CIVIL DEFENSE ‑- LIABILITY OF POSSESSOR OF LAND ‑- MUNICIPAL ORDINANCE

CIVIL DEFENSE ‑- LIABILITY OF POSSESSOR OF LAND ‑- MUNICIPAL ORDINANCE

A municipal ordinance exempting possessors of land from liability for injuries sustained by persons using the land as civil defense shelters is invalid since there is no direct or implied authority for a municipality to grant such an exemption.

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                                                                 August 13, 1952

Admiral D. E. Barbey, Director
Department of Civil Defense
State of Washington
Legislative Building
Olympia, Washington                                                                                                              Cite as:  AGO 51-53 No. 373

Attention:  !ttB. G. Lake
            Deputy Director

Dear Sir:

            We have your request for an opinion as to the validity and effect of a proposed city ordinance exempting persons owning or controlling premises which they have permitted the city to designate as civil defense shelters from liability arising out of injuries sustained by persons using the shelters for the designated purpose.

            You further request an opinion on the extent of the liability of the property owner who, in cooperation with a city, erects shelter signs and allows areas designated by the Civil Defense Organization to be used by the public and tenants of the owner as a shelter area.

            It is our conclusion that such a proposed ordinance would not be valid because it would conflict with the general law of the state respecting liability of possessors of land to various classes of persons coming upon the land.

                                                                     ANALYSIS

            The proposed ordinance is as follows:

            "No individual, firm, association, corporation or other party owning, maintaining or controlling any building or premises, who voluntarily and without compensation grants to the City of        a license or privilege or otherwise permits said city to inspect, designate and use the whole or any part  [[Orig. Op. Page 2]] or parts of such building or premises for the purpose of sheltering persons during an actual, impending, mock or practice attack, or their successors in interest, or the agents or employees of any of them, shall be subject to liability for injuries sustained by any person while in or upon said building or premises as a result of any act or omission in connection with the upkeep or maintenance thereof, except a willful act of misconduct, when such person has entered or gone into or upon said building or premises for the purpose of seeking refuge therein during destructive operations or attacks by enemies of the United States or during a mock or practice attack or test ordered by lawful authority."

            The effect of this ordinance would be to exempt possessors of land from all usual liability arising from their wilful acts of misconduct.  Whether this can be validly done is simply a question of whether a municipality has such power.  In this state, municipalities have no power, except such as is expressly delegated by the state, State v. Tacoma, 97 Wash. 190, 166 Pac. 66 (1917), and except those powers reserved to municipalities in the constitution such as by Article XI, section 11.  Even this latter reservation of police power is conditioned upon compliance with the general laws of the state.

            "It is a general rule that municipal ordinances regulating subjects, matters and things upon which there is a general law of the state must be in harmony with that state law, and in any conflict between an ordinance and a statute the latter must prevail, and that ordinances inconsistent with the statutes and general law, including the common law and public policy, of the state are void, unless under the statutes or law of the state the ordinance plainly and specifically is given predominance in a particular instance or as to a particular subject matter.  * * *" 5 McQuillin on Municipal Corporations; 15.20.

            In view of the above general principles two problems must be resolved to determine the validity of the question of the proposed ordinance.  First, whether there is any express or necessarily implied authorization giving municipalities power to pass such an ordinance, and, if not, secondly, whether such an ordinance is contrary to the general law of the state.

            Part 2 of section 8, chapter 178, Laws of 1951, the Washington Civil Defense Act, states:

            "In carrying out the provisions of this act each political subdivision, in which any disaster as described in section 2 hereof occurs, shall have the power to enter into contracts  [[Orig. Op. Page 3]] and incur obligations necessary to combat such disaster, protecting the health and safety of persons and property, and providing emergency assistance to the victims of such disaster.  Each political subdivision is authorized to exercise the powers vested under this section in the light of the exigencies of an extreme emergency situation without regard to time‑consuming procedures and formalities prescribed by law (excepting mandatory constitutional requirements), including, but not limited to, budget law limitations, requirements of competitive bidding and publication of notices, pertaining to the performance of public work, entering into contracts, the incurring of obligations, the employment of temporary workers, the rental of equipment, the purchase of supplies and materials, the levying of taxes, and the appropriation and expenditures of public funds."

            Nothing is here expressly stated permitting municipalities by ordinance to exempt possessors of land from ordinary liability to users of designated shelter areas.  Nor can such power be implied from the above subdivision of section 8 since it pertains only to acts‑-obligations, contracts, rentals, employment‑-which the municipality itself may perform.  The section in no manner concerns the regulation by municipalities of rights as between respective citizens.

            Section 11 of the act in part states:

            "Neither the state nor any political subdivision thereof, nor other agencies, now, except in cases of willful misconduct, the agents, employees, or representatives of any of them, engaged in any civil defense activities, while complying with or attempting to comply with this act or any rule or regulation promulgated pursuant to the provisions of this act, shall be liable for the death of or injury to persons, or damage to property, as a result of such activity.  * * *"

            Although the act grants immunity from liability arising out of acts done in compliance with the defense act to "the state" and "any political subdivision thereof" and "other agencies," we do not believe the legislative intent here was to grant immunity to possessors of land to permit their premises to be used as civil defense shelters.  The words "other agencies" as used here, appear to refer to agencies which come within the definition of section 3, part 2 of the act.  Had the legislature intended to grant immunity to private citizens in their individual capacities who cooperated in civil defense activities, such intent would surely have been expressly spelled out in conjunction with the express immunity section which was adopted.  Upon a reading of the entire act we can find no express or implied authority for a municipality to grant by ordinance the immunity which would be given by the proposed ordinance, nor has the legislature granted that immunity directly.

             [[Orig. Op. Page 4]]

            There being no express authority for the ordinance, it remains to be determined whether the ordinance is contrary to the general laws of this state.  In this connection we must say that we cannot answer your second inquiry, for to attempt to state what the extent of the liability might be of a possessor of land who in cooperation with a city allows designated areas of his premises to be used by the public as a shelter area would be merely to recite the general law of negligence pertaining to possessors of land.  Such a recital would be of no advisory value for it could not, short of an extended treatise, bring within its scope the situation which might arise out of the use of premises as civil defense shelters.  For the purpose of testing the validity of the proposed ordinance we need but assume two alternative possibilities as to the status of the persons using civil defense shelters.

            A member of the public, when coming upon premises whose possessor had permitted to be designated as a shelter area to take advantage of the shelter, might be considered a mere licensee to whom the owner or occupant of the land would owe only the duty of not wilfully or wantonly causing an injury.  Garner v. Pacific Coast Coal Company, 3 Wn. (2d) 143, 100 P. (2d) 32 (1940).  The proposed ordinance does not purport to grant immunity to a possessor of land for his wilful, wrongful acts and, consequently, to this extent does not attempt to change the general law.

            However, the rule expressed in the Garner case

            "* * * does not exclude liability on the part of the owner or proprietor for extraordinary concealed perils against which the licensee cannot protect himself, or for unreasonable risks incident to the possessor's activities.  * * *"  Christensen v. Weyerhaeuser Timber Co., 16 Wn. (2d) 424 at page 432, 133 P. (2d) 797 (1943).

            It seems that the ordinance, at least as to unreasonable risks incident to the possessor's activities, attempts to effect a change in the general law, for although such an unreasonable risk might be the cause of an injury to a person using the shelter, it nevertheless might not constitute a "wilful act of misconduct" which is the only type of act, liability for which, the ordinance does not purport to alter.

            Furthermore, a member of the public who goes to a designated shelter conceivably might be considered an invitee.  Whether he falls within the one class or the other (licensee or invitee), would be in each circumstance a question of fact and we do not believe that a categorical classification can be made prospectively.  If the person using the shelter should be considered an invitee, the proposed ordinance would then work a change in the general state law, for the possessor of land owes a duty to an invitee of using reasonable care to protect him from known dangerous conditions on the premises either by making repairs thereto or by warning the invitee of their presence.  Grove v. D'Allessondro, 39 Wn. (2d) 421, 235 P. (2d) 826 (1951).  The ordinance would remove this duty.

             [[Orig. Op. Page 5]]

            In summary we again state that we cannot give an opinion on the extent of liability of property owners who permit their premises to be used as civil defense shelters.  We also believe the proposed ordinance to be invalid.  Even if all persons who might use the shelter should be classified as mere licensees, the proposed ordinance removes the liability of possessors of land to licensees in certain circumstances which now attaches under general state law.  Furthermore, if such persons should be classified as invitees, which we think possible, the ordinance in that case also contravenes general state law without authority and, consequently, is invalid.

Very truly yours,

SMITH TROY
Attorney General

FRED L. HARLOCKER
Assistant Attorney General