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Schinkelshoek v. Empire Seed Co.

February 7, 1991; As Amended March 21, 1991.

HENRY SCHINKELSHOEK, ET AL, APPELLANTS,
v.
EMPIRE SEED COMPANY, ET AL, RESPONDENTS



Munson, J. Green, C.j., and Shields, J., concur.

Author: Munson

Henry Schinkelshoek appeals the dismissal by summary judgment of defendant Empire Seed Company from this negligence action. He contends that whether he lost his status as business invitee when he drove Empire Seed's golf cart without permission, because he reasonably believed he was invited to do so, creates a genuine issue of material fact. We disagree and affirm.

The facts, interpreted in the light most favorable to Mr. Schinkelshoek, are as follows: On September 9, 1983, Mr. Schinkelshoek and Scott Fewel delivered a truckload of beans from the farm of Mr. Schinkelshoek's father to Empire Seed in Othello, Washington. Mr. Fewel was paid by Empire Seed to haul produce from various area growers to Empire Seed.

When the two arrived at Empire Seed, at approximately 10 p.m., only two Empire Seed employees, Ted Edwards and Oscar DeLafuente, were still on duty.

While waiting for the truck to be unloaded, Mr. Schinkelshoek and Mr. Fewel decided to look around the warehouses. Mr. Schinkelshoek wanted to assess the general crop sizes and the condition of the white beans his father had stored there. When the pair were walking to the pinto warehouse, Mr. Fewel noticed a golf cart with the key in it, in or near a carport, and suggested they use it.

Mr. Schinkelshoek, who previously had made deliveries to Empire Seed at least one other year, had neither previously ridden in nor driven the golf cart; had never seen anyone not employed by Empire Seed driving it; and did not get the permission of the employees on duty before getting on it with Mr. Fewel. Mr. Schinkelshoek maintains it is customary in other businesses to use golf carts and he

believed Mr. Fewel, who had delivered to Empire Seed for many years, knew what he was doing.

The two got in the golf cart and Mr. Fewel drove to the various warehouses and then back to the area where Mr. DeLafuente was unloading trucks. Mr. Fewel's truck was ready to be unloaded and remained there. After Mr. Fewel got off the golf cart, Mr. DeLafuente told him that he should take the golf cart back where he had found it. Mr. Schinkelshoek apparently did not hear Mr. DeLafuente as he was already driving the golf cart toward a warehouse where he believed his father's white beans were stored.

He drove into the warehouse. Although he was driving less than 5 miles per hour, when he tried to turn the wheel of the golf cart and brake, it continued to go straight. He contends this was due to the inability of the low pressure tires to crush debris on the floor. The golf cart slid into the corner of a bin and its bumper hit a vertical wood support, which broke at a knot. The bin he hit was the bottom bin of a stack of four. The upper bins, weighing about 2,000 pounds each, came down on top of the golf cart and him. Since the golf cart had only a soft top, Mr. Schinkelshoek was buried and pinned by the contents of the bins.

As a result of this accident, Mr. Schinkelshoek has serious and permanent injuries and is a quadriplegic. He, his wife Sharon, and their children filed suit against several defendants, including Empire Seed, contending Empire Seed was negligent in supplying the golf cart for transportation about the premises because of the low pressure tires and soft top, in then leaving debris on the floor, and in improperly constructing the bin. The trial court granted Empire Seed summary judgment of dismissal, finding no genuine issue of material fact.

[1] An appellate court engages in the same inquiry as the trial court when reviewing an order granting summary judgment. Braegelmann v. Snohomish Cy., 53 Wash. App. 381, 383, 766 P.2d 1137, review denied, 112 Wash. 2d 1020 (1989). "Summary judgment is proper where ...


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