Opinion
No. 59063-4-I.
February 11, 2008.
Appeal from a judgment of the Superior Court for Snohomish County, No. 05-2-10306-8, Richard J. Thorpe, J., entered October 3, 2006.
Reversed by unpublished per curiam opinion.
Gary Bottomley appeals the summary judgment dismissal of his lawsuit against Drivstuen Investments, the owner of the convenience store where Bottomley injured himself. Because there are genuine issues of material fact about whether the wheelchair ramp on which Bottomley fell was unsafe, the unsafe condition may not have been obvious to store patrons, and Drivstuen should have anticipated such harm even if the condition was obvious, we reverse.
FACTS
Gary Bottomley was injured while leaving the Mountain View Gas and Deli convenience store in Sultan. Bottomley stepped off the sidewalk in front of the building, intending to walk down the wheelchair ramp into the parking lot, but instead stepped on the ramp's steep side slope, which caused him to fall. Bottomley sued the store's owner, Drivstuen Investments, alleging the ramp constituted an unreasonably dangerous condition for store patrons and violated the requirements of the Americans with Disabilities Act (ADA) and the building code.
Drivstuen moved for summary judgment. Drivstuen argued that the ramp was not unsafe and that any noncompliance with the ADA did not create an unsafe condition for Bottomley, who is not disabled. In the alternative, Drivstuen argued that even if there was a factual issue that the ramp was unsafe, its condition was obvious and there was no reason for Drivstuen to anticipate harm to Bottomley. In support of its motion, Drivstuen presented photographs of the location, a declaration by the store's proprietor Russell Drivstuen, and excerpts from Bottomley's deposition. According to Russell Drivstuen, the store had served more than a million customers since the ramp's construction nine years earlier without anyone falling the way Bottomley had. Drivstuen also relied on portions of Bottomley's deposition, where Bottomley acknowledged that the pavement was dry, that he did not recall that lights in the area were not working, and that, having patronized the store often before his fall, he was familiar with the ramp.
In response, Bottomley submitted other excerpts from his deposition and the declarations of Craig Bruner of the City of Sultan Building Department and an expert ergonomist, Daniel Johnson. In the deposition excerpts Bottomley relied on, he testified that he fell because he stepped on the steep side slope of the ramp rather than on the top of the ramp and stated that the placement of the painted line around the ramp located at the bottom of the steep slope was misleading. According to Bruner, the ramp was not in compliance with the ADA and the City's code. Johnson testified that the side slope of the ramp was too steep for either pedestrians or persons using wheelchairs. Johnson also testified that customers could be expected to use the ramp and the side slope was dangerous. As for the visibility of the danger, Johnson noted that it was nighttime when Bottomley fell and there were no markings to differentiate the top and sides of the black asphalt ramp.
Drivstuen filed a motion to strike portions of Johnson's declaration, arguing that parts of Johnson's opinion were speculative and other parts exceeded the bounds of admissible expert opinion, lacked foundation or were improperly argumentative. Without addressing Drivstuen's motion to strike, the superior court granted Drivstuen's motion for summary judgment. Bottomley appeals.
ANALYSIS
Bottomley claims the trial court erred in granting summary judgment because there were material issues of fact. We review summary judgment de novo and engage in the same inquiry as the trial court. Heath v. Uraga, 106 Wn. App. 506, 512, 24 P.3d 413 (2001). Summary judgment is proper if the pleadings, depositions, answers, and admissions, together with the affidavits, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). We view the facts and reasonable inferences in a light most favorable to the nonmoving party. Michak v. Transnation Title Ins. Co., 148 Wn.2d 788, 794, 64 P.3d 22 (2003). Summary judgment is appropriate if, in view of all the evidence, reasonable persons could reach only one conclusion. Hansen v. Friend, 118 Wn.2d 476, 485, 824 P.2d 483 (1992).
Drivstuen argues that, as a matter of law, the ramp did not present an unreasonable risk of harm. Acknowledging that there are no Washington cases dealing specifically with wheelchair ramps, Drivstuen contends that the side slope of the ramp should be viewed as the equivalent of a plainly visible step or a curb, which pedestrians are expected to see and step on, around or over. See Tyler v. F.W. Woolworth Co., 181 Wn. 125, 127-28, 41 P.2d 1093 (1935) (step that one entering or exiting a store can see with the exercise of ordinary care does not create liability). But considering the photographs and the declarations in the light most favorable to Bottomley, there is a genuine issue of material fact as to whether the side slopes of the ramp were visible to a pedestrian leaving the store at night, particularly because there is no other visible differentiation between the top and the side slope of the ramp, and the painted white outline around the ramp could be misleading.
Drivstuen contends that any concern regarding the time of day was without foundation because there was adequate lighting for Bottomley to see the ramp. However, Drivstuen cites no portion of the record for this assertion. The only testimony in the record regarding lighting was Bottomley's deposition answer. When Bottomley was asked if there were any lights in the area that were broken or not working, he testified that he did not recall.
Drivstuen also contends that any noncompliance with the ADA requirements for wheelchair ramps does not mean there was a dangerous condition for Bottomley, who is not disabled and was not using a wheelchair. But Johnson testified that the side slopes were too steep under applicable building codes even if the ramp were considered a pedestrian ramp. The location of the ramp in front of the main doors to the store and Bottomley's testimony about routinely using it, provides further circumstantial evidence that pedestrians could be expected to use the ramp and be endangered by any unsafe features.
Johnson's opinions that the side slopes are unsafe because they are too steep, that the side slopes appear from the photographs to be 20 degrees or steeper and that pedestrians can be expected to walk on the area of the side slope are competent expert testimony. And in any event, it is primarily the photographs and Bottomley's testimony that create issues of fact.
Drivstuen alternatively argues that even if there are fact issues as to whether the ramp presented a danger, the danger was obvious and Drivstuen had no reason to believe any store patron would fail to notice or avoid the side of the ramp. We disagree.
Washington courts have adopted Restatement (Second) of Torts § 343A(1) as "the appropriate standard for duties to invitees for known or obvious dangers." Tincani v. Inland Empire Zoological Soc'y, 124 Wn.2d 121, 139, 875 P.2d 621 (1994). Under this standard, a possessor of land is not normally liable for injuries to invitees caused by a condition on the land when "the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising ordinary perception, intelligence, and judgment." Restatement, (Second) of Torts § 343A cmt. b.
A finder of fact could conclude from Bottomley's testimony and the photographs provided by Drivstuen that the danger presented by the side slope of the ramp was not obvious. The six photographs show the wheelchair ramp from a variety of angles and distances. From the perspective of a person leaving the store and walking into the parking lot where the edge of the sidewalk fronting the store abuts the wheelchair ramp, there can be a dispute about whether it is obvious that the center of the ramp is flush with the sidewalk but its unmarked edges are dramatically lower than the top surface.
Moreover, even if we considered the ramp's condition obvious, that would not end the inquiry, because "[i]n limited circumstances, Restatement (Second) of Torts § 343A creates a duty to protect invitees even from known or obvious dangers. This occurs when a possessor 'should anticipate the harm despite such knowledge or obviousness.'" Tincani, 124 Wn.2d at 139 (quoting Restatement (Second) of Torts, § 343A(1)). Under this rule, a landowner is liable when an invitee could be expected to be distracted and fail to notice the obvious risk or to be unmindful of what he or she has noticed because the benefit of encountering the risk outweighs the cost of avoiding it. Restatement (Second) of Torts, § 343A cmt. f. Bottomley testified that the painted line at the bottom edge of the ramp rather than at the point where the side slope of the ramp began was misleading. Reasonable minds could differ as to whether the painted line is misleading and whether, notwithstanding the otherwise obvious condition of the ramp's side slope, Drivstuen had to take additional steps to protect pedestrians that could be expected to use the ramp.
Because there are genuine issues of material fact, we reverse the decision to grant summary judgment and remand for further proceedings.