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Hutchins v. 1001 Fourth Avenue Associates

January 10, 1991

HAROLD HUTCHINS, ET AL, APPELLANTS
v.
1001 FOURTH AVENUE ASSOCIATES, ET AL, RESPONDENTS



En Banc. Brachtenbach, J. Callow, C.j., and Utter, Dolliver, Dore, Andersen, Durham, Smith, and Guy, JJ., concur.

Author: Brachtenbach

Plaintiff Harold Hutchins appeals from a summary judgment of dismissal of his negligence claim against 1001 Fourth Avenue Associates, JMB Property Management Company, JMB Property Management Corporation, and JMB Realty (defendants). At issue is whether an occupier of land has a duty to provide security measures on the premises to protect passersby from the risk of criminal assault on the premises. The trial court held that defendants had no such duty. We affirm.

On August 6, 1987, at about 9:30 p.m., plaintiff was returning to his hotel room in downtown Seattle after dinner at a restaurant. As he made his way up the hill to Third Avenue, a stranger ran across Spring Street and joined him, engaging him in conversation. As the two men approached an armored car entryway into the 1001 Fourth Avenue Building, the stranger pushed plaintiff into the armored car bay, and he and an accomplice waiting in the entryway assaulted and robbed plaintiff. Plaintiff was injured in the assault.

Plaintiff brought suit against defendants, claiming that they breached the duty of persons who own or control

buildings adjacent to a public way to maintain the buildings free of any conditions posing unreasonable dangers to passersby. Plaintiff asserted that the armored car entry area was pitch black, that the vehicle entryway was inadequately lighted, that defendants knew or should have known the car bay was in a high crime area, and that defendants knew or should have known that the unlighted entryway provided a place of concealment for individuals waiting to assault passersby and a place in which an assault might occur out of the public view. He sought damages for his injuries and his wife sought loss of consortium damages.

Defendants moved for summary judgment, which the trial court granted, holding as a matter of law that defendants had no duty to plaintiff as a passerby to maintain its building in a manner that did not create an unreasonable risk of criminal assault. Plaintiff appealed; we accepted the Court of Appeals' certification of the case to this court.

Summary judgment should be upheld if the pleadings, affidavits, depositions and admissions on file demonstrate that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Christen v. Lee, 113 Wash. 2d 479, 488, 780 P.2d 1307 (1989).

[1, 2] The essential elements of a negligence action are (1) the existence of a duty to plaintiff; (2) breach of that duty; (3) resulting injury; and (4) proximate cause between the breach and the injury. Christen, at 488; Pedroza v. Bryant, 101 Wash. 2d 226, 228, 677 P.2d 166 (1984). The existence of duty is a question of law. Pedroza, at 228. Here, the trial court held that as a matter of law defendants owed plaintiff no duty as claimed.

Although plaintiff seems to suggest that a duty is logically owed here based upon ordinary negligence principles, in actuality plaintiff asks this court to expand traditional liability principles and to impose a duty on a land occupier to provide security from criminal assault to those passing by on public sidewalks. Two areas of negligence law are particularly relevant to the issue before us: principles of

premises liability, and the extent to which one has a duty to protect others from the intentional criminal acts of third parties. We address these areas separately below, but recognize that they are not separate, completely discrete areas of law applicable to the circumstances of this case.

[3] As to the first area of negligence law, plaintiff relies on the duty owed by a possessor of land to maintain his or her premises so as not to pose a danger to those passing by on adjacent highways or sidewalks. As some background for discussion of this particular land possessor duty, some generalizations are helpful. The first is that where premises liability is concerned, weight should "be given to the interest in the free use of the property . . . ." W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on Torts § 57, at 387 (5th ed. 1984) (hereafter Prosser & Keeton). Consideration of this interest affects both "the duty to exercise any care at all, and the reasonableness of the defendant's conduct." Prosser & Keeton § 57, at 387.

The second general point is that in Younce v. Ferguson, 106 Wash. 2d 658, 724 P.2d 991 (1986) this court declined to abandon the common law classifications of entrants upon land -- invitees, licensees, and trespassers -- in favor of a single standard of reasonable care under all the circumstances. Several reasons were given for adhering to the traditional classifications, and the corresponding duty owed by the possessor of land. One reason given is that the classifications have been applied and developed over the years, offering predictability and stability. Younce, at 666. Further, the court expressed concern about the extent to which a landowner could be subject to liability. Younce, at 666.

[4] Three ideas may be drawn from Younce which are important in the circumstances of this case: (1) a possessor of land should not be subject to unlimited liability; (2) a possessor of land is not an insurer as to all those who may be affected by activity involving the possessor's premises; and (3) a possessor of land has no duty as to all others under a generalized standard of reasonable care under all the circumstances.

As to plaintiff's status in this case, he was clearly not an invitee because he was not on the land for a business purpose nor was he on the premises as a member of the public at defendants' invitation. See Younce, at 667. Plaintiff also was not a licensee. His entry onto the premises was not by virtue of consent or permission on defendants' part. See Younce, at 667. Plaintiff was pushed onto the property by muggers. Arguably plaintiff is best characterized as an involuntary trespasser at the time he was robbed. He was, however, a passerby at the beginning of the assault.

A possessor of land owes a common law duty to "prevent artificial conditions on his land from being unreasonably dangerous to highway travelers." (Footnote omitted.) 5 F. Harper, F. James & O. Gray, Torts § 27.4, at 156 (2d ed. 1986); see Restatement (Second) of Torts § 368 (1965). The duty is founded on the principle that "[t]he public right of passage carries with it . . . an obligation upon the occupiers of abutting land to use reasonable care to see that the passage is safe." Prosser & Keeton § 57, at 388. This duty applies to those passing by on a public walk. Munger v. Union Sav. & Loan Ass'n, 175 Wash. 455, 458, 27 P.2d 709 (1933). It is this duty which plaintiff urges was breached in this case.

In Poth v. Dexter Horton Estate, 140 Wash. 272, 248 P. 374 (1926), a person waiting for a bank to open was struck by a window shade which fell from an upper story of the building. The court stated that "[i]t was the appellant's duty to see that the building was so constructed and maintained as not to be a source of danger to the users of the street in its front." Poth, at 274. Breach of this duty constituted negligence. Poth, at 274. See also, e.g., Collais v. Buck & Bowers Oil Co., 175 Wash. 263, 27 P.2d 118 (1933); cf. Mills v. Orcas Power & Light Co., 56 Wash. 2d 807, 355 P.2d 781 (1960).

Poth concerns the duty to construct and maintain artificial structures in a way which avoids creating an unreasonable risk of harm to passersby. The duty of a land possessor to those outside the premises involves more, however, than

just seeing that parts of the structure do not impact passersby. "The occupier of land generally owes a duty of reasonable care to prevent activities and conditions on his land from injuring persons or property outside his land . . .". (Italics ours.) 5 F. Harper, F. James & O. Gray, Torts § 27.19, at 307 (2d ed. 1986); see Restatement (Second) of Torts § 371 (1965) (regarding land possessor activities).

In some cases passersby have been injured as a result of a combination of activity on the land and the condition of the premises. E.g., Collais (operation of service station involving facilities for storing waste oil; oil spilled on sidewalk; plaintiff slipped on oil and was injured); Misterek v. Washington Mineral Prods., Inc., 85 Wash. 2d 166, 531 P.2d 805 (1975) (fences in need of repair and keeping of horses on premises; horses escaped with resulting injury to travelers in a vehicle). In both of these cases the court based liability on the duty to maintain the premises so as not to injure those using the adjacent highway.

In the case at hand, the condition of the premises alleged by plaintiff concerns the design, color, and adequacy of lighting of the armored car bay. These artificial conditions, in and of themselves, did not create a risk of harm to a passerby, unlike the window shade which physically struck the passerby in Poth. Nor are the circumstances here typical of the kind in Collais. Defendants did not themselves engage in some activity or business on the premises which posed a direct danger to passersby or others off the premises.

Instead, the injury to plaintiff resulted from the intentional criminal conduct of third parties. Plaintiff claims that the duty owed by a land possessor to those passing by on public ways includes the duty to avoid unreasonable risks of foreseeable criminal assault on the passersby.

[5] The general rule at common law is that a private person does not have a duty to protect others from the criminal acts of third parties. See Annot., Private Person's Duty and Liability for Failure To Protect Another Against Criminal Attack by Third Person, 10 A.L.R.3d 619, § 3

(1966). Certain exceptions to this rule provide for liability under ...


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