, [a] loader, tools, shop equipment, misc., scrap iron.” The “scrap iron” referred to any salvageable iron found on the property. Essentially, the owner sold “everything” on the property to auctioneer, excluding items fixed to the real estate, like the buildings. In turn, the auctioneer contracted with a scrap metal company to offload and sell scrap metal items on the property. During the process of removing items from the property, a large cylindrical tan was removed, along with other recyclable items. At the scrap metal facility, the tank was placed into a recycling machine called a shear. During this process, the valves on the tank blew off, causing chlorine gas to escape from the tank and creating a gas cloud. The scrap metal worker was severely injured after inhaling the gas.
The worker asserted that a duty was owed under the Restatement §§ 388 and 302. Restatement § 388, entitled “Chattel Known to be Dangerous for Intended Use,” provides:
One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier:
(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and
(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.
Restatement § 392, entitled “Chattel Dangerous for Intended Use,” imposes liability on those who supply chattel to be used for the supplier’s business purposes if the supplier fails to exercise reasonable care to make the chattel safe for the use for which it is supplied or fails to discover its dangerous condition and to warn the users of that danger.
The record supported the fact the property owner was not present on site when the auctioneer selected the tank for recycling and arranged for its transport to the scrap metal facility. Moreover, the record established the auctioneer had no obligation to remove and dispose of the tank. The auctioneer could have left the tank there if he determined it was not recyclable. Finally, the record established that the scrap metal company’s policies required employees to reject pressurized tanks unless emptied and certified. Therefore, the Court found the scrap metal employees put the tank to a use that the property owner had no reason to anticipate, concluding the property owner owed no duty of care under Restatement §§388 or 392.
The worker also argued he was owed a duty of care under Restatement §302. Restatement §302 provides a negligent act or omission may be one which involves an unreasonable risk of harm to another through either (a) the continuous operation of a force started or continued by the act or omission, or (b) the foreseeable action of the other, a third person, an animal, or a force of nature. Here, the worker argued that the property owner owed him a duty to know the tank was present on the property and to warn him not to recycle the chlorine gas tank. Essentially, the worker alleged the owner was liable for “a failure to act—the failure to investigate what was dumped on the Jackson Property and the failure to warn others of the dangers presented by the steel tank.”
The Court, applying Robb v. City of Seattle, 176 Wn.2d 427, 433, 295 P.3d 212 (2013), found that there is generally no duty to prevent a third person from causing harm to another, absent a special relationship with the injured party. “The court also noted that foreseeability of harm from the actions of a third party ‘alone is an insufficient basis for imposing a duty.’” Id. at 435. The Court concluded the owner’s alleged failure to prevent the tank removal or to warn of the hazardous material in that tank constituted an omission. The owner’s alleged omission was not an affirmative action creating a risk, meaning the owner owed no duty to the worker under Restatement §302.
Finally, the worker asserted the owner engaged in abnormally dangerous activities by disposing of a tank filled with chlorine gas, making him strictly liable under Restatement 519. The Court determined that the owner was not engaged in an abnormally dangerous activity; a commercial transaction—the sale of items on his property—an act that is not abnormally dangerous. The Court relied on the established facts that the sale of property allowed the auctioneer to select the items. The owner had not control over what was or want not selected.
The Court’s decision relied heavily on the facts of the transaction. The lesson here is that the owner left control of the process to the auctioneer – less control was better.