Opinion
No. 34267-7-II.
November 14, 2006.
Appeal from a judgment of the Superior Court for Clallam County, No. 05-2-00644-0, Craddock D. Verser, J., entered January 4, 2006.
Counsel for Appellant(s), Robert M. Kraft, Kraft Palmer Davies PLLC, Seattle, WA.
Richard John Davies, Kraft Palmer Davies, PLLC, Seattle, WA.
Counsel for Respondent(s), Michael Alan Barcott, Attorney at Law, Seattle, WA.
Earl Maier Sutherland, Reed McClure, Seattle, WA.
Terry Jay Price, Reed McClure, Seattle, WA.
John T. Dalton Jr., Merrick, Hofstedt Lindsey, PS, Seattle, WA.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Bridgewater and Hunt, JJ.
Alex Ralston appeals a summary judgment order dismissing his negligence claims against the Port of Port Angeles (Port) and its agent Port Angeles Marine, Inc. for failing to establish that a duty existed. Ralston's claims stem from injuries he sustained from a fall while working aboard a privately owned boat moored in a slip its owner leased from Port Angeles Marine. Because (1) the defendants do not possess the property on which the dangerous condition existed, (2) Ralston was not the defendants' business invitee, and (3) neither defendant controlled or had the right to exercise control over the repairs aboard the Odyssey, the defendants did not owe Ralston a duty to provide a safe working environment. Accordingly, we affirm.
FACTS
The Port owns the Port Angeles Boat Haven Marina. Port Angeles Marine, Inc. managed the marina for the Port. Port Angeles Marine's agency agreement with the Port required Port Angeles Marine "to enforce such rules and regulations as the Port may prescribe for [the marina's] operation." Clerk's Papers (CP) at 581. Port Angeles Marine required all marina tenants to abide by all marina rules and regulations. One marina rule stated:
Vessels which, in the opinion of the Port, do not meet normal safety standards or are hazardous to the Port property or other boats or facilities will be denied permission to remain on Port premises.
CP at 309-316.
Roger Hoff and his wife own the vessel the Odyssey. Hoff also owns and operates San Juan Excursions, Inc., which leases the Odyssey for whale watching excursions. Hoff signed a berthage agreement with Port Angeles Marine that allowed him to moor the Odyssey at the marina while contractors performed maintenance and repairs to the boat. The berthage agreement between Port Angeles Marine and San Juan Excursions incorporated the Port's rules and regulations.
Hoff hired independent contractors Peter NewDay and Roy Hamilton to perform maintenance and repairs to the Odyssey. Hoff hired Matt Kielmeyer to paint the Odyssey, and hired Matthew and Alex Ralston to prepare the boat for painting.
To facilitate maintenance and repairs, NewDay and Hamilton removed the guardrails along the Odyssey's upper starboard deck. While preparing an area on the upper starboard deck for painting, Ralston fell from the Odyssey and sustained serious injuries when he landed on the marina's dock.
Ralston sued the Port and Port Angeles Marine for damages, alleging that the Port and Port Angeles Marine negligently caused his injuries. The Port and Port Angeles Marine moved for summary judgment, arguing that they owed no duty to Ralston to ensure safe working conditions aboard the Odyssey. The trial court granted the motions, finding that neither the Port nor Port Angeles Marine owed Ralston a duty to correct the dangerous condition on the boat.
The issues on appeal are whether the Port owed Ralston a duty to correct the dangerous condition aboard the Odyssey based on the Port's ownership of the land or whether the Port and Port Angeles Marine owed such a duty based on the "rules and regulations" provisions of the berthage agreement.
ANALYSIS I. Standard of Review
We review an order granting summary judgment de novo. Korslund v. DynCorp Tri-Cities Servs., Inc., 156 Wn.2d 168, 177, 125 P.3d 119 (2005). Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56(c). We consider the facts in the light most favorable to the nonmoving party. McClarty v. Totem Elec., 157 Wn.2d 214, 220, 137 P.3d 844 (2006) (citing CR 56(c)).
II. The Port's and Port Angeles Marine's Duty
To establish his negligence claim against either defendant, Ralston must first show that the Port or Port Angeles Marine owed him a duty to exercise reasonable care to prevent the injury. See Bratton v. Welp, 145 Wn.2d 572, 576, 39 P.3d 359 (2002) (first hurdle in a negligence action is establishing a duty). The existence of a duty is a question of law. Osborn v. Mason County, 157 Wn.2d 18, 23, 134 P.3d 197 (2006) (quoting Tae Kim v. Budget Rent A Car Sys. Inc., 143 Wn.2d 190, 195, 15 P.3d 1283 (2001)). A landowner's duty of care to a person on its property depends on whether the person is an invitee, licensee, or trespasser. Kamla v. Space Needle Corp., 147 Wn.2d 114, 125, 52 P.3d 472 (2002) (citing Iwai v. State, 129 Wn.2d 84, 90-91, 915 P.2d 1089 (1996).
1. Duty Under Restatement (Second) of Torts § 344
Ralston argues that, under the Restatement (Second) of Torts section 344 (1965), the Port and Port Angeles Marine owed him a duty to exercise reasonable care to protect him from physical harm caused by the acts of third persons.
Restatement (Second) of Torts section 344, which the Washington Supreme Court adopted in Nivens v. 7-11 Hoagy's Corner, 133 Wn.2d 192, 204, 943 P.2d 286 (1997), provides:
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 . . . negligent . . . acts of third persons . . . 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.
Under section 344, a land possessor owes a duty only to "business visitors." Restatement (Second) of Torts § 344, cmt. a (citing Restatement (Second) of Torts § 332, cmt. a, (1965)) (a "business visitor" is a type of business invitee that "enter[s] for a purpose connected with the business of the possessor").
A. Possessor of Land
Ralston argues that the Port and Port Angeles Marine owed him a duty because they possessed the marina and had the right to control marina activities. He relies on Mesa v. Spokane World Exposition, 18 Wn. App. 609, 570 P.2d 157 (1977), for the proposition that whether a particular party possesses land depends on the party's control over the property, which he claims is a factual determination for the trier of fact. But when the facts regarding possession are undisputed, as they are here, the court may determine, as a matter of law, whether the defendant exercised sufficient control to create a duty on its behalf. See, Coulson v. Huntsman Packaging Prod., Inc., 121 Wn. App. 941, 948, 92 P.3d 278 (2004), review denied, 153 Wn.2d 1019 (2005); Strong v. Seattle Stevedore Co., 1 Wn. App. 898, 901, 466 P.2d 545 (1970).
A possessor of land is one who (1) occupies the land with the intent to control it, (2) has occupied the land with the intent to control it, if no other person has subsequently occupied the land with an intent to control it, or (3) is entitled to immediate occupation of the land, if no other possessor is in possession under (1) and (2). Ingersoll v. Debartolo, Inc., 123 Wn.2d 649, 655, 869 P.2d 1014 (1994) (citing Restatement (Second) of Torts § 328(E) (1965)). For purposes of the Restatement (second) of Torts section 344, a possessor of a ship is analogous to a possessor of land. See Monteleone v. Bahama Cruise Line, Inc., 838 F.2d 63, 65 (2d Cir. 1988).
Ralston agrees that the dangerous condition was a lack of guardrails on the Odyssey's upper starboard deck. And although the Port and Port Angeles Marine occupied and controlled the marina's floats, docks, and moorage slips, neither the Port nor Port Angeles Marine occupied the Odyssey. Further, the berthage agreement created a lessor-lessee relationship between San Juan Excursions and Port Angeles Marine, as the Port's agent. That agreement did not entitle the Port or Port Angeles Marine to occupy the Odyssey. Rather, Hoff testified that he owned and controlled the boat and that, at all times, he had the authority to direct the manner and scope of Ralston's work on the vessel. Thus, the Port and Port Angeles Marine did not possess the land on which the dangerous condition existed. Ingersoll, 123 Wn.2d at 655.
Elsewhere in his brief, Ralston claims that "[i]f the dock were not present underneath the unguarded upper deck, a worker's only risk of falling was landing in the water." Reply Br. of Appellant at 2-3. This argument overlooks the fact that if the dock were not present, there would have been no berthage space in which Hoff could moor the Odyssey, and Ralston could not have boarded the boat via the marina's docks or floats. Ralston also argues that the dangerous condition that he encountered was "the absence of any scaffolding on the Port's dock to protect" him from falling. Reply Br. of Appellant at 2. But as discussed below, the Port had no duty to provide scaffolding for construction projects performed at the marina.
Under the berthage agreement, the only time that the Port or Port Angeles Marine may take possession of the boat is if San Juan Excursions failed to pay rent for two months.
Ralston argues that "[t]he trial court's statement that `the dangerous condition did not exist on the Port's land,' and that therefore . . . § 344 does not apply, ignores the holdings in cases involving maritime injuries in which the Restatement (Second) of Torts" applies. But no case that Ralston cites refers to section 344. Br. of Appellant at 20-21.
2. Control Giving Rise to Possession
Nonetheless, Ralston argues that the Port and Port Angeles Marine exercised sufficient control over the work performed onboard the Odysssy to characterize them as "possessors of land" under Restatement section 344. He argues that "[o]nce the right to control is established, a duty exists under [§ 344] to protect invitees." Reply Br. of Appellant at 17.
A. Control Under the Various Agreements, Rules, and Regulations
Ralston argues that the agency agreement, the berthage agreement, and the Port rules and regulations "evidence the Port's and [Port Angeles Marine's] right to control the work being performed aboard the vessel." Reply Br. of Appellant at 17. And, according to Ralston, where a known hazard exists on a "vessel moored at a slip over which the property owner has full authority and control, the term `possessor of land,' [as] used in the [Restatement] (Second) must include dangerous conditions and hazards existing on vessels moored in such slips." Br. of Appellant at 21.
The agency agreement between the Port and Port Angeles Marine states that "[Port Angeles Marine] agrees . . . to enforce such rules and regulations as the Port may prescribe for its operation, and perform the following: . . . 3 . . . M. . . . administer and enforce Port rules and regulations applicable to third party contractors performing maintenance work on boats in [the marina]." CP at 61. The Port's rules and regulations provide that lessees at the marina "shall at all times comply with Federal, State, and County laws, ordinances and regulations." CP at 323.
When interpreting contracts, we first look for the parties' intent by focusing on the agreement's objective manifestations. Hearst Communs., Inc. v. Seattle Times Co., 154 Wn.2d 493, 503, 115 P.3d 262 (2005) (citing Max L. Wells Trust v. Grand Cent. Sauna Hot Tub Co. of Seattle, 62 Wn. App. 593, 602, 815 P.2d 284 (1991)). But, in determining the meaning of the contract's words, we may also consider extrinsic evidence including (1) the contract's subject matter and objective, (2) the circumstances surrounding the contract's formation, (3) the parties' subsequent acts and conduct, and (4) the reasonableness of the parties' respective interpretations. Hearst, 154 Wn.2d at 502-03. Ralston is not a party to the Port and Port Angeles Marine's agency agreement or to Port Angeles Marine and San Juan Excursion's berthage agreement. Accordingly, we give little if any weight to his views of what the parties intended.
Port Executive Director Robert McChesney testified that the Port never understood, anticipated or intended when it entered into the [agency agreement with Port Angeles Marine] that the [agreement] imposed a duty on the Port or [Port Angeles Marine] to inspect boats at [the marina] for violations of federal or state workplace safety standards except to the extent that either the
Port's property or other vessels were endangered. CP at 43. And Faires testified that, as the marina harbormaster and Port Angeles Marine's president, "[i]t was never [his] understanding that . . . [Port Angeles Marine] had any right or duty to inspect boats moored at [the marina]" or that Port Angeles Marine "had any right or duty to enforce federal or state law with regard to workplace safety violations aboard any vessel renting a berthage space." CP at 46.
Further, Faires testified that Port Angeles Marine had never inspected the Odyssey, or any other boat renting berthage space at the marina, for workplace safety violations. Although Faires said that one of Port Angeles Marine's primary responsibilities is to enforce the Port's rules and regulations, he said that that responsibility related to "pollution in the water or damage in Port facilities or other boats." CP at 166. Ralston offers no evidence to contradict McChesney's or Faires's testimony.
The Port's and Port Angeles Marine's interpretations of the provision are both reasonable. And both the agency agreement's purpose and the parties' subsequent conduct show that the Port and Port Angeles Marine did not intend the agency agreement to impose on Port Angeles Marine a duty to enforce federal, state, and county laws regarding workplace safety aboard the Odyssey. See Hearst, 154 Wn.2d at 502.
The Port Rules and Regulations also state that "[v]essels which, in the opinion of the Port, do not meet normal safety standards or are hazardous to the Port property or other boats or facilities will be denied permission to remain on Port premises." CP at 325. Ralston claims that this language gave the Port and Port Angeles Marine the right to exercise control over the work performed on the Odyssey. He also argues that the Port and Port Angeles Marine should have exercised their "absolute right under [the Port] Rules and Regulations" to deny the Odyssey permission to remain moored at the marina when they realized that San Juan Excursions had failed to comply with normal safety standards. Br. of Appellant at 22.
Again, the question is what the parties intended by "normal safety standards or are hazardous to the Port property or other boats or facilities." The parties have explained that they did not intend the phrase to include maintenance or construction aboard boats unless the work endangered the Port's facilities or other boats in the Marina. The parties' conduct and the reasonableness of their interpretation both support this intent. Ralston has offered no evidence that the Port or Port Angeles Marine ever supervised on-board work in the Marina. Moreover, if the Port and Port Angeles Marine had a duty to supervise the Odyssey work, then it had a duty to supervise repairs and maintenance on all vessels in the Marina. And nothing in the language, if read this broadly, would limit the duty to deck work. Rather, the duty would presumably extend to electrical, mechanical, and any other kind of repairs and maintenance. It is simply not reasonable to read the "normal safety standards" so broadly.
B. Control Derived from Common Law Principles
Ralston cites Sheppard v. Horluck Transportation, Inc., 1998 Wash. App. LEXIS 602 (1998), for the proposition that a marina owner with a contractual relationship with a third-party tortfeasor has a duty to persons subject to potential harm caused by the tortfeasor. Sheppard is an unpublished opinion, and we will disregard Ralston's arguments regarding that case. RAP 10.4(h).
Ralston argues that under Kelley v. Howard S. Wright Construction Co., 90 Wn.2d 323, 582 P.2d 500 (1978), the Port owed a duty under section 344 because it acted as a general contractor in control of the work site and that gave it the right to control Hoff's subcontractors' work on the Odyssey.
In Kelley, the question was whether a general contractor on a multi-employer jobsite has a duty to take safety precautions for the benefit of subcontractors' employees working on the construction site. Kelley, 90 Wn.2d at 325. There, a subcontractor's employee suffered severe injuries when he fell from an area that had no fall restraints or safety nets despite Occupational Safety and Health Act (OSHA) provisions requiring those safety precautions. Kelley, 90 Wn.2d at 326-27. In its contracts with the owners of the project, the general contractor expressly assumed sole responsibility for supervising and coordinating all aspects of the work and agreed to be responsible for "initiating, maintaining and supervising all safety precautions and programs in connection with the work." Kelley, 90 Wn.2d at 327.
The court held that where a general contractor retains control over some portion of the work performed on the site, he has a duty, within the scope of that control, to provide a safe working environment. Kelley, 90 Wn.2d at 330. The test of control is not the general's actual interference with the subcontractor's work, but the general's right to exercise that control. Kelley, 90 Wn.2d at 330-31 (citing Fardig v. Reynolds, 55 Wn.2d 540, 348 P.2d 661 (1960)). The general contractor owed a duty of care to the injured worker because it had "a general supervisory and coordinating authority under its contract with the owner . . . for the work." Kelley, 90 Wn.2d at 331.
Here, neither the Port nor Port Angeles Marine had a general supervisory authority over the Odyssey work site. Rather, Hoff said that, at all times, he had the authority to direct the manner and scope of Ralston's work. He supplied the paint and the tools necessary for the painting and prepping, and he directed Ralston as to how to do the work.
Ralston points to harbormaster Faires's conduct as evidence of the Port's and Port Angeles Marine's control over the work performed on the Odyssey. NewDay testified that Faires visited the vessel "once or twice a week" to ensure the construction crew was not polluting the water. CP at 139. Faires testified that he told Hoff's crew to keep debris off the marina docks and told Hoff to use a vacuum sander or fully encapsulate the boat to keep the pollutants out of the air and water. Thus, Faires's control over the work was limited to keeping the docks safe and preventing water pollution. Unlike the general contractor in Kelley, the Port and Port Angeles Marine did not assume responsibility for supervising safety precautions on vessels in the marina. The Port and Port Angeles Marine did not have sufficient control over Ralston's work to create a duty to ensure a safe working environment for Ralston.
Moreover, boat slips are considered real estate, and the Port owns the boat slips adjacent to docks in the marina. Tacoma v. Smith, 50 Wn. App. 717, 720, 750 P.2d 647 (1988). But where a landowner divides the premises and rents certain parts to various tenants, while reserving walkways for the common use of all tenants, the landowner's duty to exercise reasonable care and maintain safe conditions extends only to those common areas. Mucsi v. Graoch Assocs. Ltd. P'ship No. 12, 144 Wn.2d 847, 855, 31 P.3d 684 (2001) (quoting Geise v. Lee, 84 Wn.2d 866, 868, 529 P.2d 1054 (1975)). The Port and Port Angeles Marine rented berthage space to Hoff. Accordingly, the Port's and Port Angeles Marine's duty to maintain safe conditions in common areas did not require them to ensure safe conditions onboard the Odyssey.
C. Business Invitee
Even if we assume that whether either the Port or Port Angeles Marine possessed the Odyssey, for purposes of the Restatement, is a factual issue, section 344 would not apply because, as a matter of law, Ralston is not a business invitee.
Washington has adopted the definition of business invitee articulated in the Restatement (Second) of Torts section 332, which provides:
(1) An invitee is either a public invitee or a business visitor.
(2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.
(3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.
A business visitor is a type of business invitee. Restatement (Second) of Torts § 332, cmt. a (1965).
McKinnon v. Wash. Fed. Sav. Loan Ass'n, 68 Wn.2d 644, 650, 414 P.2d 773 (1966).
Ralston cites Enersen v. Anderson, 55 Wn.2d 486, 348 P.2d 401 (1960), for the proposition that where a marina leases moorage space for a vessel, independent contractors working on the vessel are the marina's business invitees. Ralston overstates Enersen's narrow holding. In that case, a crew member fell through the marina dock when he jumped from the boat as it returned to its moorage space. Enersen, 55 Wn.2d at 487. In classifying the injured crew member as the marina's business invitee, the court held that "there was a real mutuality of interest in the subject to which [the plaintiff's] purpose related since he was interested, as a . . . crew member, in mooring the vessel and the [marina operators] were interested in having the vessel moored at their facilities." Enersen, 55 Wn.2d at 489.
Here, the Port and Port Angeles Marine shared no mutuality of interest with Ralston. The Port and Port Angeles Marine had no interest in maintaining or repairing the Odyssey. According to Faires, the extent of the Port's and Port Angeles Marine's interest in having the Odyssey moored at the marina was receipt of the lease payments. Ralston argues that he became the Port's and Port Angeles Marine's business invitee when he landed on the Port's dock. But unlike the plaintiff in Enersen, Ralston's presence aboard the Odyssey, or on the dock, did not further a mutual interest. Rather, Hoff invited Ralston onboard the Odyssey to benefit Hoff's business, not the Port's or Port Angeles Marine's business. See Beebe v. Moses, 113 Wn. App. 464, 467-68, 54 P.3d 188 (2002) (business invitee, as differentiated from a licensee, is one that enters for a business or economic purpose that benefits both entrant and occupier); see also Restatement (Second) of Torts § 332(3). Ralston was not the Port's or Port Angeles Marine's business invitee.
Ralston also argues that under Nivens v. 7-11 Hoagy's Corner, 133 Wn.2d 192, 943 P.2d 286 (1997), a property owner has a duty to protect an invitee from a third person's acts when the harm to the business invitee is foreseeable. But neither the Port nor Port Angeles Marine owned the Odyssey, and Ralston was not the business invitee of Port's or Port Angeles Marine. Moreover, Ralston was not injured by a third party's criminal conduct as in Nivens, 133 Wn.2d at 194.
3. Duty Under Restatement (Second) of Torts §§ 315 and 318
Ralston argues, for the first time on appeal, that the Port and Port Angeles Marine had a special relationship with San Juan Excursions that created a duty on the Port's and Port Angeles Marine's behalf to control San Juan Excursions conduct so as to prevent it from causing physical harm to Ralston.
Generally, we do not review a claimed error or argument not raised in the trial court unless it concerns (1) lack of trial court jurisdiction, (2) failure to establish facts on which relief can be granted, or (3) a manifest error affecting a constitutional right. RAP 2.5(a). Ralston's claimed error does not fall under an exception to RAP 2.5(a). We decline to review it.
4. Occupational Safety and Health Administration (OSHA) Safety Standards
Ralston argues that the OSHA safety standards set forth the standard of care for an employer with control of a work site. He also argues that those standards are evidence of the industry standard of care.
Ralston's OSHA arguments are based on the premise that an employer on a multi-employer work site may be liable for the conduct of other employers on the job site. The flaw in the argument is that neither the Port nor Port Angeles Marine was an employer on a multi-employer work site. Rather, as the berthage agreement expressly provides, the Port and Port Angeles Marine, as the Port's agent, had a lessor-lessee relationship with San Juan Excursions. And the cases Ralston cites to support this position involve general contractors and subcontractors working on multi-employer construction projects. As we have discussed, neither the Port nor Port Angeles Marine exercised or had the right to exercise control over the maintenance and repairs performed on the Odyssey.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, P.J. and HUNT, J., concur.