Articles Posted in Premises Liability

Sometimes an accident victim does not know the exact cause of the accident.  They may not have seen what happened, or in some cases, the injuries may cause a loss of memory.  A lack of memory can make a case very difficult, but Washington personal injury attorneys know that the difficulty may be overcome if there is other evidence showing the defendant’s liability.

A lack of memory was at issue in a recent case.  The plaintiff suffered a head injury after falling while leaving a store.  She filed suit against the tenant and the landlord of the store for failing to maintain safe premises.  The trial court granted summary judgment in favor of the defendants, and the plaintiff appealed.

The plaintiff could not remember what caused her to lose her footing.  The appeals court viewed the evidence in favor of the plaintiff.  According to the record, there were three concrete steps, measuring 76 inches across the top step.  There was a 37-inch wide plywood ramp over the stairs for wheelchair use.  The ramp had a raised edge on either side, about an inch wide and two inches high.  There were no handrails.

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Photo Credit: dvande / Shutterstock.com

Property owners may be liable for injuries that result from a dangerous condition on their property.  The duty a property owner owes to a person on his or her property regarding a dangerous condition of the property often turns on the status of the injured person.  A landowner has different obligations to business invitees, licensees, and trespassers.  A Washington appeals court recently considered whether a landowner can be liable in a Washington premises liability case if the dangerous condition is actually on someone else’s property.

According to the appeals court’s opinion, an eight-year-old girl drowned while camping as part of a youth group.  The landowner allowed the group to camp on the property for free for several years.  The property was near a lake, and four counselors took 15 children swimming at a cove on the lake.  To get to the cove, the group walked from the campsite across property owned by the federal government.  The appeals court described the victim as a “non-swimmer.” According to the opinion, the counselors lost track of her while caring for another child.  A search and rescue team found her body the next day.

The victim’s estate sued the landowners, alleging they had a duty to warn the child about the dangerous conditions in the cove.  The trial court granted summary judgment in favor of the defendants, finding they did not have a duty to warn about conditions on property they did not own.  The estate appealed.

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Many people think that a landowner is responsible for injuries that occur upon his or her property.  Landowners are often liable, but Washington premises liability attorneys know that it is the possessor of the land who generally has responsibility for the condition of the premises.  This means that a tenant, rather than the landowner, may have responsibility for the conditions of the property, as seen in a recent case.

The plaintiff was leaving her boyfriend’s home when she realized she forgot something.  When she stepped on the step leading up to the deck, it broke.  She was injured when her foot went through the broken board.

The property was a single family residence, but there was a mother-in-law unit with a separate entry and its own backyard and patio.  The plaintiff’s boyfriend rented the main unit, and other tenants rented the mother-in-law unit on a separate lease.  There was a shared carport area, but the deck where the plaintiff fell was attached to the main house and was for use only by the tenants of the main house.

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The duty of care a landowner owes to a person on his or her property depends on the person’s status as either an invitee, a licensee, or a trespasser.  The highest standard of care is owed to an invitee.  A business invitee is a person invited to come onto or remain on the property for purposes directly or indirectly related to his or her business dealings with the person in possession of the land.  A licensee is a person who is allowed to enter or remain on the property because of the possessor’s consent.  A licensee can be someone who is on the property for their own purposes or a social guest.  Since the duty owed to a person is based on their status, a Washington premises liability case may turn on their status, as seen in a recent case.

The plaintiff worked as an aesthetician at a plastic surgery office.  One of the defendants had been the plaintiff’s client for several years.  The plaintiff arranged to visit the defendant at her home.  After planning the visit, but before the visit occurred, the plaintiff offered to bring the defendant some scar cream.

The plaintiff stayed at the defendants’ home for about a half hour.  While there, she met members of the family, took a tour of the home, and talked with the defendant.  The defendant paid the plaintiff for the scar cream while she was there. As the plaintiff left, she opened the gate and stepped backwards onto the landing.  She fell backwards.

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Personal injury cases often hinge on why and how the injury occurred.  Although the victim and other eyewitnesses can testify to what happened, Washington personal injury attorneys know that an expert is often needed to explain how and why the incident happened.  An expert may only testify within the area of his or her qualifications, however.  Furthermore, the expert’s opinions must have an adequate foundation.  The court has discretion in determining whether an expert may testify.

A Washington appeals court recently considered  whether an expert was qualified in the area of his opinions and whether he laid an adequate foundation for those opinions.  The plaintiff was injured when the chair in which he was sitting on the deck of the defendant pizza restaurant broke where the arm attached to the seat.

The assistant manager on duty at the time examined the arms to ensure they were stable when setting up the deck.  He had only identified two chairs as being unacceptable in the past 11 years.  He was not aware of any other incidents when chairs at the restaurant broke.

Many escalators are used each day, and they generally function as expected.  They require appropriate maintenance and service to do so, however.  When they are riding an escalator, people can be seriously injured.  Washington premises liability attorneys know that an owner that fails to properly maintain escalator equipment may be liable for the resulting injuries. In fact, in Washington, the owner or operator of an escalator has the heightened duty of care of a common carrier. A Washington appeals court recently considered a case in which the court dismissed a personal injury case involving an escalator.

The plaintiffs were injured when an escalator step jammed.  The escalator was in a mall and right outside a department store.  Witnesses stated they heard a screeching noise.  The steps then began piling up, and the escalator collapsed on itself. The escalator’s fail-safe mechanisms did not activate to stop the escalator.

The plaintiffs sued the department store owner and the owners of the mall and escalator.  The department store contracted with an elevator maintenance company for service and maintenance of the escalator.

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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.

There 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.

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.

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.

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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