Fosbre v. State
| Decision Date | 02 March 1967 |
| Docket Number | No. 38555,38555 |
| Citation | 70 Wn.2d 578,424 P.2d 901 |
| Parties | Marilee FOSBRE, a minor, by William M. Fosbre, her Guardian ad Litem, Respondent, v. The STATE of Washington, Appellant. |
| Court | Washington Supreme Court |
John J. O'Connell Atty. Gen., Olympia, Dean Floyd, Asst. Atty. Gen., Earl E. Yates, Sp. Asst. Atty. Gen., Seattle, for appellant.
Foster & Foster, Stanbery Foster, Olympia, Bassett, Donaldson & Hafer, Samuel B. Bassett, Seattle, for respondent.
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This is an appeal from a judgment entered in favor of the plaintiffs by the court sitting without a jury in an action for damages. The plaintiff, Marilee Fosbre, was awarded $157,164.
The action is based upon the alleged negligence of the defendant, state of Washington, in not maintaining a log boom in such a fashion as to prohibit boats from entering a swimming and wading area. The swimming and wading area is on property known as Camp Murray located on American Lake in Pierce County. The property is owned by the state of Washington.
The plaintiff was injured on the middle Sunday of the annual two-week field training period of the Washington Army National Guard, of which plaintiff's father was a member at that time. For a period in excess of 35 years, the middle Sunday of the annual two-week field training encampment of the National Guard has been known and observed as 'Family Sunday' or 'Visitor's Sunday,' a time when the families and friends of the guardsmen are welcomed to the camp. The activities of the day include a meal in a mess hall for the visitors, a general inspection of the camp to observe recreational activities and how the part-time soldiers live. Camp Murray touches upon the southeasterly portion of American Lake, and is extensively used for recreational purposes. Barlow Island, a pear-shaped island approximately one acre in size, is immediately adjacent to the military reservation and is owned by the defendant. One side of the island is some fifty yards from the mainland and the defendant placed log booms across the water from each end of the island to the mainland, thereby forming a closed area for the purpose of providing a protected swimming and wading area. The military department of defendant has improved this swimming area extensively, bringing in sand for the beach, erecting and maintaining kitchen facilities, electricity, piped water, flush toilets, a bathhouse, picnic tables and other recreational facilities. The beach is patrolled by civilian employees of defendant and the area is restricted by signs and cyclone fences to the use of the National Guard personnel, their families and guests. During the summer months, the National Guard also maintained several trailers at the beach which were available to National Guard families on a weekly rental basis.
On the middle or 'Family Sunday' the plaintiff came with her family, which included several other children, to visit her father's military unit and see how a soldier lives during annual field training. At noon the family had lunch in the mess hall at the Northeast Fort Lewis encampment, and later the children had jeep and airplane rides. At approximately 3:30 p.m., the plaintiff's family left the training area and went to the Camp Murray beach area, across Highway 99 from the training area.
The Fosbre family joined other National Guard families at the beach area and the six-year-old plaintiff and her three-year-old sister changed into their swimming clothes at the bathhouse and entered the shallow water to wade.
Defendant's officers were aware that the log boom at one end of the island had become separated by a storm some weeks before 'Family Sunday' and it had not been repaired by defendant due to a lack of time and the pressure of other work. The defendant fully recognized the inherent danger of boats in the swimming area, and among other precautions, the adjutant general, through the provost marshal, had issued a written directive declaring that 'Boats were not allow in the logged off swimming area.'
Before plaintiff and her family arrived at the beach, an outboard motorboat had been pulled up on the beach within the restricted area, out of the water and out of operation. After the plaintiff and her younger sister had been wading for a short time, the motorboat was floated out into the water some distance from the two girls. The motor was started and the operator lost control of the boat and it headed in shore toward the plaintiff and her sister. The motorboat was being driven by Larry B. Rusbuldt and had entered the swimming or wading area through a gap in the log boom which existed as a result of the log boom separating during a storm on the lake. The boat hit both girls, the younger child being pushed out of the path of the boat, but the plaintiff was run over and the propeller amputated her right arm about two and one-half inches from her shoulder and caused other injuries.
The defendant has made six assignments of error and argues the first four together as raising the question of the nature of defendant's duty to plaintiff. It is argued that the plaintiff is a social guest, a mere licensee, and the duty owed by defendant is not to injure such licensee wantonly or willfully.
We cannot agree with the defendant's interpretation of the facts in this case. She was a public invitee.
In the recent case, McKinnon v. Washington Federal Savings & Loan Association, 68 Wash.Dec.2d 640, 414 P.2d 773 (1966), we adopted Restatement (Second), Torts § 332 (1965) which defines an invitee as follows:
(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.
It was held by this court in McKinnon, supra, that a visitor upon the premises of a savings and loan company was an invitee as a matter of law where the visitor was a member of a civic group which was using a portion of the premises in response to a public invitation extended to certain organized groups to use such portion of the premises, at no charge, for their own meetings or conferences.
In deciding McKinnon, supra, we said at 647, 414 P.2d at page 777: 'The undisputed facts indicate that a segment of the public was invited by defendant association to use its building for group meetings. * * *' In the instant case a segment of the public, namely, the National Guardsmen, their famlities and their friends, over a period of years had been invited to enter Camp Murray for the purposes of picnicking, swimming and wading and other such recreational activities at the beach area. We see no difference between the National Guardsmen and their families and friends and the groups invited to use the premises in McKinnon, supra.
The plaintiff and her family, as members of a segment of the public, entered Camp Murray in response to an invitation to use the beach area and did use it for the exact purposes for which it had been improved and maintained and for which it was held open. As a public invitee, the plaintiff was owed a duty of reasonable care by the possessor of the land, the defendant, to prepare and make the premises safe.
In its opening brief, defendant does not argue the questions of causation and negligence. However, in its reply brief, it argues that there is a lack of proximate causation between the alleged negligence of defendant, i.e., failure to maintain the log boom and the plaintiff's injury which resulted from the active unforeseen negligence of the operator of the motorboat. In this connection, it is contended that finding of fact No. 5 to the effect that Larry B. Rusbuldt navigated the boat into the restricted beach area is not borne out by record. In other words, it is defendant's position that there is no evidence as to how the boat gained access to the restricted waters. We note, however, the defendant even said in its opening brief:
The motorboat was being driven by Larry B. Rusbuldt and had entered the swimming or wading area through a gap in the log boom which existed as a result of the log boom separating during a storm on the lake.
The defendant did assign error to finding of fact No. 5, but it did not argue the boat access question in the opening brief. We consider those points not argued and discussed in the opening brief abandoned and not open to consideration on their merits. State v. Davis, 60 Wash.2d 233, 373 P.2d 128 (1962); Kent v. Whitaker, 58 Wash.2d 569, 364 P.2d 556 (1961). In addition, a contention presented for the first time in the reply brief will not receive consideration on appeal. Rule on Appeal 41; Washington Fish & Oyster Co., Inc. v. Halferty & Co., 44 Wash.2d 646, 269 P.2d 806 (1954); Turner v. Dept. of Labor & Industries, 41 Wash.2d 739, 251 P.2d 883 (1953).
The trial court found, '* * *...
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...review. "[A] contention presented for the first time in the reply brief will not receive consideration on appeal." Fosbre v. State , 70 Wash.2d 578, 583, 424 P.2d 901 (1967).F. CONCLUSION ¶ 148 The superior court dismissed all of the Maslonkas’ claims against the PUD on summary judgment. We......
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Maslonka v. Pub. Util. Dist. No. 1 of Pend Oreille Cnty.
...review. "[A] contention presented for the first time in the reply brief will not receive consideration on appeal." Fosbre v. State , 70 Wash.2d 578, 583, 424 P.2d 901 (1967).F. CONCLUSION ¶151 The superior court dismissed all of the Maslonkas’ claims against the PUD on summary judgment. We ......
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Table of Cases
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§54.6 Analysis
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§ 3.3 Evaluate an Appeal in Light of the Appellate Process
...of passion or prejudice." 103 Wn.2d at 835. Similar restrictions apply to appellate review of damages in a nonjury case. Fosbre v. State, 70 Wn.2d 578, 424 P.2d 901 (iv) Review of discretionary determinations is very limited When the decision of the trial court is a matter of discretion (e.......
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§4.5 - The Status of the Entrant as Invitee, Licensee, or Trespasser
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