Washington State Law Update: Personal Injury Cases – by Timothy Mitchell

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

 

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[Note: This is a summary of an unpublished opinion, which holds no precedential value]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[Note: This is a summary of an unpublished opinion, which holds no precedential value]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