Articles Posted in Premises Liability

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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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.

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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