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Certification from United States Court of Appeals for Ninth Circuit in Adamson v. Port of Bellingham

Supreme Court of Washington, En Banc

April 11, 2019

CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT IN SHANNON C. ADAMSON and NICHOLAS ADAMSON, husband and wife, Plaintiffs-Appellees,
v.
PORT OF BELLINGHAM, a Washington Municipal Corporation, Defendant-Appellant. SHANNON C. ADAMSON and NICHOLAS ADAMSON, husband and wife, Plaintiffs-Appellants,
v.
PORT OF BELLINGHAM, a Washington Municipal Corporation, Defendant-Appellee.

          JOHNSON, J.

         The Ninth Circuit Court of Appeals certified to us a question of premises liability and a broader version of the same overarching question. The heart of the main question is whether a property owner-landlord is liable for injuries that occur on its property when the lessee has exclusive possession at the time of the accident but only priority use under the lease and the landlord has contracted to maintain and repair the premises.[1] We answer the first certified question in the affirmative and need not address the second question.

         FACTS AND PROCEDURAL HISTORY

         Shannon Adamson, an employee of the Alaska Marine Highway System (AMHS), fell approximately 15 feet when the passenger ramp at the Port of Bellingham's (Port) Bellingham Cruise Terminal (BCT) collapsed. The accident caused Ms. Adamson severe, life-changing injuries.

         Since 1989, the State of Alaska has leased the BCT from the Port, allowing the AMHS ferries to dock at the BCT to load and unload passengers and their vehicles. The Port and Alaska renegotiated this lease in 2009 for another 15 years. A summary of the 2009 lease provisions pertinent to this case are as follows:

         Section 1.2 indicates the scope of the leased premises and gives exclusive use of the reservation and ticketing office, the BCT manager's office, the warehouse, and the staging and purser booth to AMHS but gives priority use of 125 parking spaces and the marine facilities, including the vehicle ramp, passenger ramp, and berth 1. 3 Appellant's Excerpt of Record (ER) at 340. Section 1.3 defines "exclusive use" as "sole possession and control of the Areas," while section 1.4 defines "priority use" as a "superior but not exclusive right of use" and indicates the Port "may allow other uses of the priority use areas so long as such use does not unreasonably interfere with [AMHS's] use." 3 ER at 340 (emphasis added). Section 4.1 indicates that the Port will be "solely responsible for keeping the leased premises in good repair and tenantable condition," and section 4.1(a) indicates the Port will "maintain the leased premises ... in good and substantial repair and condition." 3 ER at 343. Section 4.7 indicates the Port will "maintain the leased premises free of structural or mechanical hazards." 3 ER at 345. Under sections 5.1 and 5.3, Alaska has the right to make alterations, additions, and improvements to the leased premises subject to the "written consent of the [Port]." 3 ER at 348. Section 5.1 also requires Alaska to "permit the [Port] to enter upon the premises at all reasonable times to examine the condition of same." 3 ER at 348.

         In order to allow passengers on foot to board the femes, AMHS operates the BCT passenger ramp, which, when lowered, connects the terminal to the upper deck of the ferry. The passenger ramp is suspended with three-quarter-inch wide steel cables on a motorized pulley system that can lift and lower the ramp. Once the ramp is in place, steel pins are inserted into the ramp so that the cables are not holding all of the weight of the ramp. However, this system had a crucial flaw: the pulley system could continue to unspool the cables when the locking pins were in place, creating slack in the cables. The locking pins could then be removed with the slack in place, and the passenger ramp would fall until it caught on the cables-if the cables could withstand the force of the fall.

         The Port could have fixed this flaw by installing an "interlock" system "which does not allow the slackening of the wire rope with pins still in place." 5 ER at 892. The interlock would have been a simple fix: rewiring the control panel so that the pins cannot be moved unless they were aligned properly and there was no slack in the cables. The process of interlocking the control panel would have taken an electrical engineer approximately 15 minutes and would have involved moving and installing one or two wires. This entire process would have cost less than $1, 000 and prevented the 2012 incident at issue in this case. The Port decided not to implement the interlock device.

         On November 2, 2012, Ms. Adamson was operating the passenger ramp and created slack in the cables. When she removed the locking pins, the ramp collapsed, snapped the cables, and she and the ramp fell approximately 15 feet until the ramp caught on the ferry. The force of the fall caused Ms. Adamson to lose consciousness such that she does not remember the accident or the events leading up to it, and she sustained multiple other life-changing injuries.

         Ms. Adamson and her husband, Nicholas Adamson, sued the Port in federal courts alleging negligence and seeking damages for medical expenses, loss of wages, pain and suffering, and loss of consortium. The district court determined as a matter of law that Ms. Adamson was the Port's business invitee and instructed the jury accordingly. The case proceeded to trial and the jury awarded the Adamsons $16, 007, 102 in damages, determined that neither Ms. Adamson nor the State of Alaska was negligent, and found the Port negligent under three separate theories of liability: duty to a business invitee, duty as a landlord, and promise to perform repairs under the lease contract. During the case, the Port filed a motion for summary judgment, a motion for judgment as a matter of law, and a renewed motion for judgment as a matter of law, all of which the district court denied.

         The Port appealed the district court's denial of its motions.[2] The Ninth Circuit panel certified two versions of one overarching question of premises liability to this court, one more detailed and one more broad. See Order of U.S. Court of Appeals, Adamson v. Port of Bellingham, No. 16-35314 (9th Cir. Aug. 14, 2018) (Certification Order).

         CERTIFIED QUESTION(S)

Is party A (here, the Port) liable as a premises owner for an injury that occurs on part of a leased property used exclusively by party B (here, [AMHS]) at the time of the injury, where the lease has transferred only priority usage, defined as a superior but not exclusive right to use that part of the property, to party B, but reserves the rights of party A to allow third-party use that does not interfere with party B's priority use of that part of the property, and where party A had responsibility for maintenance and repair of that part of the property?
Perhaps stated more broadly, the question of Washington law presented is whether priority use can be considered to give exclusive ...

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