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Thompson v. Katzer

May 9, 1997

ROBERT A. THOMPSON, APPELLANT,
v.
RONALD KATZER, AND ANN KATZER, HUSBAND AND WIFE, AND BUELL BERG, INDIVIDUALLY, AND AS THE AGENT OF RONALD AND ANN KATZER, RESPONDENTS.



Appeal from Superior Court of Cowlitz County. Docket No: 93-2-01454-7. Date filed: 03/06/95. Judge signing: Hon. Randolph Furman.

Authored by J. Dean Morgan. Concurring: Carroll C. Bridgewater, David H. Armstrong.

The opinion of the court was delivered by: Morgan

MORGAN, J. -- Robert A. Thompson, the stepson of Buell Berg, sued for personal injuries sustained by slipping on ice and snow in the driveway of a house at which Berg was house-sitting. At the end of the plaintiff's case-in-chief, the trial court granted the defendants' motion to dismiss for insufficient evidence. We affirm.

In early 1991, Buell Berg was house-sitting for some friends, Ronald and Ann Katzer, who were away on vacation. The Katzers' house was near Ariel in rural Cowlitz County. Berg's car, however, was parked at Thompson's home in Vancouver, Washington.

At the times material here, the Katzers' driveway was covered with ice and snow. According to Thompson, the driveway was so slick that four people slipped or fell before he did. Although Berg knew of at least one fall, he took no action to remove the ice and snow. Nor did he post a warning about it.

Several days after the driveway was first covered with ice and snow, Berg asked Thompson to bring him his car. Berg said he would pay for gas, but no other consideration was bargained for or promised.

Responding to Berg's request, Thompson drove Berg's car from Vancouver to Ariel. Thompson's brother followed in a second vehicle, so Thompson would have a ride back to Vancouver.

Thompson and his brother set out after dark. Most of the way, the roads were dry and clear. When they arrived at the Katzers', however, they found, in Thompson's words, that the driveway "was solid snow then, solid totally, and I went up -- I went on ahead up, and I knew it was getting pretty bad." *fn1 At the top of the driveway, Thompson parked, got out, and began walking back toward his brother. He then slipped, fell, and injured his knee.

In December 1993, Thompson sued both Berg and the Katzers, alleging that he was an invitee on the Katzers' property; that Berg owed him a duty of reasonable care; and that Berg had breached that duty. He also alleged that the Katzers were vicariously liable for Berg's breach because Berg was their agent.

In December 1994, Thompson sought an order declaring that Berg was the Katzers' agent as a matter of law. The trial court granted the order, which both parties now accept for purposes of this appeal.

In February 1995, the case went to trial. Thompson testified that he had fallen in the Katzers' driveway in the manner described above. He said the driveway had been covered by ice, on top of which was a thin layer of snow, and that the layer of snow had deceived him into thinking he could walk on the driveway even though he knew, from driving up the driveway, that the ground was "slick." *fn2 He opined that his act of delivering Berg's car to Ariel had an economic value of about twenty dollars, but he did not assert that such value had been bargained for or promised.

At the end of Thompson's case-in-chief, Berg and the Katzers moved for dismissal. They argued that Thompson was a licensee as a matter of law, and that Berg had not breached the standard of care owed to a licensee. Agreeing, the trial court granted the motion and dismissed the case. Thompson then filed this appeal, in which he claims (1) that he was an invitee rather than a licensee, and (2) that even if he was a licensee, he produced evidence sufficient to show a breach of the applicable standard of care.

I

"Common law classifications continue to determine the duty owed by an owner or occupier of land in Washington." *fn3 The classifications pertinent here are invitee and licensee. *fn4 If the evidence and inferences taken in the light most favorable to Thompson show that he could not have been an ...


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