As part of an ongoing series, Timothy Mitchell, managing partner of Cruser Mitchell’s Seattle office, provides monthly updates on the latest developments in Washington insurance defense law. These updates will contain brief summaries and key quotes from recent cases. Below is a Personal Injury update for April and May 2021.
Please contact Tim at (253) 509-1874 or tmitchell@cmlawfirm.com if you would like to discuss these cases in greater detail, or have any questions on any other matters involving Washington state law.
PERSONAL INJURY
PAULSON v. STI TIRES AND WHEELS, LLC (3/8/22)
[Note: This is a summary of an unpublished opinion, which holds no precedential value]
Holding: Court of Appeals (Div. 1) affirmed a grant of summary judgment to a manufacturer in a products liability case, holding that, though plaintiff’s expert presented an opinion regarding a manufacturing defect, his conclusion defied the uncontroverted evidence in the case.
Key Quote: “The WPLA imposes strict liability on any manufacturer of a defective product for resulting injuries. A product manufacturer is subject to strict liability “if the claimant’s harm was proximately caused by the fact that the product was not reasonably safe in construction. RCW 7.72.030(2). A product is not reasonably safe in construction if, when the product left the control of the manufacturer, the product deviated in some material way from the design specifications or performance standards of the manufacturer, or deviated in some material way from otherwise identical units of the same product line. RCW 7.72.030(2)(a). In determining whether a product was not reasonably safe in construction, the trier of fact must consider whether the product was unsafe to an extent beyond what an ordinary customer would contemplate. RCW 7.72.030(3). The trier of fact may consider evidence of custom in the product seller’s industry, or that the product did or did not comply with nongovernmental standards relating to design, construction, or performance of the product. RCW 7.72.050(1).”
WEST, et al. v. RIDE THE DUCKS INTERNATIONAL, LLC, et al. (7/6/21)
[Note: This is a summary of an unpublished opinion, which holds no precedential value]
Holding: Court of Appeals (Div. 1) affirmed denial of MSJ on construction/design defects and failure to warn claims under the Products Liability Act (WPLA), chapter 7.72 RCW (construction and design defects, failure to warn), affirming judgment against product manufacturer.
Key Quote: “A product manufacturer is liable to a claimant if, as relevant here: (1) the claimant’s harm was proximately caused by the negligence of the manufacturer in that the product was not reasonably safe as designed (design defect); (2) the claimant’s harm was proximately caused by the negligence of the manufacturer in that the product was . . . not reasonably safe because adequate warnings or instructions were not provided (failure to warn at the time of sale); or (3) the claimant’s harm was proximately caused by the fact that the product was not reasonably safe in construction (construction defect). RCW 7.72.030(1), (2). A plaintiff seeking to establish a manufacturer’s liability under RCW 7.72.030 may do so in two distinct ways. On the one hand, a plaintiff may attempt to establish liability by showing that, at the time of manufacture, the likelihood that the product would cause the plaintiff’s harm or similar harms, and the seriousness of those harms, outweighed the manufacturer’s burden to design a product that would have prevented those harms and any adverse effect a practical, feasible alternative would have had on the product’s usefulness. Alternatively, a plaintiff may employ the ‘consumer expectations’ test, which requires the plaintiff to show that the product was unsafe to an extent beyond that which would be contemplated by the ordinary consumer.”
KELLY v. DUTTON (7/26/21)
[Note: This is a summary of an unpublished opinion, which holds no precedential value; dog bite case]
Holding: Court of Appeals (Div. 1) affirmed grant of MSJ for out of possession landlords in a dog bite case, holding that “landlords are generally not responsible for animals on the leased premises, even if they know the animal may be dangerous.”
Key Quotes: “[P]remises liability attached only to a possessor of land, who generally must occupy and control the land. Generally, in a landlord-tenant relationship, possession and control are transferred to tenants. The court recognized that a claim could exist where a landlord retains control over a portion of the leased premises. But, it specifically rejected the notion that landlord liability can be based on only knowledge and control through lease provisions.”
HUBER v. KENT SCHOOL DISTRICT (7/19/21)
[Note: This is a summary of an unpublished opinion, which holds no precedential value]
Holding: Court of Appeals (Div. 1) affirmed grant of MSJ in favor of school against parent’s negligence claims related to their child’s injury while playing football at recess.
Key Quote: “School districts have the duty to exercise such care as an ordinarily responsible and prudent person would exercise under the same or similar circumstances. Because of the custodial relationship between districts and students, the duty of ordinary, reasonable care is enhanced, and school districts have a duty to anticipate dangers which may reasonably be anticipated, and to then take precautions to protect the pupils in its custody from such dangers. This includes the duty to protect their students from the foreseeable risk of harm the students may inflict on each other. As long as the harm is reasonably foreseeable, a school district may be liable if it failed to take reasonable steps to prevent that harm. The danger incurred from playing games inherently dangerous for the age-group involved, or likely to become dangerous if allowed to be engaged in without supervision is a foreseeable danger from which districts should protect their students.”
McCOY v. PFWA LACEY, LLC (5/11/21)
[Note: This is a summary of an unpublished opinion, which holds no precedential value]
Holding: Court of Appeals (Div. 2) reversed denial of MSJ to defendant Planet Fitness on grounds that plaintiff executed a conspicuous waiver and was provided an opportunity to read the membership agreement.
Key Quotes:
- “Generally, a liability waiver or exculpatory clause in a contract is enforceable unless (1) it violates public policy, (2) the negligent act falls greatly below the legal standard for protection of others, or (3) it is inconspicuous… A liability waiver provision is not enforceable if the releasing language is so inconspicuous that reasonable persons could reach different conclusions as to whether the document was unwittingly signed.”
- “Courts look to several factors in deciding whether a liability waiver provision is conspicuous including: (1) whether the waiver provision is set apart or hidden within other provisions, (2) whether the heading or caption of the provision is clear, (3) whether the waiver provision is set off in capital letters or in bold type, (4) whether there is a signature line below the waiver provision, (5) what the language says above the signature line, and (6) whether it is clear that the signature is related to the waiver provision.”
KITZMILLER v. SCHROEDER (5/3/21)
[Note: This is a summary of an unpublished opinion, which holds no precedential value]
Holding: Court of Appeals (Div. 1) held plaintiff could not recover for falling into open boat hatch that she had traversed on prior occasions. Open hatch was found to be open and obvious, and defendant had no duty to warn passengers that boats would rock on water.
Key Quote: “There are hazards inherent to standing on a boat. Boats float on water which, by nature, is fluid. Therefore, boats are prone to sudden movement caused by the currents, the wind, the wakes of other boats, the movements of its passengers, and sometimes wildlife. Reasonable people know that boats are not stationary even when they are at rest. As such, the danger that a passenger standing on a moving boat might fall down is an open and obvious danger for which no duty to warn is required.”
BLANCO v. SANDOVAL, et al. (4/29/21)
Holding: Dog bite case where Washington Supreme Court affirmed dismissal of claims against landowners (as distinct from tenant dog owners).
Key Quote: “We concluded that as a matter of law, landlords do not owe a duty to protect third parties from their tenant’s lawfully owned but dangerous animal.”
SHOKER v. MCCANN, et al. (3/29/21)
[Note: This is a summary of an unpublished opinion, which holds no precedential value]
Holding: Court of Appeals (Div I) reversed a grant of summary judgment in favor of a “driver [who] struck a pedestrian who was walking on a sidewalk . . . [who] asserted he was not liable because he experienced a “sudden loss of consciousness.” The Court of Appeals determined that there were genuine issues of material fact as to when and why the driver lost consciousness. The Court of Appeals based this on the fact that there was a “reasonable inference [the driver] was aware of an impairment for several seconds” before the collision, and therefore the loss of consciousness was not “unforeseeable.”
Key Quote: “When a driver is “suddenly stricken” by an “unforeseen loss of consciousness” the driver is not liable for negligence. But when a driver is aware he is suffering from some form of impairment and fails to pull over, there are questions whether any ultimate loss of consciousness was foreseeable.”
JOHNSON v. STATE OF WASHINGTON LIQUOR AND CANNABIS BOARD (5/13/21)
Holding: Supreme Court held trial court properly denied MSJ because plaintiff, who allegedly slipped on water tracked in the store on a rainy day, presented evidence of the reasonable foreseeability of an unreasonably dangerous condition.
Key Quotes:
- The plaintiff in a slip and fall case has traditionally had the burden of establishing that the proprietor’s negligence was a cause in fact of his or her injury by showing that the proprietor had constructive notice of the specific dangerous condition. The plaintiff may also show actual notice to meet this burden.”
- “Constructive notice arises where the condition has existed for such time as would have afforded [the proprietor] sufficient opportunity, in the exercise of ordinary care, to have made a proper inspection of the premises and to have removed the danger. Thus, constructive notice is the same as by the exercise of reasonable care would discover the condition.”
- “Our precedent has made . . . a general rule that an invitee may prove notice with evidence that the nature of the proprietor’s business and his methods of operation are such that the existence of unsafe conditions on the premises is reasonably foreseeable.”