¶1 Qualified immunity shields a government official from liability for money damages in a lawsuit asserting the violation of a federal civil right unless the plaintiff pleads facts demonstrating that the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct. A right is “clearly established” only where existing precedent has  resolved the statutory or constitutional question beyond debate—the contours of the right must be sufficiently clear that every reasonable official in the circumstances presented would have understood that the official's conduct violated  that right.

* * * * 

¶22 Qualified immunity is not a mere defense to liability but, rather, is an ‘entitlement not to stand trial or face the other burdens of litigation.’” Feis v. King County Sheriff's Dep't, 165 Wn. App. 525, 538, 267 P.3d 1022 (2011) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985)), review denied, 173 Wn.2d 1036 (2012). Qualified immunity “shields an officer from suit when [he or] she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances [he or] she confronted.” Brosseau v. Haugen, 543 U.S. 194, 198, 125 S. Ct. 596, 160 L. Ed. 2d 583 (2004). In the context of an excessive force claim, the doctrine operates “‘to protect officers from the sometimes hazy border between excessive and acceptable force.’” Brosseau, 543 U.S. at 198 (internal quotation marks omitted) (quoting Saucier v. Katz, 533 U.S. 194, 206, 121 S. Ct. 2151, 150 L. Ed.  2d 272 (2001)). Because  ualified immunity protects officers not just from liability but from suit, “‘it is effectively lost if a case is erroneously permitted to go to trial.’” Scott v. Harris, 550 U.S. 372, 376 n.2, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007) (quoting Mitchell, 472 U.S. at 526). Accordingly, the claim should be resolved at the earliest possible stage in litigation. 8 Scott, 550 U.S. at 376 n.2.

¶23 The determination of a police officer's entitlement to qualified immunity involves a two-part inquiry—we must determine “(1) whether the facts alleged, taken in the light most favorable to the complaining party, show that an [officer's]  conduct violated a constitutional right and (2) whether the right was clearly established at the time of the violation.” Feis, 165 Wn. App. at 539-40 (citing Saucier, 533 U.S. at 201). If the answer to either question is “no,” then qualified immunity applies to shield the officer from liability for damages. See Pearson v. Callahan, 555 U.S. 223, 236, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009). Although “lower courts have discretion to decide which of the two prongs of qualified-immunity analysis to tackle first,” the United States Supreme Court has cautioned courts to “think carefully before expending ‘scarce judicial resources’ to resolve difficult and novel questions of constitutional or statutory interpretation that will ‘have no effect on the outcome of the case.’” Ashcroft v. al-Kidd, ___ U.S. ___, 131 S. Ct. 2074, 2080, 179 L. Ed. 2d 1149 (2011) (quoting Pearson, 555 U.S. at 236-37). Accordingly, particularly where it is plain that the asserted constitutional right is not clearly established, an officer's entitlement to qualified immunity is best resolved under the second Saucier prong. 9 See Feis, 165 Wn. App. at 540-41. In evaluating a claim of qualified immunity, we must bear  in mind that  courts “undermine the values qualified immunity seeks to promote … when what is not clearly established is held to be so.” al-Kidd, 131 S. Ct. at 2080.

¶24 As we have previously explained,  the test for determining whether a constitutional right is clearly established is “both unique in the law and dramatic in its demand.” Feis, 165 Wn. App. at 543. For a right to be clearly  established, “existing precedent must have placed the statutory or constitutional question beyond debate.” al-Kidd, 131 S. Ct. at 2083 (emphasis added). There must exist “controlling authority—or a ‘robust consensus of persuasive authority’—that defines the contours of the right in question with a high degree of particularity.” Morgan v. Swanson, 659 F.3d 359, 371-72 (5th Cir. 2011) (internal quotation marks omitted) (quoting al-Kidd, 131 S. Ct. at 2083), cert. denied, 132 S. Ct. 2740, 183 L. Ed. 2d 614 (2012). “The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. at 202. Although it is not necessary that “the very action in question has previously been held unlawful,” Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987), “there must be some parallel or comparable factual pattern to alert an officer that a series of actions would violate an existing constitutional right.” Fogel v. Collins, 531 F.3d 824, 833 (9th Cir. 2008).

¶25  Courts are “not to define clearly established law at a high level  of generality.” al-Kidd, 131 S. Ct. at 2084. Instead,

[t]o defeat an assertion of immunity, a plaintiff must allege that an officer's conduct violated a clearly established and sufficiently particularized statutory or constitutional right. Saucier, 533 U.S. at 202 (quoting Anderson, 483 U.S. at 640). Because allowing plaintiffs to allege violation of “extremely abstract rights” would convert qualified immunity into “virtually unqualified liability,” plaintiffs must allege violation of a particularized right, the contours of which are “sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson, 483 U.S. at 639-40. Imposing liability only where the contours of a right are sufficiently clear ensures that public officials have fair warning of when their conduct may give rise to liability. United States v. Lanier, 520 U.S. 259, 270-71, 117 S. Ct. 1219, 137 L. Ed. 2d 432 (1997).

Feis, 165 Wn. App. at 541.

¶26 As we have explained, the United States Supreme Court 

has unequivocally demanded, and lower courts have obediently insisted, that plaintiffs seeking to overcome claims of qualified immunity articulate with particularity the clearly established  right that they allege to have been violated. E.g., Brosseau[, 543 U.S. at 200] (framing the particularized right at issue as the Fourth Amendment protection against police shooting a “disturbed felon, set on avoiding capture through vehicular flight, when persons in the immediate area are at risk from that flight”); Mattos v. Agarano, 661 F.3d 433, 448 (9th Cir. 2011) (holding that the dearth of Supreme Court and Ninth Circuit precedent addressing police officers' use of stun guns in dart mode prevented the court from finding a violation of plaintiffs' clearly established right to be free from use of excessive force in the circumstances presented); Fogel v. Collins, 531 F.3d 824, 833 (9th Cir. 2008) (characterizing the particularized right at issue as the First Amendment protection enjoyed by an individual in the post-September 11 environment who “satirically   proclaim[s] himself or herself to be a terrorist in possession of weapons of mass destruction”).

Feis, 165 Wn. App. at 541-42.

This requirement of particularization recognizes that “‘[t]he sine qua non of the clearly-established inquiry is “fair warning”’ to officers of when their conduct will give rise to liability.” Feis,165 Wn. App. at 544  (alteration in original) (quoting Morgan, 659 F.3d at 372). It is the plaintiff's burden to demonstrate that the particularized right that he or she claims was violated was clearly established at the time of the alleged violation. Moran v. Washington, 147 F.3d 839, 844 (9th Cir. 1998).

¶27 . . . claims of excessive force by police officers are judged pursuant to the Fourth Amendment's “objective reasonableness” standard. Graham v. Connor, 490 U.S. 386, 388, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). The United States Supreme Court has explained that it is unreasonable for an officer to “seize an unarmed, nondangerous suspect by shooting him dead.” Tennessee v. Garner, 471 U.S. 1, 11, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985). On the other hand, “[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.” 10 Garner, 471 U.S. at 11. As the Court has explained, however, because Graham and Garner “are cast at a high level of generality,” these standards do not, except in “an obvious case,” provide  the fair warning to a police officer that is necessary to defeat a claim of qualified immunity. Brosseau, 543 U.S. at 199. Moreover, it is improper for a trial court to deny summary judgment simply because a “material issue of fact remains on the excessive force claim”—even in such circumstances—“[i]f the law did not put the officer  on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate.” Saucier, 533 U.S. at 202.

* * * * 

¶31 Neither party has pointed us to “controlling authority” in this matter. In the context of qualified immunity jurisprudence, the phrase “controlling authority” refers to the decisions of the United States Supreme Court and to no others. Feis, 165 Wn. App. at 545 n.12. Here, no such decision has involved sufficiently similar circumstances to control the disposition of this case. Accordingly, in order to defeat Deputy Freeman's claim of qualified immunity, “a robust ‘consensus of cases of persuasive authority’” must demonstrate that Deputy Freeman's actions were clearly unlawful. al-Kidd, 131 S. Ct. at 2084  (quoting Wilson v. Layne, 526 U.S. 603, 617, 119 S. Ct. 1692, 143 L. Ed. 2d 818 (1999)).

¶32 Gallegos cites to a single Second Circuit decision in support of this proposition. See Cowan v. Breen, 352 F.3d 756 (2d Cir. 2003). In Cowan, which involved the fatal shooting of a fleeing motorist, the decedent's estate presented evidence that the vehicle was traveling slowly, that the officer was substantially to the side of the vehicle when he fired his weapon, that the officer gave no warning before shooting, and that the vehicle made no sudden turns as it traveled along the roadway. 352 F.3d at 763. The court determined that, taking these facts as true, the officer could not reasonably have believed that he was in danger of physical harm at the moment the fatal shot was fired and, thus, that no reasonable officer in that position could have believed that the use of deadly force was necessary. Cowan, 352 F.3d at 763.

¶33 Gallegos asserts that, having presented evidence that his own vehicle was traveling at a modest rate of speed, that the vehicle never deviated from the dirt pathway, and that Deputy Freeman fired his weapon from a position to the side of the vehicle, the  right to be free from deadly force in such circumstances was clearly established. However, as a threshold matter, “[t]he robust consensus of precedent required to find a right clearly established under the second prong of the Saucier inquiry is a consensus pervading the entire United States, not a single jurisdiction or circuit.” Feis, 165 Wn. App. at 547 (citing al-Kidd, 131 S. Ct. at 2084). Gallegos's citation to a single, out-of-state decision does not, of course, satisfy this stringent standard. 

34 Moreover, Cowan is factually distinguishable from the present case. In Cowan, the police officer and the suspect were the only two persons present in the vicinity of the shooting. 352 F.3d at 758-59. Accordingly, the officer's  use of force could be justified, if at all, only by the threat posed to the officer's own safety. Cowan, 352 F.3d at 762. By contrast, in this case, Deputy Freeman explained that he decided to fire his weapon at Gallegos, not out of concern solely for his own safety, but also out of concern for the safety of Sergeant Cooley and the other citizens who remained in the path of the vehicle at the edge of the field.

¶35 As discussed above, the United States Supreme Court has held that where the officer has probable cause to believe a suspect poses a threat of serious injury or death to others, the use of deadly force is constitutionally permissible. Garner, 471 U.S. at 11; see also Scott, 550 U.S. at 386 (holding that an officer is permitted to take actions that place a fleeing motorist at risk of serious injury or death in order to stop the fleeing motorist from endangering the lives of innocent bystanders). In many cases, lower courts have found no Fourth Amendment violation in circumstances wherein an officer shot a fleeing suspect who presented a risk to others. See, e.g., Cole v. Bone, 993 F.2d 1328, 1333 (8th Cir. 1993) (holding that officer, who fired his weapon at driver of speeding truck,  had probable cause to believe that the truck posed an imminent threat of serious physical harm to innocent motorists as well as to the officers themselves”); Smith v. Freland, 954 F.2d 343, 347 (6th Cir. 1992) (noting “a car can be a deadly weapon” and holding that officer's decision to fire his gun through passenger-side window to stop the car from possibly injuring others was reasonable).

¶36 In Brosseau, the United States Supreme Court cautioned that this area of law is “one in which the result depends very much on the facts of each case.” 543 U.S. at 201. There, a police officer who was engaged in the pursuit of a fleeing suspect observed the suspect enter a parked vehicle. Brosseau, 543 U.S. at 196. The officer repeatedly ordered the suspect to exit the vehicle and briefly struggled with him. Brosseau, 543 U.S. at 196. When the suspect started the vehicle and began to pull away, the officer shot  him in the back. Brosseau, 543 U.S. at  196-97. The officer, who was never in the path of the vehicle, explained that her decision to fire her weapon was based upon her fear “‘for the other officers on foot who [she] believed were in the immediate area, [and] for the occupied vehicles in  [the suspect's] path and for any other citizens who might be in the area.’” Brosseau, 543 U.S. at 197 (some alterations in original) (internal quotation marks omitted) (quoting Haugen v. Brosseau, 339 F.3d 857, 865 (9th Cir. 2003)). Under these circumstances, the Court explained, the officer's fear for the safety of others placed her actions within the “‘hazy border between excessive and acceptable force’” and that, accordingly, it was “by no means ‘clearly establish[ed]’ that [the officer's] conduct violated the Fourth Amendment.” Brosseau, 543 U.S. at 201.

¶37 Here, Gallegos cites to no state or federal decision that squarely addresses the constitutional question presented in this case: whether an officer's use of deadly force is reasonable where, in pitch black conditions, a suicidal felony suspect drives his vehicle toward the officer (at what is later determined to be modest speed) and fails to obey the officer's commands to stop, and other officers and members of the public remain in the path of the vehicle at the time the officer decides to fire his weapon. Indeed, Gallegos has failed to “cite a single case with sufficiently  analogous circumstances to those encountered by [Deputy Freeman] in the present case, let alone a body of case law clearly establishing the particularized right here at issue.” Feis, 165 Wn. App. at 544 n.11. Accordingly, under the second Saucier prong, Deputy Freeman is entitled to qualified immunity against Gallegos's federal constitutional claim.

¶38 Furthermore, in the circumstances presented, Deputy Freeman's use of force was reasonable. Accordingly, because there was no violation of Gallegos's constitutional  right to be free from excessive force, Deputy Freeman is also entitled to qualified immunity under the first Saucier prong.

 ¶39 As noted above, a claim that a police officer has used excessive force is properly “analyzed under the Fourth Amendment and its ‘reasonableness’ standard.” Graham, 490 U.S. at 395. A police officer may use deadly force when the officer has “probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.” Garner, 471 U.S. at 11. “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”  Graham, 490 U.S. at 396. A reviewing court must make “allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving.” Graham, 490 U.S. at 397.

 ¶40 In addition, qualified immunity extends to a government official's “objectively reasonable mistakes, ‘regardless of whether the government official's error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.’” Hensley v. Gassman, 693 F.3d 681, 687 (6th Cir. 2012) (quoting Pearson, 555 U.S. at 231). “A mistake of fact is an officer's misperception of the circumstances by which he is surrounded.” Southerland v. Pennsylvania, 389 F. App'x 166, 170 (3d Cir. 2010). “Where an officer's particular use of force is based on a mistake of fact, we ask whether a reasonable officer would have or should have accurately perceived that fact.” Torres v. City of Madera, 648 F.3d 1119, 1124 (9th Cir. 2011), cert. denied, 132 S. Ct. 1032, 181 L. Ed. 2d 739 (2012). Of course, we must determine the reasonableness of an officer's perception of the facts by reference to the facts as they actually existed, which at the summary judgment  stage must be taken in the light most favorable to the complaining party. Saucier, 533 U.S. at 201. However, “[e]ven if in hindsight the facts show that the [officer] could have escaped unharmed,” where a  reasonable officer could have perceived a threat of serious  physical harm, the granting of qualified immunity is proper. Troupe v. Sarasota County, 419 F.3d 1160, 1168-69 (11th Cir. 2005). 

¶41 Here, it is undisputed that Deputy Freeman's decision to employ deadly force against Gallegos was based upon his belief that Gallegos posed a threat of serious harm to both to Freeman and to others. The question is whether this belief was objectively reasonable.

¶42 There is no doubt that, considering only Deputy Freeman's perceptions of the circumstances by which he was surrounded, his use of deadly force was reasonable.  Deputy Freeman believed that Gallegos was highly agitated and potentially suicidal, that his vehicle was bearing down on Deputy Freeman at a high rate of speed, and that Gallegos had failed to obey his commands to stop the vehicle. Deputy Freeman explained that he was afraid that “the driver had no incentive to stop because he was suicidal, had taken an unknown quantity of some type of pills, and had been threatening to harm himself with a knife.” Deputy Freeman believed he had only seconds to act and that if he “did not shoot, [he] would either be killed or seriously injured” by the oncoming vehicle. He stated that he was afraid that even if the vehicle were to hit him, “it would not stop, and would continue down the path where Sergeant Cooley was somewhere behind me, along with others.” Under this view of the circumstances, Deputy Freeman had probable cause to believe that both his own life and the lives of others were in danger, thus justifying his decision to employ deadly force against Gallegos.

¶43 The question, then, is whether Deputy Freeman's perception of his surroundings was a reasonable one. With  regard to Deputy Freeman's view of Gallegos's mental state, Deputy Freeman had  been informed by the dispatcher that Gallegos was potentially suicidal and had been repeatedly threatening to harm himself. It was reasonable for Deputy Freeman to rely upon this information in assessing the threat that Gallegos posed. See, e.g., Estate of Larsen v. Murr, 511 F.3d 1255, 1260 (10th Cir. 2008) (determining that immediacy of threat heightened where officer was aware that suspect previously “threatened violence against himself and others”). Similarly, it is undisputed that Gallegos failed to obey Deputy Freeman's commands to stop his vehicle. Although Gallegos contends that he did not hear these commands, the pertinent inquiry is what a reasonable officer in Deputy Freeman's position would have perceived. Torres, 648 F.3d at 1124. Because it is undisputed that such commands were given, a reasonable officer would be entitled to consider Gallegos's noncompliance in determining the need to employ deadly force. See Graham, 490 U.S. at 396 (explaining that “whether [suspect] is actively resisting arrest or attempting to evade arrest by flight” is relevant to reasonableness of particular use of force).

¶44 At the heart of the dispute are the speed and direction of  Gallegos's vehicle as it approached Deputy Freeman. Deputy Freeman testified that he believed the vehicle was traveling at a speed of 35 to 40 miles per hour as it approached his location. However, taking the facts in the light most favorable to Gallegos, as we must where qualified immunity is granted at the summary judgment stage, it must be assumed that the vehicle was traveling at a much slower rate. A forensic investigation by the Bellingham Police Department estimated the vehicle's speed to be only 16 to 17 miles per hour at the time that Deputy Freeman fired his weapon. Gallegos himself estimated his speed at 10 miles per hour, perhaps “a little bit  more or less.” Moreover, although  Deputy Freeman believed that the vehicle was tracking his movements in the field, it was later determined that Gallegos did not deviate from the dirt pathway. Given Deputy Freeman's mistakes of fact, we must determine whether, given the circumstances in which Deputy Freeman found himself, it was nevertheless reasonable for Deputy Freeman to believe that Gallegos posed a threat of serious harm to Deputy Freeman or to others.

¶45 The answer is yes. Several aspects of the situation confronted by Deputy Freeman indicate the reasonableness of his perceptions. Deputy Freeman heard the vehicle's engine revving loudly before it began to accelerate toward him. The vehicle's tires spun as it pulled away from the back of the field. The field was extremely dark, making it more difficult to judge distances. Moreover, the lights of the vehicle “bounc[ed] up and down” due to the roughness of the path. These factors would make it difficult for a reasonable officer in Deputy Freeman's position to accurately gauge the speed and direction of the vehicle.

¶46 Indeed, Deputy Freeman's impressions were shared by two other witnesses at the scene. Sergeant Cooley estimated the vehicle's speed to be 30 to 35 miles per hour. He believed that Deputy Freeman was directly in the path  of the oncoming vehicle, testifying that he saw Deputy Freeman illuminated in the headlights of the vehicle as it moved down the dirt path. McKee, who observed the scene from the back of the field, also believed that Deputy Freeman and Sergeant Cooley were in danger. She told the 911 operator that Gallegos was “coming straight  towards them at a very high speed.” Just before shots were fired, McKee shouted, “Look out! Look out!” Given the conditions at the scene, and in light of the fact that two other witnesses believed that Gallegos's vehicle was traveling at high speed directly toward Deputy Freeman, it was not unreasonable for Deputy Freeman to also believe that the speed and direction of the vehicle posed a threat of serious injury.

¶47 Because a reasonable officer in Deputy Freeman's position would have perceived a threat of serious physical harm to both himself and to others, see Troupe, 419 F.3d at 1168-69, there was no violation of Gallegos's constitutional right under the Fourth and Fourteenth Amendments, and, for this reason as well, the trial court did not err by determining that Deputy Freeman was entitled to qualified immunity.

¶48 Gallegos next contends that the trial court erred by determining that Deputy Freeman was entitled to state law qualified immunity on Gallegos's claims for assault and negligence. 15 We disagree.

¶49 An officer is entitled to state law qualified immunity where the officer “‘(1) carries out a statutory duty, (2) according to procedures dictated to him by statute  and superiors, and (3) acts reasonably.’” McKinney v. City of Tukwila, 103 Wn. App. 391, 407, 13 P.3d 631 (2000) (internal quotation marks omitted) (quoting Staats v. Brown, 139 Wn.2d 757, 778, 991 P.2d 615  (2000)). Here, Gallegos does not dispute that Deputy Freeman was carrying out a statutory duty according to procedures dictated to him by statute and his superiors. Instead, Gallegos asserts only that Deputy Freeman did not act reasonably under the circumstances.

¶50 However, as discussed above, Deputy Freeman's use of force against Gallegos was reasonable. See Order, Arnold v. City of Lakewood, No. 3:10-cv-05907 RBL, 2012 WL 90472, *7, 2012 U.S. Dist. LEXIS 3398, at *20 (W.D. Wash. Jan. 11, 2012) (holding state qualified immunity applies where officer's use  of force was reasonable under Fourth Amendment). Accordingly, the trial court did not err by determining that Deputy Freeman was entitled to qualified immunity on Gallegos's state law claims.

¶51 Affirmed.

Our courts have acknowledged the duties involved in employee-employer and principal-agent relationships. See Smith v. Olympic Bank, 103 Wn.2d 418, 423, 693 P.2d 92 (1985) ("In Von Gohren [v. Pacific Nat'l Bank, 8 Wn. App. 245, 505 P.2d 467 (1973)], it was held that a bank had notice that an employee was breaching her fiduciary duty when it allowed her to deposit third party checks payable to her employer in her personal account."); Moon v. Phipps, 67 Wn.2d 948, 954-55, 411 P.2d 157 (1966) (The "loyalty demanded of an agent . . . creates a duty in the agent to deal with his principal's property solely for his principal's benefit in all matters connected with the agency."); Organon, Inc. v. Hepler, 23 Wn. App. 432, 436, 595 P.2d 1314 (1979) ("[T]he method used by the defendant in pursuing his work for Phone-a-Gram amounts to a breach of his implied duty of loyalty to his principal."); Appleway Leasing, Inc. v. Tomlinson Dairy Farms, Inc., 22 Wn. App. 781, 783, 591 P.2d 1220 (1979) ("[A]n agent breaches his fiduciary duty to his principal if he sells to a third party at too low a price something which he is otherwise authorized to sell.").

See C-E-I-R, Inc. v. Computer Dynamics Corp., 229 Md. 357, 366, 183 A.2d 374, 379 (1962) (prior to termination, employee may not solicit employer's customers for a rival business); Jet Courier Servs., Inc. v. Mulei, 771 P.2d 486, 496 (Colo. 1989) (agency relationship imposes a duty of loyalty and noncompetition upon the agent).  

​Kieburtz & Assocs. v. Rehn, 68 Wash. App. 260, 266 n.2, 842 P.2d 985, 988 (1992)

RCW 4.84.330 provides: 

​In any action on a contract or lease entered into after September 21, 1977, where such contract or lease specifically provides that attorneys' fees and costs, which are incurred to enforce the provisions of such contract or lease, shall be awarded to one of the parties, the prevailing party, whether he or she is the party specified in the contract or lease or not, shall be entitled to reasonable attorneys' fees in addition to costs and necessary disbursements.
​
Attorneys' fees provided for by this section shall not be subject to waiver by the parties to any contract or lease which is entered into after September 21, 1977. Any provision in any such contract or lease which provides for a waiver of attorneys' fees is void.

As used in this section "prevailing party" means the party in whose favor final judgment is rendered.

Metropolitan Park Dist. v. Griffith, 106 Wn.2d 425, 723 P.2d 1093 (1986) recognized the defense of impossibility, citing Thornton v. Interstate Sec. Co., 35 Wn. App. 19, 666 P.2d 370, review denied, 100 Wn.2d 1015 (1983) which in turn cited Liner v. Armstrong Homes of Bremerton, Inc., 19 Wn. App. 921, 579 P.2d 367 (1978), as well as Restatement of Contracts §§ 454, 455, and 457 (1932).  Restatement  (Second) of Contracts (1981) has rewritten these sections and those pertinent here are as follows:

§ 261: 
Where, after a contract is made, a party's performance is made impracticable without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his duty to render that performance is discharged, unless the language or the circumstances indicate the contrary.

An introductory note to chapter 11 preceding § 261 states, at pages 309-10: 
An extraordinary circumstance may make performance so vitally different from what was reasonably to be expected as to alter the essential nature of that performance.  In such a case the court must determine whether justice requires a departure from the general rule that the obligor bear the risk that the contract may become more burdensome or less desirable. . . .  The question is generally considered to be one of law rather than fact, for the court rather than the jury. . . .
. . .
Usually the impracticability or frustration that is relied upon as a justification for non-performance occurred after the contract was made.

§ 265:  
Where, after a contract is made, a party's principal purpose is substantially frustrated without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his remaining duties to render performance are discharged, unless the language or the circumstances indicate the contrary.

Comment a to § 265 denotes the difference between the four preceding sections and § 265; namely, in § 265 there is no impediment to performance by either party.  It denotes the elements as: (1) the purpose that is frustrated must have been a principal purpose of that party making the contract, (2) the frustration must be substantial, (3) the nonoccurrence of the frustrating event must have been a basic assumption on which the contract was made, and (4)  neither the language nor the circumstances indicate the contrary. See Chicago, M., St. P. & Pac. R.R. v. Chicago & North Western Transp. Co., 82 Wis. 2d 514, 263 N.W.2d 189 (1978).

Restatement (Second) of Contracts (1981) denotes that the first Restatement of Contracts (1932) talked of impossibility, whereas the Restatement (Second) speaks in terms [***9]  of impracticability as distinguished from impracticable. 
​
A mere change in the degree of difficulty or expense due to such causes as increased wages, prices of raw materials, or costs of construction, unless well beyond the normal range, does not amount to impracticability since it is this sort of risk that a fixed-price contract is intended to cover.

Restatement (Second) of Contracts § 261, comment d (1981).  Rather, impracticability has been described as extreme or unreasonable difficulty, expense, injury, or loss to one of the parties.
Here, we find the principal purpose of this contract was to purchase a hop allotment base provided and created pursuant to a hop marketing agreement.  As is evident when the marketing order was terminated, effective December 31, 1985, the value of that allotment decreased, assuming a bid of $ .50 fell to $ .05, i.e., one-tenth the bid price. We consider that a substantial frustration falling within the rule.

Although both parties were aware of the discussions pro and con over the past few years of continuation of the agreement, there is no question neither party knew of the impending termination. In fact, this record reflects the Secretary of Agriculture himself did not know the marketing order had been terminated by an assistant secretary until it was called to his attention.  Thus, we would find there was a basic assumption by the parties that the marketing order would remain operative.

While the Trust seeks to hold the growers to knowledge that the order could be terminated at any time, it takes no responsibility for the same knowledge.  Both parties are in the same business.  Both parties were aware from its inception the marketing  act could be terminated at the discretion of the Secretary of Agriculture.  Both parties were aware of the discussions that had been held; yet neither the Trust in its bid form nor the growers in their acceptance placed the risk on the other party or themselves in the event the marketing order was terminated. As noted in Restatement (Second) of Contracts § 261, comment c (1981): "If the supervening event was not reasonably foreseeable when the contract was made, the party claiming discharge can hardly be expected to have provided against its occurrence." We find without this basic assumption there would neither have been an offer nor an acceptance.  Thus, there being no language in the contract or bid forms for one side or the other to bear the risk of termination, we find none existed.  Further, as noted in § 265, comment a, HN5[ ] "the mere fact that the event was foreseeable does not compel the conclusion that its non-occurrence was not such a basic assumption."

* * * * 

Further, impossibility is not applicable if one considers true impossibility. Here, the Trust had allotment base to sell and, in fact, some growers paid the price for the allotment. So, there was no impossibility as to the Trust being able to deliver the hop allotment base and there is no showing the grower had an impossibility of payment.

Having decided the theory of impracticability is applicable to both pools, we affirm the order on summary judgment. ​

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