                                                                     FILED
                                                                  APRIL 21, 2020
                                                           In the Office of the Clerk of Court
                                                          WA State Court of Appeals, Division III




    IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
                       DIVISION THREE


 FELIX W. SCHUCK, an individual,               )        No. 36754-1-III
                                               )
                      Appellant,               )
                                               )
               v.                              )
                                               )
 GORDON BECK and JANE DOE BECK,                )
 individually and the marital community        )
 composed thereof; TIM JACKSON and             )        UNPUBLISHED OPINION
 ROBERTA JACKSON, individually and             )
 the marital community composed thereof;       )
 IBEX       CONSTRUCTION,      INC.,   a       )
 Washington corporation; and JOHN DOE          )
 1-5, entities or individuals,                 )
                                               )
                      Respondents.             )

       ANDRUS, J. – Felix Schuck appeals the dismissal of his claims against Tim

Jackson and Jackson’s construction company, Ibex Construction, Inc.1 Schuck

sustained serious injuries after a steel tank—transported from Jackson’s property to

Schuck’s place of employment, Pacific Steel & Recycling—leaked deadly chlorine

gas during the recycling process. Schuck sued Jackson, as well as Tom Reinland,



       1
         The complaint names Tim Jackson, his wife, Roberta, and Ibex as
defendants. Any reference to “Jackson” in this opinion refers to Tim, Roberta, their
marital community, and Ibex collectively.
No. 36754-1-III
Schuck v. Beck et al.

who purchased scrap metal from Jackson, and Gordon Beck, who loaded the tank

onto a truck for transport to Pacific. The trial court dismissed Schuck’s claims

against Beck and Jackson on summary judgment, concluding that they did not owe

a legal duty to him. Schuck appeals only the dismissal of the claims against Jackson.

Because Jackson owed no common law or statutory duty to Schuck under the facts

of this case, we affirm.

                                      FACTS

       Tim Jackson owns a five-acre parcel of industrial property in Spokane,

Washington (Jackson Property). The Jackson Property contains several buildings,

the majority of which Jackson leased over the years to a number of different

commercial tenants.        Jackson operated his construction company, Ibex

Construction, on a portion of the property. Ibex, which primarily constructed roads

and highways, stopped operations around 2013.

       On July 31, 2015, Jackson and Tom Reinland, an auctioneer, entered into an

agreement, as documented in a bill of sale, for the purchase of “chippers, [a] loader,

tools, shop equipment, misc., scrap iron.” Reinland testified that “misc.” in the bill

of sale referred to various pipe fittings, nuts, bolts, and bolt cabinets that Jackson

had on the property. He also stated that “scrap iron” referred to any salvageable

iron he found on the property. Jackson testified that he sold “everything” on the

property to Reinland, excluding items fixed to the real estate, like the buildings or

items that the commercial tenants had marked with a green “X.” Jackson and


                                          2
No. 36754-1-III
Schuck v. Beck et al.

Reinland orally agreed that Reinland could remove anything he wanted from the

Jackson Property, with the exception of the marked items, and that anything that

Reinland did not take remained on the property. Reinland paid Jackson $32,500

under the bill of sale.

       Reinland asked Gordon Beck, a part-time recycler with 45 years of

experience, to assist him with scrapping metal from the Jackson Property. Reinland

and Beck agreed to split the proceeds of any scrap metal 60/40, with Beck receiving

the larger share, in exchange for Beck’s assistance locating and transporting scrap

metal. Reinland collected the items he wanted to auction, while Beck arranged for

Pacific to pick up scrap metal.

       On the morning of August 12, 2015, Beck used an excavator to load a large

cylindrical tank, along with other recyclable items, onto a Pacific truck. A Pacific

driver transported the load to Pacific’s facility to be recycled. Later that morning,

Pacific employee Ed Dumaw placed the tank into a recycling machine called a shear.

According to an incident report by Pacific’s safety director, during this process, the

valves on the tank blew off, causing a “greenish substance” to escape from the tank

and creating a gas cloud. The gaseous substance that spilled from the tank was later

determined to be chlorine gas. Dumaw, Schuck, three other Pacific employees, and

one nonemployee, experienced difficulty breathing and had to be hospitalized.

Dumaw did not survive.




                                          3
No. 36754-1-III
Schuck v. Beck et al.

       Jackson testified that he did not own the tank and had never seen it before.

He knew that some tanks had been “lying around” on the property for 25, possibly

35, years. But Jackson denied ever seeing this particular tank. Jackson speculated

that a former tenant left the tank after vacating the property or that someone could

have dumped the tank there without his knowledge.

       Beck testified that he thought the tank was a piece of construction equipment,

like a roller. He did not see any exposed valves, and he thought hazardous tanks

usually had guards around valves and warning placards, which this tank lacked.

Beck testified that the appearance of this tank did not “throw up a red flag.”

       Reinland testified that he knew tanks were not salvageable iron unless the

tanks had been emptied and the valves removed. Pacific’s policy was to reject all

tanks or drums without an “empty tank certificate.” It was also against Pacific

policy to accept hazardous waste, pressurized gas cylinders, or other sealed

containers that had not been visibly unsealed.

       Schuck filed this lawsuit against Reinland, Beck, and Jackson, alleging that

they were liable under common law negligence theories and strictly liable for

engaging in abnormally dangerous activities. He also alleged that they failed to

properly dispose of hazardous waste in violation of chapter 70.105 RCW, the

Hazardous Waste Management Act (HWMA).




                                          4
No. 36754-1-III
Schuck v. Beck et al.

       Jackson moved for summary judgment after the trial court dismissed

Schuck’s claims against Beck.2 The trial court initially concluded that Jackson did

not owe Schuck a statutory duty of care under the HWMA and dismissed that claim.

It also determined that Schuck failed to establish that Jackson engaged in

abnormally dangerous activity and dismissed the strict liability claim. The trial

court, however, found genuine issues of material fact as to whether Jackson knew

of the tank and its contents. The trial court also determined that there were genuine

issues of fact as to causation.

       On reconsideration, the trial court concluded that Jackson did not owe a duty

of care to Schuck under the Restatement (Second) of Torts § 388 (Am. Law Inst.

1965), and dismissed the negligence claim, with prejudice, to the extent it was based

on that section of the Restatement. It subsequently dismissed Schuck’s negligence

claim in its entirety, with prejudice, concluding that liability under § 388 was the

only negligence theory available to Schuck because the other theories he

advanced—duties under § 343 (premises liability) and § 302B (liability for criminal

acts of third parties)—were inapplicable to the case.

       Schuck appeals. First, relying on §§ 302, 388, and 392 of the Restatement,

he contends the trial court erred in concluding that Jackson owed no common law


       2
          On October 2, 2018, the trial court granted Beck’s summary judgment
motion and dismissed Schuck’s claims against Beck. Schuck does not appeal from
that ruling. Reinland remains a defendant in the case. The trial court certified the
judgment in favor of Jackson and Ibex as final under CR 54(b) and stayed further
proceedings pending the outcome of this appeal.

                                         5
No. 36754-1-III
Schuck v. Beck et al.

duty of care to him. Second, he maintains the trial court erred in concluding that

Jackson was not strictly liable to him for engaging in abnormally dangerous

activities under Restatement (Second) of Torts § 520 (Am. Law Inst. 1977). Finally,

he argues the trial court erred in concluding that Jackson could not be held liable

under the HWMA.3

                                    ANALYSIS

       Summary judgment is appropriate when the moving party is entitled to a

judgment as a matter of law. CR 56(c). The moving party bears the burden of

demonstrating that there is no genuine issue of material fact, and the court draws all

reasonable inferences in favor of the nonmoving party. Folsom v. Burger King, 135

Wn.2d 658, 663, 958 P.2d 301 (1998). An appellate court performs the same inquiry

as the trial court when reviewing an order for summary judgment. Id. Questions of

law are reviewed de novo. Robb v. City of Seattle, 176 Wn.2d 427, 433, 295 P.3d

212 (2013).




       3
          On March 26, 2020, Jackson filed a Statement of Additional Authorities
containing citations to the record and to cases with parenthetical explanations.
Some of these statements contained argument. Schuck filed a motion to strike. RAP
10.8 permits a party to submit additional authorities for the court’s consideration
before the decision is filed. “The statement of additional authorities must be filed
‘without argument,’ but may include a short comment indicating the portion of the
brief or argument to which the authorities pertain.” Plum Creek Timber Co. v. Wash.
State Forest Practices Appeals Bd., 99 Wn. App. 579, 587 n.2, 993 P.2d 287 (2000).
We agree with Schuck that these materials contained improper argument and do not
qualify under RAP 10.8. We therefore grant Schuck’s motion to strike the March
26, 2020 submission.

                                          6
No. 36754-1-III
Schuck v. Beck et al.

Schuck’s Common Law Negligence Claim

       Schuck first argues that Jackson owed him a common law duty of care under

the Restatement §§ 388 and 302. To prove negligence, Schuck must prove the

existence of a duty, a breach of that duty, and causation. Vargas v. Inland Wash.,

LLC, 194 Wn.2d 720, 730, 452 P.3d 1205 (2019); see also Hertog v. City of Seattle,

138 Wn.2d 265, 275, 979 P.2d 400 (1999). The existence of a duty is a question of

law reviewed de novo. Vargas, 194 Wn.2d at 730.

       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.

In order to have a claim under § 388, a party must satisfy all three subsections (a),

(b), and (c). Mele v. Turner, 106 Wn.2d 73, 79, 720 P.2d 787 (1986). 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

                                          7
No. 36754-1-III
Schuck v. Beck et al.

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.

       But under both provisions of the Restatement, liability is limited to items that

are dangerous “for their intended use.” Comment e to § 388 elaborates:

              e. Ambit of liability. The liability stated in this Section exists
       only if physical harm is caused by the use of the chattel by those for
       whose use the chattel is supplied, and in the manner for which it is
       supplied. . . .

              In order that the supplier of a chattel may be subject to liability
       under the rule stated in this Section, not only must the person who
       uses the chattel be one whom the supplier should expect to use it with
       the consent of him to whom it is supplied, but the chattel must also be
       put to a use to which the supplier has reason to expect it to be put.

(Emphasis added.)

       There is no evidence in the record that Jackson had any reason to expect that

Reinland intended to recycle the chlorine gas tank. Jackson testified that he was at

his home in Montana and was therefore not present on site when Beck selected the

tank for recycling and arranged for its transport to Pacific. Under the bill of sale,

Reinland was free to identify anything on Jackson’s property that Reinland deemed

to have value, either to auction or to scrap. Reinland had no obligation to remove

and dispose of the tank and could have left it there if he determined it was not

recyclable.

       Reinland knew that pressurized tanks were not recyclable. Beck similarly

testified that he would not have touched a tank, let alone taken it to be recycled.

                                           8
No. 36754-1-III
Schuck v. Beck et al.

And Pacific’s policies required employees to reject pressurized tanks unless emptied

and certified. By placing the tank into the shear, the Pacific employees put the tank

to a use that Jackson had no reason to anticipate. For this reason, the trial court did

not err in concluding that Jackson owed Schuck no duty of care under Restatement

§§ 388 or 392.

       Schuck also argues that Jackson owed him a duty of care under Restatement

§ 302, which 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.

The reference to the “foreseeable action of . . . a third [party]” in § 302 is further

defined by Restatement §§ 302A and 302B.              RESTATEMENT § 302 cmt. j.

Restatement § 302A4 describes the duty to intervene to prevent the negligence of a

third party. And Restatement § 302B5 describes the duty to intervene to prevent the

intentional or criminal conduct of a third party. Schuck contends that Jackson owed



       4
          “An act or an omission may be negligent if the actor realizes or should
realize that it involves an unreasonable risk of harm to another through the negligent
or reckless conduct of the other or a third person.”
       5
          “An act or an omission may be negligent if the actor realizes or should
realize that it involves an unreasonable risk of harm to another through the conduct
of the other or a third person which is intended to cause harm, even though such
conduct is criminal.”

                                          9
No. 36754-1-III
Schuck v. Beck et al.

him a duty to know the tank was present on the Jackson Property and to warn

Reinland, Beck, or the Pacific employees not to recycle the chlorine gas tank. We

disagree.

       Our Supreme Court’s decision in Robb v. City of Seattle is instructive. In

that case, the court said that there is generally no duty to prevent a third person from

causing harm to another, absent a special relationship with the injured party. 176

Wn.2d at 433. But the court acknowledged:

       “There are . . . situations in which the actor, as a reasonable man, is
       required to anticipate and guard against the intentional, or even
       criminal, misconduct of others. In general, these situations arise
       where . . . the actor’s own affirmative act has created or exposed the
       other to a recognizable high degree of risk of harm through such
       misconduct, which a reasonable man would take into account.”

Id. at 434 (emphasis omitted) (quoting RESTATEMENT § 302B cmt. e). 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. Instead, relying on comment a

to § 302, our Supreme Court held that the key is whether the claimed negligence is

based on an alleged affirmative act that created the risk of harm or an alleged

omission. Id. at 436. The former would result in a duty under § 302B, while the

latter would not. Id. at 436-37.

       In Robb, law enforcement officers conducted a Terry6 stop on a burglary

suspect, Samson Berhe, but failed to pick up shotgun cartridges on the ground near



       6
           Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

                                          10
No. 36754-1-III
Schuck v. Beck et al.

Berhe. Id. at 429-30. After his release, Berhe retrieved the cartridges and used one

to kill Robb. Id. at 429. Robb’s widow sued the City of Seattle, arguing the officers

were negligent in failing to collect the cartridges after the Terry stop. Id. The court

rejected Robb’s widow’s contention that the officers owed Robb a duty under

§ 302B:

                The police officers in this case did not affirmatively create a
       new risk when they stopped Berhe and failed to pick up the nearby
       shells. The officers did not provide the shells, nor did they give Berhe
       the shotgun he used to kill Robb. The officers failed to remove a risk
       when they did not remove the shells. Berhe would have presented the
       same degree of risk had Officers Lim and McDaniel never stopped
       him. Simply put, the situation of peril in this case existed before law
       enforcement stopped Berhe, and the danger was unchanged by the
       officers’ actions. Because they did not make the risk any worse, their
       failure to pick up the shells was an omission, not an affirmative act,
       i.e., this is a case of nonfeasance.

Id. at 437-38. Accordingly, the court concluded, the failure to eliminate a peril does

not give rise to liability for the harm caused by a third party under § 302B. Id. at

439.

       Here, Schuck’s claim is based on Jackson’s failure to eliminate the peril

presented by Pacific’s decision to place a pressurized tank into a shear. This is 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. As in Robb,

the failure to prevent Reinland or Beck from removing the tank from the property

or to warn them of the hazardous material in that tank is an omission, not an




                                          11
No. 36754-1-III
Schuck v. Beck et al.

affirmative act that created a new risk of harm to Schuck. The trial court correctly

concluded that Jackson did not owe Schuck a duty of care under § 302B.7

Schuck’s Common Law Strict Liability Claim

       Schuck next argues that Jackson engaged in abnormally dangerous activities

by disposing of a tank filled with chlorine gas, making him strictly liable for

Schuck’s injuries. Jackson contends that the only activity in which he engaged was

a commercial transaction—the sale of items on his property—an act that is not

abnormally dangerous. We agree with Jackson.

       Whether an activity is an abnormally dangerous activity is a question of law.

Klein v. Pyrodyne Corp., 117 Wn.2d 1, 6, 817 P.2d 1359 (1991). The Restatement

§ 519 provides:

       (1) 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.

       (2) This strict liability is limited to the kind of harm, the possibility of
       which makes the activity abnormally dangerous.

Courts consider the following factors in determining what constitutes an abnormally

dangerous activity:

       (a) existence of a high degree of risk of some harm to the person, land
       or chattels of others;

       7
         Schuck argues, for the first time on appeal, that Jackson owed him a duty
of care under § 302A. Because this argument was not raised below, we decline to
address it on appeal. RAP 2.5(a), 9.12; see also Washburn v. Beatt Equip. Co., 120
Wn.2d 246, 290, 840 P.2d 860 (1992) (“Arguments or theories not presented to the
trial court will generally not be considered on appeal.”).

                                           12
No. 36754-1-III
Schuck v. Beck et al.


       (b) likelihood that the harm that results from it will be great;

       (c) inability to eliminate the risk by the exercise of reasonable care;

       (d) extent to which the activity is not a matter of common usage;

       (e) inappropriateness of the activity to the place where it is carried on;
       and

       (f) extent to which its value to the community is outweighed by its
       dangerous attributes.

RESTATEMENT § 520. “The essential question is whether the risk created is so

unusual, either because of its magnitude or because of the circumstances

surrounding it, as to justify the imposition of strict liability for the harm that results

from it, even though it is carried on with all reasonable care.” RESTATEMENT

(SECOND) OF TORTS § 520 cmt. f (1977).

       In the present case, the trial court dismissed Schuck’s strict liability claim on

summary judgment, reasoning that:

       Here, the record fails to establish [Jackson was] engaged in an
       abnormally dangerous activity. Neither the magnitude nor the
       circumstances surrounding the disposal of a single tank created an
       unusual risk that could not have been easily . . . mitigated. Had
       reasonable care been used in the disposal of the tank, the risk of harm
       would have been minimal.

We agree that these factors weigh against strict liability. The fact that a tank of

chlorine gas can be safely disposed of undermines the argument that Jackson should

be held strictly liable. See RESTATEMENT OF TORTS (Second) §520 cmt. h (1977)

(“Another important factor to be taken into account in determining whether the


                                           13
No. 36754-1-III
Schuck v. Beck et al.

activity is abnormally dangerous is the impossibility of eliminating the risk by the

exercise of reasonable care.”). Had Reinland, Beck, or Pacific properly disposed of

the tank, it would not have posed a threat of injury or been otherwise dangerous.

       We also agree with Jackson that the only activity in which he engaged was

to contract with Reinland for the sale of items on the property. He did not engage

Reinland to “dispose” of this tank. There is no evidence that Jackson required

Reinland and Beck to remove the tank from the Jackson Property, even if we assume

Jackson knew it was there. Jackson testified that Reinland was not obligated to take

every single item—everything Reinland did not want to take would remain on the

property. This undisputed evidence undermines Schuck’s contention that Jackson

engaged in the act of disposing the tank.

       The undisputed evidence further established that Jackson sold Reinland some

specific items and a right to take “scrap metal” from the property. It was up to

Reinland to determine what fit the description of “scrap metal” and what did not.

And Schuck did not present evidence that Reinland was acting as Jackson’s agent.

Because the only act that Jackson engaged in was the sale of goods to Reinland, it

cannot be said that Jackson engaged in an abnormally dangerous activity.

Schuck’s Claim under HWMA

       Finally, Schuck argues that Jackson owed him a statutory duty of care under

the HWMA. The purpose of the HWMA “is to establish a comprehensive statewide

framework for the planning, regulation, control, and management of hazardous


                                            14
No. 36754-1-III
Schuck v. Beck et al.

waste which will prevent land, air, and water pollution and conserve the natural,

economic, and energy resources of the state.” RCW 70.105.007. The HWMA gives

the Department of Ecology the authority to regulate these processes.           RCW

70.105.007(1). The HWMA imposes civil penalties for those who do not comply

with chapter 70.105 RCW or with the associated rules and regulations. RCW

70.105.080. A person injured as a result of an HWMA violation may seek damages.

RCW 70.105.097; see also Hickle v. Whitney Farms, Inc., 148 Wn.2d 911, 919, 64

P.3d 1244 (2003).

       The HWMA regulations are codified in chapter 173-303 WAC. The chapter

applies to: “(1) [g]enerators; (2) [t]ransporters; (3) [o]wners and operators of

dangerous waste recycling, transfer, storage, treatment, and disposal facilities; and

(4) [t]he operator of the state’s extremely hazardous waste management facility.”

WAC 173-303-020.

       A generator “means any person, by site, whose act or process produces

dangerous waste or whose act first causes a dangerous waste to become subject to

regulation.”   WAC 173-303-040.       Generators of solid waste have a duty to

determine whether or not the waste they produce is regulated by the HWMA.

Hickle, 148 Wn.2d at 919. And the regulations require a person generating a solid

waste, including recyclable materials, to follow a proscribed procedure to determine




                                         15
No. 36754-1-III
Schuck v. Beck et al.

whether or not their solid waste is designated as a dangerous waste under WAC 173-

303-070(1)(b).8 Id. at 920.

       Schuck argues that Jackson was a “generator” of hazardous waste because

he effectively operated a junk yard by allowing people to dump anything, including

an apparently abandoned chlorine gas tank, on his property.             But Schuck’s

interpretation of the word “generator” in the regulation is overly broad and not

supported by the text. To “generate” means to “cause to be” or to “bring into

existence.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 945 (2002). The

WAC definition of a “generator” is consistent with this dictionary definition, as it

clearly limits the category of “generator” to the person who, through his own

conduct, creates the hazardous waste or the person whose action “first” causes the

waste to become subject to regulation. Thus, to establish generator liability under

the HWMA, Schuck would have to produce evidence that Jackson either engaged


       8
         (1) Purpose and applicability.
       ...
       (b) The procedures in this section are applicable to any person who
       generates, or discovers on their site, a solid waste, as defined in WAC
       173-303-016 (including recyclable materials) that is not exempted or
       excluded by this chapter, or by the department, or who is directed to
       or must further designate waste by subsection (4) or (5) of this section.
       Any person who generates or discovers a solid waste on their site must
       make an accurate determination if that waste is a dangerous waste in
       order to ensure wastes are properly managed according to applicable
       dangerous waste regulations. A dangerous waste determination is
       made by following the designation procedures set forth in subsection
       (3) of this section. Any person who determines by these procedures
       that their waste is designated DW or EHW is subject to all applicable
       requirements of this chapter.
                                          16
No. 36754-1-III
Schuck v. Beck et al.

in a process, the product of which was a waste defined as hazardous under the

regulations, or that he was the first person to dispose of the waste (and thus caused

the tank to become a hazardous waste subject to regulation).

Schuck has no such evidence. Jackson testified that he did not use chlorine gas in

his business operations, that he did not purchase or fill the tank, and that he did not

know who disposed of the tank on his property. Based on this record, Schuck failed

to create a genuine issue of material fact that Jackson was a generator of hazardous

waste within the meaning of chapter 173-303 WAC. The trial court did not err in

dismissing the HWMA claim.9

       We affirm the trial court’s dismissal of Schuck’s claims against Jackson.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.



                                                         Andrus, J.

WE CONCUR:



       Lawrence-Berrey, J                                     Pennell, C.J.

       9
         Schuck also argues on appeal that Jackson was subject to liability under the
HWMA because he was operating a hazardous waste facility on his property. But
Schuck conceded below that he was not making this argument. Schuck also
explicitly said that his claims “against the Jacksons/Ibex under the HWMA are
based on their status as ‘generators.’” We thus decline to address this alternative
argument on appeal.

                                          17
