Denise Frisino sought accommodation for the respiratory illness she developed in response to chemical toxins in her environment. Her illness made her sensitive to airborne toxins, excessive dust, mold, and other irritants. After suffering with symptoms for three years, Frisino requested a transfer to a cleaner facility that would be less aggravating to her condition. Despite a standing policy of making routine staff adjustments for disabled employees, the District took no action and did not even assist Frisino in her search for open positions. When a position came open at another school, Frisino took it. However, the new job was in a school that was old, mold-ridden, and dirty. When Frisino requested a clean classroom, the District then began questioning the authenticity of Frisino’s illness, and challenging her many doctors’ advice. The District even requested a psychological evaluation to see if her disability was mental rather than physical.

In response to a public outcry about the mold, the District agreed to partially remove mold from the school. However, the school delayed removing all of the mold, deeming it unnecessary and infeasible. It then ordered Frisino to return to her classroom. When Frisino continued to maintain that she could not return to a moldy classroom, the District offered to put her on unpaid medical leave and threatened termination. Frisino submitted a new accommodation request and pleaded for a temporary transfer until the rest of the remediation could be completed. The District insisted that there was no threat to Frisino, and terminated her for job abandonment. During the following summer break, the District removed significant quantities of mold from the ceiling of Frisino’s classroom.

Despite this record, the trial court ordered summary judgment for the District, concluding that Frisino had failed to adduce evidence of discrimination under the Washington Law Against Discrimination. Talmadge/Fitzpatrick represented Frisino on appeal, and the Court of Appeals reversed the trial court's decision. The District petitioned the Washington State Supreme Court. Talmadge/Fitzpatrick answered the petition, and the Supreme Court denied it.

Seashore Villa Mobile Home Park, owned in part by the Salvation Army, was an adults-only mobile home park located in Thurston County. At one time, the park owner provided carports and sheds to each of the mobile home lots in the park. Over the years, those sheds and carports deteriorated and a question arose as to whether the sheds and carports were owned by the tenants or by the park owner. The park owner sent a letter to all of the tenants saying that the park owner intended to remove the sheds and tear down the carports unless the tenants chose to take responsibility for them. The tenants sued the park owner alleging that such letters violated the terms of RCW 59.20.135, a statute that forbade mobile home park owners from transferring responsibility to maintain permanent structures within a mobile home park to its tenants unless the tenants voluntarily agreed to do so. The Thurston County Superior Court granted injunctive relief to the tenants and ordered the mobile home park owner not to change any improvements within the mobile home park. Believing that such injunctive order was far too extensive, the park owner alleged that such a result constituted a taking of the park owner’s property and a violation of the park owner’s constitutional property rights. Ultimately, the trial court denied any relief to the park owner, continuing the injunction in place on the basis that an implied contract had arisen between the park owner and the tenants to keep the sheds/carports in place in perpetuity. The court raised this issue on its own, without an argument from either party. The trial court also entered a substantial award of attorney fees in favor of the tenants.

Talmadge/Fitzpatrick was retained to represent Seashore Villa Mobile Home Park on appeal. The Court of Appeals, Division II, affirmed the trial court’s decision on RCW 59.20.135 concluding that the letter from the park owner violated the statutory direction prohibiting park owners from transferring responsibility for permanent structures in a mobile home park to its tenants. The Court, however, reversed the injunction in favor of the tenants, concluding that no contract implied in fact existed in this case and the mobile home park owner was entitled to remove carports and sheds at the conclusion of the tenants’ lease. The Court also reversed the award of attorney fees insofar as the tenants were no longer the substantially prevailing party in the case.

The City of Woodinville chose to have a substantially rural residential zone within its zoning code. A developer purchased certain parcels, aware that this rural zoning code was in place, and sought to develop subdivisions on those parcels. To do so, the developer applied for a re-zone. Woodinville denied the re-zone. The developer took Woodinville to court alleging that the city violated certain Growth Management Act policies relating to making more in-city land available for residential development and that it was entitled to a re-zone under Washington law. The Concerned Citizens of Wellington, a citizen’s group, joined in the action to resist the developer’s re-zone request. The trial court agreed with CCW and Woodinville that its existing zoning was appropriate and the developer failed to meet the criteria for a re-zone. The developer appealed that decision to the Court of Appeals, Division I, which reversed the trial court’s decision, holding that a re-zone was required. That court essentially substituted its judgment on the re-zone for that of the elected City Council.

Talmadge/Fitzpatrick was retained to assist Woodinville on a petition for review to the Washington Supreme Court. Woodinville and CCW petitioned the Supreme Court for review, which was granted. The Supreme Court reversed the Court of Appeals and reinstated the trial court’s decision. Cities like Woodinville have substantial discretion on zoning and re-zones. Nothing in law foreclosed a more rural residential area, particularly where Woodinville was meeting the housing goals of the Growth Management Act by more intensive development in its downtown core. The developer did not meet the criteria for a re-zone.

Whatcom Fire District No. 21 provides fire and emergency services to a substantial part of Whatcom County, including Birch Bay. Three developers sought to develop large commercial/residential projects in Birch Bay. Under the Whatcom County Code, however, a service provider like the District was obliged to issue a letter of concurrency to a developer allowing a project to go forward only when services existed at the time or in the near future to address the added growth created by such a project. The District refused to issue letters of concurrency for the three projects because it lacked the personnel and facilities to deliver fire and emergency services to the projects, given its fiscal constraints. The developers appealed the District’s decision to the Whatcom County Hearing Examiner, who ruled that letters of concurrency should have issued. The County Council agreed. The superior court, however, reversed the Hearing Examiner based on undisputed evidence that the District, whose personnel included both professional and volunteer firefighters, did not have sufficient existing resources to provide the services necessary to handle the growth occasioned by the three large projects. The Court of Appeals, Division I, reversed the trial court’s decision holding that concurrency principles under the Growth Management Act were satisfied when Whatcom County adopted its comprehensive plan that stated fire services were adequate. Project-specific evaluation of whether services were available for a project was not required under GMA, according to that court.

The District petitioned the Washington Supreme Court for review, which it granted. The Supreme Court reversed the Court of Appeals decision, holding that by the very terms of the Whatcom County Code, a letter of concurrency was necessary before a project could proceed. Such a letter of concurrency could only issue after a project-specific review of its growth impacts. In this case, the evidence was undisputed that the District did not have sufficient fire and emergency personnel nor equipment to address the growth generated by the three large projects at issue. Consequently, the District was correct in denying the developers letters of concurrency.

This case is the first significant reported decision on non-transportation concurrency under the Growth Management Act. Concurrency is a vital component of that Act in Washington.

In this case, the appellants were ten special education students and their parents who unquestionably suffer from severe sensory, mental, and physical disabilities. Most are nonverbal and many have physical handicaps. The students and their parents sued the Clover Park School District No. 400 (“District”) for general money damages, alleging teachers and staff subjected the students to physical, verbal, and psychological abuse, and unlawful discrimination based on their disabilities under Washington’s Law Against Discrimination, chapter 49.60 RCW. The students and their parents claimed that neither the genesis, nor the manifestations, of abuse was educational in nature. Instead, the students suffered random acts of violence and abuse. The District denied most of the allegations in the students’ complaint and contended the foundation of their complaint was educational in nature and thus within the scope of relief available under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-91.

The District moved to summarily dismiss the student’s complaint, arguing that the students had not exhausted the administrative remedies available to them under the IDEA and that their lawsuit was therefore barred. In response, the students dismissed all claims that could have been construed, as or related to, a request for educational compensation under the IDEA for deficiencies in educational services or benefits. The trial court granted the District’s motion and dismissed the complaint. Talmadge/Fitzpatrick represented the students and parents in a successful direct appeal to the Supreme Court.

The underlying issue before the Supreme Court was whether special education students and their parents bringing state tort claims involving abuse and educational neglect in state court must first satisfy the IDEA’s exhaustion requirement before filing suit. In considering the case, the Court reviewed the purpose and intent of the IDEA and closely analyzed the students’ and parents’ claims. The Court reversed, holding that the students and parents were not required to exhaust the administrative remedies available through an IDEA-due process hearing before filing a civil action under state law in state court. The Court remanded the state tort and unlawful discrimination claims to the trial court after finding genuine issues of material fact precluded summary judgment.

Mark and Kristina Grey purchased property from Respondents James and Sue Leach that was highly contaminated with home heating oil that had long been leaking from the pipes connecting the property’s underground storage tank to the furnace. After discovering the contamination and incurring more than $200,000 in cleanup costs, the Greys sought equitable contribution from the Leaches under the Model Toxics Control Act, RCW 70.105D et seq. (“MTCA”).

Despite admitting that they owned and operated a leaking heating oil system for more than 30 years, the Leaches claim that they are not liable for any cleanup costs under MTCA. First, they claim – despite MTCA’s strict liability regime – that their ignorance of the ongoing leak makes them “innocent purchasers.” Second, they claim that MTCA exempts all leaks of home heating oil because it is a hazardous substance in domestic use.

The Greys moved for partial summary judgment, arguing that neither of these defenses applies to the undisputed facts. The trial court denied the motion, but because of concern over complex statutory interpretation problems, certified the issues to this Court.

Talmadge/Fitzpatrick undertook the motion for discretionary review to Division 1 of the Court of Appeals. The Court granted discretionary review on the two issues of first impression. The Court also granted cross-review to the Leaches on the question of whether the Greys' claims were barred by the Real Estate Purchase and Sale Agreement ("REPSA").

The Court of Appeals sided with Greys on all issues. The Court held that neither the plain language nor the policy and purpose of MTCA supported the Leaches’ interpretation of these defenses. The Court ruled that MTCA’s strict liability regime does not allow parties who presided over decades of environmental contamination to escape cleanup costs by pleading ignorance. Additionally, the Court ruled that leaking home heating oil is not a “domestic use” exempted under MTCA . Finally, the Court concluded that MTCA liability was not allocated in the REPSA, and that the Greys' claims were not barred.

Barbara Corey was a dedicated and skilled deputy prosecuting attorney in the Pierce County Prosecutor’s Office who organized the first union for deputies in that office and rose to serve as the assistant chief criminal deputy attorney. However, because of internal political issues in the Prosecutor’s Office, Prosecutor Gerry Horne in 2004 chose to dispense with her services as assistant chief criminal deputy and broke his promise to her that she would never be dismissed without “just cause.” To compound his failure to live up to his commitment to Corey, he disclosed information to the media about Corey that he knew was false and that was designed to harm Corey’s reputation in order to enhance his political position.
Corey sued Horne and Pierce County for invasion of privacy, defamation, defamation by implication, false light, outrage, and breach of a contract formed by promissory estoppel. Upon proper instructions to the jury on all theories, after a three week trial, the jury returned a $3.1 million verdict in her favor.

The County appealed, and Talmadge/Fitzpatrick represented Corey as respondent. The Court of Appeals affirmed the verdict, holding that sufficient evidence existed on all of Corey's intentional tort and employment claims.

The County petitioned the Washington Supreme Court for review, and Talmadge/Fitzpatrick represented Corey on the answer. Review was denied.

In the second appeal in the case, paper mill laborer Ernest Coulter sought to overturn a trial court order following a reasonableness hearing. AstenJohnson convinced the trial court that its share of the judgment should be discounted by amounts Coulter actually received in pretrial settlements, but also by hypothetical future amounts from nonexistent asbestos trust funds. AstenJohnson also received discounts on the judgment for hypothetical amounts from existing trust funds to which AstenJohnson claimed Coulter should have applied.

Talmadge/Fitzpatrick again handled Coulter's appeal, and again secured a reversal. The Court of Appeals agreed that under joint and several liability, each defendant is liable for the full amount of the judgment, and a plaintiff is under no obligation to pursue other tortfeasors for settlement. Therefore, AstenJohnson was obligated to the Coulters for the full amount of the judgment, minus any settlement funds actually received.

AstenJohnson sought review by the Washington Supreme Court, and Talmadge/Fitzpatrick responded on behalf of Coulter. The Supreme Court denied review.

Run Sen Liu was struck down by a car as he made his way through a crosswalk on South Jackson Street in Seattle. He suffered a concussion and numerous broken bones, and was in a coma for two years before dying of his injuries.

His widow, Xiao Ping Chen sued the City of Seattle on Liu’s behalf, alleging that the City negligently breached its duty to design and maintain the roadway in a reasonably safe condition. Chen presented evidence that the City was aware of the dangers posed by the intersection where Liu was struck. There had been numerous pedestrian accidents at that intersection, including one previous fatality. Three experts testified that the crosswalk at the intersection did not meet engineering safety standards or the City’s own standards governing traffic safety, and that the intersection was inherently unsafe. Nevertheless, the trial court dismissed Chen’s complaint on summary judgment, holding as a matter of law that the City owed no duty to Liu.

Talmadge/Fitzpatrick undertook Chen’s appeal. In a published opinion the Court of Appeals reversed, holding that the City owed a duty to ensure the crosswalk was reasonably safe for its intended use, and that a jury could infer the City breached its duty. The Washington Supreme Court denied review.

Reuben Arnold contracted the invariably fatal disease of mesothelioma from exposure to asbestos while working in various shipyards in the Puget Sound region, including Lockheed’s. His son Daniel also contracted mesothelioma. Both Reuben and Daniel died from the disease. Their estates filed lawsuits against the shipyards at which both men had worked for their exposure to asbestos that caused the mesothelioma. In particular, Reuben argued that Lockheed was liable because it was the general contractor for work on various ships on which Reuben worked and it retained control over work and safety practices for that work, it was the owner of the premises upon which the work took place and asbestos was present on these premises, and Lockheed owed him a general duty under workplace safety laws like WISHA and its predecessor to provide him a safe place in which to work. Daniel argued that he was exposed to asbestos taken home by Reuben from his work at the shipyards, and was also exposed to asbestos on his job sites.

The trial court in this case initially dismissed Reuben’s and Daniel’s lawsuit because Lockheed owed them no duty of care.

Talmadge/Fitzpatrick was associated by Bergman Draper & Frockt, PLLC to represent Reuben and Daniel on appeal. The Court of Appeals, Division II, ruled that the trial court erred in finding no duty of care owed by Lockheed to Reuben. It determined that Lockheed owed Reuben a duty as a general contractor, a premises owner, and by statute, precisely as Reuben had argued. While the court agreed with the trial court that Daniel failed to present evidence of direct exposure to asbestos from the job sites at which he worked, Daniel’s derivative “take home” claim was viable.

Jim Tobin was severely injured on the job and received worker compensation benefits from the Department of Labor and Industries for his injuries. Tobin sued a third party who was at fault for his injuries and recovered a settlement. The settlement allocated recovery between Tobin’s medical expenses, wage loss, and general damages. The Department argued that it was entitled to apply its lien for benefits paid against the entire settlement, rather than against the portion of the settlement that related to wage loss and medical expenses. The Board of Industrial Insurance Appeals agreed with the Department, but the superior court and the Court of Appeals agreed with Tobin. The Department sought review by the Washington Supreme Court, which was granted. Talmadge/Fitzpatrick associated on the appeal to the Washington Supreme Court.

In a 7-2 decision, the Supreme Court ruled that the Court of Appeals was correct. Our Supreme Court relied in part on United States Supreme Court precedent involving Medicaid liens which relate essentially to medical services that held such liens could only be applied to the medical recovery of any portion from a third party.

Under this very significant ruling, for work place injury cases, the Department’s lien for benefits paid to injured workers, benefits which essentially are medical benefits and wage replacement, extends only to those portions of the injured worker’s third party recovery relating to wage loss and medical expenses and not to general damages like pain and suffering.

Christopher Primeau was a diver hired to perform certain work for General Construction Co. (“GCC”) at the Texaco oil refinery in Anacortes. Mr. Primeau was killed in a dive. His estate brought suit for his wrongful death. GCC argued that Primeau was a seaman to whom the Jones Act, a federal law relating to injuries on the high seas, applies because the dive had originated from a barge owned by GCC. The trial court disagreed. GCC sought interlocutory review of the
trial court’s decision.

Mr. Primeau’s counsel retained Talmadge/Fitzpatrick to resist GCC’s effort to secure interlocutory review. The Court of Appeals Commissioner ruled that the company failed to establish the necessary grounds to secure interlocutory review by failing to show that the trial court committed obvious error or that further proceedings would be useless without an immediate appeal.

This case is typical of many cases in which Talmadge/Fitzpatrick is involved addressing interlocutory review of trial court decisions. Washington appellate courts disfavor interlocutory review, i.e. appellate review before there is a final judgment. Talmadge/Fitzpatrick can assist trial counsel both in securing and resisting interlocutory review.

Little Mountain Estates is an upscale Washington manufactured housing community. When Little Mountain was first being developed in 1990-91, it struggled for tenants because of unstable economic and political factors. To fill the park, Little Mountain offered a 25-year rent-controlled lease, far beyond the one-year leases required by the Mobile Home Landlord Tenant Act (MHLTA). In exchange, if the tenants sold their homes and assigned their leases, those leases would convert to MHLTA-compliant one or two year terms.

However, many years later some homeowners were planning to sell their homes and move away. They saw an economic benefit to be gained from being able to market the 25-year rent controlled leases to potential buyers. So they sued Little Mountain, claiming that the clause converting the leases to one or two years on assignment violated the MHLTA.

The superior court agreed with Little Mountain and dismissed the case. The tenants appealed. Talmadge/Fitzpatrick defended the trial court’s decision at the Washington State Court of Appeals Division I. The Court of Appeals reversed the trial court, but the Washington Supreme Court granted Talmadge/Fitzpatrick’s petition for review.

The Supreme Court agreed with Little Mountain: if a lease under the MHLTA provides a term longer than the required one year, and the parties agree that the term will convert to a one-year term or longer upon assignment, that lease provision does not violate the MHLTA.

This is a breach of contract action involving the sale of Travis Flateau’s motorcycle modification business to Dan Moore. The sale was governed by two agreements, neither of which contained a venue provision. But both agreements called for notice to be mailed to Flateau at a Redmond address and to Moore at a Yakima address.

After Moore notified Flateau by mail that he was terminating the parties’ agreements, he filed suit in the Yakima County Superior Court. He alleged breach of contract and promissory estoppel, and sought declaratory and injunctive relief. At the time Moore commenced his lawsuit in Yakima County, Flateau resided in King County. Moore did not immediately serve Flateau with the complaint. Flateau, however, then filed suit in the King County Superior Court alleging breach of contract. The parties eventually stipulated to a stay of the King County action pending the appearance of Flateau in the Yakima County action.

The Yakima County trial court denied Flateau’s motion for change of venue, finding that it was unclear where Flateau resided and that a portion of Moore’s claim arose in Yakima County because it involved alleged damage to personal property – Moore’s business. Talmadge/Fitzpatrick was retained to assist Flateau and filed a motion for discretionary review. The Court of Appeals, Division III, granted review.

In a published opinion, the Court of Appeals determined that Moore’s action was one for breach of contract seeking economic losses rather than one for injury to Moore’s personal property. Flateau was thus entitled to be sued in King County, where he lived, under the general venue statute. The Court also awarded Flateau his attorney fees and costs for both trial and appellate court proceedings for successfully changing venue to the proper county. The Court remanded to the trial court to change venue to King County and to award Flateau his attorney fees and costs.

Barbara Corey was a dedicated and skilled deputy prosecuting attorney in the Pierce County Prosecutor’s Office who organized the first union for deputies in that office and rose to serve as the assistant chief criminal deputy attorney. However, because of internal political issues in the Prosecutor’s Office, Prosecutor Gerry Horne in 2004 chose to dispense with her services as assistant chief criminal deputy and broke his promise to her that she would never be dismissed without “just cause.” To compound his failure to live up to his commitment to Corey, he disclosed information to the media about Corey that he knew was false and that was designed to harm Corey’s reputation in order to enhance his political position. Corey's sterling career and reputation were seriously harmed.

Corey sued Horne and Pierce County for negligent dissemination of unsubstantiated information, defamation, defamation by implication, false light, outrage, and breach of a contract formed by promissory estoppel. Upon proper instructions to the jury on all theories, after a three week trial, the jury returned $3.1 million verdict in her favor based on all five claims.

The County appealed, at which point Talmadge/Fitzpatrick joined to represent Corey in defending the verdict. Although the Court of Appeals concluded that the tort of negligent dissemination of unsubstantiated information does not exist in Washington, it affirmed the verdict because substantial evidence supported each of the intentional tort claims, which each independently justified the verdict.

The County petitioned the Washingotn Supreme Court for review. Talmadge/Fitzpatrick responded on Corey's behalf, and review was denied.

In this medical malpractice and corporate negligence case, Katherine Ripley sued to recover damages for the injuries she received when her surgeon, Dr. William Lanzer, failed to notice the scalpel blade he used during her arthroscopic knee surgery had detached from the handle during her surgery and become lodged in her knee. Ripley’s surgery was performed at Evergreen Medical Center Hospital and Evergreen supplied and maintained all of the surgical equipment.

Dr. Lanzer and Evergreen moved to summarily dismiss Ripley’s claims in the trial court after she withdrew all of her disclosed experts as trial witnesses, arguing she failed to support her claims with expert medical testimony. In response, Ripley argued that she did not need a medical expert to support her claim because Dr. Lanzer’s failure to notice that the scalpel blade had detached from its handle and remained lodged in her knee when he closed the surgical site raised the inference of negligence under the doctrine of res ipsa loquitur. That doctrine permits an inference of negligence from the occurrence itself, so that the case can go to the jury. The trial court granted the motion to dismiss on the grounds that Ripley failed to provide expert medical testimony to support her claims and that the res ipsa loquitur doctrine did not apply. Talmadge/Fitzpatrick was retained to handle the appeal.

In an unpublished opinion, the Court of Appeals, Division I, determined that Ripley was not required to provide expert medical testimony because res ipsa loquitur applied to her claims and supplied the necessary inferences of negligence and causation. The Court remanded Ripley’s medical malpractice claim for further proceedings in the trial court. But the Court affirmed the summary judgment dismissal of Ripley’s corporate negligence claim against Evergreen because it determined expert medical testimony is required to establish the standard of care.

The Court’s opinion is significant because it re-affirms the viability of res ipsa loquitur in Washington and makes clear that the inference of negligence extends to the duty, breach, and causation elements of a negligence claim.