IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON DIVISION ONE No. 71430-9-

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•* -*c o o~- JEROME C. HURLEY and BESSIE M. HURLEY, husband and wife; WESLEY A. STANCIL and ZELLA E. MORAN, husband and wife; FRANK J. METTLER and LINDA E. METTLER, husband and wife; SHAWN HAMPTON and CHARITY HAMPTON, husband and wife, 

### individually, and as guardians for their minor children EMARY and ELEXCIOUS HAMPTON; ANTON K. SWAFFORD and DOROTHY E. SWAFFORD, husband and wife; MARK DANTINNE, a 

### single man; JON and DAGNE NORD, husband and wife; DEANNA LESTER, a 

### single woman; DE LILA E. WALKER, a widow; JAMES K. REDMON and BETTY REDMON, husband and wife; ALICE REDMON, a widow; MICHAEL WOOD and KIMBERLY WOOD, husband and wife, individually, and 

### guardians fortheir minor child, Bryce Wood; MARTIN E. SPRINKLE, a single man and LINDASPRINKLE, a single woman; MARTIN L.J. SPRINKLE, a 

### single man; AARON SPRINKLE, a single man; and STEPHEN P. REA, a 

### single man; ANNA GAY GAROUTTE, a single woman; APRILHURLEY, a single woman; and EDWARD THOMAS and MARTHA THOMAS, husband and wife Plaintiffs/Appellants,

v. PORT BLAKELY TREE FARMS L.P. a 

### Washington limited partnership; B & M LOGGING, INC., a Washington 

### corporation; RAINIER TIMBER COMPANY, INC., an inactive Delaware 

### corporation; RAINIER LOG COMPANY, UNPUBLISHED OPINION

FILED: June 30. 2014No. 71430-9-1/2 INC., an inactive Delaware corporation; RAINIER TIMBER COMPANY, LLC, a company managed by THE CAMPBELL GROUP, LLCthat is not registered with 

### the Washington Secretary ofState; ISLAND TIMBER COMPANY, Defendants. THE CAMPBELL GROUP, LLC, a Delaware corporation; MENASHA FOREST PRODUCTS CORPORATION, an inactive Delaware corporation; a Washington limited partnership; DON ZEPP, d/b/a/ DON ZEPP LOGGING, and POPE RESOURCES, a Delaware Limited PartnershipDefendants/Respondents. 

### Spearman, C.J. — This appeal concerns a lawsuit filed by 14 families 

### (Appellants) against Menasha Forest Products Corporation (Menasha)1 and Don Zepp Logging (Zepp) (collectively"Respondents") after their properties in or near Glenoma, Washington were damaged by three landslides that occurred during a 

### storm on January 7, 2009. The trial courtdismissed the Appellants' claims for strict liability, trespass, and nuisanceagainstMenashaand Zeppon summaryjudgment,

as wellas their negligence claims againstZepp. We affirm. FACTS 

### On January 7, 2009, a warm and unusually heavy rain storm (commonly known as a "Pineapple Express") occurred throughout Western Washington,

1Atthe time ofthe 2009 slide, the Martin Road logging unitwas owned by Menasha Forest Products Corporation. The Campbell Group formed Campbell Menasha, LLC in 2007 to purchase Menasha Forest Products Corporation, and itsubsequently managed the property on behalf of the LLC. The legal owner of the property isstill Menasha ForestProducts Corporation. The Appellants stipulated to dismissal of the Campbell Group priortotrial. Campbell Menasha, LLC and Menasha are hereinafter referred to as "Menasha."No. 71430-9-1/3 

### aimed mainly at the Central Cascade Range. Over 1500 landslides in Western Washington were associated with the event. This lawsuit arises out ofthree such slides that occurred in Lewis County, in or near Glenoma, Washington: (1) the "Martin Road Slide," (2) the "Lunch Creek Slide," and (3) the "Rainey Creek Slide." 

### Each Appellant owns property that was damaged by one ofthose landslides or a combination thereof. Menasha logged an area associated with the Martin Road 

### Slide in 2001.2 Zepp logged an area associated with the Lunch Creek Slide between January and April of2006.3 The Appellants filed a complaintagainsta numberofdefendants, including Menasha and Zepp, on November4, 2010 and an amended complainton July 28, 

### 2011, alleging causes of action for negligence, nuisance, trespass, and strict liability. On May 4, 2012, they moved forsummaryjudgmenton their strictliability claim. The trial court denied the motion and effectively dismissed the strict liability claim. Menasha then filed a motion for partial summaryjudgment to dismiss the 

### plaintiffs' nuisance and trespass claims. Defendants Pope Resources, Port 

### Blakely-lsland Timber, and Zepp joined the motion. The trial court dismissed the Appellants' claims for nuisance and trespass. It later granted Zepp's separate motion for summaryjudgmenton the negligence claim. 

### In February 2012, the trial court bifurcated for trial the negligence claims related to the Martin Road Slide from the claims related to the Lunch Creek and 

### Rainey Creek slides. The 11 plaintifffamilies impacted only by the Martin Road

2More specifically, Menasha applied for the permits to log the land and hired defendant B&M Logging, Inc. to perform the cutting. 3The logging was done on land owned by Port BlakelyTree Farms, L.P. pursuant to a contractwith Island Timber Company. 3No. 71430-9-1/4 

### slide were scheduled to be in trial first against Menasha and B&M Logging, Inc. The second trial would have included the remaining plaintiffs and all defendants. 

### B&M Loggingsettled prior to trial.Thefirst trialagainst Menasha lasted sixweeks. On December 14, 2012, the jury found that Menasha was not negligent and returned a verdict in Menasha's favor. Menasha then settled the claims made 

### against it bythe plaintiffs who were to be involved in the second trial. Defendants 

### Port Blakely and Pope Resources also settled following the firsttrial with plaintiffs who had made claims againstthem. Because all of the claims to be heard in the second trial were either settled, or in the case of Zepp, dismissed on summary 

### judgmentthe second trial was not necessary. 

### The Appellants appeal fromthe trial court's orders dismissing their claims 

### for strict liability, nuisance, and trespass against Menasha and Zepp and their 

### claims for negligence against Zepp. They do not appeal the verdictfinding that Menasha was not negligent. DISCUSSION 

### This court reviews summaryjudgment de novo. HiqhlineSch. Dist. 401 v. Port of Seattle, 87 Wn.2d 6, 15, 548 P.2d 1085 (1976). Summary judgment is 

### appropriate when "there is no genuine issue as to any material fact and ... the 

### moving party is entitled to a judgment as a matter oflaw." CR56(c). "The initial burden is on the moving party to show there is no genuine issue of materialfact." American Exp. Centurion Bankv. Stratman, 172Wn. App. 667, 673, 292 P.3d 128 

### (2012) (citing Vallindiqham v. Clover Park Sch. Dist. No. 400. 154Wn.2d 16, 26, 109 P.3d 805 (2005)). Ifthe moving party makes this showing, "the burden shifts to the nonmovingparty toestablish specific facts whichdemonstratethe existenceNo. 71430-9-1/5 

### of a genuine issue for trial." Kendall v. Douglas. Grant. Lincoln, and Okanogan Counties Public Hosp. Dist. No. 6.. 118Wn.2d 1,8-9, 820 P.2d497 (1991). "When determining whether an issue of material fact exists, the court must construe all facts and inferences in favor of the nonmoving party." Ranger Ins. Co. v. Pierce County. 164 Wn.2d 545, 552, 192 P.3d 886 (2008). "[Wjhere reasonable minds could reach but one conclusion from the admissible facts in evidence, summary judgmentis appropriate." Hiatt v. WalkerChevroletCo.. 120Wn.2d 57, 66-67, 837 P.2d 618 (1992). Strict Liability Appellants argue that clearcutting steep, unstable slopes directly above 

### residential properties is an abnormally dangerous activity subjectto strict liability. 

### Washington courts recognize the doctrine of strict liability as set forth in Restatement(Second) ofTorts §§519 and 520 (1977). Klein v. Pvrodvne Corp.. 117 Wn.2d 1, 6, 810 P.2d 917 (1991). "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 

### preventthe harm." Restatement(Second) ofTorts § 519(1) (1977). Whetheran 

### activity is "'abnormally dangerous'" is a question of law. Klein. 117Wn.2d at 6. We consider six factors indetermining whether an activity is abnormally dangerous: 

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

### (b) likelihood thatthe harm that results from itwill be great; 

### (c) inability to eliminatethe risk bythe exercise ofreasonable care; (d) extentto which the activity is not a matterofcommon usage; 

### (e) inappropriateness ofthe 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.No. 71430-9-1/6 Restatement (Second) ofTorts § 520 (1977). Furthermore, 

### [a]ny one of [the six factors] is not necessarily sufficient of itself in a particular case, and ordinarily several of them will be required for strictliability. On the otherhand, it is not necessarythateach ofthem be present, especially if others weigh heavily. Because of the interplay of these various factors, it is not possible to reduce abnormally dangerous activities to any definition. The essential 

### question is whetherthe risk created is so unusual, eitherbecause of 

### its magnitude or because ofthe circumstances surrounding it, as to 

### justifythe imposition of strict liabilityforthe harm that results from it, even though it is carried on with all reasonable care. 

### Klein. 117 Wn.2d at 7 (quoting Restatement (Second) of Torts § 520, cmt. f (1977)). 

### No court inWashington or elsewhere has imposed strict liability for timber 

### harvest activities. The only known case to consider the question is In re Flood Litigation. 216 W.Va. 534, 607 S.E.2d 863 (2004). There, the Supreme Court of 

### Appeals ofWest Virginia, applying the six Restatement (Second) of Torts § 520 factors, summarily rejected plaintiffs' claim that extracting and removing coal and timber produced conditions that created an abnormally high risk of flash flooding for which defendants should be strictly liable for damages: 

### This Court simply does not believe that the day to day activities of Defendants necessarily create a high risk of flash flooding. Also, we 

### are convinced that any increased risk of flooding which results from Defendant's extractive activities can be greatly reduced by the exercise of due care. In addition, extractive activities such as coal 

### mining and timbering are common activities in southern West Virginia. Finally, we are unable to concludethat the greateconomic value of some of these extractive activities is outweighed by their dangerous attributes. 216 W.Va. at 545, 607 S.E.2d at 874. 

### Here, Appellants argue that all six Restatement (Second) Torts § 520 

### factorsweigh infavor ofstrictliability. Defendants contend thatall sixfactorsweigh against strict liability.No. 71430-9-1/7 

### (a): Existence ofa high degree ofriskofsome harm to the person, land orchattels ofothers. 

### Appellants urge us to define the activity subjectto strict liability as 

### "clearcutting on steep, unstable slopes directly above a residential area." They contend thatthis narrowly defined activity carries a high risk ofcausing landslides and resulting harm. But cases applying the six Restatement (Second) Tort § 

### 520 factors inWashington and otherjurisdictions define the activity broadly 4and then considerthe nature ofthe locality where the activity is conducted in 

### determining whetherthe risk of harm is high.5 Thus, the operative question is whether logging carries a high degree of risk of harm from landslides given the
characteristics ofthe area where it was conducted. The parties dispute whether logging creates a risk of landslides ingeneral and specifically whether it did so inthis case. Appellants have presented 

### evidence, that logging can increase the risk oflandslides through loss of root strength, hydrological affects caused by removal ofthe tree canopy, and the 

### inability offorestry scientists to accurately identifythe riskiest areas for logging. Incontrast, Respondents have presented evidence that landslides are endemic to the Glenoma area, thatAppellants' homes are built on an "alluvial fan" consisting ofthe sediments derived from landslides and debris flows over many 

### years, and that "landslides and debris flow have and will continue to occur [inthe

4See Lanqan v. Valicopters, Inc., 88 Wn.2d 855, 567 P.2d 218 (1977) (crop dusting); Erickson Paving Co. v. Yardlev Drilling Co., 7 Wn.App. 681, 502 P.2d 334 (1972) (blasting); Vern J. Oia &Assoc, v. Washington Park Towers. Inc., 89 Wn.2d 72, 569 P.2d 1141 (1977) (pile driving); Sieglerv. Kuhlman, 81 Wn.2d 448, 502 P.2d 1181 (1972) (transporting gas as freight by truck): and Klein v. Pvrodvne Corp.. 117Wn.2d 1, 810 P.2d 917, op. amended, 817 P.2d 1359 (1991) (fireworks displays). 5See Restatement (Second) Torts § 520 cmt. g. 7No. 71430-9-1/8 

### Glenoma area] fairlyfrequently ingeological time." CP at 966. The record also shows there were hundreds oflandslides throughoutWestern Washington 

### associated withthe January 7, 2009 storm eventthatwere apparently unrelated 

### to loggingbecause they occurred inareas ofmature forest that had notbeen logged for many years. 

### However, even accepting appellants' contention that loggingincreases the 

### risk that a landslide may occur, the extentof that risk isfairly debatable inlight of othercontributing factors. Moreover, to the extent loggingincreases the risk of landslides, the risk ofharm from those landslides is lower when the activity is 

### conducted in a rural area as compared to a densely populated area.6Given the totality of the circumstances, we conclude that any additional landsliderisk caused bylogging in a remotearea does not favorimposing liabilitywithoutthe need for a finding of negligence. 

### (b): Likelihoodthattheharm thatresultsfrom itwillbe great 

### "If the potential harm is sufficiently great, however, as in the case of a nuclearexplosion, the likelihood thatitwill take place may be comparatively slight 

### and yet the activity be regarded as abnormally dangerous. Others, such as the storage ofexplosives, necessarilyinvolve major risks unless they are conducted in a remote place . . . ." Restatement (Second) Torts § 520, cmt. g. Appellants 

### argue that the magnitude of the harm resulting from landslides is necessarily severe. We agree that this is so in some instances. But the extent of the risk of harm from a particular activity cannot be divorced from the location in which the

6Restatement(Second)Torts § 520cmt. g andReporter's Notes (compiling groupsof casesfrom variousjurisdictions and showing that strictliabilityforactivities such as blasting, 

### storageofinflammableliquids, oil and gasdrilling, andwaterstorageisoften imposed inthicklysettled areas but not rural areas. 8No. 71430-9-1/9 

### activity occurs. Generally, when logging occurs in rural, less populated areas, to the extent landslides result, there is less potential for great harm to occur. We conclude that this factor weighs against imposing liability without the need for a finding of negligence. (c): Inabilitytoeliminate the riskbythe exerciseofreasonablecare "Most ordinary activities can be made entirely safe by the taking of all reasonable precautions; and when safety cannot be attained by the exercise of 

### due care there is reason to regard the dangeras an abnormal one." Restatement (Second) Torts § 520 cmt. h. Appellants argue that it is notpossibleto eliminate orsufficiently reduce the increased risk of landslides caused by clearcutting on steep, unstable slopes. But



### as previously noted, the proper question is whether it is possible to eliminate or sufficiently reduce the risk of landslides caused by logging in rural areas. 

### Respondents, citing Crosby v. Cox Aircraft Co. ofWashington. 109 Wn.2d 581, 746 P.2d 1198 (1987), contend that logging risks can be sufficiently minimized by the exercise of due care. In Crosby, the Washington Supreme Court held that in 

### light ofextensive government regulation of aviation and continuing technological improvements inaircraftmanufacture, maintenance, and operation, the overall risk of serious injury from ground damage resulting from a plane crash can be minimized by the exercise of due care. Crosby. 109 Wn.2d at 587-88. The Court also observed that because the causes of airplane accidents are legion and can


### come from a myriad of sources, "[a]ny listing of the causes of such accidents undoubtedly would fall short of the possibilities. In such circumstances theNo. 71430-9-1/10 

### imposition ofliability should be upon the blameworthy party who can be shown to be atfault." Id, 

### Here, there is evidence inthe record thateven when exercising the highest degree of due care, logging in rural areas may increase the risk of landslides. 

### Similar to the risk ofspray driftwhen applying pesticides by helicopter7 or the risk 

### that a spectatorwill be injured byfireworks,8 even when following regulations and exercising due care, it is not possible to eliminate the risk of harm caused by logging. Unlike the risk at issue in Crosby, regulatory and technological improvements in forestry have not appreciably reduced the increased risk of landslide that occurs when heavy rain falls on areas where logging has occurred. But, as in Crosby, there is also evidence that many causes may contribute to the risk of landslides. The steepness of the slope, the presence of a "rain on snow" zone, the occurrence of an exceptional storm event, the effectiveness of 

### applicable governmental logging regulations, and the extent to which those regulations are adhered to, together or individually, may cause a landslide. The record shows that the occurrence of landslides is seldom the work of one factor. As the Crosby Court noted, under these circumstances the imposition of strict 

### liability is inappropriate and any liabilityshould fall upon the party shown to be at fault. We conclude that this factor weighs against imposing liability without the need for a finding of negligence. (d): Extentto which the activity is nota matterofcommon usage

7 Langan, 88 Wn.2d at 864. 8 Klein. 117Wn.2dat7. 10No. 71430-9-1/11 

### "An activity is a matter of common usage if it is customarily carried on by the great mass of mankind or by many people in the community." Restatement (Second) Torts § 520 cmt. i. Certain activities, such as driving a car, are in such general use that they are not considered abnormally dangerous despite the unavoidable risk of serious harm. Id. Activities that are not a matter of common usage include "driving a tank, blasting, the manufacture, storage, transportation, and use of high explosives, and drilling for oil. The deciding characteristic is that few persons engage inthese activities." Klein. 117 Wn.2d at 9. Commercial logging requires specialized equipment, skills, and permits. Logging is a commercially significant industry in Washington. But people not 

### employed in the industry do not customarily engage in this activity. Similarly, in Langan. the Court held that this factor weighed in favor of strict liability because



### even though crop dusting is prevalentinthe Yakima area, few people engage init. Langan. 88 Wn.2d at 864. This factorweighs infavor ofimposing strict liability. (e): Inappropriateness ofthe activity to the place where it is carried out This factor takes into consideration the nature of the locality where the 

### activity is taking place. For example, blasting operations or storage tanks filled with flammable liquids may create an abnormal danger iflocated in a city, but not inthe midst of a remote desert. Restatement (Second) Torts § 520 cmt. j. 

### Appellants argue that clearcutting on steep, unstable slopes is an inappropriate activity when performed directly uphill of a residential area. However, 

### it is entirely appropriate to conduct commercial logging operations in a rural area, particularly one that had likelybeen logged at leasttwice during the past century. Moreover, Washington State forestry laws and regulations provide a detailed set 11No. 71430-9-1/12 

### offorest practices rules that permit logging undera wide variety ofconditions. See Forest Practices Act, chapter 76.09 RCW and Forest Practices Board, Title 222 

### WAC.9 This detailed regulatory regime indicates thatlogging inWashington State,

even on steep slopes, is an anticipated and routine use of the land. This factor weighs against imposing strict liability. (f): Extent to which its value to the community is outweighed by its dangerous attributes "Even though the activity involves a serious risk of harm that cannot be eliminated with reasonable care and it is not a matter ofcommon usage, its value to the community may be suchthatthe dangerwill notbe regarded as an abnormal

one. This is true particularly when the community is largely devoted to the 

### dangerous enterprise and its prosperity largely depends upon it." Restatement (Second) Torts § 520, cmt. k. Appellants argue that any economic impact would be very small because 

### only a small fraction ofWashington timberland consists ofsteep, unstable slopes above residential communities. Respondents contend that the chilling effect on 

### Washington's logging industry would be severe. But no evidence insupport ofthe 

### Respondents' contention appears in the record before us.10 Accordingly, we conclude thatthis factor weighs infavor ofimposing strict liability.

9Logging is even allowed in areas with "potentially unstable slopes and landforms," although additional analysis and precautions are required to carry out these Class IVforest practices. WAC 222-16-050(1 )(d); WAC 222-10-030. The Departmentof Natural Resources classified and approved Respondents' logging proposal as Class III, which is less restrictive than Class IV. 10The Defendants rely primarily on appendices 3-6 to Menasha's response brief but these documents were not before the trial court and we do not consider them. RAP 9.12; Washington Fed'n ofState Employees v. Office of Fin. Management, 121 Wn.2d 152, 156-57, 849 P.2d 1201 (1993). "[W]e 'willconsideronly evidence and issues called to the attention of the trial court.'")
12No. 71430-9-1/13 

### In sum, four out of six section 520 factors weigh against imposing strict 

### liability for logging. Strict liability is appropriate where the "dangers and inappropriateness for the locality are so greatthat, despite any usefulness itmay have for the community, it should be required as a matter of law to pay for any harm it causes, without the need of a finding of negligence." Restatement (Second) Torts § 520, cmt. f. The remaining two factors do not weigh heavily enough to overcome our conclusion that logging is not an activity subject to strict liability. We therefore hold that the trial court did not err in dismissing Appellants' 

### strict liability claim.11
Nuisance Plaintiffs argue that the trial court erred indismissing their nuisance claim

as duplicative oftheir negligence claim. A nuisance is "an unreasonable interference with another's use and 

### enjoymentofproperty " Kitsap Countyv.Allstate Ins. Co.. 136 Wn.2d 567, 592, 964 P.2d 1173 (1998). Nuisance "consists in unlawfully doing an act, or omitting 

### to perform a duty, which act or omission either annoys, injures or endangers the comfort, repose, health or safety of others, offends decency ... or in any way renders otherpersons insecure in life, or inthe use ofproperty." RCW7.48.120. Nuisance can be based upon intentional, reckless, or negligent conduct. 

### Hostetlerv. Ward. 41 Wn. App. 343, 357, 704 P.2d 1193 (1985). "[I]tis, ofcourse, 

### possibleforthe same actto constitute negligence and also give rise to a nuisance." Peterson v. King County. 45 Wn.2d 860, 863, 278 P.2d 774 (1954) (citing Kilbourn

11 Respondents further argue that imposing strict liability is improper because Appellants have no evidence that Respondents' logging activities caused the landslides. We disagree that Appellants failed to raise an issue of material fact on this question. However, because we hold that logging is not an activitysubjectto strict liability, causation is not at issue. 13No. 71430-9-1/14 

### v. City ofSeattle. 43 Wn.2d 373, 382, 261 P.2d 407 (1953)). However, "[separate legal theories based upon one setoffacts constitute 'one claim' for reliefunderCR 

### 54(b)." Snyder v. State. 19 Wn. App. 631, 635, 577 P.2d 160 (1978). "A single claim for relief, on one set of facts, is not converted into multiple claims, by the assertion of various legal theories." Pepper v. J.J. Welcome Const. Co.. 73 Wn. App. 523, 546, 871 P.2d 601 (1994) overruled on othergrounds by Phillips v. King County. 87 Wn. App. 468, 943 P.2d 306 (1997). Thus, "'a negligence claim 

### presented in the garb of nuisance' need not be considered apart from the negligence claim." Atherton Condo. Apartment-Owners Ass'n Bd. of Dir.v. Blume Dev. Co.. 115 Wn.2d 506, 527, 799 P.2d 250 (1990) (quoting Hostetler. 41 Wn. 

### App. at 360.). "In those situations where the alleged nuisance is the result of defendant's alleged negligent conduct, rules ofnegligence are applied." Atherton. 115Wn.2dat527.12 

### Appellants argue that they asserted a nuisance claim independent of their 

### negligence claimbecausethe nuisancewas the result ofRespondents' intentional act of cutting down trees. Appellants misinterpret the meaning of "intentional act" in this context. "[N]uisance dependent upon negligence consists of anything 

### lawfully but so negligently or carelessly done or permitted as to create a potential and unreasonable risk of harm which, in due course, results in injury to another."

12 See also Lewis v. Krussel, 101 Wn. App. 178, 183, 2 P.3d 486 (2000) ("Lewis and Teitzel ground their nuisance claim on the Krussels' inaction withregard to the fallentrees. In otherwords, the nuisance is the resultofnegligence.... Accordingly, we do not considerthe nuisance claim apartfrom the negligence claim."); Kaech v. Lewis County Public Utility Dist. No. 1, 106Wn.App. 260, 282, 23 P.3d 529 (2001) (Plaintiff"alleged that stray voltage escaped from faulty insulators and damaged his dairy herd. Thus, the same setof facts supports claims of negligence, nuisance, and trespass."); Sourakli v. Kvriakos, Inc., 144 Wn. App. 501, 515, 182 P.3d 985 (2008) ("Because Sourakli's nuisance theory againstTitan and Diamondrests on the samefacts as his negligence theory againstthose defendants, itdoes not provide an alternative basis to proceed againstthem in a suitfordamages.").
14No. 71430-9-1/15 Hostetler. 41 Wn. App. at 359. Incontrast, tortious intent is found where "the actor desires to cause the consequences of his act, or ... believes that the consequences are substantially certain to result from it." Restatement (Second) Torts § 8A (1965); Bradley. 104Wn.2d at 682. Appellants' second amended complaint alleged that "[t]he manner inwhich Defendants clearcut and built roads on the slopes above the plaintiffs' residences constituted a nuisance to the plaintiffs" and proximately caused their properties to 

### be inundated by landslides and debris flows. CP at 25. Appellants asserted that "the flooding was caused by a series ofunintended debrisjams formed by logging debris and other materials that accumulated water and then violently exploded into flash floods" and that "defendants failed to use due care in 

### managing their properties and conducting their logging and related activities." CP at 6 (emphasis added). 

### "A party's characterization ofthe theory ofrecovery is not binding on the court. Itis the nature ofthe claim that controls." Pepper. 73 Wn. App. at 546. 

### Nowhere inthe second amended complaintdid appellants allege that 

### Respondents' logging activities were unlawful or that Respondents intended to

cause harm. Rather, the nuisance claim was grounded inthe same facts and 

### allegations as the negligence claim. The trial court did not err in dismissing the nuisance claim as duplicative.

15No. 71430-9-1/16 Trespass Appellants argue that the trial court erred indismissing theirtrespass claim as duplicative oftheir negligence claim. "Trespass occurs when a person intentionally or negligently intrudes onto

or into the property ofanother." Jackass Mt. Ranch, Inc. v. South Columbia Basin Irr. Dist.. 175 Wn. App. 374, 401, 305 P.3d 1108 (2013) (citing Borden v. City of Olvmpia. 113 Wn. App. 359, 373, 53 P.3d 1020 (2002)). "'Negligenttrespass' 

### requires proofofnegligence (duty, breach, injury, and proximate cause)." Pruitt v. Douglas County. 116 Wn. App. 547, 554, 66 P.3d 1111 (2003) (quoting Gaines v. Pierce County. 66 Wn. App. 715, 719-20, 834 P.2d 631 (1992)). "To establish 

### intentional trespass, a plaintiffmust show (1) an invasion ofproperty affecting an 

### interest inexclusive possession; (2) an intentional act; (3) reasonable 

### foreseeability thatthe actwould disturb the plaintiff'spossessory interest; and (4) actual and substantial damages." Wallace v. Lewis County. 134 Wn. App. 1,15, 137 P.3d 101 (2006) (citing Bradley. 104Wn.2d at 692-93). Here, Appellants' second amended complaintalleged in partthat 

### "Defendants' negligent logging activities precipitated the physical invasion of plaintiffs'properties by landslides, logging debris, boulders, mud, rocks, gravel, and water." CP at 25. The claim was grounded in negligence. As with nuisance, 

### "[w]etreat claims fortrespass and negligence arising from a single set offacts as 

### a single negligence claim." Pruitt. 116 Wn. App. at 554 (citingPepper. 73 Wn. App. at 546-47. As with the nuisance claim, Appellants argue that they satisfied the 

### requirements for intentional trespass based on Respondents' intentional act of

16No. 71430-9-1/17 

### cutting down trees. We disagree. The "intentelement oftrespass can be shown where the actor 'knows thatthe consequences are certain, or substantially certain, to result from his act." Price ex rel. Estate of Price v. City ofSeattle. 106 Wn. App. 647, 660, 24 P.3d 1098 (2001) (citing Bradley. 104 Wn.2d at 691). Even viewed inthe light mostfavorable to Appellants, the nonmoving party, there is no evidence in the record that Respondents knew orwere substantially certain thattheir logging activities would result in a landslide. The trial court did not err in 

### dismissing the trespass claim as duplicative of the negligence claim.13 Negligence

- Zepp The Plaintiffs argue that the trial court erred in dismissing their negligence claim against Zepp on summary judgment. They assert that Zepp's compliance 

### with laws, permits, industry standards, and theterms of his contractdoes not shield him from liability for negligence as a matter of law. 

### To prove negligence, a plaintiffmust show (1) the existence of a duty to the plaintiff, (2) a breach of that duty, (3) a resulting injury, and (4) the breach is a 

### proximate cause ofthe injury. Crowe v. Gaston. 134 Wn.2d 509, 514, 951 P.2d 1118 (1998). The existence of a duty is a question of law. Suterv. Virgil R. Lee & Son. Inc.. 51 Wn. App. 524, 528, 754 P.2d 155 (1988).

13 Appellants further argue that in the absence of intention, Respondents trespassed by failing to remove landslide debris from their properties. "One is subjectto liability to anotherfor trespass... if he intentionally...fails to remove from the land a thing which he is undera duty to remove." Restatement (Second) Torts § 158. Appellants, however, do not dispute Menasha's assertion thatthey did not advance this argumentto the trial court. "Generally, failure to raise an issue before the trialcourt precludes a party from raising it on appeal." Lunsford v. Saberhagen Holdings. Inc.. 139 Wn. App. 334, 338, 160 P.3d 1089 (2007) (citing Smith v. Shannon. 100 Wn.2d 26, 37, 666 P.2d 351 (1983)).
17No. 71430-9-1/18 

### Zepp points out that he is a logger, not a geomorphologist or hydrologist. He contends that he did not have a duty to take additional steps to ensure that 

### logging the land was reasonable because he lacks the expertise (and is not, as a 

### logger, expected to have the expertise) to know whether logging the land would have caused landslides. Rather, it was reasonable for him to log in accordance 

### with a forest practices application that was reviewed and approved by experts at the Department of Natural Resources. We agree. 

### Initially, appellants are correctthat compliance withapplicable regulations, 

### industrycustoms, permits, and contracts does not per seexcuse adefendantfrom a claim ofnegligence and entitle the defendantto summaryjudgment as a matter oflaw.14 But incases holdingthatthe defendant's duty ofcare required more, the defendant possessed the specialized knowledge, skills, and expertise to assess the situation and take reasonable additional action.15 Here, the Appellants did not 

### put forth evidence indicating that Zepp breached the duty of care owned by a reasonable logger.16We cannotconclude as a matter of law that Zepp had a duty

14 See Restatement (Second) Torts § 288C ("Compliance with a legislative enactment or an administrative regulation does not prevent a finding of negligence where a reasonable man would take additional precautions."); Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 553, 192 P.3d 886 (2008)("[A] simple statement indicating an individual acted according to the customs of the industry is not always determinative."); Helling v. Carey, 83 Wn.2d 514, 519, 519 P.2d 981 (1974). 15 See Helling, 83 Wn.2d at 519 (reasonable prudence required ophthalmologistto give glaucomatest to32-year-old plaintiff, notwithstanding standardpractice ofroutinelytesting for glaucomaafter age 40, wheretestimony indicated that standards ofprofession required testif patient's symptoms revealedsuspicion of glaucoma and where glaucoma test was simple and harmless); Ranger, 164 Wn.2d at 544 (jurycouldfind that reasonably prudent court clerk had a dutytoverifythat a bondwas underwritten bya suretybefore allocating surety'sfunds toforfeited bond, where county had written notice of which bonds were underwritten). 16Atsummaryjudgment, the Plaintiffs presented the declaration ofMike Jackson, a certified forester, who opined that "a prudent logger would have recognized he was taking a significantriskifhelogged theunit [at issue]to thespecified boundary." CP at 1410. Butthetrial courtgranted Zepp's motion to strikeJackson's declaration; thus, itwas not considered. 18No. 71430-9-1/19

to take additional steps to know and ensure that logging the land was reasonable given its geological and hydrological features. Because there was no material question offact for a jury to decide, the trial court properly dismissed Appellants' negligence claim against Zepp. Pursuant to RAP 14.2 and RAP 18.1(b), Menasha requests an award of reasonable attorney's fees, costs, and expenses on appeal as allowed under RAP 14.3. RAP 14.2 provides for an award of costs to the party that substantially prevails on review, and RAP 14.3 defines which types ofexpenses are allowed as costs. RAP 18.1 (b) requires "morethan a bald requestfor attorneyfees." Richards v. City of Pullman. 134Wn. App. 876, 884, 142 P.3d 1121 (2006). Menasha makes



### no argument as to why attorney fees under RAP 18.1 are proper. Therefore, Menasha is entitled only to an award of allowable costs and expenses under RAP
14.2 and 14.3. Affirmed.

WE CONCUR:

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