Feigenbaum v. Brink

• Decision Date: 29 April 1965
• Docket Number: No. 36688,36688
• Citation: 66 Wn.2d 125,401 P.2d 642
• Court: Washington Supreme Court
• Parties: Bennett FEIGENBAUM, Appellant, v. William BRINK and Barbara Brink, his wife, Respondents.

Page 125

66 Wn.2d 125

401 P.2d 642

Bennett FEIGENBAUM, Appellant, v. William BRINK and Barbara Brink, his wife, Respondents.

No. 36688.

Supreme Court of Washington, En Banc.

April 29, 1965.

Rehearing Denied July 13, 1965.

Schweppe, Reiter, Doolittle & Krug, Thomas R. Beierle, Seattle, for appellant.

Wallace & Fraser, Bremerton, for respondents.

OTT, Judge.

November 1, 1960, Bennett Feigenbaum and Roberta, his wife, leased a beach house on Bainbridge Island from William Brink and Barbara, his wife. The sole means of access to the leased premises was a walkway leading from the public road, cut into the hillside above, downhill past the Brink residence to the beach house. The portion of the walkway with which we are here concerned was constructed of roughhewn wooden planks, with a strip of abrasive paint down the center line. The planks were laid crosswise, sloping downward at about a 15 degree angle, interspersed with some irregularly spaced steps, and continued to a point a few paces below the Brink residence. There is a substantial wooden handrail along the walkway for most of its length.

The walkway was used in common by the parties--by the lessees as the only land access to the beach house and to a common woodpile, and by the lessors as access to their residence, the common woodpile, and their boathouse and tool shed on the waterfront.

Early in December, 1960, due to heavy rainfall, the abrasive paint on the roughhewn wooden planks was wearing off. There were several discussions about the condition because both Mr. Feigenbaum and Mr. Brink had slipped and lost balance on the planks, but had not fallen. In late December, 1960, Mr. Brink, with Mr. Feigenbaum's assistance, nailed down strips of combination roofing on most of the planks, but the work was not completed.

January 29, 1961, at about 6 p.m., the Feigenbaums returned to their home from a Sunday afternoon drive. It had been raining and the walkway was slippery. Mrs. Feigenbaum went down the walkway to their residence, turning on a floodlight en route. Mr. Feigenbaum stopped at the common woodpile above the Brinks' residence, placed three large pieces of fireplace wood across both forearms, and proceeded down the walkway without using the handrail. When he reached the planked portion that had not been covered with roofing material, he slipped, fell, and suffered a broken leg.

Mr. Feigenbaum commenced this action against the Brinks to recover for his injury. The trial court, sitting without a jury, found (1) that the defendants Brink were not negligent, (2) that Mr. Feigenbaum had assumed the risk of injury, (3) that a lease provision expressly barred any recovery, and (4), in a special finding, that plaintiff had suffered special damages of $967 and general damages of $3,000.

From the judgment of dismissal, Mr. Feigenbaum appeals.

Appellant contends that the trial court erred in failing to find primary negligence on the part of the respondents. With this contention, a majority of the court agree.

The respondents had knowledge of the slippery condition of the walkway, had a duty to keep it in a safe condition (Schedler v. Wagner, 37 Wash.2d 612, 225 P.2d 213, 230 P.2d 600, 26 A.L.R.2d 604 (1950)), and failed to exercise reasonable care to repair it. When but one inference can be drawn from the facts, negligence is established as a matter of law. Berndt v. Pacific Transport Co., 38 Wash.2d 760, 766, 231 P.2d 643 (1951); Carroll v. Union Pacific R. Co., 20 Wash.2d 191, 199, 146 P.2d 813 (1944).

Appellant next contends that the trial court erred in holding that the nonliability clause in the written lease extended to the walkway. The lease described the premises as the 'Brink waterside waterfront home,' and granted to the lessees the right to use the walkway. The nonliability clause provided:

'* * * Lessor * * * shall not be held liable for any damage to property or personal injuries caused by any defects which may now exist or hereafter occur on or in front of said premises.'

The appellant had no dominion over the common walkway leading to the leased premises and no duty to keep it in repair. The walkway in question led from the road to the rear of the 'Brink waterside waterfront home' and was not 'on or in front of' the leased premises.

In the absence of unequivocal language, nonliability provisions of a contract will not be extended to include areas not specifically described. Glant v. Lloyd's Register of Shipping, 141 Wash. 253, 262, 251 P. 274, 252 P. 943 (1926). The trial court erred in holding that the nonliability clause extended to the common walkway, which was under the sole dominion and control of the respondents, and to which appellant had been granted only a use right.

The trial court found that appellant had voluntarily assumed the risk of injury, when, with full knowledge of its hazardous and slippery condition, he loaded both his arms with fireplace wood and proceeded down the walkway. His wife had preceded him across the same area without incident. The court held that appellant's conduct in loading his arms so that he could not use the handrail in his descent was an assumption of risk, rather than conduct which established contributory negligence. In its oral decision, the court said:

'The defense is that plaintiff was contributorily negligent and also that he voluntarily exposed himself to an unreasonable risk, which is the maxim, volenti non fit injuria. I have difficulty separating the negligence from the defenses of contributory negligence and volenti.'

The court then quoted from Walsh v. West Coast Coal Mines, 31 Wash.2d 396 411, 197 P.2d 233 (1948), as follows, and continued:

"'It may be said that the voluntary conduct of the plaintiff in exposing himself to a known and appreciated risk is the interposition of an act which, as between the parties, makes the defendant's act, in its aspect as negligent, no longer the proximate cause of the injury; or at least is such participation in defendant's conduct as to preclude the plaintiff from recovering on the ground of the defendant's negligence."

'In the present case, it seems to me that this rule would apply because the risk of injury was well known and appreciated by Mr. Feigenbaum, as it was by Mr. Brink. And whether we say that Mr. Brink was not negligent or that Mr. Feigenbaum was contributorily negligent or that Mr. Brink's negligence was not the proximate cause of the injury we come out the same end of the horn.' (Italics ours.)

It appears from the record that the trial judge had 'difficulty separating the negligence from the defenses of contributory negligence and volenti,' not as to the findings of fact, but as to the nomenclature of the law applicable to these defenses.

We have held that the doctrine of assumption of risk is more applicable to those cases where the relationship of master and servant existed than to landlord and tenant relationships. See Caron v. Grays Harbor County, 18 Wash.2d 397, 411, 139 P.2d 626 (1943). Whether denominated assumption of risk or contributory negligence, each refers to the same conduct, in cases where knowledge by the injured party of an obvious danger is involved.

In Siragusa v. Swedish Hospital, 60 Wash.2d 310, 373 P.2d 767 (1962), we extensively reviewed the law of master and servant relative to the doctrine of assumption of risk and held that contributory negligence includes the doctrine of assumption of risk, where the risk is created by the negligence of the employer. In this regard, we said, 60 Wash.2d p. 319, 373 P.2d p. 773:

'. . . Knowledge and appreciation of the risk of injury, on the part of the employee, are properly important factors which should be given weight in the determination of the issues of whether the employer is Negligent in maintaining the dangerous condition and whether the employee is Contributorily negligent in exposing himself to it.'

Subsequent to the Siragusa case, we abolished the doctrine of assumption of risk in a relationship other than that of master and servant. Engen v. Arnold, 61 Wash.2d 641, 379 P.2d 990 (1963). Other jurisdictions treat the doctrine of assumption of risk as being included within the general concept of contributory negligence, and recognize that, for all practical purposes, the proper analysis is in terms of contributory negligence. Ford Motor Co. v. Arguello, 382 P.2d 886 (Wyo.1963); McGrath v. American Cyanamid Co., 41 N.J. 272, 196 A.2d 238 (1963); Rocky Mountain Trucking Co. v. Taylor, 79 Wyo. 461, 335 P.2d 448 (1959); Howe v. Gambuzza, 15 N.J.Super. 368, 83 A.2d 466 (1951); White v. Ellison Realty Corp., 5 N.J. 228, 74 A.2d 401, 19 A.L.R.2d 264 (1950); Porter v. Cornett, 306 Ky. 25, 206 S.W.2d 83 (1947). See 2 Harper and James, Torts § 21.8, p. 1191; 39 Wash.L.Rev. 345, 358.

The underlying reason for the application of the doctrine of assumption of risk to landlord and tenant cases is that a tenant (with certain exceptions not here present) takes the property as he finds it. In the absence of an express agreement, there is no duty on the part of the landlord to repair. Hughes v. Chehalis School Dist. No. 302, 61 Wash.2d 222, 377 P.2d 642 (1963); Conradi v. Arnold, 34 Wash.2d 730, 743 et seq., 209 P.2d 491 (1949). The tenant assumes the risk of apparent deficiencies in the leased premises.

In the instant case, the common walkway, although it was the only means of ingress and egress to the residence, was not a part of the premises demised to the appellant. The respondents had a duty to repair and keep it in a reasonably safe condition. To permit the application of assumption of risk to the facts in this case is tantamount to dividing...