Opinion
No. 59519-9-I.
October 13, 2008.
Appeal from a judgment of the Superior Court for Snohomish County, No. 03-2-05008-1, David A. Kurtz, J., entered February 6, 2007.
UNPUBLISHED OPINION
Don Corbitt was tragically killed in an airplane accident in July of 1999. The Northwest Experimental Aircraft Association (NWEAA) and the Experimental Aircraft Association (EAA) appeal the trial court's denial of summary judgment and subsequent jury verdict arguing that as a matter of law they had no duty to Mr. Corbitt. Here, NWEAA did not control or lease the area where Mr. Corbitt crashed his airplane. Because a possessor of land only owes a duty to a business invitee on land it controls and to warn against conditions on foreseeable areas of ingress and egress, we agree with NWEAA that it had no duty to Mr. Corbitt. Additionally, EAA did not possess the land or otherwise control the event such that it had a duty to Mr. Corbitt. We reverse the trial court's denial of NWEAA and EAA's motion for summary judgment, vacate the jury verdict and remand for entry of judgment in favor of appellants.
Facts
The facts of this case are tragic, the injuries preceding his death were horrific.
In 1988, at the age of 37, Mr. Corbitt retired from Microsoft. That same year, he received his pilot's license. He had accumulated a total of 137 hours of flight time, including 7 hours in the RV 6A. He was a member of the EAA.
On July 7, 1999, the first day of the NWEAA Arlington Fly-In (Fly-In) event, Mr. Corbitt flew his RV 6A to the Arlington Municipal Airport. Upon arriving at the Arlington Airport, Mr. Corbitt parked his plane and visited the booths of several vendors. Just prior to 3:00 p.m., Mr. Corbitt decided to take off from the airport. The Fly-In event had an acrobatic show scheduled for 3:00 p.m. The control tower cleared Mr. Corbitt for take off. Mr. Corbitt's airplane took off at a steep climb, but banked sharply to the left and crashed. Almost immediately after the crash, the plane burst into flames. As the fire grew, bystanders attempted to extinguish it with handheld fire extinguishers. Several bystanders testified that when they arrived, Mr. Corbitt was alive, conscious, and asking for help. As they awaited fire fighting aid, the bystanders attempted to pull Mr. Corbitt from the wreckage, but he was pinned by the plane. An Arlington Fire Department truck was parked approximately 2,000 feet from the crash site. The record indicates the fire crew arrived somewhere between 3 to 5 minutes after the crash. Firefighters used a structural fire truck and water to extinguish the fire. Mr. Corbitt perished in the fire.
NWEAA is a non-profit organization incorporated in the state of Washington, which annually holds a "Fly-In" event at the Arlington Municipal Airport. Since its inception in 1969, the Fly-In has grown from a one-day to a five-day event with over 50,000 attendees. The Fly-In features an air show of acrobatics and vintage aircraft, seminars, forums, educational programs, and an area for vendors to sell merchandise and food. Attendees of the Fly-In arrive by aircraft and ground transportation.
EAA is an organization also devoted to supporting recreational aviation and encouraging people to become involved in aviation. Headquartered in Wisconsin, EAA has approximately 170,000 members globally. Although EAA has several chapters in Washington, NWEAA is not one of them. EAA holds its own annual Fly-In at Oshkosh, Wisconsin.
In 1989, EAA and NWEAA entered into a "Letter of Understanding" to define the relationship between the two entities. The agreement states that each entity shall remain independent and autonomous. It requires the NWEAA to time and schedule the Fly-In event when it will not conflict with EAA events, except as agreed to by EAA. The letter specifies that the parties are not liable for the debts of the other entity. Section V states that there is no financial relationship between the parties, but NWEAA shall assist and promote EAA and will also conduct itself in a manner so as not to conflict with EAA policies. NWEAA's board must also be general members of the EAA. The agreement further states that "no legal penalties are attached to this document other than those of professional integrity by the signed parties and the bond of individuals' word of agreement."
Since 1997, NWEAA has entered into a General Special Use Agreement and Special Event Use Agreement with the City of Arlington regarding its use of the Municipal Airport for the Fly-In. The General Special Use Agreement establishes charges for late payment of fees, equipment usage, a sludge application requirement, conditions for assignment of interest, safety, area of usage, accidents/indemnity provisions, and other general obligations relating to usage and access to the area. Section seven of the agreement states that:
The permittee will take all reasonable steps to ensure and support safe flying conditions in and around the airfield. This will include, but not be limited to, briefing all participants on observing safe practices around the airfield, staying away from the active runway, taxiways, and aircraft parking areas and respecting an aircraft's right-of-way at all times. The permittee's representative shall meet with the Airport Manager as necessary for safety briefings on the airfield situation. Additionally, to facilitate the above items, as [sic] airport site visit or orientation tour is highly recommended.
The Special Event Use agreement established additional terms of use including the portion of the airport leased to NWEAA, term of the agreement, fees, and additional conditions. Section five listed as a condition that:
The permittee shall be required each year to negotiate and reduce to writing agreement with the Arlington Fire Department for Event Fire Service, with the Arlington Police Department for Event Police Service, and with the City Planning Department for Event Transportation Planning for access to the airport's eastside and downtown areas. All other affected City Departments may review and comment on proposed aspects of the use which may impact the City, City Departments, or the surrounding community. The permittee shall also secure the permission, if required, of the Federal Aviation Administration (FAA).
The General Special Use Agreement included an attached site map depicting NWEAA's area of usage. The site map identified NWEAA's usage area to include areas for auto parking, vending booths, camping, display aircraft, exhibit aircraft, and aircraft parking and overflow parking. It did not include the area where Mr. Corbitt crashed.
In 1999, the NWEAA held its Fly-In event at the Arlington Municipal Airport from July 7 to July 11. As it had done in years past, NWEAA wrote a letter to the Arlington Fire Department describing details of the Fly-In event. The Arlington Fire Department relayed to the airport manager that it would provide fire service for the event. The Arlington Fire Department is staffed by volunteers. It provides all regular and emergency fire service to the airport. NWEAA also obtained approval from the FAA for its air show because it included acrobatic maneuvers.
On June 10, 2002, in King County Superior Court, Karen Corbitt, the widow of Don Corbitt, brought a wrongful death, survival, and injury action against the EAA, NWEAA, and the City of Arlington. The complaint alleged that NWEAA, EAA, and the City of Arlington were negligent for "failing to adequately respond to Mr. Corbitt's accident" and failing "to provide adequate fire, rescue, and emergency response for the fly-in." Corbitt claimed the parties were liable because the defendants owned, managed, leased, or otherwise controlled the premises and therefore owed the "highest level of care to Mr. Corbitt, a business invitee." The complaint stated that the City, by signing agreements with NWEAA, acted in its proprietary capacity, not a governmental capacity. Corbitt sought damages for her husband's wrongful death including: special damages to support his beneficiaries, economic loss from his premature death, past and future general damages for loss of companionship and consortium, general damages for pain and suffering, funeral and burial expenses, pre-and post-judgment interest, reasonable attorney fees, and all other general and special damages recoverable under Washington law.
EAA and NWEAA answered by denying Corbitt's negligence claims and asserting that venue was improper in King County. EAA and NWEAA moved for a change of venue to Snohomish County. It was granted on December 13, 2002.
In June of 2004, the City of Arlington moved for summary judgment, arguing it had no duty to Mr. Corbitt under the public duty doctrine. Corbitt argued the City of Arlington was liable because its operation of fire services for the Fly-In constituted a proprietary, rather than governmental action. In the alternative, she argued the City was liable because the public duty doctrine does not apply when a governmental agent fails to exercise reasonable care when coming to the aid of a particular person or where a special relationship exists between the governmental agent and a reasonably foreseeable plaintiff. The trial court granted the City of Arlington's motion in its entirety, thereby dismissing all of Corbitt's claims against it. The trial court denied Corbitt's motion to reconsider the order. Next, EAA and NWEAA moved for, and the trial court granted, partial summary judgment on the issue of whether the EAA and NWEAA were vicariously liable for the alleged negligence of the City.
Corbitt did not argue that the City of Arlington had a non-delegable duty to provide specialized fire fighting equipment under a theory that as a possessor of land, it has a special duty to invitees.
In July of 2004, EAA and NWEAA also moved for summary judgment on the issue of whether they owed a duty to Mr. Corbitt. First, they argued that under Washington common law, an event organizer does not have a duty to provide emergency services on areas it did not lease or retain control over. Second, NWEAA did not control or command the Arlington Fire Department and is therefore not liable for the lack of a special fire truck. Third, NWEAA met the standard of care by arranging for the Arlington Fire Department to be on site. Fourth, NWEAA claimed it was under no contractual obligation to provide emergency services greater than those of the Arlington Fire Department. In its joint motion with NWEAA, EAA argued it had no duty because it did not control or lease the land, organize or sponsor the event, or otherwise exert control sufficient to attach liability.
Corbitt replied to the summary judgment motion, arguing that NWEAA and EAA had a common law duty as business owners to provide emergency and fire services to Mr. Corbitt, an invitee. Corbitt also claimed that the Letter of Understanding between NWEAA and EAA and the Special Use Agreement between NWEAA and the City of Arlington created a duty to have specialized fire fighting trucks and emergency personnel. Additionally, Corbitt argued NWEAA and EAA had no written arrangement with the Arlington Fire Department and therefore breached their contractual duty under the Special Use Agreement and common law duties to provide emergency services for the protection of business invitees.
The trial court denied the NWEAA and EAA's motion for summary judgment. At summary judgment, the court found NWEAA and EAA had a nondelegable duty to Mr. Corbitt based on the special relationship between a business invitee and the business owner established in Nivens v. 7-11 Hoagy's Corner, 133 Wn.2d 192, 943 P.2d 286 (1997). The trial court concluded, "[i]t is undisputed that Corbitt was a business invitee to whom NWEAA/EAA owed a duty of reasonable care to provide reasonable emergency fire, safety and rescue services." The trial court found that the other elements of a claim for negligence involved questions of fact, which need to be decided at trial. In its order denying EAA and NWEAA's motion for summary judgment, the trial court found "written documents exist, which appear to constitute contracts." The trial court stated that "an affirmative duty assumed by contract may create a liability to persons not party to the contract, where failure to properly perform the duty results in injury to them." The trial court summarized Washington law as established in Hansen v. Horn Rapids O.R.V. Park of the City of Richland, 85 Wn. App. 424, 932 P.2d 724, review denied, 133 Wn.2d 1012 (1997), noting that "'[t]he promoters and sponsors of a sporting or competitive event that have contracted to provide for the presence of an ambulance and first-aid personnel do not owe a nondelegable duty to provide for the safety of the participants if the promoters and sponsors have not contractually agreed to assume responsibility for all safety precautions and do not control the area where the first-aid personnel are to work.'" But, the trial court concluded that "[b]ecause, in the instant matter, there is a disputed material fact as to whether, via contract, Defendants assumed 'responsibility for all safety precautions' and exercised control of the area where first-aid personnel would work, their motion does not properly come under the provisions of Hansen."
Subsequent to the summary judgment order, the trial court did not rule on whether, as a matter of law, the contracts created a duty on the part of NWEAA to Mr. Corbitt.
NWEAA and EAA moved for reconsideration of the order denying their motion for summary judgment. The trial court denied this motion, reiterating that as business owners, NWEAA and EAA had a duty to Mr. Corbitt, an invitee, under the special relationship doctrine outlined in Nivens.
A jury trial began December 4 and lasted until December 19, 2006. At trial, Corbitt's counsel presented testimony of Chief James R. Nilo, the fire chief and manager of operations at the Capital Region Airport Commission in Richmond, Virginia. He testified to the standard of care that should have been used by NWEAA and EAA. He argued the Fly-In event should have included an Aircraft Rescue Firefighting (ARFF) truck, which would have increased the City's response time, and that firefighters should have used foam, not water, to put out the fire. Defendants argued that Mr. Corbitt's negligent operation of his aircraft was the proximate cause of his own death.
The jury rendered a verdict in favor of Corbitt on December 22, 2006. On a special verdict form, it found NWEAA, EAA, Don Corbitt, and the City of Arlington all negligent. It found that Mr. Corbitt's negligence was not the proximate cause of his own death. It apportioned fault at 45 percent to NWEAA, 40 percent to EAA, and 15 percent to the City of Arlington. The jury found the damages to be $10,500,000. Based on the jury's allocation of fault, the trial court judge reduced the damages by 15 percent, the amount of fault attributed to the City of Arlington.
EAA and NWEAA appeal. Corbitt cross-appeals the trial court's reduction of damages. Corbitt does not appeal the trial court's dismissal on summary judgment of the City of Arlington.
Corbitt does not assert continuing claims against the municipal airport as the possessor of land.
Discussion
EAA and NWEAA assign error to the trial court's denial of their motion for summary judgment on Corbitt's claims of negligence, arguing that it erred in concluding they had a common law duty to Mr. Corbitt.
A cause of action in negligence requires that a plaintiff establish the existence of a duty owed, the breach of that duty, a resulting injury, and a proximate cause between the breach and the injury. Tincani v. Inland Empire Zoological Soc'y, 124 Wn.2d 121, 127-28, 875 P.2d 621 (1994). "The threshold determination of whether the defendant owes a duty to the plaintiff is a question of law." Id. at 128. "The existence of a duty may be predicated upon statutory provisions or on common law principles." Degel v. Majestic Mobile Manor, Inc., 129 Wn.2d 43, 49, 914 P.2d 728 (1996).
In a negligence action, whether the defendant owed a duty of care to plaintiff is a question of law that is reviewed de novo. Sheikh v. Choe, 156 Wn.2d 441, 448, 128 P.3d 574 (2006). When reviewing a summary judgment order, the appellate court undertakes the same inquiry as the trial court. Thompson v. Peninsula School Dist. No. 401, 77 Wn. App. 500, 504, 892 P.2d 760 (1995). Summary judgment is proper when, after all facts and inferences are viewed in the light most favorable to the non-moving party, there are no genuine issues of material fact and the moving party is entitled to a judgment as a matter of law. CR 56(c). The moving party bears this burden of proof.
Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). A material fact is one upon which the outcome of the litigation depends. Barrie v. Hosts of America, Inc., 94 Wn.2d 640, 642, 618 P.2d 96 (1980). An adverse party "may not rest upon mere allegations or denials, but must instead set forth specific facts showing the existence of a genuine issue for trial." McBride v. Walla Walla County, 95 Wn. App. 33, 36, 975 P.2d 1029 (1999); see CR 56(e).
The trial court denied NWEAA and EAA's motion for summary judgment, finding that both parties had an affirmative duty to Mr. Corbitt based on the special relationship between a business owner and a business invitee identified in Nivens and section 344 of the Restatement (Second) of Torts. The trial court did not determine a contractual duty existed for NWEAA and EAA. At oral argument and in the briefs before this court, Corbitt's counsel confirmed that the case was presented to the jury on a theory that NWEAA and EAA had a common law duty to Mr. Corbitt.
EAA argues separately that it had no duty to Mr. Corbitt because it was not a possessor of land at the Fly-In and did not control the operation of events. Indeed, EAA is not a signatory to agreements with the City of Arlington, including the lease for the use of the airport premises for the Fly-In. There is no evidence EAA possessed the land at the Arlington Municipal Airport where the Fly-In activities took place or where Mr. Corbitt crashed. The evidence offered at summary judgment showed EAA had no authority regarding the organization or planning of the Fly-In event or otherwise exercised control of the emergency services personnel. Without such control, EAA, as an event sponsor, does not become a possessor of the land or business owner with the attendant liability. Folsom v. Burger King, 135 Wn.2d 658, 671-72, 958 P.2d 301 (1998). Event attendees, including Mr. Corbitt, were not business invitees of EAA. Corbitt's theories of liability including that EAA had a duty to Mr. Corbitt as a possessor of land or sponsor of the event fail as a matter of law. The trial court erred as a matter of law in denying summary judgment to EAA.
The trial court found NWEAA had a common law duty based on Nivens. In Nivens, the Washington Supreme Court adopted the Restatement (Second) of Torts section 344, which recognizes a special relationship between an invitee and a business owner/possessor of land. Nivens, 133 Wn.2d at 205. Under the Restatement (Second) of Torts section 344:
A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to
(a) discover that such acts are being done or are likely to be done, or
(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.
In Nivens, the plaintiff parked his car at a convenience store and approached the store's entrance. Approximately a dozen young people had gathered to "hang out" in the store's parking lot. One young person approached Nivens and requested he buy beer for the group. When Nivens refused, the group of youths assaulted him, causing injury. Id. at 195. Nivens sued the store, Hoagy's Corner, arguing it breached its general duty to protect him by not hiring private security personnel to prevent third party criminal conduct. The court held "a business [owner] owes a duty to its invitees to protect them from imminent criminal harm and reasonably foreseeable criminal conduct by third persons." It must take "reasonable steps to prevent such harm in order to satisfy the duty." Id. at 205. While no general duty exists to provide private security personnel to prevent third party criminal conduct on the premises, "in certain circumstances the duty arising out of the special relationship between a business and an invitee described by § 344 of the Restatement may best be met by providing security personnel as part of the reasonable steps to forestall harm to invitees." Id. at 206.
Given the facts of the present case, the trial court greatly expanded the duty of a business owner to an invitee recognized in Nivens. Nivens and the Restatement address a business owner's duty to protect against reasonably foreseeable third party conduct that poses a risk of injury to the invitee. Here, unlike Nivens, Mr. Corbitt's injury was not caused by a third party. Instead, Corbitt alleges a failure of NWEAA to provide certain emergency services. She claims a duty based on a failure of the business owner to act as a first party to protect her husband from the consequences of his negligent crash, unlike Nivens, which addressed a business owner's common law duties to protect the invitee against harm from third parties while on the business premises.
Mr. Corbitt crashed his airplane on the east side of the airport, outside the area leased by NWEAA. Corbitt, however, claims that a business owner is liable to an invitee in those areas reasonably foreseeable as necessary for ingress and egress. Rockefeller v. Standard Oil Co., 11 Wn. App. 520, 522, 523 P.2d 1207 (1974). Thus, she argues that liability under the special relationship identified under Nivens should extend beyond the area leased by NWEAA. Corbitt's argument is not supported by Washington law. In Rockefeller, this court found a gas station owner had a duty to warn an invitee of dangerous conditions in reasonably foreseeable areas of ingress and egress. In particular, the gas station had a duty to warn about a ditch located four feet from the entrance. Unlike Rockefeller, Corbitt does not allege that her husband's death resulted from a condition of the land in foreseeable areas of ingress and egress. Therefore, a business owner's duty under Rockefeller was not triggered. Likewise, the death of Mr. Corbitt did not result from a condition on the land possessed by NWEAA or EAA. We decline to extend the duty owed by a possessor of property under Nivens to property not in their possession or control.
We agree with NWEAA that it had no duty to Mr. Corbitt because the facts of the present case are analogous to Hansen v. Horn Rapids O.R.V. Park of the City of Richland, 85 Wn. App. 424. In Hansen, the event sponsor arranged for volunteer emergency medical personnel to be present at an event. A participant was injured while racing at the event. According to Hansen, emergency medical personnel exacerbated his injuries when they negligently removed his helmet. Like the present case, Hansen argued the event organizer, sponsor, and landowner were liable for the acts of emergency personnel. The Court of Appeals rejected this argument, finding the event organizer, Squisher Racing, did not have a nondelegable duty to maintain a safe racecourse, including competent first aid. The court reasoned that the event organizer did not control the land where the injury occurred or assume responsibility for all safety precautions for the event. Thus, it did not have a duty to the event participant. The court explained that the landowner, the City of Richland, required organizers of motocross events to "obtain and cover the cost of providing trained first aid personnel, equipment, and an aid vehicle or station during events." Id. at 427. Therefore, Squisher Racing met their obligation by arranging for first aid personnel to be present.
Like Hansen, the City of Arlington required NWEAA to arrange with the Arlington Fire Department for fire and emergency services. NWEAA wrote to the Arlington Fire Department requesting their presence at the FlyIn event. The Arlington Fire Department was in fact present at the event. Corbitt alleged that NWEAA had a duty to her husband as a possessor of land to a business invitee and therefore is liable for the response of the Arlington fire personnel. But NWEAA and EAA did not control the portion of the airport where Mr. Corbitt crashed. Nothing in the record supports a conclusion that NWEAA was in control of the fire or first aid personnel. We find no basis in Washington law to hold that NWEAA, as a possessor of land, had a duty to provide first aid services to Mr. Corbitt, a business invitee, once he had left the premises possessed by NWEAA.
We hold that as a matter of law, NWEAA and EAA were entitled to summary judgment on the issue of duty.
The City of Arlington's motion for dismissal from the appeal is also granted. They were dismissed on summary judgment by the trial court. That order was not appealed.
We reverse the judgment in favor of Corbitt and remand for entry of judgment in favor of NWEAA and EAA.
We reverse.
We concur