Washington's appellate courts follow the doctrine of stare decisis and do not readily overturn long-standing common law precedents. While it is not easy to secure a reversal of a long-standing common law rule under Washington law, it is possible, if counsel carefully considers how to approach the appellate courts on such a question.1
As our Supreme Court has stated with respect to stare decisis, the doctrine provides a stabilizing influence on the law, otherwise "law could become subject to ... the whims of current holders of judicial office."2 Consistent with that notion, our Supreme Court has also recognized that before a long-standing principle of common law will be reversed, a party must make "a clear showing that an established rule is incorrect and harmful before it is abandoned."3
Given our Court's view on stare decisis, it is, therefore, important for counsel at the outset to have CR 11 firmly in mind. It is appropriate to advocate for a change in the law, but counsel should carefully research the issue at stake to be sure there is a sound rationale for believing a long-standing rule should be abandoned.
Moreover, in seeking reversal of a long-standing common law rule, most often such principles are found in Supreme Court precedents. It is probably wise to assume that the issue must ultimately be presented to the Supreme Court, most likely by direct review.4
Davis v. Baugh
An example of a case in which a long-standing common law rule was overturned is Davis v. Baugh Indus. Contractors, Inc.,5 a case demonstrating how our Supreme Court addresses issues of stare decisis and abandonment of a long-standing common law rule. In Davis, the Court was confronted with the common law doctrine of completion and acceptance, which limits the liability of contractors and design professionals for negligent work once such work has been completed and accepted by the owner of the property on which the work was done.
There, Baugh was the general contractor for a large processing facility for Glacier Northwest. Baugh hired E.J. Rody & Sons, Inc. as its subcontractor for the installation of underground piping on the project. The underground piping work was undertaken in 1996 and substantially completed in the following year. Glacier accepted the work and began using the facility.
In 2000, one of the underground pipes began to leak. The decedent, Alan Davis, was assigned by Glacier to find the source of the leak, which was discharging millions of gallons of water into the soil. Davis and his crew excavated a hole trying to find the source, but a number of enormous construction cement blocks fell into the hole when a nearby wall collapsed, killing Davis.
The trial court dismissed the Davis estate's complaint against Baugh on the basis of the completion and acceptance doctrine. The Supreme Court granted direct review and reversed the trial court's order in a 6-3 decision, abandoning completion and acceptance in favor of a general foreseeability rule as articulated in the Restatement (2nd) of Torts, ยค 385. The Court's majority opinion, authored by Justice Tom Chambers, concluded that stare decisis should not apply and found that completion and acceptance had, in fact, outlived its usefulness and was harmful for Washington citizens. The dissenting opinion, authored by Justice Jim Johnson, adhered to stare decisis.
A Studied Approach
In approaching a case in which the client is seeking to overturn a long-standing common law rule, a number of practical questions come into play. First, counsel should evaluate the nature of the rule. Counsel should look to see how long the rule has been in place, the nature of the exceptions to the rule, and the last time that the Supreme Court addressed the rule. In Davis, these were all significant considerations.
The completion and acceptance doctrine found its origins in very old case law starting at the turn of the 20th Century. The sensibilities of Washington's Supreme Court about tort liability in the early 1900s were clearly different than is true for our modern Court. Moreover, Washington's appellate courts had carved out a number of exceptions to completion and acceptance. In many respects, those exceptions had eviscerated the rule.
Finally, the Supreme Court had not reviewed a completion and acceptance case on the merits for at least 40 years. In sum, given the way that the rule had been developed under Washington's common law, there was a good basis for believing the Supreme Court might want to change the rule.
A second consideration is whether the Legislature has spoken on some aspect of the common law rule at issue in the case. In Davis, the Legislature had adopted a statute of repose for claims involving contractors and design professionals in construction. Although the Legislature had not fully overturned the completion and acceptance doctrine in enacting such legislation, the Legislature's enactment of the construction statute of repose gave contractors and design professionals significant protection from stale claims. The Davis court could feel comfortable that it was not opening up contractors and design professionals to open-ended liability by abandoning completion and acceptance.
Third, with the foregoing principles in mind, counsel should look to whether the actual rule is harmful within the meaning of the stare decisis jurisprudence in Washington. This analysis calls for careful research regarding the law in other jurisdictions, the treatment of the issue in treatises, and the policy questions associated with the doctrine.
In Davis, it was clear from the law in other jurisdictions that more than two-thirds of the other states had abandoned completion and acceptance in favor of the Restatement's foreseeability rule. Completion and acceptance was subject to substantial scholarly criticism as archaic.
Completion and acceptance also was not sensible in modern life. Perhaps at the turn of the 20th Century, owners could carefully review each and every aspect of work performed on their property by contractors and other design professionals before "accepting" such work, but such a principle was clearly unrealistic for large projects like Glacier Northwest's. Glacier could hardly review each and every pipe as it was being buried on the site at a large industrial facility. Completion and acceptance was simply too artificial for the modern construction experience.
Finally, the assistance of amici curiae in presenting the issue to the Court, both at the point of seeking direct review and on the merits, is vital. Amici advised the Supreme Court that the abandonment of the long-standing common law precedent would not cause a hardship to other potentially affected persons or industries.
Counsel seeking to have a long-standing common law rule overturned by Washington's Supreme Court must pay attention to the principles of stare decisis. It is important to have a complete understanding of the common law rule at issue, its genesis, its exceptions and its present viability. A policy argument on the rule is essential before the Washington Supreme Court will likely abandon a common law rule that has been in place for an extended period of time. n
Phil Talmadge, a former legislator and justice of the Washington Supreme Court, was counsel of record in Davis v. Baugh. His firm, Talmadge Law Group PLLC in Tukwila, specializes in appellate practice. He can be reached at 206-574-6661 or by email at phil@talmadgelg.com.
1 There are, of course, actually two mechanisms by which long-standing common law rules can be altered. The first is to approach the Legislature to overturn a common law principle. See Philip A. Talmadge, A New Approach to Statutory Interpretation, 25 Sea. U.L. Rev. 179 (2001). This article only focuses on actions in court.
2 In re Rights to Waters of Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d 508 (1970).
3 Id. at 653; Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 147, 94 P.3d 930 (2004).
4 See RAP 4.2 (a).
5 159 Wn.2d 413, 150 P.3d 545 (2007).
