Washington Court of Appeals Holds That a Landowner May Be Liable To An Invitee Even If The Dangerous Condition Was Known and Obvious To The Invitee

Kelsey is a partner at Holt Woods & Scisciani LLP’s Seattle office who focuses her practice on complex civil and commercial litigation. Her practice involves handling of a wide range of cases, including catastrophic injuries, traumatic brain injuries, product liability, premises liability, medical and professional liability and construction defects. She is admitted to practice in the federal and state courts in Alaska, Idaho and Washington. As an admittee to several state and federal bars, Kelsey is adept to represent and manage risk for clients who do business across the Pacific Northwest.

kshewbert@hwslawgroup.com

March 13, 2022

On March 1, 2022, Division II of the Washington Court of Appeals issued its decision in Virgil Mihaila v. Ronald and Hendriekje Troth, holding that a genuine issue of material fact existed whether the Troths should have anticipated some harm to Mihaila, an invitee, even though the dangerous condition on their property was known and obvious This decision is an important reminder to landowners that even if a dangerous condition is known and obvious on their property, an affirmative duty may still be owed to invitees.

Facts and Procedural History

By way of summary, the Troths hired Mihaila to install a new roof on their shed. Mihaila arrived at the Troths’ property, got out his equipment and a four-foot ladder, and started to install new shingles on the shed roof. The Troths had at least two metal grounding rods on their property.  One of the grounding rods was near their shed, and extended 15 to 16 inches above the ground. The Troths leaned a large paver block against that rod so they would not hit it when mowing their lawn.  When Mihaila relocated his ladder to do the next set of shingles, he noticed the paver leaning against the grounding rod sticking out of the ground.  He recognized that the grounding rod created a risk, but he had no way of removing the rod. So he positioned the ladder directly over the rod as a safety precaution.  After making sure the ladder was steady, Mihaila got his nail gun and climbed up to the second step. Mihaila was not sure how it happened, but the ladder flipped and he fell. The ladder flew against the side of the shed and he landed on the grounding rod, which embedded in his right side.

Mihaila filed a complaint against the Troths, alleging that they were negligent in failing to protect him from the dangerous condition. The Troths denied that they were negligent and asserted the affirmative defense of contributory negligence. The Troths filed a motion for summary judgment. The parties submitted excerpts from the deposition testimony setting forth the facts stated above.  Mihaila submitted a declaration in which he said that “[he] could not complete the job without confronting this hazard in some way.”  Mihaila also submitted the report of a safety expert, who stated his opinion that the grounding rod was an “unreasonably hazardous and dangerous condition.”  The trial court granted the Troths’ summary judgment motion, holding that summary judgment was appropriate regarding the Troths’ duty because Mihaila “became aware of the risk, undertook to encounter the risk, and made his own efforts to mitigate the risk.”  Mihaila subsequently appealed the trial court’s decision, arguing that the trial court erred because he was a business invitee on the property, the grounding rod posed an unreasonable risk of harm, and there was a question of fact as to whether the Troths exercised reasonable care to protect him against that harm.

Landowners’ Duty of Care to An Invitee When The Dangerous Condition is Known or Obvious

The first issue posed to the Court of Appeals was whether Mihaila was a licensee or an invitee.  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.  Mihaila asserted that he was an invitee, while the Troths suggested that he was a licensee. 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.” RESTATEMENT (SECOND) OF TORTS § 332. A licensee is “a person who is privileged to enter or remain on land only by virtue of the possessor’s consent.”  RESTATEMENT § 330.  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.”  Here, the Troths hired Mihaila in his business capacity to come onto their property for the specific purpose of repairing the roof on their shed. Therefore, the Court of Appeals concluded that Mihaila was a business invitee.

For business invitees, Washington courts 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, Washington courts apply § 343A(1) of the Restatement, which 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.”  The rationale for this general rule is as follows: If the invitee knows the actual conditions, and the activities carried on, and the dangers involved in either, he is free to make an intelligent choice as to whether the advantage to be gained is sufficient to justify him in incurring the risk by entering or remaining on the land. The possessor of the land may reasonably assume that he will protect himself by the exercise of ordinary care, or that he will voluntarily assume the risk of harm if he does not succeed in doing so. Reasonable care on the part of the possessor therefore does not ordinarily require precautions, or even warning, against dangers which are known to the visitor, or so obvious to him that he may be expected to discover them. However, the general rule is not absolute because under § 343 and § 343A(1), “an invitee’s awareness of an unsafe condition does not necessarily preclude a landowner of liability.”

Holding

In the present case,  the Court of Appeals found that there was no dispute that the Troths owed Mihaila as an invitee a duty to protect him from the dangerous condition. But it also was undisputed that the danger was known and obvious to Mihaila. Therefore, the Troths had no duty and could have no liability unless they should have expected that a person would “fail to protect themselves against” the harm or should have “anticipate[d] the harm despite such knowledge or obviousness.”

Mihaila made two arguments why the Troths should have anticipated that he might be injured and therefore had a duty to exercise reasonable care even though he was aware of the dangerous condition. First, Mihaila argued that the Troths had reason to expect that he would be distracted while working on the roof on the shed and therefore would not protect himself against the danger the grounding rod presented.  Second, Mihaila argued that the Troths had reason to expect that he could not eliminate the dangerous condition and would proceed to encounter it despite the danger in order to complete the roof job because the advantage – getting paid for the job – outweighed the risk. The Court of Appeals found this to be a more compelling argument, concluding that a reasonable inference is that the Troths were aware that Mihaila would have to encounter the rod in order to replace the roof on the shed or that the Troths should have anticipated that Mihaila would proceed to encounter the risk because he wanted to finish – and receive payment for – the project.  Under the facts of this case, the Court of Appeals concluded that genuine issues of material fact existed as to whether the Troths should have anticipated some harm even though the danger presented was known and obvious.  The case was remanded to the trial court.

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