Wheeler v. Bock

JENNA J. WHEELER, on behalf of herself and her minor daughter,CHASTITY YOUNGBLOOD,and as the Personal Representative of the Estates ofNIKOLAS W. WEISENBACH and OMEN W. WEISENBACH, Appellants, v. MARVIN G. BOCK and NADINE EVANS, husband and wife,and the marital community composed thereof;MACPHERSON'S PROPERTY MANAGEMENT, INC., a Washington corporation, Respondents,SUBARNA KAKSHAPATI, a single person; PEAK IMPROVEMENTS, LLC,a Washington limited liability corporation, Defendants.

No. 79427-2-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

December 21, 2020

UNPUBLISHED OPINION

SMITH, J. — This case concerns the tragic death of a young man and his son. Nikolas Weisenbach and his son, Omen, died from smoke inhalation caused by a fire in the apartment where they lived with Jenna Wheeler and her daughter, Chastity Youngblood.¹ After their deaths, Jenna, on behalf of herself,her daughter, and the decedents' estates (collectively Wheelers), sued MacPherson's Property Management (MPM) and Marvin Bock and Nadine Evans (collectively respondents) for wrongful death. The Wheelers alleged that the respondents acted negligently by violating the municipal code, which required property owners to have a self-closing and self-latching door between private garages and dwelling units.

After the Wheelers' fire dynamics expert, Kenneth Rice, contradicted his deposition testimony and opined that Nikolas and Omen were alive before neighbors forced open the apartment's exterior garage door, MPM moved to strike Rice's declaration. The trial court granted MPM's motion but only with regard to Rice's statements that Nikolas and Omen were alive prior to the garage door being opened. Because the statements were in clear contradiction to his prior testimony, we affirm the trial court's order striking Rice's statements. We further conclude that the admissible evidence failed to present any genuine issues of material fact as to whether the broken self-closing mechanism was the cause in fact of Nikolas's and Omen's deaths. Therefore, we affirm the trial court's orders granting summary judgment in favor of the respondents.

FACTS

Beginning in 2015, Nikolas and Jenna, along with their children Chastity, age nine, and Omen, age four, leased unit A at 2307 O St. NE in Auburn, Washington. Unit A was a part of "a two story, multi-family" structure with four single family units and "four single car garage spaces on the south side of the structure" (property). Throughout their lease, Jenna and Nikolas used theirattached garage as a "living space" and did not park an automobile therein.

In 2017, Bock and Evans sought to purchase the property, which MPM managed. Prior to their purchase, Bock and Evans received two inspection reports, one report from the previous owner's inspection, and a second report, which they had completed. Both inspection reports found that unit A's self-closing door between the garage and the kitchen was broken. The first inspection report noted that the self-closing door was "intended to prevent vehicle fumes from entering living spaces and to slow the spread of fire from the garage to living spaces." The second inspection report recommended that the property owners repair the self-closing door. Bock later testified that he was aware of the issue but did not "want to jeopardize the sale of the property by asking for too much," so he did not request that the previous owner repair the door.

On July 9, 2017, Bock and Evans finalized their purchase of the property. That same day, Jenna and Nikolas were in their garage, drinking, smoking marijuana, and listening to music with their friend and neighbor, Ashley Sodorff. Ashley and her father, Robert Sodorff lived at the property in the unit adjacent to Nikolas and Jenna. Shortly after Ashley returned to her home, at around 11:30 p.m., a fire started in unit A's kitchen. A pot of vegetable oil was left unattended and caught fire after overheating. In his report, Valley Regional Fire Authority (VRFA) Deputy Fire Marshall John Monsebroten found that "[t]he activation of the stove element appears accidental based on interviews and the area of origin exam."

When the fire started, Chastity and Omen were sleeping in their bedroom on the second floor. When she smelled smoke, Chastity told Omen to stay there and went downstairs. She "saw fog everywhere" and "described the smoke level to be at about 4 feet, just low enough to have to stoop but not so low as to crawl." However, Chastity did not see any flames until she reached the kitchen. When Chastity entered the kitchen, Jenna entered from the garage, and they exited through the slider door on the side of the house. They left the slider door open. Nikolas, who was originally outside as well, entered the home through the slider door and went upstairs to get Omen.

The Sodorffs heard a commotion and exited their unit through their garage. At some point, Matthew Ditmar, another individual living at the property, and Robert forced open the exterior garage door to unit A. At the time, "[t]here was no fire in the garage," but the kitchen was a "[a] wall of fire," from "[f]loor to ceiling." "[W]ithin two to three seconds," the fire spread towards the exterior garage door, "rolling up along the ceiling" of the garage space. Various witnesses stated that at one point, they "thought they heard" an explosion and that, thereafter, the fire grew significantly in size and intensity.

At some point, Nikolas opened the children's bedroom window. Deputy Fire Marshall Monsebroten testified that based on a video exhibit, while he did not have a "defined timeframe" for when Nikolas opened the window, "it changed the [fire's] vent path," accelerating the fire. He testified that with "'the fire behavior that occurred on floor 2," it is unlikely that anyone "would have survived [even] in PPE.'" His report also stated that "[t]he garage door being openedeffected ventilation of the fire" and "increased fire growth in the garage and kitchen." The fire then intensified and spread "to adjacent areas."

In her declaration, Megan Chaney, another witness, recalled that when she and Trevor Smith heard screaming and saw the fire, they ran to the Wheelers' home to assist them. At the time, she remembered seeing "Nickolas [sic] moving around in the children's upstairs bedroom through the window in that bedroom." She stated that there was no fire in the bedroom at that time, but that shortly after she and Smith arrived, "[w]hat had been a relatively small fire confined primarily to the kitchen area had suddenly and unexpectedly turned into a massive fire enveloping the entire unit."

In his declaration, Smith stated that he could not remember "whether the garage door was opened or closed" when he approached the house. When he reached the slider door, Smith alleged that "the fire suddenly erupted" and engulfed the second floor. After the fire enveloped the rest of the apartment, Chaney "could again see Nik in the children's upstairs bedroom," standing at the open window. Instead of jumping, as onlookers suggested, "Nik turned and went back into the bedroom." Chaney testified that, thereafter, she heard him scream.

The respondents' expert fire investigator, Richard Carman, testified that the fire "expanded out very quickly," creating a "tremendous amount of" smoke, or what he referred to as "unburned fire gases." According to Carman, unburned fire gases are "molecules of toxic chemicals" that are "extremely dangerous and deadly." He alleged that the fire gases "immediately . . . extended to the stairway[ and] . . . filled up the second floor," and that Omen "was obviouslyaffected very quickly." Carman testified that based on Omen's autopsy, Omen had a 52 percent saturation of the harmful chemical, carbon hemoglobin, and that such a percentage "is certainly more than enough to kill someone." Carman stated that an individual begins to lose consciousness at 40 percent saturation of carbon hemoglobin. Carman further asserted that Nikolas "probably died within one to two minutes after he reached the second floor because his saturation level was 72 percent," but that Nikolas became disoriented immediately upon entering the second floor to look for Omen.

After the fire was extinguished, Nikolas and Omen were found deceased in the children's second story bedroom: Nikolas "at the foot of the children's bunk-bed," and Omen "face down in the doorway." Autopsies indicated that both Nikolas and Omen died from "toxic asphyxia due to smoke inhalation." Nikolas had prominent thermal charring of his body, and Omen had "near total charring of the body surface."

PROCEDURE

In September 2017, the Wheelers sued the respondents for the wrongful death of Nikolas and Omen.² The Wheelers alleged that the respondents were negligent in failing to repair the self-closing door between the garage space and the kitchen and that when the neighbors forced open the exterior garage door, air from the outside accelerated the fire, causing Nikolas's and Omen's deaths. Specifically, the Wheelers argued that had the interior garage door automaticallyclosed as required by the city of Auburn's (City) municipal code, oxygen would not have been able to enter the home and accelerate the fire.

During discovery, the respondents deposed the Wheelers' "fire science" expert, Rice. During the deposition, the respondents asked Rice, "Can you testify whether Nik and Omen were still alive or not when the exterior garage door was opened?" He responded, "No." Rice also said that he did not have an opinion on how long someone could survive in smoke or heat without protective gear.

In October 2018, MPM and Bock and Evans separately moved for summary judgment dismissal of all of the Wheelers' claims. MPM asserted that the Wheelers failed to present a genuine issue of material fact with regard to causation. MPM also argued that Jenna's expert, Rice, did not and could not testify that Nikolas and Omen were alive when the neighbors...