Opinion
No. 63317-1-I.
January 19, 2010.
Appeal from a judgment of the Superior Court for King County, No. 07-2-29413-9, Douglass A. North, J., entered March 27, 2009.
Affirmed by unpublished opinion per Lau, J., concurred in by Grosse and Becker, JJ.
William Barber, as personal representative of the estate of a man injured when he tripped over a railroad tie at a campground, appeals the trial court's order granting summary judgment to the campground owners and retreat organizers. Because Barber fails to identify a genuine issue of material fact for trial as to whether the campground owners or retreat organizers breached any duty owed the injured man, we affirm.
FACTS
In September 2004, Herbert Holcombe attended a retreat organized by the Puget Sound Retreat Committee of Puget Sound Sex Addicts Anonymous (SAA) at Sound View Camp and Retreat Center in Longbranch, Washington. On the evening of September 11, Holcombe left the Long House where he was staying to go to the dining hall for a soda and then to the waterfront for a bonfire. On his way to the dining hall, Holcombe left the lighted path and cut across a grassy area in the dark where he tripped over a railroad tie and fell, injuring his shoulder.
In September 2007, Holcombe filed a lawsuit seeking damages for negligence against the owners of the property — the Presbytery of Olympia, Sound View Presbyterian Camp and Sound View Camp and Retreat Center; and against the organizers and sponsors of the retreat — Puget Sound Retreat Committee, International Service Organization of SAA, Inc., Puget Sound SAA, and International Service Organization of COSA. Shortly after he gave testimony at a deposition in September 2008, Holcombe died. William Barber, the personal representative of Holcombe's estate was then substituted as plaintiff.
The defendants filed motions for summary judgment, arguing that Holcombe could produce no evidence that defendants breached any duty owed to him. The trial court granted summary judgment to the defendants. Barber appeals.
ANALYSIS
We review a summary judgment order de novo, performing the same inquiry as the trial court and considering facts and reasonable inferences in the light most favorable to the nonmoving party. Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P.3d 1068 (2002). The moving party bears the initial burden of showing the absence of a genuine issue of material fact for trial. Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). Once that burden is met, the burden shifts to the party with the burden of proof at trial to make a showing sufficient to establish the existence of an element essential to that party's case. Young, 112 Wn.2d at 225. If the claimant fails to meet that burden, summary judgment is appropriate because there can be no genuine issue of material fact given that a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. Young, 112 Wn.2d at 225. "In order to maintain an action for negligence, a plaintiff must show that (a) the defendant owed a duty of care to the plaintiff, (b) the defendant breached that duty, (c) injury to the plaintiff resulted, and (d) the defendant's breach was the proximate cause of the injury." Seiber v. Poulsbo Marine Ctr., Inc., 136 Wn. App. 731, 738, 150 P.3d 633 (2007). In premises liability cases, the scope of the legal duty owed to a person entering the premises depends on whether that person falls under the common law category of a trespasser, licensee, or invitee. Degel v. Majestic Mobile Manor, Inc., 129 Wn.2d 43, 49, 914 P.2d 728 (1996).
It is undisputed that Holcombe was an invitee at the camp. "A possessor of land owes a duty of reasonable care to invitees with respect to dangerous conditions on the land." Ford v. Red Lion Inns, 67 Wn. App. 766, 770, 840 P.2d 198 (1992). Washington has adopted the Restatement (Second) of Torts, section 343 (1965) as the test for determining landowner liability to invitees.
Dangerous Conditions Known to or Discoverable by Possessor 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, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
Ford, 67 Wn. App. at 770 (emphasis omitted) (quoting Restatement (Second) of Torts § 343). However,
[a] possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.
Restatement(Second) of Torts at § 343 A(1).
In their motions for summary judgment, the defendants argued that the plaintiff could not produce any evidence to demonstrate a breach of duty. They relied on the following undisputed facts: the railroad tie had been placed to protect the propane tank from cars parking near the kitchen door of the dining hall, Holcombe was aware that cars had been parked in the area near the kitchen door during the day, Holcombe had used lighted walkways to enter and exit the dining hall safely on several occasions, retreat organizers advised Holcombe to bring a flashlight to camp, the lighted pathway and the light over the front door of the dining hall provided a safe path to the dining hall during the dark hours of the night, no one instructed or encouraged Holcombe to leave the path, Holcombe was not using a flashlight but knew that it was dark when he left the lighted path, and Holcombe decided to leave the path and cut through the grassy area to the unlit kitchen door knowing it was so dark that he could not see the ground in front of him or determine whether there were any obstructions in his path. Based on these facts, the defendants argued that the evidence demonstrated that they had provided reasonable lighted pathways to protect invitees at the camp from the known and obvious dangers of tripping in the dark, and Holcombe failed to provide any evidence that they should have anticipated his decision to leave the lighted path to cross a dark area of the camp with which he was not familiar when he could not see where he was walking.
Barber contends that the declarations of Dr. Richard Gill and Joe Cutro raise questions of material fact for trial. Gill, a human factors expert, states that because people typically take the most direct path to their destination, it was foreseeable that Holcombe would leave the path to enter the dining hall through the nearest doorway rather than continue on the "much longer and more circuitous route to the front entry." But Gill fails to account for the darkness and Holcombe's testimony that when he left the path, it was so dark that he could not see the ground in front of him and that he did not know the area. In addition, Gill's description of the path to the dining hall is inconsistent with Holcombe's testimony and the pictures and drawings of the area in the record indicating that Holcombe's shortcut through the dark would save only a few steps from the lighted path continuing directly to a lighted door leading into the dining hall. Gill's conclusory statements accordingly lack factual support and cannot defeat a motion for summary judgment. See, e.g., Guile v. Ballard Cmty. Hosp., 70 Wn. App. 18, 25, 851 P.2d 689 (1993) (expert's affidavit summarizing medical malpractice plaintiff's postsurgical complications, coupled with unsupported conclusion that complications were caused by defendant's "faulty technique," was insufficient to defeat summary judgment motion).
The Cutro declaration also fails to raise a genuine issue of material fact. Although Cutro stated that he had tripped over the same railroad tie at a previous retreat, he also stated that he had not reported his fall to the camp ground owners or retreat sponsors. Furthermore, Cutro stumbled on the tie as he was "backing up getting out" of his car and could not remember whether the accident occurred at night or during the day. Thus, evidence of Cutro's experience was not material to Holcombe's negligence claim.
We conclude, as the trial court did, that summary judgment was proper. We affirm the order granting summary judgment and dismissal.
WE CONCUR: