Washington State Law Update – by Timothy Mitchell

TORT

 

Mihaila v. Troth (3/1/22)

Holding: Court of Appeals (Div. 2) reversed a grant of summary judgment to homeowners, citing disputed questions of fact regard roofer’s fall onto grounding pole on homeowners’ property and whether homeowners “anticipated some harm even though the danger the grounding rod presented was known and obvious,” even though roofer know of existence of grounding rod prior to fall.

Key Quotes:

  • “Under premises liability law, a landowner’s duty to a person entering onto the property depends on the entering person’s status as a trespasser, a licensee, or an invitee. . . An invitee for premises liability purposes includes a business invitee, who “is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land. A licensee is “a person who is privileged to enter or remain on land only by virtue of the possessor’s consent.” Comment e to § 332 states that a business invitee includes people “who come upon land not open to the public . . . for a purpose connected with their own business which is connected with any purpose, business or otherwise, for which the possessor uses the land.” An example is “a workman who comes to make alterations or repairs on land used for residence purposes.”
  • For business invitees, we apply the liability standard stated in § 343 of the Restatement (Second) of Torts.  Section 343 states: A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger. Under this standard, an invitee is . . . entitled to expect that the possessor will exercise reasonable care to make the land safe for his entry, which includes inspecting for dangerous conditions, followed by such repair, safeguards, or warning as may be reasonably necessary for [the invitee’s] protection under the circumstances.”
  • “In addition, when the dangerous condition is known or obvious to an invitee, we apply § 343A(1) of the Restatement. Section 343A(1) states: “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.”
  • “Under § 343 and § 343A(1), “an invitee’s awareness of an unsafe condition does not necessarily preclude a landowner of liability.”
  • “Harm also might be anticipated when “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.”

 

Harris v. Federal Way Public Schools (2/28/22)

Holding: Court of Appeals (Div. 1) affirmed denial of a motion to dismiss on claims of negligent training and supervision and vicarious liability against a school where a student football player died while at practice, holding that the school had a “distinct, direct, and non-delegable, duty to protect [the student] from foreseeable harm” and that RCW 4.24.300(4) only applied to school employees, not the school itself.

Key Quotes:

  • “There is a special relationship between school districts and their students. Washington courts have long recognized that school districts have ‘an enhanced and solemn duty’ of reasonable care to protect their students. They must ‘protect the students in their custody from foreseeable dangers. As long as the harm was within the general field of danger which should have been anticipated, it is foreseeable. The rationale for imposing this duty on a school district is that the victim is placed under its control and protection, resulting in the student’s loss to control themselves.”
  • “[A]n action based on negligent training and supervision is applicable only when the [employee] is acting outside the scope of his employment. Otherwise, where an employee is acting within the scope of employment, the employer is “‘vicariously liable under the principles of the law of Agency’ instead.”
  • “Turning first to the plain language of the statute, RCW 4.24.300(4) provides: “Any school district employee not licensed under chapter 18.79 RCW who renders emergency care at the scene of an emergency during an officially designated school activity or who participates in transporting therefrom an injured person or persons for emergency medical treatment shall not be liable for civil damages resulting from any act or omission in the rendering of such emergency care or in transporting such persons, other than acts or omissions constituting gross negligence or willful or wanton misconduct.” On its face, the plain language of the statute grants “any school district employee” rendering emergency care immunity from liability unless the acts or omissions rise to “gross negligence” or are willful or wanton misconduct. Because this is a derogation of the common law standard of “reasonable care” that a school district owes its students, the statute must be strictly construed. The plain language of RCW 4.24.300(4) applies only to school district “employees,” not the school districts themselves. Consistent with the common law, the District’s standard of care for its duty to protect students is one of ordinary care.”

 

Walter v. Spee West Construction (2/28/22)

Holding: Court of Appeals (Div. 1) affirmed verdict in favor of worker related to on site injury over objections of employer that an assumption of risk jury charge should have been given and a “lighting-up” instruction was without sufficient evidence.

Key Quotes:

  • “We review alleged legal errors in a jury instruction de novo. However, [w]e review a trial court’s decision to give a requested jury instruction for an abuse of discretion. The court should instruct the jury on theories that are supported by evidence, but if a theory lacks substantial evidence, the court must not instruct the jury on it. “Substantial evidence” in this context means that the theory rise[s] above speculation and conjecture. In evaluating whether substantial evidence supports an instruction, we view the evidence in the light most favorable to the party requesting the instruction. An erroneous jury instruction is not grounds for reversal unless it affects or presumptively affects the outcome of the trial.”
  • “Implied primary assumption of the risk is a bar to recovery in cases where the “plaintiff consented—before any act by the defendant—to relieve the defendant of any duty regarding a specific known hazard.  Unlike contributory negligence, wherein a person’s unreasonable assumption of the risk proportionally reduces their right to recover, implied primary assumption of the risk is a complete bar to recovery because the plaintiff has entirely negated the defendant’s duty with regard to the risks assumed. To warrant the instruction, [t]he evidence must show the plaintiff (1) had full subjective understanding (2) of the presence and nature of the specific risk, and (3) voluntarily chose to encounter the risk.”
  • “If an injury lights up or makes active a latent or quiescent infirmity or weakened physical condition occasioned by disease, then the resulting disability is to be attributed to the injury, and not to the pre-existing physical condition.  Put another way, the plaintiff’s previous physical condition . . . is immaterial and recovery may be had for the full disability independent of any preexisting or congenital weakness if the [plaintiff’s] prior physical condition is not deemed the cause of the injury but merely a condition on which the real cause operated.”

 

Natalicheva v. City of Redmond (3/28/22)

[Note: This is a summary of an unpublished opinion, which holds no precedential value]

Holding: Court of Appeals (Div. 1) affirmed grant of summary judgment to city on claims of injury when tree branch at park fell and struck plaintiff, under statutory immunity for landowners who open their land to the public for recreational purposes, noting the exception to this rule did not apply because the alleged hazard was not “known, dangerous, artificial, and latent.”

Key Quotes:

  • RCW 4.24.200 and .210 provide statutory immunity for landowners who open their land to the public for recreational purposes, free of charge.
  • The landowner must demonstrate that the land: (1) was open to members of the public (2) for recreational purposes and [that] (3) no fee of any kind was charged.  Once the landowner has made this showing, they are entitled to immunity. However, an injured party may overcome this immunity by showing an exception applies, including where an individual is injured by reason of a known dangerous artificial latent condition for which no warning signs were posted.

 

Johnson v. State of Washington Liquor and Cannabis Board (3/29/22)

[Note: This is a summary of an unpublished opinion, which holds no precedential value]

Holding: Court of Appeals (Div. 2) reversed denial of judgment as matter of law to State in connection with slip and fall at liquor store, holding that the mere fact that there was allegedly water on the floor does not always create a hazardous condition.

Key Quotes:

  • “In Charlton v. Toys “R” Us—Delaware, Inc., Division Three of this court outlined over 70 years of case law establishing that a wet floor is not, without more, an unreasonably dangerous condition. Instead, to establish negligence, the plaintiff must prove that the floor presents an unreasonable risk of harm when wet.”
  • “A wet cement surface does not create a condition dangerous to pedestrians. It is a most common condition, and one readily noticed by the most casual glance.  Something more must be shown to establish that the floor is dangerously slippery.”

 

BERRY v. KING COUNTY (12/15/2021)

Holding: Court of Appeals (Div. 1) affirmed grant of summary judgment over plaintiff’s testimony that she hit her head and suffered a concussion when video evidence clearly contradicted her testimony, her testimony changed, and an uncontested biomechanical engineer supported a finding of no concussion.

Key Quote: “When a declaration presents new information or a different recollection of events, the trial court cannot rely on such self-serving testimony to create an issue of material fact.”

 

STEVEN v. FEDERAL WAY SCHOOL DISTRICT (11/1/2021)
[Note: This is a summary of an unpublished opinion, which holds no precedential value]

Holding: Court of Appeals (Div. 1) affirmed grant of summary judgment to school district when plaintiff failed to present any evidence that it discriminated against her son on the basis of race.

Key Quote: “The nonmoving party may not rely on speculation, argumentative assertions that unresolved factual issues remain, or having its affidavits considered at face value. And “bare assertions” will not defeat a summary judgment motion. Instead, the nonmoving party must set forth specific facts showing that genuine issues of material fact exist.”

 

DISCOVERY

JK v. BELLVUE SCHOOL DISTRICT (12/6/2021)

Holding: Court of Appeals (Div. 1) affirmed sanction of default judgment against defendant for failing to maintain video footage evidence and evasive discovery responses.

Key Quotes:

  • “In deciding whether sanctionable spoliation occurred, courts weigh: (1) the potential importance or relevance of the missing evidence and (2) the culpability or fault of the adverse [and spoliating] party.”
  • “In determining the adverse party’s culpability, the trial court can consider the party’s bad faith, whether that party had a duty to preserve the evidence, and whether the party knew that the evidence was important to the pending litigation.  Spoliation may encompass a broad range of acts beyond those that are purely intentional or done in bad faith, so a party may be responsible for spoliation without a finding of bad faith. But even under this theory, the party must do more than disregard the importance of the evidence; the party must also have a duty to preserve the evidence. No sanctionable spoliation occurs when a party has an “innocent explanation” for the destruction or negligently failed to preserve evidence relevant to foreseeable litigation. No general duty to preserve evidence exists in Washington, but the duty can arise from other sources.”
  • “Discovery sanctions are generally within the sound discretion of the trial court.  If a party violates a discovery order, CR 37(d) authorizes the trial court to impose sanctions listed in CR 37(b)(2), which includes a default judgment. A default judgment is a harsh remedy for which the trial court must conduct a Burnet analysis on the record.  A trial court may impose a default judgment upon a showing that (1) the discovery violation was willful or deliberate, (2) the violation substantially prejudiced the opponent’s ability to prepare for trial, and (3) the court explicitly considered less severe sanctions.”

 

MUNICIPALITIES

Williams v. King County (8/2/21)
[Note: This is a summary of an unpublished opinion, which holds no precedential value]

Holding: Court of Appeals (Div. 1) affirmed dismissal of claims of negligence against a county on the grounds that there was no foreseeability or constructive knowledge of the potential for the tree to fall.

Key Quotes:

  • “Municipalities are generally held to the same negligence standards as private parties.”
  • “Government entities owe a duty to all persons to maintain their roadways in a condition that is reasonably safe for ordinary travel. But this duty is conditional, for it arises only when the government entity has notice of and time to correct the hazard in question. As a result, the County must have (1) notice of a dangerous condition which it did not create, and (2) reasonable opportunity to correct it before liability arises for negligence. . . . Constructive notice may be inferred from the elapse of time a dangerous condition is permitted to continue. Constructive notice arises if the condition existed for a period of time so that the municipality should have discovered its existence through the exercise of reasonable care.”

 

Schmitt v. Pierce County (7/6/21)
[Note: This is a summary of an unpublished opinion, which holds no precedential value]

Holding: Court of Appeals (Div. 3) partially reversed grant of summary judgment to county in connection with prisoner’s negligence claims against county, holding that an expert was not needed for claims of general negligence against county.

 

McCoy v. City of Sumas (7/19/21)
[Note: This is a summary of an unpublished opinion, which holds no precedential value]

Holding: Court of Appeals (Div. 1) affirmed dismissal of malicious prosecution and other claims against city and prosecutor, holding that a “prosecutor’s charging decisions are well within the scope of prosecutorial immunity.”

Key Quotes:

  • “Whether a prosecutor enjoys absolute immunity for challenged conduct depends upon the nature of the function performed. Absolute immunity applies only to those actions within the scope of traditional prosecutorial functions. This immunity extends to both the State and the entity employing the prosecutor.  It is well established that a prosecutor who acts within the scope of his or her duties in initiating and pursuing a criminal prosecution is absolutely immune from liability.  This immunity is warranted to protect the prosecutor’s role as an advocate because any lesser immunity could impair the judicial process.”
  • “Prosecutors are vested with wide discretion in determining whether to charge suspects with criminal offenses.  To succeed in an unconstitutional selective prosecution claim the defendant must show (1) disparate treatment, i.e., failure to prosecute those similarly situated, and (2) improper motivation for the prosecution.  The decision to charge some but not others guilty of the same crime does not violate equal protection standards unless the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.”

 

DRAM SHOP

Wallace v. DH Seattle Management (7/26/21)
[Note: This is a summary of an unpublished opinion, which holds no precedential value]

Holding: Court of Appeals (Div. 1) affirmed grant of MSJ to bar where plaintiff “did not provide direct observational evidence that [plaintiff] was readily and apparently intoxicated when [bar] served him alcohol.”

Key Quotes: “RCW 66.44.200(1), the overservice statute, provides that no person shall sell any liquor to any person apparently under the influence of liquor.  Businesses that violate the statute by serving drunk drivers will be civilly liable to third-party victims for damages caused by their patron.  To survive summary judgment in an overservice case, evidence on the record must demonstrate that the tortfeasor was apparently under the influence by direct, observational evidence at the time of the alleged overservice or by reasonable inference deduced from observation shortly thereafter.  Apparently means readily perceptible to the senses and capable of being readily perceived by the sensibilities or understanding as certainly existent or present.”

 

BREACH OF CONTRACT

Tadych v. Roger Jobs Motor, Inc. (7/19/21)
[Note: This is a summary of an unpublished opinion, which holds no precedential value]

Holding: Court of Appeals (Div. 1) affirmed dismissal of home owner’s breach of contract claims related to defective construction, holding that the statute of limitations on the claims was validly reduced from 6 years to 1 under the terms of the construction contract.

Key Quotes: “A contract term is substantively unconscionable only where it is “onesided or overly harsh,” “shocking to the conscience,” “monstrously harsh,” or “exceedingly calloused.” No court has held that a contract clause shortening the time for one party to bring a claim against the other is per se unconscionable. We have instead recognized that, in general, parties can contractually agree to shorten a statute of limitations period. A stipulated limitations period will prevail unless prohibited by statute or public policy or unless the provision is “unreasonable.” A contractually shortened limitations period is reasonable in duration if the time allowed affords the plaintiff sufficient opportunity to ascertain and investigate the claim and prepare for the controversy. Washington courts have found contractual limitations clauses of one year or less to be reasonable.”

 

INSURANCE – MEDICAL BENEFITS RECOVERY

Group Health Cooperative v. Hall (8/3/21)
[Note: This is a summary of an unpublished opinion, which holds no precedential value]

Holding: Court of Appeals (Div. 2) reversed grant of summary judgment to medical benefits coverage insurer on claim for reimbursement of benefits paid for medical expenses, holding that there were questions of fact as to whether the insured failed to cooperate, but that the insurer was not in bad faith.

Key Quotes:

  • “While an insurer is entitled to be reimbursed to the extent that its insured recovers payment for the same loss from a [tortfeasor] responsible for the damage, it can recover only the excess which the insured has received from the wrongdoer, remaining after the insured is fully compensated for the loss.  . . .  Settlement for less than the tortfeasor’s policy limits does not create a presumption of full compensation. Instead, acceptance of a settlement is simply some evidence that the insured has been full compensated.  In addition, full compensation is determined without any reduction for comparative fault. An insurer is entitled to an offset, setoff, or reimbursement when both: (1) the contract itself authorizes it and (2) the insured is fully compensated by the relevant ‘applicable measure of damages.”
  • “If the insured breaches the contract, the insurer has a remedy, but only if there is prejudice to the insurer from the insured’s breach. The insurer has the burden of proof to demonstrate prejudice by the insured’s actions. To establish prejudice, the insurer must show concrete detriment . . . together with some specific harm to the insurer caused thereby.  Determining prejudice from a policy breach is a question of fact for the jury and will seldom be established as a matter of law.”