Angelina Demaine, et al v. First American Title Insurance Company, et al

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
ANGELINA DEMAINE, individually;
PAIGE VIGUS, a minor and child of
ANGELINA DEMAINE who will act as
her Guardian ad litem,
Appellants,
v.
FIRST AMERICAN TITLE
INSURANCE COMPANY, a California
corporation; JAMES A. WOLFF and
“JANE DOE”, individually and the marital
community composed thereof; CITY OF
SPOKANE, municipal corporation of the
State of Washington; “JOHN DOE
COMPANY”, a business entity,
Respondents.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
No. 37236-7-III
UNPUBLISHED OPINION
FEARING, J. — We are asked to determine if a complaint states a cause of action.
We hold that it does and reverse the trial court’s dismissal of the complaint.
FACTS
Angelina DeMaine pled the following facts in her first amended complaint.
Defendant 40 Main, LLC owns the building located at 40 East Spokane Falls Boulevard
FILED
FEBRUARY 11, 2021
In the Office of the Clerk of Court
WA State Court of Appeals Division III

No. 37236-7-III
Demaine, et al v. First American Title Insurance Co., et al
2
in Spokane. Defendant First American Title Insurance Company rents the building from
40 Main. Defendant City of Spokane owns the sidewalk and parking area behind the
building. According to DeMaine, 40 Main and First American Title “designed,
constructed, inspected, repaired, and maintained the sidewalk and parking area for the
building located at 40 East Spokane Falls Boulevard.” Clerk’s Papers (CP) at 47.
On March 19, 2016, Angelina DeMaine parked her vehicle in a city parking area
behind 40 Main’s building. After DeMaine walked toward the building, she needed to
retrieve possessions from her car. She walked back toward her vehicle down the city
sidewalk and diagonally crossed a grassy area, known as a planting strip, between the
sidewalk and her parked car. Although it was dark, DeMaine saw a manhole cover and
walked by the cover on the left side. DeMaine did not notice a piece of broken concrete
manhole cover, and her right foot got stuck in a hole. DeMaine then stepped onto the
manhole cover and twisted her left foot, causing her to fall and sprain her ankle.
PROCEDURE
On March 13, 2019, Angelina DeMaine filed a complaint for negligence against
First American Title, the City of Spokane, and “John Doe Company.” CP at 3. On July
1, 2019, Angelina DeMaine filed an amended summons and complaint. The amended
complaint removed John Doe Company as defendant and added 40 Main as a defendant.
The amended complaint reads, in relevant part:

No. 37236-7-III
Demaine, et al v. First American Title Insurance Co., et al
3
3.2. At all relevant times, the building located at 40 East Spokane
Falls Boulevard in the city and county of Spokane in the State of
Washington is the property of the defendant 40 Main, LLC. . . . Said
building is occupied by the defendant First American Title Insurance
Company. The sidewalk and parking areas outside the building are under
the control of the defendant City of Spokane. . . .
. . . .
4.2. On or before March 19, 2016, the defendants designed,
constructed, inspected, repaired, and maintained the sidewalk and parking
area for the building located at 40 East Spokane Falls Boulevard in a
negligent and careless manner so that the plaintiff DeMaine tripped over a
poorly visible hole in a broken manhole cover and fell causing her to suffer
serious injuries.
CP at 46-47 (some emphasis added).
On September 9, 2019, First American Title filed a motion to dismiss on the
pleadings pursuant to CR 12(c) and CR 12(h)(2). 40 Main later joined the motion to
dismiss. First American Title and 40 Main argued that they did not owe any duty to
prevent Angelina DeMaine’s injury on property that the City, not them, controlled.
On October 10, 2019, Angelina DeMaine requested leave to amend her complaint
for a second time and filed a motion under CR 56(f) for continuance of the hearing date
for First American Title’s and 40 Main’s motion for dismissal. DeMaine sought the
continuance to gain more time to conduct discovery.
On October 25, 2019, the trial court granted Angelina DeMaine’s motion to amend
its complaint a second time. DeMaine, however, neither filed the new complaint nor
served it on either 40 Main or First American Title Insurance. The trial court denied
DeMaine’s motion to continue the hearing date for the motion dismiss.

No. 37236-7-III
Demaine, et al v. First American Title Insurance Co., et al
4
The second amended complaint changed the language in paragraphs 3.2, 3.3, and
4.2. Those paragraphs read:
3.2. At all relevant times, the building located at 40 East Spokane
Falls Boulevard in the city and county of Spokane in the State of
Washington is the property of the defendant 40 Main, LLC. . . . The
sidewalk, planting strip, and parking areas located outside the south end of
this building are along 40 East Main Avenue and are under the control of
the defendants 40 Main, LLC and First American along with defendant City
of Spokane. . . .
3.3. Sometime before March 19, 2016, the defendants (or their
predecessors) planned, installed, and began maintaining the planting strip
between the street and the sidewalk along 40 East Main Avenue at the
south end of building located at 40 East Spokane Falls Boulevard. The
defendants (or their predecessors) installed a sprinkler system in the
planting strip along with a manhole with a concrete cover and three green
in-ground sprinkler boxes with lids. The area around the sprinkler boxes
and concrete manhole cover became compressed by tree roots causing the
lids not to fit on the sprinkler boxes. The manhole with cover and the
sprinkler boxes with cover were part of the planting strip’s sprinkler
system. The manhole’s concrete cover was heavy and a piece of it had
broken off leaving a hole in the manhole that should have been covered.
. . . .
4.2. On or before March 19, 2016, the defendants (or their
predecessors) designed, constructed, inspected, repaired, and maintained
the sidewalk, planting strip (with sprinkler system), and parking area
located along 40 East Main Avenue along the south side of the building
with the address of 40 East Spokane Falls Boulevard in a negligent and
careless manner so that the plaintiff DeMaine stepped into a poorly visible
hole created by a broken manhole cover and fell causing her to suffer
serious injuries.
CP at 108-10 (some emphasis added). The second amended complaint adds an allegation
that 40 Main and First American Title control the parking strip.
On November 4, 2019, the trial court granted the defendants’ motion and

No. 37236-7-III
Demaine, et al v. First American Title Insurance Co., et al
5
dismissed all claims against 40 Main and First American Title. The trial court ruled that
Angelina DeMaine’s complaint failed to allege facts that showed that First American
Title and 40 Main owed a duty to Angelina DeMaine.
LAW AND ANALYSIS
Angelina DeMaine assigns error to two of the trial court’s decisions: (1) its denial
of her motion for a continuance of the dismissal motion pursuant to CR 56(f), and (2) its
granting of the motion to dismiss. By way of her first assignment of error, DeMaine
argues she should have been granted the opportunity for discovery before the court
entertained the motion to dismiss. Because we reverse the dismissal of the suit, we need
not address this assignment of error.
In response to the motion for judgment on the pleadings, Angelina DeMaine’s
counsel filed a declaration on October 10, 2019. The declaration should have transmuted
the defense motion into a summary judgment motion, but the parties continued to litigate
the case before the superior court and continue to litigate the case before this reviewing
court as a motion for judgment on the pleadings. We do the same.
When resolving Angelina DeMaine’s second assignment of error, we must first
resolve whether to consider Angelina DeMaine’s first amended complaint or second
amended complaint. CR 15 governs amended pleadings. The rule states in relevant part:
If a motion to amend is granted, the moving party shall thereafter
file the amended pleading and, pursuant to rule 5, serve a copy thereof on
all other parties.

No. 37236-7-III
Demaine, et al v. First American Title Insurance Co., et al
6
CR 15(a) (emphasis added). Although the trial court granted DeMaine’s motion to file
the second amended complaint, DeMaine did not fulfill the rule’s requirement of filing or
serving the second amended complaint. Thus, the defendants argue the court should not
consider the second amended complaint.
Angelina DeMaine agrees that the first amended complaint is the operative
complaint for purposes of the motion to dismiss, but asks that we consider the second
amended complaint as containing additional hypothetical facts consistent with her first
amended complaint. In analyzing a motion to dismiss, we presume the plaintiff’s
allegations to be true and we may consider hypothetical facts not included in the record.
Tenore v. AT&T Wireless Services, 136 Wn.2d 322, 330, 962 P.2d 104 (1998). Since we
consider the first amended complaint sufficient to survive a motion to dismiss on its own,
we do not address DeMaine’s request.
The defendants brought their motion to dismiss under both CR 12(c) and CR
12(h). CR 12(c), which governs motions for judgment on the pleadings, states:
After the pleadings are closed but within such time as not to delay
the trial, any party may move for judgment on the pleadings. If, on a
motion for judgment on the pleadings, matters outside the pleadings are
presented to and not excluded by the court, the motion shall be treated as
one for summary judgment and disposed of as provided in rule 56, and all
parties shall be given reasonable opportunity to present all material made
pertinent to such a motion by rule 56.

No. 37236-7-III
Demaine, et al v. First American Title Insurance Co., et al
7
CR 12(h)(2) declares:
A defense of failure to state a claim upon which relief can be
granted, a defense of failure to join a party indispensable under rule 19, and
an objection of failure to state a legal defense to a claim may be made in
any pleading permitted or ordered under rule 7(a), or by motion for
judgment on the pleadings, or at the trial on the merits.
We conflate our analysis under the respective sections of CR 12. Subsection (h)
references a failure to state a claim. Appellate courts treat a CR 12(c) motion for
judgment on the pleadings identically to a CR 12(b)(6) motion to dismiss for failure to
state a claim. P.E. Systems, LLC v. CPI Corp., 176 Wn.2d 198, 203, 289 P.3d 638
(2012).
This court reviews a dismissal under CR 12(c) de novo. P.E. Systems, LLC v. CPI
Corp., 176 Wn.2d 198, 203 (2012). At this stage, a court should dismiss a complaint
only when it appears beyond doubt that the plaintiff cannot prove any set of facts that
would justify recovery. Davidson v. Glenny, 14 Wn. App. 2d 370, 375, 470 P.3d 549
(2020). In undertaking such an analysis, we presume the plaintiff’s allegations to be true,
and, as already written, we may consider hypothetical facts not included in the record.
Tenore v. AT&T Wireless Services, 136 Wn.2d 322, 330 (1998). A motion to dismiss
under CR 12(c) should be granted sparingly and with care and only in the unusual case,
in which plaintiff includes allegations that show on the face of the complaint some
insuperable bar to relief. Hoffer v. State, 110 Wn.2d 415, 421, 755 P.2d 781 (1988).
Angelina DeMaine’s complaint does not fall into this category of “the unusual case.”

No. 37236-7-III
Demaine, et al v. First American Title Insurance Co., et al
8
The two defendants contend that, even construing the allegations in the first
amended complaint in the light most favorable to Angelina DeMaine, the complaint fails
to allege a viable legal duty applicable to them. They cite the rule that property owners
and occupants do not owe a duty to pedestrians harmed on adjoining land merely based
on their proximity to the neighboring property or easements. The neighboring property
here is the parking strip. The defendants contend that DeMaine fails to allege any of the
few exceptions to this rule. In turn, the defendants identify the “special use” exception to
nonliability and emphasize that DeMaine alleges no special use of the city’s property by
them. Finally, the defendants argue that the first amended complaint fails to plead any
facts supporting a claim of a natural or artificial, unreasonably dangerous condition in the
parking strip, let alone on property that they control. The defendants read the first
amended complaint too narrowly.
The first amended complaint alleges that only the city of Spokane controls the
parking area, in which Angelina DeMaine allegedly sustained injuries. Nevertheless, in
paragraph 4.2, DeMaine alleges that all defendants, including First American Title and 40
Main, “designed, constructed, inspected, repaired, and maintained the sidewalk and
parking area for the building located at 40 East Spokane Falls Boulevard in a negligent
and careless manner so that the plaintiff DeMaine tripped over a poorly visible hole in a
broken manhole cover and fell causing her to suffer serious injuries.” CP at 47. This
allegation can impose liability on the defendants even if neither controlled the area.

No. 37236-7-III
Demaine, et al v. First American Title Insurance Co., et al
9
While, ordinarily, a person who is not the owner and is not in control of property
is not liable for negligence with respect to that property, a person who is not a possessor
of the premises, but negligently creates a dangerous hazard, may be liable for reasonably
foreseeable harm. 62 AM. JUR. 2D Premises Liability § 7 (2002). One who, on behalf of
the possessor of land, erects a structure or creates any other condition on the land is
subject to the same liability, and enjoys the same freedom from liability, as though he or
she were the possessor of the land, for physical harm caused to others upon or outside of
the land by the dangerous character of the structure or other condition while the work is
in his or her charge. 62 AM. JUR. 2D Premises Liability § 7 (2002). A non-possessor
who negligently creates a dangerous hazard may be liable for reasonably foreseeable
harms. Davis v. R C & Sons Paving, Inc., 2011 ME 88, 26 A.3d 787, 792.
Under Restatement (Second) of Torts § 384 (Am. Law Inst. 1965):
Liability of Persons Creating Artificial Conditions on Land on
Behalf of Possessor for Physical Harm Caused While Work Remains in
Their Charge
One who on behalf of the possessor of land erects a structure or
creates any other condition on the land is subject to the same liability, and
enjoys the same freedom from liability, as though he were the possessor of
the land, for physical harm caused to others upon and outside of the land by
the dangerous character of the structure or other condition while the work is
in his charge.
This court, in Williamson v. Allied Group, Inc., 117 Wn. App. 451, 456-57, 72 P.3d 230
(2003), adopted § 384. Restatement (Second) of Torts §§ 385 and 386 (1965) echo the
language of liability found in § 384. Section 385 declares:

No. 37236-7-III
Demaine, et al v. First American Title Insurance Co., et al
10
One who on behalf of the possessor of land erects a structure or
creates any other condition thereon is subject to liability to others upon or
outside of the land for physical harm caused to them by the dangerous
character of the structure or condition after his work has been accepted by
the possessor, under the same rules as those determining the liability of one
who as manufacturer or independent contractor makes a chattel for the use
of others.
Section 386 provides:
Any person, except the possessor of land or a member of his
household or one acting on his behalf, who creates or maintains upon the
land a structure or other artificial condition which he should recognize as
involving an unreasonable risk of physical harm to others upon or outside
of the land, is subject to liability for physical harm thereby caused to them,
irrespective of whether they are lawfully upon the land, by the consent of
the possessor or otherwise, or are trespassers as between themselves and the
possessor.
When referencing § 385, the Washington Supreme Court adopted the Restatement’s
principle that the builder of a structure that remains on another’s property retains liability
for negligent work. Davis v. Baugh Industrial Contractors, Inc., 159 Wn.2d 413, 417-18,
150 P.3d 545 (2007).
First American Title and 40 Main highlight that Angelina DeMaine does not allege
the presence of a dangerous condition on the parking strip. Nevertheless, Davis v. Baugh
Industrial Contractors impliedly equates negligence with a dangerous condition.
DeMaine alleges that both defendants negligently designed, installed, and maintained the
irrigation system and manhole cover that led to her injuries.

No. 37236-7-III
Demaine, et al v. First American Title Insurance Co., et al
11
In the first amended complaint, Angelina DeMaine does not specifically reference
the parking or planting strip. Nevertheless, she refers to the sidewalk and adjacent
parking area. A broad reading of the complaint leads us to conclude that the adjacent
parking area includes the strip. The parking strip lies between the sidewalk and the area
where cars parked. The parking strip is closer to the defendants’ property than the
parking spots. Therefore, we conclude that the first amended complaint can reasonably
be read to include negligent design and construction inside the strip.
CONCLUSION
We reverse the dismissal of Angelina DeMaine’s first amended complaint and
remand for further proceedings.
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.
_________________________________
Fearing, J.
WE CONCUR:
______________________________ _________________________________
Lawrence-Berrey, J. Pennell, C.J.