Opinion
No. 64421-1-I.
November 8, 2010.
Appeal from a judgment of the Superior Court for Snohomish County, No. 08-2-06840-2, Thomas J. Wynne, J., entered October 8, 2009.
Reversed and remanded by unpublished opinion per Becker, J., concurred in by Schindler and Lau, JJ.
Dale Nelson appeals the summary judgment dismissal of his lawsuit against G. Wolf Enterprises, Inc., the owner of the food processing and warehouse facility where Nelson fell from a ladder and injured himself. We reverse. There are genuine issues of material fact about the duty owed to Nelson by the premises owner, whether the ladder Nelson used to access his supplies was unsafe, whether the unsafe condition of the ladder was obvious, and whether the owner of the premises should have anticipated a potential harm even if the dangerous condition was obvious.
George Wolf is the owner of G. Wolf Enterprises, Inc., a company that owns a warehouse and food processing facility in Gold Bar, Washington. Dale Nelson is the owner of Food Concepts, Inc., a company that develops and produces specialty food products, such as jams, jellies, and sauces. Around 2002, Wolf and Nelson entered into an arrangement whereby Nelson agreed to pay a monthly fee for the use of office space, storage space, and the food processing equipment at Wolf's facility. There was no written agreement between the parties. Nelson moved his business into the facility, produced his own products there, and occasionally performed services for Wolf for payment. Wolf also had customers who paid him to produce food products at the facility. Wolf sometimes referred those customers to Nelson, and the customers then paid Nelson directly for consulting and other services. Nelson generally worked at the facility one or two days per week.
When a delivery for Nelson's company arrived, Wolf's employees accepted the delivery and decided where to store the items. There were two main storage areas. One was a mezzanine storage area, approximately 10 feet off the ground, above the office used by Nelson, and the other was in the roof rafters of the warehouse. Both storage areas were accessible only by using an extension ladder. Wolf's employees stored Nelson's materials and retrieved items for Nelson as needed. Wolf charged Nelson for his employees' labor.
On August 17, 2005, Nelson worked with one of Wolf's customers who was developing a barbecue sauce. After finishing that project, Nelson began to prepare an order for shipping. All of Wolf's employees were busy with customers and were unavailable to retrieve his shipping supplies. So, using the ladder Wolf's employees used, Nelson ascended to the mezzanine storage area. Before the accident, Nelson had helped Wolf's employees to retrieve supplies, but he had never climbed the ladder. He threw a bag of Styrofoam packaging to the ground. It is undisputed that the extension ladder lacked a mechanism to secure its stability at the top and bottom. It did not have rubber safety feet or other safety features as required by Department of Labor and Industries regulations. Nelson says that as he descended, the ladder "kicked out" from under him. Nelson fell to the ground, broke his leg, and shattered his elbow. His injuries required three surgeries.
Nelson sued both G. Wolf Enterprises and Wolf personally (collectively, Wolf) for negligence. His theories were common law negligence and failure to comply with safety regulations promulgated under the Washington Industrial Safety and Health Act of 1973 (WISHA), chapter 49.17 RCW. Wolf successfully moved for summary judgment. Nelson appeals.
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), review denied, 145 Wn.2d 1016 (2002). 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).
To prevail on a negligence claim, a plaintiff must prove four basic elements: (1) the existence of a duty, (2) breach of that duty, (3) resulting injury, and (4) proximate cause. Degel v. Majestic Mobile Manor, Inc., 129 Wn.2d 43, 48, 914 P.2d 728 (1996). The existence of a legal duty is generally a question of law. Degel, 129 Wn.2d at 48. But where the duty depends on proof of certain facts that may be disputed, summary judgment is inappropriate. Sjogren v. Props. of Pac. Nw., LLC, 118 Wn. App. 144, 148, 75 P.3d 592 (2003).
In Washington, the common law legal duty owed by a landowner to a person entering the landowner's premises depends on whether the entrant falls under the common law category of a trespasser, licensee, or invitee. Iwai v. State, 129 Wn.2d 84, 90-91, 915 P.2d 1089 (1996). There are three levels of care owed to entrants on to land depending upon the entrant's status, with the highest level of care being owed to an invitee. Fuentes v. Port of Seattle, 119 Wn. App. 864, 869, 82 P.3d 1175 (2003), review denied, 152 Wn.2d 1008 (2004).
Wolf contends that Nelson was merely a licensee. He points out that Nelson was a commercial tenant and asserts that this fact precludes him from being an invitee. Wolf cites no authority to support this proposition. We therefore do not address the issue. See Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
Invitees may either be public or business invitees. A business invitee is a person whose entrance upon the land is directly or indirectly connected with the business of the possessor of the land. RESTATEMENT (SECOND) OF TORTS §§ 332. Because there is no argument or evidence that Wolf held his property open to the public, public invitee status is inapplicable. To determine if an entrant is a business invitee, an important consideration is whether the entrant bestowed an economic benefit. Thompson v. Katzer, 86 Wn. App. 280, 286, 936 P.2d 421, review denied, 133 Wn.2d 1020 (1997). Additionally, "there must be some real or supposed mutuality of interest in the subject to which the visitor's business or purpose relates." Dotson v. Haddock, 46 Wn.2d 52, 54, 278 P.2d 338 (1955); Christensen v. Weyerhaeuser Timber Co., 16 Wn.2d 424, 432, 133 P.2d 797 (1943).
In this case, Wolf received monthly payment of approximately $3,000 per month from Nelson for his use of the premises. There is no evidence that Wolf paid Nelson directly for consulting services. Nevertheless, the evidence demonstrates that the parties' businesses were connected in a mutually beneficial way: Wolf was able to serve his customers by referring them to Nelson, and Nelson's company gained consulting business. Nelson also alleges that he performed other services for Nelson, including assistance with packing, shipping, and unloading shipments. These facts demonstrate a mutuality of interest. See Enersen v. Anderson, 55 Wn.2d 486, 348 P.2d 401 (1960) (trial court erred in concluding plaintiff was merely a licensee where marine yard had been receiving moorage payment); see also Ward v. Thompson, 57 Wn.2d 655, 359 P.2d 143 (1961) (plaintiff was a business invitee, not a licensee, because he ascended a scaffold to hold a piece of siding so his stepson could secure it, and thereby conferred an economic benefit upon his stepson). We conclude the record contains evidence from which a jury could conclude Nelson was an invitee.
Wolf's primary argument is based on Charlton v. Day Island Marina, Inc., 46 Wn. App. 784, 732 P.2d 1008 (1987). Under Charlton, regardless of Nelson's invitee or licensee status, a land owner is not generally liable if a dangerous condition is known and obvious. Charlton, 46 Wn. App. at 789 (plaintiffs died from carbon monoxide poisoning; structural condition of leased boathouse as an enclosed and unventilated space was open and obvious). Wolf claims Nelson acknowledged that the danger of the ladder was apparent to him. But in the deposition testimony Wolf relies upon, Nelson acknowledged only generally that descending a ladder entails risk. He did not say he was aware that the extension ladder lacked safety features and was particularly dangerous for that reason. Reasonable minds could differ as to whether a reasonable person would recognize the particular ladder as being dangerous because it had no features to secure it at the top or bottom.
Reasonable minds could also conclude the dangerous condition of the ladder was not open and obvious. And even if the dangerous condition of the ladder was obvious, a finder of fact could conclude that the premises owner should have anticipated the harm and taken precautions to protect against it. See Restatement (Second) of Torts §§ 343A. In Ward, where a scaffolding collapsed and injured the plaintiff, the court noted that "aside from the technicalities of respondent's legal status [as an invitee or licensee] . . . [w]here the danger of harm is great, as it is with scaffolds, ladders, and the like, public policy requires that the occupier of the premises take the utmost precaution to keep such equipment in a safe condition." Ward, 57 Wn.2d at 659-60 (footnote and citations omitted). While generally speaking, the danger posed by scaffolding might be readily apparent, the court in Ward concluded that the landowner still had a duty to ensure the safe condition of the scaffold that extended to all who used it with express or implied permission of the premises owner. Ward, 57 Wn.2d at 659. In this case, if the finder of fact determines that Nelson was an invitee but the danger was known and obvious, the finder of fact could also determine that because the danger of harm was great, Wolf was required to take additional steps to protect those on the premises who might use the ladder.
Finally, Wolf asserts that even if Nelson was an invitee, summary judgment was proper because he did not expressly invite Nelson to use the ladder to access his stored supplies. Thus, he claims Nelson exceeded the scope of his invitation. But according to Wolf, the accident occurred in a "non-common area" that Nelson exclusively possessed. Br. of Resp't at 6. Moreover, there is no evidence in the record, nor does Wolf allege, that Nelson was prohibited from using the ladder or from accessing his own supplies. It is undisputed that Nelson paid for the use of storage space. The record does not support a conclusion as a matter of law that Nelson was acting outside the scope of his invitation or license.
Because there are material issues of fact regarding the duty owed to Nelson and whether that duty was breached, we reverse summary judgment as to Nelson's common law negligence claims.
Nelson argues that his claim based on alleged WISHA violations was also improperly dismissed because Wolf is an employer under the statute and retained control of the premises. Therefore, Nelson contends Wolf was obligated to ensure WISHA compliance. Nelson's WISHA claim is grounded in RCW 49.17.060(2), which imposes a duty on employers to comply with specific WISHA regulations. He submitted evidence that the extension ladder did not comply with WAC 296-800-29015, and the storage areas on the premises were not in compliance with WAC 296-800-26010 and WAC 296-800-25005 .
While an employer's duty to comply with specific regulations under RCW 49.17.060(2) may be owed to third parties other than those directly employed by the employer, the existence of the statutory duty depends on the employer's control or supervisory authority over the third party. Our courts have held the statutory duty to third parties can only be owed by general contractors or jobsite owners/developers who have supervisory authority over the third party who is injured. Shingledecker v. Roofmaster Prods. Co., 93 Wn. App. 867, 971 P.2d 523 (roofing contractor owed no duty under WISHA to employee of material supplier who was electrocuted and died during a delivery of supplies), review denied, 138 Wn.2d 1018 (1999); Phillips v. Kaiser Aluminum Chem. Corp., 74 Wn. App. 741, 755, 875 P.2d 1228 (1994). Here, although Wolf was an employer under WISHA, Nelson was neither an employee nor an independent contractor of Wolf. There is no evidence that Wolf exercised supervisory authority over Nelson. Nelson has not established that Wolf had a WISHA-based duty that extended to third parties. Accordingly, summary judgment was appropriate with respect to Nelson's claim based on WISHA violations.
Because there are genuine issues of material fact with respect to Nelson's common law negligence claim, we reverse the decision to grant summary judgment on that claim and remand for further proceedings.
WE CONCUR: