Opinion
No. 25450-0-III.
September 18, 2007.
Appeal from a judgment of the Superior Court for Chelan County, No. 02-2-00482-7, Lesley A. Allan, J., entered July 24, 2006.
Reversed by unpublished opinion per Schultheis, A.C.J., concurred in by Brown and Kulik, JJ.
On Saturday, May 22, 1999, Barbara and Elias Coury traveled from Bellevue to Wenatchee to attend their granddaughter's softball tournament. They stayed at the Orchard Inn. In the late afternoon, Mrs. Coury left the lobby of the motel to get her granddaughter, who was in the motel's outdoor pool. Mrs. Coury approached the glass door from the dimly-lit lobby to the pool area, pushed the door open, and stepped out. From inside, the pool deck appeared to Mrs. Coury to be a single-colored level surface. Mrs. Coury had never been out to the pool and did not know that there was a step down to the pool deck. Distracted by the pool activities and temporarily blinded by the sunlight and glare from the pool, her foot caught the edge of the step and she fell to the pool deck. Mrs. Coury's ankle and wrist were fractured from the fall.
The Courys sued the motel for her injuries. The motel moved for summary judgment, asserting that it was not liable for Mrs. Coury's injuries because she "simply failed to look at where she was walking." Clerk's Papers (CP) at 53. The trial court applied Tyler v. F.W. Woolworth Co., 181 Wash. 125, 41 P.2d 1093 (1935), a case neither cited nor relied on by either party, and ruled that there are no genuine issues of material fact to be decided by a jury. We conclude that there exists a genuine issue of fact and reverse.
As a preliminary matter, the Courys contend, without citation to authority, that the trial court improperly relied on legal authority not cited by the parties. The parties are not entitled to have their case decided solely on the basis of precedent cited by them to the trial court. Hampton v. Wyant, 296 F.3d 560, 565 (7th Cir. 2002) (citing Elder v. Holloway, 510 U.S. 510, 114 S. Ct. 1019, 127 L. Ed. 2d 344 (1994)). That the judge independently researched the issue did not deprive the Courys of a fair hearing. Id. at 564.
We review summary judgment orders de novo, performing the same inquiry as the trial court. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 860, 93 P.3d 108 (2004). We view all facts and reasonable inferences in the light most favorable to the nonmoving party. Id. Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Hisle, 151 Wn.2d at 861.
A possessor of land owes its invitees a duty of reasonable care that requires the landowner to inspect for dangerous conditions and to make such repair, safeguards, or warnings as may be reasonably necessary for the protection of invitees under the circumstances. Tincani v. Inland Empire Zoological Soc'y, 124 Wn.2d 121, 139, 875 P.2d 621 (1994). The Courys argue that the trial court erred in dismissing the case based on Tyler, which notes:
In the storeroom cases, this court has denied recovery where the stairway was in plain view of the injured person and, if such person had exercised reasonable care, he would have seen it. . . .
The mere fact that a step up or down, or a flight of steps up or down, is maintained at the entrance or exit of a building, is no evidence of negligence, if the step is in good repair and in plain view.
181 Wash. at 127-28 (citations omitted).
Tyler, the Courys observe, does not address the exception to the general rule as discussed in Restatement (Second) of Torts § 343A(1) (1965).
Washington courts have adopted section 343A(1) of the Restatement as "the appropriate standard for duties to invitees for known or obvious dangers." Tincani, 124 Wn.2d at 139. "In 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.'" Id. (quoting Restatement, supra, § 343A(1)). Under this rule, a landowner is liable when an invitee could be expected to be distracted and either fails to notice the obvious or be unmindful of what she has noticed. Restatement, supra, § 343A cmt. f. These are the circumstances described by Mrs. Coury.
Whether the motel should have anticipated that Mrs. Coury would be distracted and unable to protect herself from a dangerous condition is a question of fact for the jury. Degel v. Majestic Mobile Manor, Inc., 129 Wn.2d 43, 54, 914 P.2d 728 (1996) (citing Tincani, 124 Wn.2d at 141); see also Mucsi v. Graoch Assocs. Ltd. P'ship No. 12, 144 Wn.2d 847, 859-60, 31 P.3d 684 (2001).
Reversed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
BROWN, J. and KULIK, J., concur.