Tatley v. Gill

1

DARLENE TATLEY, a married woman, Appellant, v. GURMAIL S. GILL, and PARDEEP GILL, husband and wife, GILL HARMON, LLC, a Washington Limited Liability Company DBA SUPER STOP, GILL BROTHERS, LLC, a Washington limited Liability Company DBA LAKESHORE INN, and JANE and JOHN DOES 1-5, Respondents.

No. 39040-3-III

Court of Appeals of Washington, Division 3

August 24, 2023

UNPUBLISHED OPINION

SIDDOWAY, J.P.T. ^[*]

Darlene Tatley appeals the dismissal of her personal injury action seeking damages for injuries sustained when she tripped over a rope defendants had strung across an entrance to their fenced parking lot. The trial court granted summary judgment ruling that the affirmative defense of implied primary assumption of the risk was established as a matter of law.

Material disputes of fact exist as to Ms. Tatley's subjective understanding of the risk and the foreseeability of her attempt to step over the rope. We reverse the order of dismissal and remand for further proceedings.

FACTS AND PROCEDURAL BACKGROUND

On July 20, 2019, the city of Pateros was celebrating its annual Apple Pie Jamboree. Darlene Tatley, an 83-year-old Pateros resident, attended the festivities with her daughter's family, who was visiting from Woodinville. At day's end the family had pizza at the Sweet River Bakery, anticipating the fireworks to follow later in the evening. Ms Tatley's daughter, Sherie Overcash, decided to return to the Tatley home instead, and mentioned that she would be stopping for gas first.

Moments after Ms. Overcash left the bakery, Ms. Tatley decided she would like to go home, too. She figured she could catch up with her daughter for a ride, since the gas station was just around the corner. Leaving out the rear entrance to the bakery, Ms. Tatley walked through the parking lot for the Lakeshore Inn. The inn is located next to the gas station. The Lakeshore Inn parking lot is surrounded by low cyclone fencing. The lot can be entered through a break in the fencing behind Sweet River Bakery. From there, after crossing the lot, one can exit through a "person-sized" break in the fencing or a "driveway-sized" break for cars. The driveway-sized break in the fencing is adjacent to a crosswalk that leads to the Lakeshore Inn and gas station.

An aerial photograph that was offered in evidence at the summary judgment hearing is helpful:

(Image Omitted)

Ex D-1. The Lakeshore Inn, its parking lot, and the gas station are all owned by Gurmail and Pardeep Gill.

According to Ms. Tatley, the parking lot was full of cars that evening. As she walked toward the driveway and crosswalk, Ms. Tatley noticed that a rope was strung across the driveway. On reaching the rope, she stepped over it with her left leg without trouble, but in bringing her right leg along, the toe of her tennis shoe caught the rope and she fell forward, landing on her left hip. The fall left her in significant pain, and unable to stand up. Two good Samaritans saw her fall and stopped to help. At Ms. Tatley's request, one located Ms. Overcash at the gas station and told her of her mother's fall; Ms. Overcash drove across the street to where her mother had fallen, and one of the Samaritans lifted Ms. Tatley into Ms. Overcash's truck. Ms. Overcash drove Ms. Tatley home, where she slept in her clothes because her hip pain was too intense to undress.

The next morning, Ms. Tatley's son-in-law drove her to the Overlake Medical Center in Bellevue, where she learned she had broken her left hip. She underwent hip surgery and was discharged three days later. After being discharged, she spent a month recuperating with her daughter's family in Woodinville.

Ms. Tatley brought the action below two years later, asserting that she was a business invitee of the parking lot, and the Gills had negligently created an unreasonably dangerous condition by roping off the driveway with no kind of warning sign or supervision.

Discovery was conducted, after which the Gills moved for summary judgment dismissal of the complaint. For purposes of the summary judgment motion only, they conceded that Ms. Tatley was an invitee, but argued that dismissal was still warranted based on their affirmative defense of implied primary assumption of risk. Their memorandum in support of the motion largely relied on their deposition of Ms. Tatley, and characterized the undisputed material facts as follows:

[Ms. Tatley] crossed the parking lot and encountered a rope barrier across a driveway into the lot which she decided to step over. The rope was connected on both sides to obstruct entry, and Ms. Tatley thought she could go over it. She believes the rope was yellow, elevated to just below her waist. There were public sidewalks around the parking lot and from the bakery that would not have necessitated traversing the parking lot, or the roped driveway; there was also a nearby gap in the fence surrounding the parking lot where a pedestrian walkway existed. She chose to go "straight across" the parking lot and try to go over the rope instead of taking other routes that were not roped off.

When Ms. Tatley stepped over the rope with her left leg, her right "trailing" leg caught on the rope and caused her to fall.

It is undisputed that Ms. Tatley saw the rope across the driveway, knew it was there, chose to go over the rope instead of other exits out of the parking lot, or to utilize the public sidewalk around the parking lot. She admits that she saw it but simply thought she could clear it stepping over it. In fact, Ms. Tatley remembers having seen the rope there on previous occasions. In "hindsight," she wishes she had not gone that way.

Clerk's Papers (CP) at 16 (record citations omitted).

Elsewhere in the deposition excerpts submitted by the Gills, Ms. Tatley testified that she observed the rope before reaching it, "but I just assumed I wouldn't have any problem going over that," and "I felt I could clear it." CP at 36, 38. Asked, "Did you appreciate there was a risk by being a rope?" she answered,

Yeah, no, I saw it and I just thought I could clear it. You know, I just thought I was fine until my second leg, but, no, I couldn't clear it. But I thought that isn't that bad, it's just a little rope there.

CP at 39.

Ms. Tatley's response to the summary judgment motion included a request for a continuance of the motion under CR 56(f), to allow time for a human factors expert to complete a report. For a variety of other reasons, however, a hearing on the summary judgment motion was continued multiple times, until June 23, 2022. At that point, Ms. Tatley had ceased renoting her CR 56(f) motion for hearing. She never filed an expert report.

By the June 23rd summary judgment hearing, Ms. Tatley had amended her response and filed a total of five declarations, including one of her own. In her declaration, Ms. Tatley testified:

I know now there is a smaller "exit," but I don't remember seeing it because there were lots of cars parked all around. Either way, that little exit did not have a crosswalk. I saw the cross walk [sic] and walked straight to it.

. . . The only way to the access the cross walk [sic] was to go over the rope or under the rope. Like I said, I know now that I could have walked about 100 feet back through the parking lot, through the little gate hidden between cars, then down the side walk [sic] to right where I was, and cross the street. However, I did not know that at the time . . . .

. . . When I approached the roped off area, I noticed that the rope was yellow in color, and it came up to about my waist at the ends (I am 5' 3"). It was lower in the middle where I crossed, but I'm not sure how high. Maybe knee high, but I don't recall.

CP at 79-80. Ms. Tatley contended there were material disputes of fact over the height of the rope and whether the Gills should have anticipated that despite an apparent risk, pedestrians would continue stepping over, or attempting to step over the rope.

When the summary judgment motion was heard, a first order of business was the Gills' motion to strike all or part of the declarations submitted by Ms. Tatley. Her declarations had included such matters as the witnesses' assumptions about the purpose of the rope and whether the Gills had been irresponsible in roping the driveway entrance. Much of the motion to strike was granted. The only granting of the motion that is challenged by Ms. Tatley on appeal is the court's ruling striking part of the declaration of her daughter, Ms. Overcash. In that connection, the court orally ruled:

[L]ooking at Sheri[e] Overcash's right now. Paragraph 6, I would strike the sentence-or I guess the portion of the sentence written. She says, "It appeared that the rope was just there to keep cars out." . . . [W]hat she understood the purpose of the rope to be [is] not relevant. I guess she can testify as to the fact that there was [sic] no signs telling pedestrians not to enter. The fact that she did see the rope after the fact, I guess, is relevant. It is something that she could testify to at trial. She testifies to the height of it.

And then Paragraph 7, her thoughts about [the rope] being ridiculous, what they should have done instead, [is] not relevant. So striking that. The rest of it is not . . . sought to be stricken.

Rep. of Proc. (RP) at 12.

After ruling on the motion to strike, the court inquired about Ms. Tatley's earlier request to continue the summary judgment hearing and received the following response:

THE COURT: . . .[J]ust so I'm clear, because I know that it was raised once upon a time, there was a motion to continue. Is that still-

[PLAINTIFF'S COUNSEL]: No.

THE COURT: Not being sought.

[PLAINTIFF'S COUNSEL]: No, thank you.

THE COURT: Okay.

RP at 14.

The trial court granted summary judgment. Ms....