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Iwai v. Washington

filed: May 9, 1996.

BARBARA IWAI AND GEORGE IWAI, INDIVIDUALLY AND AS A MARITAL COMMUNITY COMPOSED THEREOF, RESPONDENTS,
v.
THE STATE OF WASHINGTON; EMPLOYMENT SECURITY DEPARTMENT; SPOKANE JOB SERVICE CENTER; ISAIAH TURNER AND JANE DOE TURNER, INDIVIDUALLY AND A MARITAL COMMUNITY COMPOSED THEREOF; DON OTT AND JANE DOE OTT, INDIVIDUALLY AND AS A MARITAL COMMUNITY COMPOSED THEREOF; HAYS GROUP, INC., A DOMESTIC CORPORATION FOR PROFIT LICENSED TO DO BUSINESS IN THE STATE OF WASHINGTON; MOLOKAI RANCH, A FOREIGN CORPORATION FOR PROFIT LICENSED TO DO BUSINESS IN THE STATE OF WASHINGTON; WAM ENTERPRISES, INC., A DOMESTIC CORPORATION FOR PROFIT LICENSED TO DO BUSINESS IN THE STATE OF WASHINGTON; AND DOES I THROUGH X, PETITIONERS.



Appeal from Superior Court, Spokane (86-2-02893-0) County; Honorable Kathleen O'Conner, Judge. Judgment Date: 6-24-93.

Dolliver, J., Smith, Johnson, Talmadge, J.j., concurring. Alexander (concurring by separate opinion). Guy, J. (concurring and dissenting by separate opinion). Durham, C.j., Madsen, J., Pekelis, J.p.t., dissenting. Sanders, J. (did not participate).

Author: Dolliver

En Banc

DOLLIVER, J.--This is a premises liability case where Plaintiff Barbara Iwai allegedly slipped and fell on snow or ice on an inclined section of Defendants' parking lot. We have heard about slippery slopes countless times, but this is the first case actually involving one. Defendants urge this court formally to adopt the natural accumulation rule for commercial parking lots, which would preclude landowner liability for injuries caused by naturally accumulated snow or ice. Defendants also claim Plaintiffs failed to establish Defendants' notice of the dangerous condition. The trial court granted summary judgment in favor of Defendants, but the Court of Appeals reversed and remanded the matter for trial. We affirm the Court of Appeals.

On November 27, 1984, over seven inches of snow fell in Spokane. On the same day, a contractor plowed Employment Security's parking lot, but apparently no sand was applied after the lot was plowed. From the 27th to the 29th of November, the temperature fluctuated from a high of thirty-six degrees to a low of twenty-eight degrees.

On November 29, 1984, Mrs. Iwai (hereinafter Iwai) knew it was slippery out, and she wore her snow boots when she left her house that morning. She drove to Employment Security's Spokane Job Service Center to check the job postings. Having been to the Center numerous times in the past two weeks, she was familiar with the facilities. When Iwai drove through Employment Security's parking lot, she realized the lot was icy. The parking lot was also covered by a small amount of residual snow. She parked in the only available parking stall, located on a sloped part of the lot far away from the building entrance. Upon exiting her car, Iwai slipped on ice and broke her wrist. After falling, she climbed back into her car and drove to a hospital.

Iwai and her husband sued the State, the Employment Security Department and its commissioner, Isaiah Turner, and the Spokane Job Service Center collectively as the tenant of the parking lot and building. Other named defendants were dismissed below, and the issues for which review has been granted do not involve those dismissed defendants. In the complaint, Plaintiffs assert the Defendants had a duty to maintain the parking lot in a safe condition for invitees, Defendants breached that duty by failing to remedy the dangerous condition of ice in the parking lot, and this failure to act caused Plaintiff Barbara Iwai's fall and injury.

Plaintiffs offered very little evidence to support their negligence claim. Plaintiffs argued there was no sand, gravel, or railings available in the parking lot at the time of Iwai's fall, a claim which Defendants did not refute. However, the absence of those aids does not in itself constitute negligence. The only solid piece of evidence regarding the actual and specific parking lot conditions on the day Iwai slipped is temperature and precipitation information from the National Weather Reports. All other details rest entirely on Iwai's own uncorroborated statements in her deposition and in the complaint. Iwai's deposition offers only the vague and general description of there being ice, covered by a trace amount of snow. Employment Security did not have the opportunity to document the parking lot conditions on November 29th because Plaintiff did not notify Employment Security of the accident until the following week. Defendants dispute that they had any notice of the accident prior to the lawsuit being filed on July 23, 1986.

In the attempt to show that Defendants had notice of the dangerous condition, Plaintiffs deposed John Lester, who was in charge of maintenance for Employment Security's parking lots at the time of Iwai's fall. With the deposition taking place almost five years after the accident, Lester had no specific recollection of the conditions during the month that Iwai fell. Nonetheless, he was questioned in detail about the parking lot.

Lester admits he often received complaints about the condition of the parking lot in the wintertime, and "it wasn't unusual" for cars to spin out and slide towards the office building from the inclined strip of parking where Plaintiff allegedly slipped. Clerk's papers at 399. It was difficult to maintain that particular strip of parking because cars would fill up all of the parking spaces early in the morning, making it impossible for snow removal equipment to clear the section; and, even after being plowed, ice and snow would fall off of parked cars and build up on the ground. A fire hydrant at the bottom of the inclined section had been hit several times, and knocked off at least twice by sliding cars, eventually leading to the installation of four steel posts to protect the hydrant. Lester "had the most problems trying to keep [that sloped area] de-iced." Clerk's Papers at 398. Lester remembered only two separate incidents of persons slipping and falling anywhere in the parking lot during his employment as operations manager.

Besides deposing Lester, Plaintiffs submitted the affidavit of a traffic engineer who inspected the lot on April 17, 1987, over two years after the alleged accident. According to the engineer, persons and cars "would more probably than not" be expected to slip without special sanding or de-icing because of the steep nature of the slope. Clerk's Papers at 21. The analysis concludes the parking lot was negligently designed. The affidavit, however, does not say how much ice or snow must be present before the condition "becomes extremely dangerous," nor does the affidavit claim to have any knowledge of the specific conditions on the day that Iwai slipped. Clerk's Papers at 21. The Defendants strongly challenge the relevance of the engineer's affidavit in their petition for review, but these objections were not raised in the trial court as far as the record reveals.

Besides the weakly argued negligence claim premised on Defendants' duty to keep the lot safe, Plaintiffs also posed a different theory for liability in one set of motion

papers at the trial court level. They argued the ice on which Iwai slipped was directly caused by Defendants' having negligently plowed the lot two days earlier. Although the Court of Appeals relied on this argument in reversing summary judgment, the record offers no evidence to support the argument. The argument is not central to the issues on appeal.

Defendants moved for summary judgment, arguing they owed no duty to protect invitees from natural accumulations of snow or ice. Defendants also challenged the sufficiency of Plaintiffs' pleadings. Defendants argued Plaintiffs failed to demonstrate how the condition causing Iwai's fall was a result of Defendants' negligence, and Defendants claimed Plaintiffs failed to allege Defendants' notice of a specific dangerous condition.

The trial court granted summary judgment for Defendants. The court cited with approval the natural accumulation rule, under which landowners have no duty to clear the natural accumulation of ice and snow. The only way Employment Security could be liable, according to the trial court, was if it voluntarily assumed the duty to remove snow and ice, but failed to act in a reasonable and safe manner. The court found insufficient evidence to demonstrate how Employment Security's plowing the lot two days before Iwai's injury was done in an unreasonable manner so as to cause the accident.

The Court of Appeals cited with approval the natural accumulation rule, but it found that there was a question of fact whether Employment Security was negligent by having the parking lot plowed on the 27th without subsequently sanding the plowed areas. Iwai v. State, 76 Wash. App. 308, 316, 884 P.2d 936 (1994) (reversing summary judgment and remanding for trial). We granted review.

I

The legal duty owed by a landowner to a person entering the premises depends on whether the entrant

falls under the common law category of a trespasser, licensee, or invitee. Younce v. Ferguson, 106 Wash. 2d 658, 662, 724 P.2d 991 (1986). Plaintiff's status as an invitee on Employment Security's premises has not been contested.

Historically, landowners had no duty to protect invitees from conditions caused by natural accumulations of snow or ice. See 62A Am. Jur. 2d Premises Liability ยง 699 (1990 & Supp. 1995) (discussing landowners' responsibility for snow or ice on both adjacent public sidewalks and on private premises). This traditional position was known as the natural accumulation rule, or the Massachusetts rule, the latter name stemming from Woods v. Naumkeag Steam Cotton Co., 134 Mass. 357, 45 Am. Rep. 344 (1883). Early Washington cases followed this traditional rule in the landlord-tenant context. See, e.g., Oerter v. Ziegler, 59 Wash. 421, 109 P. 1058 (1910); Schedler v. Wagner, 37 Wash. 2d 612, 225 P.2d 213, 230 P.2d 600, 26 A.L.R.2d 604 (1950).

In 1975, this court flatly rejected the Massachusetts rule. Geise v. Lee, 84 Wash. 2d 866, 529 P.2d 1054 (1975) (imposing the duty on mobile home park owners to keep the driveways between the homes safe for pedestrian traffic where snow and ice created dangerous conditions). Geise found the reasoning persuasive in Reardon v. Shimelman, 102 Conn. 383, 128 A. 705, 39 A.L.R. 287 (1925):

The duty of the landlord being to exercise reasonable care to prevent the occurrence of defective or dangerous conditions in the common approaches, the fact that a particular danger arose from the fall of snow or the freezing of ice can afford no ground of distinction. Indeed, the causes which are at work to produce it are no more natural causes than are those which, more slowly, bring about the decay of wood or the rusting of iron. To set apart this particular source of danger is to create a distinction without a sound difference.

Geise, 84 Wash. 2d at 869 (quoting Reardon, 102 Conn. at 388). Geise adopted Reardon's position, commonly known as the Connecticut rule, which requires landlords to keep common areas in a safe condition regardless of the cause

of the danger. Recognizing that the landlord is not the guarantor of occupants' safety, Geise held a plaintiff must show the landlord had actual or constructive knowledge of the dangerous condition and failed to fix the condition within a reasonable amount of time. Geise, 84 Wash. 2d at 871.

Despite the ruling in Geise, the Court of Appeals, Division Three, recently applied the Massachusetts rule and found no owner liability when a customer slipped in a store's parking lot. Schaeffer v. Woodhead, 63 Wash. App. 627, 821 P.2d 75 (1991) (affirming summary judgment for defendant). Schaeffer failed to acknowledge Geise. The court cited three Washington cases in support of the natural accumulation rule, but all three cases involved lawsuits against private landowners for injuries occurring on adjacent city-owned sidewalks. Schaeffer, 63 Wash. App. at 629 (citing Nadeau v. Roeder, 139 Wash. 648, 247 P. 951 (1926); Ainey v. Rialto Amusement Co., 135 Wash. 56, 236 P. 801, 41 A.L.R. 263 (1925); Gardner v. Kendrick, 7 Wash. App. 852, 503 P.2d 134 (1972), review denied, 81 Wash. 2d 1009 (1973)).

Schaeffer has been cited with approval in one decision by the Court of Appeals, Division One, but in that case the court found the owner potentially liable on other grounds. Sorenson v. Keith Uddenberg, Inc., 65 Wash. App. 474, 828 P.2d 650 (1992) (reversing summary judgment). In Sorenson a store had plowed snow into piles in the middle of the parking lot. The melting runoff from the piles ran across the parking lot and re-froze, forming ice on which the plaintiff slipped and fell. The Court of Appeals avoided the natural accumulation rule by holding the landowner liable to invitees if the snow pile was negligently placed. Sorenson, 65 Wash. App. at 480.

Schaeffer's adherence to the Massachusetts' rule is an anomaly, and the case has not been followed by most subsequent decisions in this state. Most appellate cases discussing the duties owed to invitees have recognized ...


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