# Diane Perillo And Ted Perillo v. Island County

> Court of Appeals of Washington · November 30, 2020

URL: https://www.frixlaw.com/law-library/cases/4638291

## Case

- **Court:** Court of Appeals of Washington
- **Decided:** November 30, 2020
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIANE PERILLO and TED PERILLO, ) No. 80055-8-I
Trustees of the Diane Perillo Living )
Trust, dated September 28, 2011, ) DIVISION ONE
)
Petitioners, )
)
v. )
)
ISLAND COUNTY, a political )
subdivision of the State of Washington, ) PUBLISHED OPINION
)
Respondent, )
)
VIEW SUN INVESTMENTS, LLC, a )
limited liability company, )
)
Defendant. )

BOWMAN, J. — Diane and Ted Perillo bought a home on Camano Island.

As they prepared to move into their new home, neighbors informed them it had a

long history as a “drug house.” Testing revealed levels of methamphetamine

contamination so high that the house was not habitable and needed to be

demolished. The Perillos learned that the Island County Sheriff’s Office and

Island County Public Health were aware of drug activity at the home for years.

The Perillos filed a negligence claim against Island County for failure to inspect

the property for hazardous chemical contamination as required under RCW

64.44.020. The Perillos appeal the trial court’s determination that the public duty

doctrine barred their claim and the order granting summary judgment for Island

Citations and pin cites are based on the Westlaw online version of the cited material.
No. 80055-8-I/2

County. We conclude that the legislative intent exception to the public duty

doctrine applies to the Perillos’ negligence claim and that sufficient evidence of a

legal duty precludes summary judgment. We reverse and remand.

FACTS

The house at 505 Michelle Drive on Camano Island sat derelict for many

years after its owner went to prison in 2010. The house became a hub of

criminal activity, illegal drug use, and garbage dumping. In May 2015, title to the

property transferred back to the lender bank. Later that year, a real estate

preservation and maintenance company began efforts to restore the property,

hiring successive contractors for the massive undertaking to clean the property.

In 2016, the lender sold the restored property to View Sun Investments LLC, who

listed the property for sale.

On February 24, 2017, Diane and Ted Perillo bought the newly renovated

house for $479,000. As they prepared to move in, service providers and

neighbors warned them of the property’s dubious history. Both the Frontier

phone and Internet installer and the DISH Network installer were familiar with the

property and told the Perillos the house was “well known on the island as a drug

house.” Through conversations with neighbors, the Perillos learned of extensive

law enforcement activity on the property and of multiple complaints to law

enforcement and the local health department about the property.

The Perillos’ real estate agent contacted Island County Public Health

(ICPH) and filed a public records request for “[a]ll information on the property,”

including “police records pertaining to drugs, shootings, [and] criminal activity in

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No. 80055-8-I/3

[the] last 10 years.” The records from ICPH and the Island County Sheriff’s

Office (ICSO) revealed years of reports of drug activity on the property, including

suspected manufacturing of methamphetamine.

In June 2014, neighbor Jewel Enger contacted ICSO to report “a constant

stream of people coming and going from the location,” including many teens.

According to Enger, “[S]ometimes they are so messed up that they have to hold

each other up while standing at the bus stop.” The ICSO report states Enger

said it was an “ ‘obvious drug house.’ ” In October 2014, ICSO received specific

information about methamphetamine on the premises. A caller who had been

squatting at the home reported methamphetamine trafficking.1 She reported that

the house was “ ‘polluting the island, it is saturated with meth.’ ” She also said

that deputies had done nothing despite knowing it was a “drug house.”

A month later, the president of the homeowners association (HOA) that

includes the 505 Michelle Drive property contacted ICPH to complain about

“suspected drug activity” and to ask “why the drug task force was not doing

anything about it.” ICPH told the HOA president to contact the ICSO, but the

ICSO had referred him to ICPH.

In March 2015, an ICPH environmental health specialist and solid waste

coordinator wrote an e-mail to other ICPH employees, describing the property as

“very complex” and “not a safe place.” The coordinator had taken photographs

but “was only able to capture half of the property due to safety measures.” She

also stated that the Island County Planning Department posted “a cease and

1
She also told the ICSO that there was stolen property at the house and a “chop shop in
the garage.”

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No. 80055-8-I/4

desist order” on the property “because the occupants were tearing down the

metal shop,” leaving “large amounts of garbage.”

ICPH and ICSO report logs show multiple calls to the agencies about the

property, including complaints about strong chemical smells and drug

manufacturing. In April 2015, a nearby property owner called ICPH because he

“believes meth is being cooked” at the house. The same day, neighbor Enger

again reported a “strong chemical smell for over a week. The last 5 days it is

worse so when she goes outside her eyes water, she can’t breathe and gets

wheezy.” In her report to the ICSO, Enger described “the smell of chemicals

being used to make drugs.” The ICSO explained to Enger its “limitation in

entering a private home” and recommended she report “a public health/nuisance

violation” to the county.2

In October 2015, a contractor working to clean up the property contacted

ICPH to ask whether “there was any prior history of Meth manufacturing for the

property.” He joked, “Sounds like this place is pretty familiar to about everyone in

that office!! (lol).”3 While working at the property, “several neighbors” warned

him that there was a “significant history” of methamphetamine manufacturing in

the interior of the home and in a trailer parked in the driveway. The contractor

told ICPH:

After learning a little about the signs and symptoms for meth labs, I
immediat[e]ly stopped working and felt it necessary to contact you
guys or the Sheriff[’]s department for any insight. There were
nearly 50 gas cans, countless plastic bottles, short lengths of hose

2
Enger made a report to ICPH two days later.
3
In this context, “lol” likely means “laugh out loud” or “laughing out loud.”

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No. 80055-8-I/5

(everywhere), 15 or 20 propane tanks, many antifreeze bottles,
e[tc.] . . . .

....

I also uncovered MANY needles.

The contractor said that when he stopped working, he experienced

dizziness, “severe headache, rapidly developing sore[ ]throat,” and overall

fogginess. The contractor asked ICHP whether there was information on “any

possible hazard” on the property and a way to test the interior and exterior of the

home for contamination before he continued working on the property. ICPH told

him the property had an established history of “drug activity” but no record of

drug “manufacturing.” ICPH referred the contractor to the ICSO for more

information and suggested he contact the Washington State Department of

Health (DOH) Anonymous Meth Hotline to report a possible lab site. Also in

October, another contractor cleaning the property reported to ICSO that she

found “ ‘[thousand]s of needles,’ several baggies appearing to contain . . .

controlled substances,” and a gun.

After discovering the long history of drug activity on their property, the

Perillos contacted a DOH certified drug-lab-cleanup contractor to test the house

for contamination. They received the results in an April 2017 assessment report.

Samples throughout the house showed methamphetamine residue in excess of

legal limits. For example, the kitchen cabinets had a contamination level of 24

micrograms per 100 square centimeters, well above the Washington State

methamphetamine cleanup guideline of no more than 1.5 micrograms per 100

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No. 80055-8-I/6

square centimeters.4 Due to these high levels of residue, the assessment report

recommended the house remain unoccupied until after proper decontamination.

The report recommended ripping the house down to the studs to remediate the

contamination at a cost of about $110,000.

Further testing in February 2018 revealed methamphetamine residue in

the living room wood framing, roof sheeting, and concrete floor near the hot

water tank. The second assessment report concluded that because of the

contamination found in the framing and roof, remediation might not achieve

habitable levels. Given this concern, the Perillos chose to demolish the house at

a cost of $85,610.

The Perillos sued View Sun Investments LLC, the seller of the property,

for breach of contract, fraud, and violation of the Consumer Protection Act,

chapter 19.86 RCW.5 The Perillos also brought a claim for negligence against

Island County for breaching its statutory duty to inspect the property and inform

potential occupants of hazardous chemical contamination. Island County moved

for summary judgment, arguing the public duty doctrine barred the Perillos’ claim.

The trial court granted Island County’s motion and dismissed the claim with

prejudice.

The Perillos filed a motion for discretionary review. A commissioner of this

court granted discretionary review under the RAP 2.3(b)(1) obvious error

standard.

4
See WAC 246-205-541(1).
5
The claims against seller View Sun Investments are not at issue in this appeal.

6
No. 80055-8-I/7

ANALYSIS

We review orders on summary judgment de novo and consider all

evidence and reasonable inferences in the light most favorable to the nonmoving

party. Kim v. Lakeside Adult Family Home, 185 Wn.2d 532, 547, 374 P.3d 121

(2016). “Summary judgment is properly granted when the pleadings, affidavits,

depositions, and admissions on file demonstrate there is no genuine issue of

material fact and the moving party is entitled to judgment as a matter of law.”

Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998) (citing CR

56(c)). The moving party bears the burden of proving there are no issues of

material fact. Kim, 185 Wn.2d at 547. The nonmoving party must then “make a

showing sufficient to establish the existence of an element essential to [their]

case” to avoid summary judgment. Atherton Condo. Apt.-Owners Ass’n Bd. of

Dirs. v. Blume Dev. Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990).

The Perillos filed a negligence claim against Island County.6 To establish

negligence, a plaintiff must show (1) the existence of a duty, (2) breach of that

duty, (3) resulting injury, and (4) proximate cause. Ranger Ins. Co. v. Pierce

County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008). Summary judgment is

proper if a plaintiff cannot meet any one of these elements. Ranger Ins., 164

Wn.2d at 552-53. In a negligence action, “the threshold question is whether the

defendant owes a duty of care to the injured plaintiff.” Schooley v. Pinch’s Deli

Mkt., Inc., 134 Wn.2d 468, 474, 951 P.2d 749 (1998). The existence of a legal

6
Island County argues that we should dismiss ICPH from the Perillos’ negligence claim
because it is immune from liability under RCW 64.44.080 and had no duty to act under RCW
64.44.020 without a report of contamination from ICSO. Because ICPH is not a named party to
the Perillos’ lawsuit, we decline to address these arguments.

7
No. 80055-8-I/8

duty is a question of law. Schooley, 134 Wn.2d at 474. But “summary judgment

is inappropriate where the existence of a legal duty depends on disputed material

facts.” Afoa v. Port of Seattle, 176 Wn.2d 460, 466, 296 P.3d 800 (2013).

Duty of Care

The Perillos claim that Island County owed them a duty to inspect the

house at 505 Michelle Drive for hazardous chemical contamination when ICSO

became aware of possible methamphetamine use and manufacturing on the

property. The Perillos argue that Island County’s duty of care to them arises

under RCW 64.44.020, which provides, in pertinent part:

Whenever a law enforcement agency becomes aware that property
has been contaminated by hazardous chemicals, that agency shall
report the contamination to the local health officer. The local health
officer shall cause a posting of a written warning on the premises
within one working day of notification of the contamination and shall
inspect the property within fourteen days after receiving the notice
of contamination. . . . .
A local health officer may enter, inspect, and survey at
reasonable times any properties for which there are reasonable
grounds to believe that the property has become contaminated. If
the property is contaminated, the local health officer shall post a
written notice declaring that the officer intends to issue an order
prohibiting use of the property as long as the property is
contaminated.

Island County argues that under the plain language of the statute, law

enforcement must have “actual knowledge of contamination” to trigger its

mandatory duty to report to a local health officer. Island County asserts:

RCW 64.44.020 does not require law enforcement agencies to
report potential contamination [to local health officers], nor are law
enforcement agencies required - on pain of tort liability - to follow
up on all complaints of drug activity that might lead to knowledge of
contamination.

8
No. 80055-8-I/9

We interpret a statute “to ascertain and carry out the Legislature’s intent,

and if the statute’s meaning is plain on its face, then [we] must give effect to that

plain meaning as an expression of legislative intent.” Dep’t of Ecology v.

Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002). Plain meaning “is

discerned from all that the Legislature has said in the statute and related statutes

which disclose legislative intent about the provision in question.” Dep’t of

Ecology, 146 Wn.2d at 11. We avoid a literal reading of the statute that results in

unlikely, absurd, or strained consequences. Thurston County ex. rel. Snaza v.

City of Olympia, 193 Wn.2d 102, 108, 440 P.3d 988 (2019). And we must

interpret the language so that no portion of the statute is meaningless or

superfluous. Rivard v. State, 168 Wn.2d 775, 783, 231 P.3d 186 (2010).

RCW 64.44.020 mandates the ICSO to report contamination to a local

health officer “[w]henever [it] becomes aware that property has been

contaminated by hazardous chemicals.” The statute defines “contaminated” as

“polluted by hazardous chemicals so that the property is unfit for human

habitation or use due to immediate or long-term hazards.” RCW 64.44.010(2).7

The statute does not define the term “becomes aware.” When the legislature has

not defined a term, “we may look to dictionary definitions, as well as the statute’s

context, to determine the plain meaning of the term.” In re Det. of J.N., 200 Wn.

App. 279, 286, 402 P.3d 380 (2017) (citing Buchheit v. Geiger, 192 Wn. App.

691, 696, 368 P.3d 509 (2016). The dictionary definition of “become” is “to come

to exist or occur.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 195 (2002).

7
RCW 64.44.010(4)(b) expressly defines “hazardous chemicals” to include the controlled
substance methamphetamine and manufacturing methamphetamine.

9
No. 80055-8-I/10

The dictionary defines “aware” as “marked by realization, perception, or

knowledge : conscious, sensible, cognizant.” WEBSTER’S, at 152. Thus, the plain

meaning of the statute does not demand “actual knowledge” of contamination to

trigger law enforcement’s duty to report the contamination to local health officers.

Instead, RCW 64.44.020 mandates that once law enforcement comes to the

realization or perception that hazardous chemicals are polluting a property, it

must report the contamination to local health officers.

Island County’s interpretation of RCW 64.44.020 confuses the role of law

enforcement with the role of public health officers and creates a threshold for law

enforcement action that is impossible to satisfy. Chapter 64.44 RCW and the

WACs establish law enforcement’s role as reporting potential hazardous

chemical contamination to local health officials. See RCW 64.44.020. The role

of local health officials is to inspect property that may be contaminated and

determine whether the property is actually contaminated by hazardous

chemicals. See RCW 64.44.020, .070. The WACs govern that process,

including acquiring data from the property and using analytical results obtained

through sampling as a method to determine contamination. See WAC 246-205-

510, -530, -531. The statutory division of duties properly assigns the role of

inspecting the property to public health—the organization with the resources and

expertise necessary to sample and test air, surfaces, and soil to assess whether

the property is actually “polluted by hazardous chemicals so that [it] is unfit for

human habitation or use.” RCW 64.44.010(2). Confusing the two agencies’

roles leads to a meaningless statute because law enforcement does not have the

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No. 80055-8-I/11

resources and expertise to acquire “actual knowledge” that a property is

contaminated at unhealthy levels.

Island County’s interpretation of RCW 66.44.020 also eliminates the role

of the local health officer. The statute states that once the local health officer

receives a report of potentially contaminated property from law enforcement, it

“shall cause a posting of a written warning on the premises within one working

day of notification of the contamination and shall inspect the property within

fourteen days after receiving the notice of contamination.” RCW 64.44.020. The

initial warning by the local health officer—not law enforcement—“inform[s] the

potential occupants that hazardous chemicals may exist on, or have been

removed from, the premises and that entry is unsafe.” RCW 64.44.020. After

inspection and a finding of contamination, the local health officer must issue an

order “declaring the property unfit and prohibiting its use.” RCW 64.44.030(1).

The health officer must serve the order on all occupants and interested parties,

as well as post the order “in a conspicuous place on the property.” RCW

64.44.030(1). The health officer must then report the property to DOH, who

maintains a list of contaminated properties made available to the public. RCW

64.44.020. If the statute required law enforcement to report contamination to

health officers only when they have “actual knowledge” that the property is

contaminated by hazardous chemicals, the statutory role and responsibilities of

the local health officer would be superfluous.

Other WAC provisions pertaining to contaminated properties also support

our conclusion that the plain meaning of RCW 64.44.020 does not require actual

11
No. 80055-8-I/12

knowledge of contamination to trigger a report to local health officers. Under

WAC 246-205-520(1), a local health officer must post a written warning on a

property within one working day of notification from law enforcement of “potential

contamination.” And WAC 246-205-530 requires that the local health officer

inspect “potential property contamination” within “fourteen days after a law

enforcement agency” notification.

We conclude that the plain meaning of RCW 64.44.020 imposes a duty on

law enforcement to report to local health officers when it has information that

causes it to realize or perceive that hazardous chemicals are polluting a property.

Whether ICSO had sufficient information to trigger its duty here is a

question for the trier of fact. Afoa, 176 Wn.2d at 466. In their opposition to

Island County’s motion for summary judgment, the Perillos produced evidence

that neighbor Enger informed ICSO in June 2014 that 505 Michelle Drive was an

“ ‘obvious drug house’ ” with a “constant stream” of clearly intoxicated visitors.

Enger again reported in April 2015 a “strong chemical smell” emanating from the

house for a week, that the smell was like chemicals “used to make drugs,” and

that it was “so strong” she “could not open the window to [her] residence.”8 A

squatter on the property also told the ICSO of methamphetamine trafficking at

the house and that the property was “ ‘saturated with meth.’ ” And in October

2015, a contractor cleaning the property reported that she found thousands of

needles on the property, along with a gun and several baggies that looked to

contain or once contain drugs. Viewing this evidence in the light most favorable

8
Enger and other neighbors reported similar complaints to ICPH.

12
No. 80055-8-I/13

to the Perillos, they have made a sufficient showing to avoid summary judgment

on the question of whether law enforcement owed them a duty under RCW

64.44.020.

Public Duty Doctrine

Island County contends that any duty of care it owes under RCW

64.44.020 is solely to the public at large, “not individual occupants of property.”

Accordingly, it asserts that the public duty doctrine bars the Perillos’ claim. The

Perillos argue that the legislative intent exception to the public duty doctrine

applies to their claim because they are among the class of people chapter 64.44

RCW protects. We agree with the Perillos.

No matter if the defendant is a private individual or government entity, the

existence of a duty to the plaintiff is the threshold issue in a negligence claim.

Babcock v. Mason County Fire Dist. No. 6, 144 Wn.2d 774, 784-85, 30 P.3d

1261 (2001). But “[t]o establish a duty in tort against a governmental entity, a

plaintiff must show that the duty breached was owed to an individual and was not

merely a general obligation owed to the public.” Beltran-Serrano v. City of

Tacoma, 193 Wn.2d 537, 549, 442 P.3d 608 (2019). The public duty doctrine

provides “a tool to analyze whether a mandated government duty was owed to

the public in general or to a particular class of individuals.” Munich v. Skagit

Emergency Commc’n Ctr. d/b/a Skagit 911, 175 Wn.2d 871, 888, 288 P.3d 328

(2012) (Chambers, J., concurring).

Four named exceptions to the public duty doctrine provide for liability of a

government entity even in the face of performing otherwise public duties. Ehrhart

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No. 80055-8-I/14

v. King County, 195 Wn.2d 388, 400, 460 P.3d 612 (2020). The exceptions are

(1) legislative intent, (2) failure to enforce, (3) the rescue doctrine, and (4) special

relationship. Ehrhart, 195 Wn.2d at 400. “A determination that an exception to

the public duty doctrine applies is tantamount to a conclusion that [a government

entity] owed a duty to the plaintiff.” Yonker v. Dep’t of Soc. & Health Servs., 85

Wn. App. 71, 77, 930 P.2d 958 (1997).

“The legislative intent exception [to the public duty doctrine] recognizes

that the legislature may impose legal duties on persons or other entities by

proscribing or mandating certain conduct.” Washburn v. City of Fed. Way, 178

Wn.2d 732, 754-55, 310 P.3d 1275 (2013). The exception applies when the

terms of a statute show “a clear legislative intent to identify and protect a

particular class of persons.” Weaver v. Spokane County, 168 Wn. App. 127,

139, 275 P.3d 1184 (2012). A member of a statutorily identified class may bring

a tort action against a governmental entity for violating the statute. Honcoop v.

State, 111 Wn.2d 182, 188, 759 P.2d 1188 (1988). The intended class must be

“particular and circumscribed.” Ravenscroft v. Wash. Water Power Co., 136

Wn.2d 911, 929, 969 P.2d 75 (1998). And the provision must clearly express

legislative intent. Ravenscroft, 136 Wn.2d at 930. We typically look to the

legislature’s statement of purpose to determine the statute’s intent. Washburn,

178 Wn.2d at 754-55.

RCW 64.44.005 articulates the legislative intent behind the statutes

pertaining to contaminated properties:

The legislature finds that some properties are being contaminated
by hazardous chemicals used in unsafe or illegal ways in the

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No. 80055-8-I/15

manufacture of illegal drugs or by hazardous drugs contaminating
transient accommodations regulated by [DOH]. Innocent members
of the public may be harmed by the residue left by these chemicals
when the properties are subsequently rented or sold without having
been decontaminated.

RCW 64.44.005 clearly identifies “members of the public” who

“subsequently” rent or purchase contaminated properties as the “particular and

circumscribed” class of people protected by the statute. See Ravenscroft, 136

Wn.2d at 929. To facilitate the legislature’s intent, RCW 64.44.020 mandates

posted warnings to notify potential occupants of the safety hazard. Additionally,

the statute specifically identifies “landlord and realtor organizations” among the

groups to whom DOH can provide a list of contaminated properties. RCW

64.44.020. This serves the legislative purpose of chapter 64.44 RCW to notify

and protect potential occupants of contaminated properties. See RCW

64.44.005. Finally, legislative history also articulates an intent to prevent harm to

the particular class of people at issue in this appeal:

The legislature finds that the contamination of properties used for
illegal drug manufacturing poses a threat to public health. The toxic
chemicals left behind by the illegal drug manufacturing must be
cleaned up to prevent harm to subsequent occupants of the
properties. It is the intent of the legislature that properties are
decontaminated in a manner that is efficient, prompt, and that
makes them safe to reoccupy.

LAWS OF 1999, ch. 292, § 1.

The Perillos are innocent purchasers of a contaminated property and

clearly within the class of people that chapter 64.44 RCW protects. The public

15
No. 80055-8-I/16

duty doctrine does not bar their negligence claim. Reversed and remanded for

further proceedings.

WE CONCUR:

16

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4638291. Public record. Not legal advice.