Hostile workplace is basis for ADA claim
By Karen A. Kalzer

A worker may base a disability-discrimination claim on proof of a hostile work environment, the Washington Supreme Court has held.

In Robel v. Roundup Corp., no. 70561-5 (Dec. 2002), Linda Robel worked in the service deli at a Fred Meyer store. She sustained an injury on the job and filed a workers’-compensation claim. She returned to light duty at work. Co-workers ridiculed her, mimicked her accident, addressed her in profane terms, and told customers that Robel had lied about her injury.

Robel reported the incidents to a union representative and to management, but the ridicule and insults by co-workers continued. Management fired one employee but not the others. Robel left work and never returned.

Robel sued the store alleging claims of disability discrimination, retaliation for filing a workers’-compensation claim, and negligent and intentional infliction of emotional distress. Robel alleged, among other things, that the defendant’s employees discriminated against her based on her workplace-injury disability by creating and permitting a hostile work environment. The trial court agreed. After a non-jury trial, the court found for Robel, awarding her $52,000 plus attorney fees and costs.

Fred Meyer appealed. Fred Meyer contended that Washington’s Law Against Discrimination (WLAD) did not permit a disability-based claim based on the existence of a hostile work environment. The Court of Appeals assumed for the sake of argument that such a claim was legally permissible but that there was not enough proof of such a claim under these facts.

The Supreme Court disagreed and affirmed the trial court’s judgment. The Robel Court noted that "whether the antidiscrimination statute supports a disability-based hostile work environment claim is an issue of first impression in this state." Thus the Court looked to federal cases that interpreted analogous federal anti-discrimination statutes. Several federal courts interpreted language of Title VII of the federal Civil Rights Act that resembled the WLAD and held that disability-based hostile-work-environment claims were legally permissible.

The Robel Court held that the WLAD was analogous to Title VII and to existing Washington law permitting hostile-work-environment claims based on sex discrimination. The Court expressly extended the WLAD to include such claims where the discrimination was based on the claimant’s disability.

To prove such a claim, a claimant must show that (1) she was disabled within the meaning of the WLAD, (2) the harassment was unwelcome, (3) the harassment resulted from the disability, (4) the harassment affected employment conditions, and (5) it was imputable to the employer.

Fred Meyer also appealed the trial court’s finding that it had committed intentional infliction of emotional distress, or the tort of outrage. The Court of Appeals concluded that proof of that claim was deficient, but the Supreme Court reversed. The test of such a claim is whether the defendant’s conduct was "beyond all possible bounds of decency" and "atrocious and utterly intolerable in a civilized community." A trial court reasonably could find that this standard, while "admittedly very high," was met here, "in light of the severity and context of the conduct" by Robel’s co-workers.

Class plaintiffs must prove individual damage claims
By Jeffrey P. Downer

Class-action plaintiffs must prove each class member’s individual damages, rather than merely proving the aggregate of all damages, according to the Washington Court of Appeals.

In Sitton v. State Farm Mut. Auto. Ins. Co., no. 49923-8-I (Feb. 2003), plaintiffs sued State Farm for bad faith in denying coverage for medical expenses. Individual plaintiffs had sought personal-injury-protection (PIP) benefits under their State Farm auto policies. The policies permitted State Farm to refer their claims to medical-utilization reviews for evaluation of whether treatment was reasonable, necessary, and due to a covered accident. The reviews resulted in denial of part or all of plaintiffs’ claims.

Plaintiffs sued, alleging that State Farm uses the review process in bad faith solely to deny or limit benefits as part of a secret cost-containment policy. Plaintiffs asked the trial court to certify their claims as a class action. The trial court certified the class on multiple grounds and ordered that the case proceed in two phases. In Phase I, the trial court would decide issues of liability, bad faith, causation, and the damages suffered by the class as a whole. In Phase II, the court would address the amount of individual class members’ damages on the bad-faith claims.

The Court of Appeals reversed, agreeing with State Farm that that procedure "contemplates an award of damages without requiring plaintiffs to prove individual causation and without permitting State Farm to advance its defenses." The appellate court rejected this approach because it presupposes that if bad faith occurred, the full amount of each claim was valid. The effect would be to eliminate plaintiffs’ burden of proving causation.

School is strictly liable as ‘manufacturer’ of lunch
By Jeffrey P. Downer

A school district is the "manufacturer" of the lunch that caused E. coli illness and therefore strictly liable for that harm, the Washington Court of Appeals recently held.

In Almquist v. Finley Sch. Dist. No. 53, 114 Wn. App. 395 (Nov. 2002), a school district prepared and served a taco lunch. The preparation included thawing and cooking the meat, adding other ingredients, and delivering the food to schools for distribution from their cafeterias.

Ten students who ate the tacos became infected with deadly E. coli O157:H7 bacteria. An eleventh child, a two-year-old, later played with two of the infected students and contracted the same illness. Investigators from the state Department of Health concluded that the tacos caused the outbreak and that the infected students exposed the two-year-old to the same E. coli bacteria.

Families of the sickened children sued the District for strict product liability. Under such strict liability, a product manufacturer is liable for the harm that its product caused, no matter how careful the manufacturer was. The District asserted that it sold a service, not a product, and if it sold a product, it was the frozen ground beef that contained the E. coli O157:H7, not the finished product.

Both the trial court and the Court of Appeals disagreed. Washington’s Product Liability Act defines "manufacturer" broadly to include a seller that produces, designs, fabricates, constructs, or remanufactures the product or its components. The Court of Appeals held that the District’s cooking process "falls neatly into each" of these definitions. The District was the "manufacturer" of the tacos.

The District also argued that there was no proximate cause between the tainted tacos and the toddler’s illness. The District argued that that causal relation was both speculative and not foreseeable. The Court of Appeals disagreed. The court noted the substantial medical testimony that plaintiffs had offered to show that the tacos infected the students, who in turn infected the toddler, so that causation was not speculative. Furthermore, the medical testimony showed that such secondary cases are fairly common, making up 1 to 10 percent of the cases in any E. coli O157:H7 outbreak. Washington’s Product Liability Act does not restrict claimants to those persons who have direct contact with the product.

Around The Firm

Michael A. Patterson and Patricia K. Buchanan won a defense verdict in Johnson v. Catholic Community Services. Plaintiffs brought a "wrongful adoption" claim, alleging that had the adoption agency, Catholic Community Services, provided all records on the nine-year old child, they would never have adopted her. After a three-week trial in Thurston County Superior Court, the jury agreed with Mike and Pat’s defense that regardless of what information was provided, the plaintiffs would have adopted the young girl, and therefore any alleged failure to provide records was not the proximate cause of plaintiffs’ alleged injuries. … Tammy L. Williams improved her client’s position on a trial de novo in Hutson v. Costco. On appeal from the maximum $35,000 arbitrator’s award, the jury awarded $15,000 to the plaintiff. Plaintiff claimed a shard of chrome from a Costco cart handle imbedded into her thumb. She described the pain as worse than both of her childbirths. Tammy also prevailed on the co-defendant cart manufacturer’s motion for attorney fees and costs following the trial.

Kenneth E. Hepworth won summary judgment of dismissal in Connely v. Mombasa Coffee Co. v. Olympic Springs. Olympic Springs sold a water-purification system to Mombasa Coffee Company, installed it at Mombasa’s business, and thereafter regularly serviced it. In 1999, a pressure valve on the purification system failed, causing water to flood Connely’s business. Connely sued Mombasa for damage to his inventory and for business interruption. Mombasa brought a third-party complaint against Olympic Springs, alleging negligence, breach of contract, contribution, and indemnity. Ken moved for summary judgment of dismissal on behalf of Olympic Springs because the purchase contract specifically excluded the damages that plaintiff claimed and because there was no proof that Olympic Springs was negligent. The court agreed with Ken and dismissed the third-party complaint. … Ken Hepworth also won summary judgment of dismissal in Hall v. Process Engineering. The case arose from the failure of a water heating system at a college. A connector failed, causing scalding water to flood the mechanical room and other parts of the building. Plaintiffs were maintenance workers at the college who suffered severe burns while investigating the flood. Plaintiffs sued the manufacturer of the connector, the mechanical contractor, the distributor of the connector, the company that monitored the system, and Ken’s client, Process Engineering, the mechanical engineer. The court agreed with Ken that there was no evidence that Process Engineering was negligent in preparing drawings and specifications for the project. The court also agreed that even though Process Engineering was responsible for final inspection of the mechanical contractor’s work the terms of the construction contract did not impose liability for any fault of the mechanical contractor.

Joel E. Wright and Stacy D. Heard won summary judgment of dismissal of plaintiff’s claims in a family law legal-malpractice case, Pritchett v. Smith and Whitaker. In their first partial summary judgment motion, the court dismissed one of plaintiff’s claims of $1.4 million in damages. Plaintiff alleged that his dissolution attorneys failed to investigate the value of an asset beyond the valuation set forth on an investment account statement. The court found that the attorneys had no duty to investigate the value of the asset unless extraordinary circumstances led them to believe the statement was inaccurate. In their second partial summary judgment motion, Joel and Stacy won dismissal of plaintiff’s remaining claims. Plaintiff claimed damages regarding alleged improper distribution and valuation of community assets. The court found that plaintiff could not show that the dissolution attorneys’ conduct proximately caused his damages or that his alleged damages were based upon anything more than speculation and conjecture. The court dismissed the action.

Michelle A. Corsi won dismissal of Brown v. Wotipka, a legal-malpractice case. Michelle had moved to compel discovery, which was granted. Plaintiff was ordered to provide full discovery responses and pay sanctions or risk dismissal. Plaintiff failed to do so. Michelle moved to dismiss. The court granted the motion, finding that plaintiff’s violation was willful, that plaintiff had failed to show good cause, and that in light of the imminent discovery cutoff and trial date, no lesser sanction would suffice. … Michelle Corsi also won a fee dispute for her attorney client in arbitration before the Washington State Bar Association. The former client disputed the amount of fees owed to the attorney stemming from a complex dissolution action involving foreign law issues. The three arbitrators awarded the attorney almost all of the claimed fees.