Opinion
No. 62506-3-I.
September 21, 2009.
Appeal from the Superior Court, King County, No. 07-2-08342-1, Palmer Robinson, J., entered September 18, 2008.
Affirmed by unpublished opinion per Cox, J., concurred in by Appelwick and Lau, JJ.
At issue is whether the State of Washington owed a duty to Tina Armstrong for injuries that she suffered during her voluntary exercise activities in the gymnasium while incarcerated at the Women's Correction Center. Because the doctrine of implied primary assumption of risk bars Armstrong's claim, we affirm the summary dismissal of this action.
In February 2004, Tina Armstrong was placed in the custody of the Washington State Department of Corrections (DOC) to serve a term of confinement. According to Armstrong, DOC intake staff
could not find any sports shoes in her requested sizes of 8 ½ or 9 on her arrival and issued her size 10 shoes instead. Armstrong was required to spend her first few weeks in the reception unit at the correction center. During her time in the reception unit she was not allowed access to the gym. After she was transferred to her residential unit, Armstrong began going to the gym, where she practiced volleyball. She had played this sport for several years in grade school, high school, and community college. During her time in the residential unit she was well aware that the shoes were too big. Her feet slid around in them and they presented a tripping hazard. From her prior experience, she knew that well-fitting shoes were important when playing volleyball. She also felt that the shoes were not compatible with the gym's particular type of floor. Armstrong actually tripped one time as a result of the shoes, but was able to catch herself.
On March 15, Armstrong put in a request with DOC staff for properly sized shoes, understanding that it could be two to three weeks for the shoes to arrive. She also wrote her mother asking her to send her better shoes.
On March 21, Armstrong practiced volleyball again in the gym, still wearing the oversized shoes. As she was reaching for the ball on the floor at the end of the recreation session, one foot slid forward in the shoe and she tripped and fell, injuring herself.
On April 3, 2004, Armstrong filed a grievance with DOC staff in which she complained that she still had not received new shoes and believed the shoes had been a contributing factor in her accident. She received new shoes shortly after that time.
After her release from prison, Armstrong sued. The trial court granted the State's motion for summary judgment.
Armstrong appeals.
IMPLIED ASSUMPTION OF RISK
Armstrong argues that material factual issues exist as to whether the doctrine of implied primary assumption of risk bars her recovery. We disagree.
We may affirm an order granting summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. We consider all facts and reasonable inferences in the light most favorable to the nonmoving party. We review questions of law de novo.
Mountain Park Homeowners Ass'n v. Tydings, 125 Wn.2d 337, 341, 883 P.2d 1383 (1994).
Mains Farm Homeowners Ass'n v. Worthington, 121 Wn.2d 810, 813, 854 P.2d 1072 (1993).
The moving party bears the initial burden of showing the absence of a genuine issue of material fact. 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. If the claimant fails to meet that burden, the trial court should grant the motion 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 v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989).
Young, 112 Wn.2d at 225.
Young, 112 Wn.2d at 225 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).
The State asserts that the doctrine of assumption of risk bars recovery. That doctrine has four facets: (1) express assumption of risk, (2) implied primary assumption of risk, (3) implied reasonable assumption of risk, and (4) implied unreasonable assumption of risk. Implied primary assumption of risk is at issue here. It occurs where the plaintiff impliedly has consented to relieve the defendant of an obligation or duty to act. With implied primary assumption of risk, the plaintiff engages in conduct from which consent is then implied. If implied primary assumption of risk is established, it bars any recovery.
Tincani v. Inland Empire Zoological Soc'y, 124 Wn.2d 121, 143, 875 P.2d 621 (1994); Scott v. Pac. W. Mountain Resort, 119 Wn.2d 484, 496, 834 P.2d 6 (1992).
Tincani, 124 Wn.2d at 143; Dorr v. Big Creek Wood Products, Inc., 84 Wn. App. 420, 427, 927 P.2d 1148 (1996); Leyendecker v. Cousins, 53 Wn. App. 769, 773, 770 P.2d 675, review denied, 113 Wn.2d 1018 (1989).
Scott, 119 Wn.2d at 496-97.
Alston v. Blythe, 88 Wn. App. 26, 33, 943 P.2d 692 (1997).
At summary judgment, the State was required to show as a matter of law that (a) Armstrong had full subjective understanding of the nature and presence of a specific risk, and (b) she voluntarily chose to encounter the risk. Knowledge of and appreciation of the specific risk of danger, and voluntariness are questions of fact for the jury, except when reasonable minds could not differ.
Brown v. Stevens Pass, Inc., 97 Wn. App. 519, 523, 984 P.2d 448 (1999), review denied, 141 Wn.2d 1004 (2000) (citing Kirk v. Washington State Univ., 109 Wn.2d 448, 453, 746 P.2d 285 (1987); see also W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 68, at 487 (5th ed. 1984)).
Alston, 88 Wn. App. at 34.
Here, the State established both elements of implied primary assumption of risk. First, the evidence shows that Armstrong subjectively knew and understood the specific risk of falling as a result of using the oversized shoes while exercising in the gym. While the parties disagree about whether it is fair to characterize Armstrong's activities as actually participating in the sport of volleyball because she was not playing in an organized or officiated game, this is beside the point. What is beyond dispute is that Armstrong was personally aware that wearing the shoes while practicing serving the ball, hitting it back and forth over the net, and moving about on the gym floor did present a tripping risk because of the size and nature of the shoes. She testified during her deposition that she had engaged in the same type of informal volleyball activities in the correction center gym at least once or twice before the accident and had experienced the same problem of her feet moving around inside the shoes that created the tripping risk and led to her fall. While Armstrong now relies on a declaration she filed after her deposition in which she insisted she had not been playing a risky type of volleyball, to the extent that belated assertion is meant to contradict her particular admissions during her deposition, it fails to raise a genuine issue of material fact. Reasonable minds could not differ in deciding that Armstrong knew of and appreciated the specific risk of falling and injuring herself while exercising in the gym because of the ill-fitting shoes.
Marshall v. Bally's Pacwest, Inc., 94 Wn. App. 372, 379, 972 P.2d 475 (1999) ("When a party has given clear answers to unambiguous [deposition] questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.").
The facts also established that Armstrong voluntarily assumed that risk. While Armstrong contends that she had no choice but to wear the shoes because she was in the custody and control of DOC, whether a plaintiff decides voluntarily to encounter a risk depends on whether he or she elects to encounter it despite knowing of a reasonable alternative course of action. In other words, the plaintiff must have had a reasonable opportunity to act differently or proceed on an alternate course that would have avoided the danger in order for assumption of risk to bar recovery.
Erie v. White, 92 Wn. App. 297, 304, 966 P.2d 342 (1998), review denied, 137 Wn.2d 1022 (1999).
Zook v. Baier, 9 Wn. App. 708, 716, 514 P.2d 923 (1973); Restatement (Second) of Torts § 496.
Armstrong agreed during her deposition that her participation in the available recreation time at the gym was entirely voluntary. Accepting her assertion that she had requested shoes through proper channels on March 15 as establishing that she had initiated the written request that was required by DOC policy, it is undisputed that she could have simply waited for a week or two more to receive the new shoes before exercising in the gym.
Armstrong, in short, knew "all facts a reasonable person would have known" and decided to continue exercising in the oversized shoes anyway despite the reasonable alternative of "simply declin[ing] to proceed."
Erie, 92 Wn. App. at 306.
Armstrong nonetheless contends that summary judgment was inappropriate because of the special duty owed by the State to incarcerated inmates to keep them in health and safety. But the authority she cites stands only for the proposition that the duty of governmental officials to provide non-negligent health care to prisoners cannot be avoided by engagement of an independent contractor. The doctrine of implied primary assumption of risk does not present a question of delegation, it "is really a principle of no duty, or no negligence, and so denies the existence of the underlying action." We find nothing in the rule against delegating the duty to keep incarcerated inmates safely that prevents application of the doctrine of primary implied assumption of risk to the case before us.
See Shea v. City of Spokane, 17 Wn. App. 236, 562 P.2d 264 (1977), aff'd, 90 Wn.2d 43, 578 P.2d 42 (1978).
Shea, 17 Wn. App. at 242.
Tincani, 124 Wn.2d at 143.
We affirm the order granting defendant's motion for summary judgment.
WE CONCUR.