§ 6.03 TORT LIABILITY
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§ 6.03 TORT LIABILITY
This section addresses whether and to what extent community and separate property may be reached to cover tort liability of the community or of either spouse separately.
[1] In General
Tortious conduct always imposes separate liability on the acting spouse. The important question, as a practical matter, is whether the conduct also imposes community liability. In earlier cases, the courts had some difficulty rationalizing the imposition of community liability; in later cases, as stated in Werker v. Knox, 197 Wash. 453, 85 P.2d 1041 (1938), courts reflected that the "trend of the law has not been toward relieving the community from liability for the torts of its individual members, but has been quite definitely in the direction of finding ways and means of imposing such liabilities upon the community." Id. at 456. The rule was generally stated that there is community liability if the tortious act of the spouse is committed (1) in the course of managing community property or (2) for the benefit of the marital community. See Howard Pruzan, Community Property and Tort Liability in Washington, 23 WASH. L. REV. 259 (1948). As demonstrated in this section, below, the tests were stretched to the point that community liability could be found if there was a purpose to achieve a community benefit, the tort was committed in the management of community property, or the tortious conduct occurred while the tortfeasor spouse was engaged in some community errand, program, or enterprise (even though the tort had only minimal relationship to the general activity).
The general analysis for community liability for a spousal tort was changed by deElche v. Jacobsen, 95 Wn.2d 237, 622 P.2d 835 (1980), in which the court narrowed the immunity from liability of community property for separate torts by permitting the plaintiff to enforce a judgment against the tortfeasor's half-interest in community personal property if there was insufficient separate property to satisfy the judgment. The court stated that the stretch to find community liability had yielded inconsistent, illogical, and unjust results that, apparently, could be reduced by a sounder analysis to identify the separate or community character of the tortious act. How the new line is to be drawn is uncertain. The victim is likely to seek community liability as well as separate liability against the acting spouse. It is appropriate, therefore, to identify those situations in which community liability has been found, discussed in § 6.03[2], below, even though on reexamination the court may withdraw some situations from the preexisting broader immunity.
[2] Community Torts
If a tortious act is committed by a spouse, there will be community liability only if (1) the marriage is not defunct and (2) the acting spouse is either managing community property or acting for the benefit of the community. Clayton v. Wilson, 168 Wn.2d 57, 227 P.3d 278 (2010); see also Francom v. Costco Wholesale Corp., 98 Wn. App. 845, 991 P.2d 1182, review denied, 141 Wn.2d 1017 (2000); Farman v. Farman, 25 Wn. App. 896, 611 P.2d 1314 (1980); Brown v. Spokane Cnty. Fire Prot. Dist. No. 1, 21 Wn. App. 886, 586 P.2d 1207 (1978) (reviewing law concerning community liability for postnuptial torts of one spouse). A property settlement agreement determining the status and character of present and future property and obligations may affect some situations. MacKenzie v. Sellner, 58 Wn.2d 101, 361 P.2d 165 (1961).
MACKENZIE V. SELLNER, 58 Wn.2d 101, 361 P.2d 165 (1961). The Sellners commenced an action for divorce. Under their property settlement agreement, Mrs. Sellner was to receive the Chevrolet automobile. Before the decree, Mrs. Sellner had an automobile accident with the Chevrolet. The Supreme Court held that no community liability attached, stating that:
where the spouses, by their conduct, indicate that they no longer have a will to union, then neither may reap the benefits of the community property law, which they would be entitled to had their community relationship remained undisturbed. Conversely, justice demands that, in like situations, the innocent spouse cannot be penalized because of the torts of the offending spouse.Id. at 105.
[a] Acts Committed in Management of Property
When a tortious act is committed by a spouse engaged in the management of community property, there is both separate liability of the acting spouse and community liability. Prior to 1972, the husband had the sole statutory power of management and control of community property. The 1972 amendment to RCW 26.16.030 gave management and control to either spouse. The current rule provides that "[e]ither spouse or either domestic partner, acting alone, may manage and control community property, with a like power of disposition as the acting spouse or domestic partner has over his or her separate property . . . ."
Prior to 1972, when the wife was acting alone, community liability was found if the wife was either exercising emergency powers of management in the absence of her husband or was incurring a family expense. Werker, 197 Wash. 453. Case law decided before the amendment to the statute, and which applied to acts of the husband, is now equally applicable if the wife acts.
Management of community property, by its very nature, generally involves willful or intentional conduct. Many cases of community liability for acts committed by a spouse while engaged in the management of community property involve intentional torts, most frequently misrepresentation in the sale or purchase of community property or assaults arising from the protection of or attempts to repossess community property. But intentional torts with less obvious connection to management of community property also continue to be treated as community torts. The following cases are illustrative:
Community liability was found for fraud in the sale of a nonexistent mine, Oudin v. Crossman, 15 Wash. 519, 46 P. 1047 (1896); for fraudulent misrepresentations made by the husband in the sale of a community interest in real estate, Miller v. Gerry, 81 Wash. 217, 142 P. 668 (1914); for the wife's misrepresentation as to vendees of community property, Hartman v. Anderson, 49 Wn.2d 154, 298 P.2d 1103 (1956); and for the defendant husband's fatal assault upon plaintiff's decedent while attempting to evict him from property claimed to be community property, McHenry v. Short, 29 Wn.2d 263, 186 P.2d 900 (1947).
In De Phillips v. Neslin, 139 Wash. 51, 245 P. 749 (1926), recovery was allowed against the community property when the husband undertook, through slander, assault, and malicious prosecution, to recover from the plaintiff property that had allegedly been stolen from the community business.
Community liability for sexual assault was found in Clayton v. Wilson, 168 Wn.2d 57, 227 P.3d 278 (2010), and LaFramboise v. Schmidt, 42 Wn.2d 198, 254 P.2d 485 (1953).
The broad scope of activity on which community liability has been found is further illustrated by the following cases:
CLAYTON V. WILSON, 168 Wn.2d 57, 227 P.3d 278 (2010). Plaintiff's parents rented a house from defendants, the Wilsons, when the plaintiff was eight or nine years old, and Mr. Wilson hired the plaintiff to do yard work on the rental property and other properties owned by the Wilsons. Almost immediately, Mr. Wilson began sexually abusing the plaintiff—linking the abuse to the yard work by massaging sore muscles, and then more. The abuse continued until the plaintiff turned 15 or 16. When he turned 18 and told his mother, Mr. Wilson was prosecuted and convicted criminally and the plaintiff sued the Wilsons. The defendants argued that deElche v. Jacobsen, 95 Wn.2d 237, had changed the jurisprudential landscape and that community liability should no longer attach for such a tort. The Washington Supreme Court, however, affirmed the trial and appeals courts' determinations that community liability was appropriate because the abuse had taken place in the course of managing community property. In so holding, the court refused to distinguish, and indeed reaffirmed, LaFramboise v. Schmidt, 42 Wn.2d 198, in which community liability was found when a husband had sexually molested a little girl that the defendant couple was hired to babysit while the parents were away. See § 6.03[2][c], below. The court distinguished another case, Francom v. Costco Wholesale Corp., 98 Wn. App. 845, on the ground that it involved sexual harassment by a nonmanagerial employee (of Costco), whereas Clayton involved assault by a community property owner or manager....
BENSON V. BUSH, 3 Wn. App. 777, 477 P.2d 929 (1970), review denied, 78 Wn.2d 997 (1971). The plaintiff and his next-door neighbor, the defendant, each owned dogs. When the dogs began to fight on the defendant's front porch, the plaintiff attempted to separate the dogs. The defendant husband sprayed a chemical on the plaintiff's dog, grabbed the plaintiff, and sprayed him in the face. The trial court granted a partial dismissal. The Court of Appeals reversed on the ground that the defendant husband was engaged in a community enterprise, thereby imposing community liability, "whether . . . the actions he takes are good, bad, or even criminal." Id. at 779.
BLAIS V. PHILLIPS, 7 Wn. App. 815, 502 P.2d 1245 (1972), review denied, 82 Wn.2d 1002 (1973). The plaintiff sued the Phillipses, alleging that Mr. Phillips, with the approval of Mrs. Phillips, assaulted him in the parking lot of the district court. The trial court ruled that there was community liability. The Court of Appeals affirmed, stating that there was "evidence that the assault was made directly after, and as an outgrowth of, the district court trial which was concerned with management of community property. . . . There is also evidence that Mrs. Phillips supported her husband in the assault." Id. at 817-18 (citation omitted).
U.S.F. & G. INS. CO. V. BRANNAN, 22 Wn. App. 341, 589 P.2d 817
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