Appeal from Superior Court, Pierce County; Honorable Terry D. Sebring, Judge. Judgment Date: 10-14-94.
Guy, J., Dolliver, Smith, Johnson, Madsen, Alexander, Talmadge, J.j., Pekelis, J.p.t., concurring. Durham, C.j. (dissenting by separate opinion). Sanders, J. (did not participate)
GUY, J.--This premises liability action was brought on behalf of a small child who was seriously injured when he slid down a steep embankment and into a fast flowing creek adjacent to the play area near his home. The trial court dismissed the action on summary judgment, ruling as a matter of law that a landowner has no duty to protect an invitee from dangers inherent in a natural body of water.
We granted direct review and reverse. We hold that a landowner is not exempt from the duty to exercise reasonable care to protect invitees against potentially dangerous conditions on the land solely because the potential danger includes risks which are inherent in a natural body of water.
Respondent Majestic Mobile Manor and its owners, Respondents Robert and Vivian Tate (hereafter referred to collectively as "landlord"), stipulated to the following facts for purposes of the motion for summary judgment:
In June 1988 Plaintiff Gary Farris and his family, which at that time included his wife, two stepsons, a stepdaughter and a daughter, moved to Majestic Mobile Manor, a mobile home park in rural Pierce County. Jason Farris was born 10 months later, on April 21, 1989.*fn1 In addition to their basic rent for a mobile home space, the Farrises were charged an additional $1.00 per day for each child.
The mobile home park is somewhat rectangular in shape, with a perimeter road surrounding the mobile home spaces. At one point the outer corner of this perimeter road passes in the vicinity of Clark's Creek. This is a clear, shallow, slow-moving creek in summer that can be deep, swift and murky during the winter months. The creek is approximately ten feet below the level of the road and a total of about twenty feet from the edge of the road. The landlord required families with small children to live at the far end of the mobile home park, away from families without children, and in the area closest to Clark's Creek. The perimeter road passes just in front of the space where the Farris home was located in January 1992. On the far side of this perimeter road is a grassy area for tents and picnics, as well as the steep embankment leading to Clark's Creek. The grassy area has a basketball hoop and, with the adjacent perimeter road, is used by resident children as a play area. As many as twenty children at a time would play in this area.
Although the mobile home park is partially fenced, there is no fence running along the property nearest the grassy play area where the steep embankment leading to Clark's Creek is located. The Farrises did not allow their young children to play outside the house alone and did not allow them to go near the creek by themselves.
The injury to young Jason Farris occurred on January 12, 1992. On that day the child's father was working on the roof of his mobile home, repairing damage caused by a windstorm. Jason and his four-year-old sister, Nicole, were playing in the grassy tent area near the basketball hoop. While Mr. Farris worked on the roof, Jason, then age two years and eight months, began riding Nicole's bicycle (equipped with training wheels). At some point Mr. Farris got down off the roof and righted the bicycle for Jason. He then told the children to ride their bicycles in an area where he would be able to watch them from the roof of the home. When Mr. Farris turned to walk back around the mobile home and up the ladder, Jason was riding the bicycle on the road behind him. Mr. Farris had Jason out of his sight "for well less than one minute" when he saw Nicole alone and realized Jason was not within eyesight. Mr. Farris found the bicycle Jason had been riding at the bottom of the embankment, partially submerged in Clark's Creek. The embankment is wooded and on that day was covered with grass, leaves and tree branches. It was extremely slippery. A neighbor helping to search for the child eventually found Jason in the creek. As a result of his near drowning Jason suffered severe brain damage and is quadriplegic.
Gary Farris and Jason, through his guardian, brought this action for negligence.
The landlord moved for summary judgment, arguing that a landowner's duty to maintain the premises in a reasonably safe condition does not require affirmative acts to protect tenants from the inherent dangers of natural bodies of water.
The trial court agreed and granted the landlord's motion for summary judgment of dismissal. Jason and his father appealed directly to this court and we retained jurisdiction.
Is a landowner excused from the duty to exercise reasonable care to protect invitees from potentially dangerous conditions on the land solely because the danger is, in part, due to risks which are inherent in a natural body of water?
In reviewing a grant of summary judgment, an appellate court engages in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wash. 2d 434, 437, 656 P.2d 1030 (1982); Jarr v. Seeco Constr. Co., 35 Wash. App. 324, 328, 666 P.2d 392 (1983). A summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56(c); Marincovich v. Tarabochia, 114 Wash. 2d 271, 274, 787 P.2d 562 (1990). The facts and all reasonable inferences therefrom must be considered in the light most favorable to the nonmoving party. Van Dinter v. City of Kennewick, 121 Wash. 2d 38, 44, 846 P.2d 522 (1993); Howard v. Horn, 61 Wash. App. 520, 522, 810 P.2d 1387, review denied, 117 Wash. 2d 1011, 816 P.2d 1223 (1991).
In an action for negligence a plaintiff must prove four basic elements: (1) the existence of a duty, (2) breach of that duty, (3) resulting injury, and (4) proximate cause. Tincani v. Inland Empire Zoological Soc'y, 124 Wash. 2d 121, 127-28, 875 P.2d 621 (1994); Howard, 61 Wash. App. at 523; W. Page Keeton et al., Prosser and Keeton on The Law of Torts § 30, at 164-65 (5th ed. 1984). We are concerned here only with the first element.
The threshold determination of whether a duty exists is a question of law. Tincani, 124 Wash. 2d at 128; Howard, 61 Wash. App. at 523. The existence of a duty may be predicated upon statutory provisions or on common law principles. Bernethy v. Walt Failor's, Inc., 97 Wash. 2d 929, 932, 653 P.2d 280 (1982); Howard, 61 Wash. App. at 523.
Under the common law of this state a landowner's duty of care to persons on the land is governed by the entrant's common law status as an invitee, licensee or trespasser. Tincani, 124 Wash. 2d at 128; Ertl v. Parks & Recreation Comm'n, 76 Wash. App. 110, 113, 882 P.2d 1185 (1994), review denied, 126 Wash. 2d 1009 (1995). The parties involved in the present case agree, for purposes of the motion for summary judgment, that Jason was an invitee at the time he was injured. Generally, a landowner owes trespassers and licensees only the duty to refrain from willfully or wantonly injuring them, whereas to invitees the landowner owes an affirmative duty to use ordinary care to keep the premises in a reasonably safe condition. Ertl, 76 Wash. App. at 113; Van Dinter v. City of Kennewick, 121 Wash. 2d at 41-42.
In the context of landlords and tenants, this means that a landlord has an affirmative obligation to maintain the common areas of the premises in a reasonably safe condition for the tenants' use. Geise v. Lee, 84 Wash. 2d 866, 529 P.2d 1054 (1975) (mobile home park owner who has actual or constructive notice of hazard has a duty to remove dangerous accumulations of ice and snow from common areas). See also RCW 59.20.130(4) (landlord of a mobile home park is required to keep the common areas of the mobile home park free from potentially injurious conditions).
The Restatement (Second) of Torts § 343 (1965) states the rule as follows:
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, [the possessor]
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable ...