FILED 

May 5, 2016 

In the Office of the Clerk of Court 

WA State Court of Appeals, Division III 

IN THE COURT OF APPEALS OF THE STATE OF WASHING TON 

DIVISION THREE 

ZURIEL, INC., a Washington 

corporation; EDWARD D. OCHOA, Jr., 

Respondents, 

v. 

DAN GALBREATH and JANE DOE 

) 

) 

) 

) 

) 

) 

) 

) 

GALBREATH, husband and wife; ) 

DOUBLE UP RANCH, INC., a ) 

Washington Corporation; GREG ) 

GALBREATH and JANE DOE ) 

GALBREATH, husband and wife; 82 ) 

FARMS, INC., a Washington Corporation, ) 

Appellants. 

) 

) 

No. 32935-6-111 

UNPUBLISHED OPINION 

KORSMO, J. -Respondents leased farmland to grow potatoes without being told 

that appellants had treated the field with an herbicide that rendered the land unsuitable for 

potato farming. We affirm the jury's verdict in favor of the lessees. 

FACTS 

Among their 6,000 acres of farm holdings, cousins Dan and Greg Galbreath and 

their respective corporations ( collectively Galbreath) hold a 20 year lease on 480 acres 

belonging to the Ahem Family Revocable Trust. Since acquiring that lease in 2003, the 

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No. 32935-6-III 

Zuriel v. Galbreath 

Gal breaths have subleased portions of the 480 acres to Edward Ochoa, his father, and 

their corporation ( collectively Ochoa). 

In 2012 the Galbreaths leased 130 acres of the Ahern property to Ochoa knowing 

that the Ochoas intended to r~ise potatoes. Dan Galbreath told Mr. Ochoa that the land 

would be good for potatoes. He apparently did not remember that his cousin had treated 

the 130 acre segment with Clopyralid when growing wheat on that field the previous 

year. The herbicide's producer had warned users against growing potatoes for 18 months 

in any field treated with Clopyralid. 

The potatoes were planted but the crop soon developed visible deformities. The 

Washington State Department of Agriculture (WSDA) investigated and took soil samples. 

WSDA found significant Clopyralid contamination in all of the samples, as well as some 

Picloram and Triclopyr contamination in two samples. Because of the Clopyralid 

contamination, the entire crop was unmarketable and the WSDA embargoed it. 

Ochoa filed suit against Galbreath on a theory of negligent misrepresentation 

based on Dan Galbreath's statement that the field was good for potatoes and his failure to 

disclose the herbicide application. The Galbreaths presented expert testimony that the 

concentration of Clopyralid was too high given the amount they had used, leading their 

expert to believe there must have been an additional source of contamination. At the 

close of the testimony, the trial court directed a verdict for the plaintiffs on the issue of 

liability, but instructed the jury on questions of causation and damages. The court denied 

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No. 32935-6-111 

Zuriel v. Galbreath 

a defense request to give instructions concerning federal regulations governing 

Clopyralid, Picloram and Triclopyr contamination. 

The jury entered a verdict in favor of the Ochoas for $584,558.94. The Galbreaths 

timely appealed to this court. 

ANALYIS 

The Galbreaths present two issues in this appeal. They first contend that the trial 

court erred in directing a verdict on liability. They also contend that the court erred in 

denying their requested instructions. We address the two issues in the order stated. 

Directed Verdict on Liability 

Galbreath claims that the doctrine of caveat emptor applies, requiring that Ochoa 

show he had actual knowledge of the contamination. We disagree. 

This court reviews de novo a decision on a motion for a directed verdict. Schmidt 

v. Coogan, 162 Wn.2d 488, 491, 173 P.3d 273 (2007). A directed verdict must be granted 

where, viewing the evidence most favorably for the nonmoving party, the court can say 

that there is not substantial evidence or a reasonable inference to sustain a verdict for the 

nonmoving party. Davis v. Microsoft Corp., 149 Wn.2d 521, 531, 70 P.3d 126 (2003). A 

party is liable in fraud where he knows his statements to be false and intends to deceive 

the other party, and liable in negligence where his statements are innocently made but 

without due care as to their truthfulness or accuracy. See Brown v. Underwriters at 

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No. 32935-6-III 

Zuriel v. Galbreath 

Lloyd's, 53 Wn.2d 142, 145-153, 332 P.2d 228 (1958) (discussing the histories of and 

differences between fraud and negligent misrepresentation). 

The elements of a claim of negligent misrepresentation that a plaintiff must 

establish are: 

( 1) the defendant supplied information for the guidance of others in their 

business transactions that was false, (2) the defendant knew or should have 

known that the information was supplied to guide the plaintiff in his 

business transactions, (3) the defendant was negligent in obtaining or 

communicating the false information, (4) the plaintiff relied on the false 

information, (5) the plaintiffs reliance was reasonable, and (6) the false 

information proximately caused the plaintiff damages. 

Ross v. Kirner, 162 Wn.2d 493, 499, 172 P.3d 701 (2007). This version of the tort 

requires that the defendant affirmatively made an actual misrepresentation. 

A second version of the tort exists when the defendant fails to disclose material 

information. The failure to disclose establishes negligent misrepresentation when the 

party owes a duty to disclose. Van Dinter v. Orr, 157 Wn.2d 329, 333, 138 P.3d 608 

(2006). This duty arises in several circumstances, including: ( 1) the existence of a 

fiduciary relationship, (2) disclosure is necessary to prevent an incomplete statement 

from being misleading, (3) the facts are within the knowledge of one party and not easily 

ascertained by the other, (4) one party relies on the superior specialized knowledge of the 

other, or (5) one party lacks business experience and the other would gain an unfair 

advantage by remaining silent. Id. at 334. 

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No. 32935-6-III 

Zuriel v. Galbreath 

Ochoa pursued both theories of negligent misrepresentation at trial. The trial court 

did not identify which theory it relied on in granting the directed verdict. Since the 

record clearly establishes that Dan Galbreath made the false statement that the field was 

good for potatoes, and that statement suffices to support the directed verdict, we need 

only discuss the affirmative misrepresentation theory. 

Initially, however, we note that the Galbreaths confuse the two theories by 

asserting that caveat emptor mandates that plaintiffs show actual knowledge in order to 

establish a claim. The authority they cite involved a claim of fraud rather than 

negligence. See Burba v. Harley C Douglass, Inc., 125 Wn. App. 684, 697-698, 106 

P.3d 258 (2005). They do not cite, and we have not found, any authority to support an 

argument that actual knowledge is necessary in a claim of affirmative misrepresentation. 

The issue then was whether the Dan Galbreath statement supported the decision to 

direct a verdict on the question of liability. It did. Galbreath knew that Ochoa desired to 

lease the 130 acres in order to plant potatoes. He provided the information in order to 

help guide Ochoa into signing the lease. He negligently communicated the false 

information by not remembering or investigating his own previous use of the field the 

year before; if he had checked with his cousin he would have remembered that the field 

could not be used for potatoes that year. Ochoa relied on the information, and did so 

reasonably given that Galbreath himself was a veteran potato farmer who also worked 

that land. 

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No. 32935-6-III 

Zuriel v. Galbreath 

The Galbreath statement satisfied the five elements that establish the liability 

prong of the negligent misrepresentation tort. They essentially were uncontested. The 

trial court understandably directed the verdict for the plaintiffs on liability and left the 

question of proximate cause (as well as damages, if necessary) for the jury to decide. 

The trial court did not err in directing the verdict on liability in favor of Ochoa. 

Jury Instructions 

Galbreath also argues that the trial court erred in failing to give their requested 

instructions that federal law prohibited the sale of potatoes containing traces of the other 

two herbicides found in the Ochoas potato field. 1 The trial court correctly recognized 

that the information could only be used with respect to the defendant's intervening cause 

argument and was irrelevant to the liability issue. The trial court did not abuse its broad 

discretion in this area. 

Well settled law governs our review of jury instruction issues. Jury instructions 

are sufficient if they correctly state the law, are not misleading, and allow the parties to 

argue their respective theories of the case. State v. Dana, 73 Wn.2d 533, 536-537, 439 

P .2d 403 ( 1968). The trial court also is granted broad discretion in determining the 

wording and number of jury instructions. Petersen v. State, 100 Wn.2d 421, 440, 671 

P.2d 230 (1983). Discretion is abused when it is exercised on untenable grounds or for 

1 They do not assign error to the failure to give the Clopyralid instruction. 

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untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). 

A party is entitled to have its theory of the case presented to the jury by proper 

instructions if there is any evidence to support it. DeKoning v. Williams, 47 Wn.2d 139, 

141, 286 P.2d 694 (1955). However, it is not entitled to instructions that are irrelevant to 

the issues upon which the case is tried. Poston v. W Dairy Prods. Co., 179 Wash. 73, 88, 

36 P.2d 65 (1934). 

Here, the instructions were irrelevant to the issue of liability because Ochoa never 

claimed that the presence of any of the three herbicides was the basis for the negligent 

misrepresentation. Rather, it was the false statement concerning the condition of the field 

that was the basis for liability. Galbreath's application of the Clopyralid was evidence 

that he should have known that the land was unfit to use, but was not itself a basis for 

liability. The presence of other herbicides than the one that led WSDA to embargo the 

entire crop was a matter for the jury to consider when considering causation. The jury 

was properly instructed on superseding cause. Clerk's Papers at 302. 

The court had a very tenable basis for declining to give the instructions since they 

were not useful to the jury. The evidence of the other herbicides was relevant to 

Galbreath's causation defense and was properly argued to the jury in conjunction with the 

superseding cause instruction. There was no need for the additional instructions. 

The judgment is affirmed. 

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No. 32935-6-111 

Zuriel v. Galbreath 

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. 

WE CONCUR: 

£2 dLJ [,LJ. • (]__ 

Siddoway, J. i) v· 

Lawrence-Berrey, A.CJ 

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