Hvolboll v. Wolff Co.

187 Wash.App. 37

347 P.3d 476

Edward C. HVOLBOLL, Appellant

v. The WOLFF COMPANY dba The Wolff Company, LLC dba The Wolff Company II, LLC, DefendantsHSC Real Estate, Inc. dba Riverstone Residential dba Riverstone Residential Group dba Riverstone Residential West, LLC; Consolidated American Services ; and Perrenoud Roofing Incorporated, Respondents.

No. 31836–2–III.

Court of Appeals of Washington, Division 3.

Feb. 12, 2015.

Publication Ordered April 7, 2015.

Dustin Douglass Deissner, Deissner Law Office, Spokane, WA, for Appellant.

Carl Edward Hueber, Winston & Cashatt, Jason Thomas Piskel, Piskel Yahne Kovarik PLLC, Spokane, WA, for Respondents.

ORDER GRANTING MOTION TO PUBLISH IN PART OPINION

SIDDOWAY, C.J.

¶ 1 Edward Hvolboll appeals the summary judgment dismissal of his personal injury lawsuit against owners and contracted maintenance providers to the apartment complex where he lived, and where he slipped and fell on accumulated ice and snow in January 2009. The trial court concluded that based on facts that were undisputed, any reasonable jury would conclude that his claim was barred by the doctrine of implied primary assumption of risk.

¶ 2 Mr. Hvolboll argues that the defense of implied primary assumption of risk does not apply to landlord-tenant cases involving falls on snow and ice; if it does, he argues that material issues of disputed fact remain. We conclude that summary judgment was appropriately granted and affirm.

FACTS AND PROCEDURAL BACKGROUND

¶ 3 Edward Hvolboll and his business partner, Travis Hitchcock, moved to the City of Spokane Valley in August 2008, where they rented an apartment in the Villages apartment complex. Mr. Hvolboll was born and raised in California and lived in warm areas his entire life. He had virtually no experience walking on snow or ice before the winter of 2008–2009.

¶ 4 During Mr. Hvolboll's first winter in Spokane, the area experienced a record snowfall. Mr. Hvolboll agrees that it snowed “somewhere in the neighborhood of 6 feet” during the month of December 2008. Clerk's Papers (CP) at 89.

¶ 5 Both Mr. Hvolboll and Mr. Hitchcock had difficulty negotiating icy and snowy areas of the apartment complex during December and January, prompting Mr. Hvolboll to document conditions and lodge complaints with the complex's management. Mr. Hvolboll conceded in deposition that the sidewalks at the complex were generally cleared of snow, but he testified that snow and ice remained on the asphalt roadways even after they were plowed.

¶ 6 Mr. Hitchcock slipped and fell near a dumpster that served the men's apartment toward the end of December. When Mr. Hitchcock returned to the apartment, he told Mr. Hvolboll that “it was really slippery, and that he was going to complain about the ice buildup around the dumpster area.” CP at 93. Mr. Hvolboll slipped but did not fall on “several occasions” while walking around the apartment complex, and complained to the property management about inadequate snow removal. CP at 93.

¶ 7 New snow fell on the first or second day of January and was plowed on January 2. Mr. Hvolboll took pictures before and after the plowing, at least in part to document his concern about inadequate snow removal. No new snow fell between January 2 and the January 7 date of Mr. Hvolboll's fall leading to this lawsuit.

¶ 8 Late in the morning on January 7, Mr. Hvolboll walked from his apartment to the outdoor common mailbox area to retrieve his mail. A sidewalk that had been cleared of snow led from Mr. Hvolboll's apartment to the mailbox area. He planned to walk to the property management office at the complex after he picked up his mail, in part to complain again about what he considered inadequate plowing, sanding, and deicing of the roadways.

¶ 9 From Mr. Hvolboll's perspective, the safest route to the property management office from the mailbox area was not over the cleared sidewalks, which required that he cross the asphalt roadway adjacent to the mailbox area. Although the roadway had been plowed on January 2, there were still accumulations of snow and ice, especially on the sides of the road. A low berm of accumulated snow and ice ran between the sidewalk in front of the mailbox area and the relatively clear center of the roadway.

¶ 10 After checking his mail, Mr. Hvolboll began to walk across the snow and ice berm to cross the roadway. He was wearing slip resistant shoes, and later emphasized that he “had recognized that there was a potential hazard for slipping, and I was cautious. I did everything I could to minimize any risk.” CP at 134. According to him, the sunny skies and warmer temperature on the morning of January 7 had caused water to pool on top of the ice. He began to slip with his first step and, with his second step, fell flat on his back, seriously injuring his right ankle.

¶ 11 In January 2012, Mr. Hvolboll filed a complaint for damages against six entities whom he alleged either owned the apartment complex or were agents having some responsibility for the condition of its walkways and roadways. His claims against two entities were dismissed without prejudice by a stipulated order.

¶ 12 In March 2013, three of the remaining defendants filed a joint motion for summary judgment, asserting that based on undisputed facts, Mr. Hvolboll's negligence claim was barred by the doctrine of implied primary assumption of risk. After reviewing the parties' briefing and hearing argument, the trial court agreed and dismissed all of Mr. Hvolboll's remaining claims. Mr. Hvolboll appeals.

ANALYSIS

¶ 13 The ground on which the defendants moved for summary judgment dismissal of Mr. Hvolboll's claims was their affirmative defense of assumption of the risk. They contended that before his fall, Mr. Hvolboll

was fully aware of the slippery conditions, fully understood the risk of falling on the snow and ice, appreciated the presence and nature of that risk, and voluntarily chose to encounter it.

CP at 57. These facts, they argued, established implied primary assumption of risk.

¶ 14 Most of the applicable law is undisputed.

Landlord duty

¶ 15 “The basis of any negligence action is the failure to exercise reasonable care when one has a duty to exercise such care.” Bodin v. City of Stanwood, 130 Wash.2d 726, 744, 927 P.2d 240 (1996) (citing Restatement (Second) of Torts S § 282 (1965)). In order to prevail on a negligence claim, a plaintiff must prove four elements: “(1) the existence of a duty, (2) breach of that duty, (3) resulting injury, and (4) proximate cause.” Coleman v. Hoffman, 115 Wash.App. 853, 858, 64 P.3d 65 (2003).

¶ 16 “The threshold determination of whether a duty exists is a question of law.” Coleman, 115 Wash.App. at 858, 64 P.3d 65. Where the duty at issue is that of a possessor of land for the condition of the land, “[t]he common law classification of persons entering upon real property determines the scope of the duty of care owed.” Mucsi v. Graoch Assoc. Ltd. P'ship No. 12, 144 Wash.2d 847, 854–55, 31 P.3d 684 (2001). “A residential tenant is an invitee.” Id. at 855, 31 P.3d 684.

¶ 17 Washington recognizes the general rule “that where an owner divides his premises and rents certain parts to various tenants, while reserving other parts such as entrances and walkways for the common use of all tenants, it is his duty to exercise reasonable care and maintain these common areas in a safe condition.” Geise v. Lee, 84 Wash.2d 866, 868, 529 P.2d 1054 (1975). Landlords therefore have a general duty to keep common areas free from dangerous accumulations of snow and ice. Id. As with all possessors of land, however, when it comes to dangers that are “known or obvious” to invitees, landlords are generally not liable.

¶ 18 In Iwai v. State, 129 Wash.2d 84, 915 P.2d 1089 (1996) and Mucsi, the Washington Supreme Court analyzed a land possessor's responsibility for injuries arising from an invitee's fall on known or obvious accumulations of snow and ice, applying Restatement (Second) of Torts §§ 343 and 343A (1965), which our Supreme Court recognized as stating the appropriate standard for duties to invitees for known or obvious dangers in Tincani v. Inland Empire Zoological Society, 124 Wash.2d 121, 139, 875 P.2d 621 (1994). Section 343A of the Restatement provides in part that

[a] possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.

¶ 19 In both Iwai and Mucsi, the Supreme Court held that a trial court improperly dismissed the plaintiffs' slip and fall claims in light of section 343A(1)'s exception for instances where “the possessor should anticipate the harm despite ... knowledge or obviousness.” Iwai, 129 Wash.2d at 94, 915 P.2d 1089 ; Mucsi, 144 Wash.2d at 859, 31 P.3d 684.

¶ 20 The comments to section 343A of the Restatement expand on reasons a possessor of land might expect harm to an invitee despite a known or obvious danger, explaining that

[s]uch reason to expect harm ... may arise, for example, where the possessor has reason to expect that the invitee's attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it. Such reason may also arise where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk.

Restatement (Second) of Torts § 343A cmt. f (1965).

Assumption of risk

¶ 21 Even where a possessor of land owes a duty of care, it may raise a plaintiff's assumption of the risk as an affirmative defense. The doctrine of implied primary assumption of the risk has been recognized by Washington decisions and, when it applies, the plaintiff's consent negates any duty the defendant “would otherwise have owed to the plaintiff.” Home v. N. Kitsap Sch. Dist., 92...