Dombrowski v. Corp. of Catholic Archbishop of Seattle
| Decision Date | 30 November 2020 |
| Docket Number | No. 80283-6-I,80283-6-I |
| Parties | MARY DOMBROWSKI, Appellant, v. CORPORATION OF THE CATHOLIC ARCHBISHOP OF SEATTLE, Respondent. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
CHUN, J. — During a mid-day recess for students, Mary Dombrowski walked through a church courtyard to attend her book group. A basketball hit her in the back of her ankles, causing her to fall and injure her knee. Dombrowski sued the Corporation of the Catholic Archbishop of Seattle (Church) under a premises liability theory. The trial court granted the Church's motion for summary judgment. We affirm.
BACKGROUND
In March 2017, Dombrowski went to St. Cecilia's Catholic Church to attend her book group. She parked, walked past the church's main entrance, and used a well-worn footpath to traverse the courtyard towards a side entrance. Dombrowski had often used the footpath and had seen others use it.
Church staff knew that people used the side entrance, and most people used the main entrance—though, in the winter of 2014, church staff had encouraged parishioners not to use the main entrance because repeatedly opening the main door made the church secretary's office cold.
The courtyard includes a basketball court with a hard surface and two hoops. Dombrowski noticed children from the church's school playing at recess in the courtyard and walked past a boy standing still and holding a basketball. After she passed, a basketball hit the back of her ankles, causing her to fall and injure her left knee.
Dombrowski brought a premises liability action against the Church. The Church moved for summary judgment dismissal. The trial court granted the motion. Dombrowski appeals.
ANALYSIS
Dombrowski says the trial court improperly granted the Church's motion for summary judgment because she raised a genuine issue of material fact as to whether the Church should have anticipated her harm.1 The Church responds that Dombrowski has not presented a genuine issue of material fact as to whether recess presented an unreasonable risk of harm. We agree with the Church.
We review de novo summary judgments. Messenger v. Whitemarsh, 13 Wn. App. 2d 206, 210, 462 P.3d 861 (2020). "Summary judgment is appropriatewhen there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Id. (quoting Strauss v. Premera Blue Cross, 194 Wn.2d 296, 300, 449 P.3d 640 (2019)); CR 56(c). On such review, like the trial court, we construe all facts and inferences in favor of the non-moving party. See Messenger, 13 Wn. App. 2d at 210. "A genuine issue of material fact exists when reasonable minds could differ on the facts controlling the outcome of the litigation." Id. (quoting Dowler v. Clover Park Sch. Dist. No. 400, 172 Wn.2d 471, 484, 258 P.3d 676 (2011)).
"In premises liability actions, a person's status, based on the common law classifications of persons entering upon real property (invitee, licensee, or trespasser) determines the scope of the duty of care owed by the possessor (owner or occupier) of that property." Tincani v. Inland Empire Zoological Soc'y, 124 Wn.2d 121, 128, 875 P.2d 621 (1994). "Generally, a landowner owes trespassers and licensees only the duty to refrain from willfully or wantonly injuring them, whereas to invitees the landowner owes an affirmative duty to use ordinary care to keep the premises in a reasonably safe condition." Degel v. Majestic Mobile Manor, Inc., 129 Wn.2d 43, 49, 914 P.2d 728 (1996). "Once the issue of legal duty is determined, it is the function of the trier of fact to decide whether the particular harm should have been anticipated and whether reasonable care was taken to protect against the harm." Id. at 54; Lettengarver v. Port of Edmonds, 40 Wn. App. 577, 581, 699 P.2d 793 (1985). But a court may decide issues of foreseeability as a matter of law where reasonable mindscannot differ. Christen v. Lee, 113 Wn.2d 479, 492, 780 P.2d 1307 (1989). "[F]oreseeability is a matter of what the actor knew or should have known under the circumstances; it turns on what a reasonable person would have anticipated." Ayers v. Johnson & Johnson Baby Prod. Co., 117 Wn.2d 747, 764, 818 P.2d 1337, 1346 (1991).
Under Washington law, the Restatement (Second) of Torts sections 343 and 343A describe a land possessor's duty to invitees.2 See Tincani, 124 Wn.2d at 138-39. Section 343 states:
RESTATEMENT (SECOND) OF TORTS § 343 (1965). Section 343A states, in part:
A possessor of land is not liable to [their] invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.
RESTATEMENT (SECOND) OF TORTS § 343A(1) (1965). Under these sections, an invitee may Tincani, 124 Wn.2d at 138 (alteration in original) (internal citation omitted) (quoting RESTATEMENT (SECOND) OF TORTS § 343 cmt. b (1965)). Comment a to section 343 states that the two sections should be read together. Section 343 refers only to conditions on the land, while section 343A refers to activities or conditions on the land.3
The parties dispute these issues: (1) whether allowing recess in an area where people walk into the church posed an unreasonable risk of harm; and (2) if it did, whether the harm was open and obvious to Dombrowski such that the Church should not have anticipated her harm. We conclude as a matter of lawthat there was no unreasonable risk of harm. We also conclude that Dombrowski has not raised a genuine issue of material fact as to anticipation.
Section 343(a) subjects a land possessor to liability for physical harm caused to invitees by a condition on the land if they know of the condition, or by exercise of reasonable care would discover it, and should realize that it involves an unreasonable risk of harm to their invitees.
The Church says that allowing recess for students in an area where people sometimes walk into the church did not present an unreasonable risk of harm. We agree.
As in Leek v. Tacoma Baseball Club, nothing in the record4 shows that children playing in the courtyard "cause[s] serious injuries with sufficient frequency to be considered an unreasonable risk." 38 Wn.2d 362, 366, 229 P.2d 329 (1951)). Certainly, Dombrowski's accident alone does not establish such frequency.
Granted, Williamson v. Allied Grp., Inc. establishes that earlier incidents are unnecessary to establish an unreasonable risk of harm. 117 Wn. App. 451, 461-62, 72 P.3d 230 (2003). There, the court ruled that a grassy slope on which the plaintiff had to ascend to reach her apartment created an unreasonable risk of harm. Id. at 462. The court stated, Id. at 461-62 (emphasis added).
But by Dombrowski's admission and unlike Williamson, she need not have taken the path through the courtyard where she saw the children playing at recess to reach her book group inside the church. While church staff had encouraged parishioners not to use the main entrance in the winter of 2014, Dombrowski admitted that she could have used the main entrance. Dombrowski cites Laudermilk v. Carpenter for the proposition that "children are heedless, impulsive, and impetuous," but the case does not establish that children, on their own, necessarily present an unreasonable risk of harm. 78 Wn.2d 92, 101, 457 P.2d 1004 (1969). Considering these facts, neither earlier incidents nor common experience indicates that recess in the courtyard created an unreasonable risk of harm.5
Thus, we conclude that the trial court properly granted the Church's motion for summary judgment.
Even if the recess created an unreasonable risk of harm, the Church should not have reasonably anticipated Dombrowski's harm despite any known and obvious danger of recess.
Under section 343A(1), a land possessor is not liable to their invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.
Comment e to section 343A states:
In the ordinary case, an invitee who enters land is entitled to nothing more than knowledge of the conditions and dangers [they] will encounter if [they come]. If [they know] the actual conditions, and the activities carried on, and the dangers involved in either, [they are] free to make an intelligent choice as to whether the advantage to be gained is sufficient to justify [them] in incurring the risk by entering or remaining on the land. The possessor of the land may reasonably assume that [they] will protect [themselves] by the exercise of ordinary care, or that [they] will voluntarily assume the risk of harm if [they do] not succeed in doing so. Reasonable care on the part of the possessor therefore does not ordinarily require precautions, or even warning,...
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