Articles Posted in Premises Liability

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Generally, a property owner is liable for injuries to its customers only if it has actual or constructive notice of the hazardous condition that resulted in the injury.  Washington law recognizes an exception, however, when the nature of the business and its operational methods make the existence of unsafe conditions reasonably foreseeable.  This exception, set forth in Pimentel v. Roundup Company, is known as the Pimentel or self-service exception because it applies to self-service operations.  “Self-service” simply means that the customers handle the goods and serve themselves.

snakeThere are three factors that must be met for the Pimentel exception to apply.  First, the injury must occur in a self-service area.  Second, the hazardous condition that caused the injury must also be in the self-service area.  Finally, the businesss mode of operation must inherently create a hazardous condition that is reasonably foreseeable.

The Pimentel exception commonly arises in a slip and fall context.  In a recent unpublished case, however, the Washington Court of Appeals applied it in an unusual context.  In Craig v. Wal-Mart Stores, Inc., the exception was applied when a man was bitten by a rattlesnake in a Wal-Mart garden center.

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In a recent case, the Court of Appeals of Washington reviewed a personal injury claim brought by a park visitor against the Port of Skamania County.   In Hively v. Port of Skamania County (Wash. Ct. App. Apr. 4, 2016), the plaintiff was visiting one of the Port’s parks, Teo Park, when he tripped and fell on an asphalt path on the way to the restroom. The plaintiff brought suit against the Port for negligence.  The Port moved for summary judgment on the ground that it was entitled to recreational use immunity, and the trial court granted the motion. The plaintiff appealed the trial court’s decision to the appellate court.premises liability

In Washington, there is a statutory exception to common law invitee premises liability, known as recreational use immunity. The purpose is to encourage landowners and those in lawful possession of land to make it available to the public for recreational purposes by limiting their liability. To be immune, the landowner must prove that the property is open to members of the public for recreational purposes and that no fee of any kind is charged.

In Hively v. Port of Skamania, the plaintiff conceded the first and second elements but argued that the Port charges a fee to cruise ships to dock and to parties who wish to exclusively rent Teo Park. On appeal, the court explained that a landowner may charge a fee to use part of its land but maintain immunity for the recreational use of the remainder of the land. However, the fee cannot be one charged for using the land or water area where the injury occurred. As a result, a landowner is not entitled to immunity when the place where the injury occurred is a necessary and vital part of the fee-generating area.

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The Court of Appeals of Washington reviewed a judgment in favor of the plaintiffs in a recent premises liability case, Gould v. N. Kitsap Bus. Park Mgmt., LLC (Wash. Ct. App. Jan. 19, 2016). In Gould, the plaintiff was injured when she tripped over an unpainted wheel stop in a parking lot of a strip mall owned by the defendant. The plaintiff filed a personal injury action, alleging that the defendant was negligent because its wheel stop was not painted and did not contrast with the surrounding pavement. The trial court ruled in the plaintiff’s favor, and the defendant appealed.parking-lot-1255336-639x427

To establish a claim for negligence in Washington, the plaintiff must show the existence of a duty owed, a breach of that duty, a resulting injury, and proximate cause between the breach and the injury. In cases of premises liability, the legal duty owed to the plaintiff by a landowner depends on whether the plaintiff is a trespasser, licensee, or invitee. A business invitee is a person who is invited to enter the property for a purpose connected to business dealings with the landowner.

In Gould, the appeals court found that the trial court’s findings of fact supported the conclusion that the plaintiff was a business invitee, since she was visiting for a business purpose and made a purchase at one of the stores in the defendant’s strip mall. Under Washington law, a defendant is liable for harm caused to invitees by a condition on the land only if the defendant (1) knows or should have known of the condition, (2) should know that the condition involves an unreasonable risk of harm to invitees, (3) should expect that the invitee will not realize the danger, and (4) fails to exercise reasonable care to protect them against the danger.

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The Washington Court of Appeals recently addressed the issue of whether a trial court properly admitted expert industry custom testimony in a premises liability case. In Ponce v. Mountaineers (Wash. Ct. App. Nov. 2, 2015), the plaintiff’s son died in a sledding accident at the defendant’s recreational facility. The family had parked along the side of a road and was walking from their car up the hill on the access trail, when their son abruptly sat on his sled. The sled traveled down the hill and onto the road, where the son was struck and killed by a passing vehicle. His parents brought a personal injury action, alleging that the defendant failed to exercise ordinary care by not maintaining a barrier at the base of its access path to prevent sledders from entering the roadway.rogla-5-1478881-639x479

Both the plaintiff and the defendant presented an expert witness to testify as to the standard of care owed to the victim by the defendant. The plaintiff’s expert testified that the defendant should have installed a barrier between the access path and the road, and stated that by failing to do so, the defendant created a hazardous condition. The defendant’s expert testified that the access path was consistent with industry best practices. Before trial, the plaintiff moved to exclude testimony from the defendant’s winter recreation expert, arguing that he lacked a sufficient foundation. The trial court denied the motion. After the conclusion of the trial, the jury found in favor of the defendant. On appeal, the plaintiff contended that the trial court erred by allowing the expert testimony.

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In a recent opinion concerning premises liability, the Washington Court of Appeals analyzed the issue of business liability for injuries caused by one customer assaulting another customer. In Crill v. WRBF, Inc., No. 31912-1-III (Wash. Ct. App. Sept. 3, 2015), the plaintiff sued a Denny’s restaurant after she was struck on the back of the head by an intoxicated diner at 2:00 a.m. in the restaurant. After discovery was completed, the defendant moved for summary judgment, which was granted by the trial court. The plaintiff appealed that decision. The Court of Appeals ultimately held that the restaurant had no duty to prevent the attack, since a lack of similar prior incidents rendered the assault unforeseeable.empty-restaurant-1228307-639x435

The elements of a negligence action are:  (1) the existence of a duty owed by the defendant to the plaintiff; (2) a breach of that duty; (3) causation between the breach and the accident; and (4) quantifiable damages that were incurred. A defendant generally has no duty to prevent criminal acts by a third party, unless a special relationship exists between the victim and the defendant. A business owner, such as Denny’s, is deemed by law to have a special relationship with its business invitees, such as the Crill plaintiff, thus creating a duty to protect her from criminal conduct by third parties. The court must then determine whether the risk that caused the plaintiff’s injury was reasonably foreseeable to Denny’s.

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