Fulwiler v. Archon Grp., L.P.

• Decision Date: 23 December 2013
• Docket Number: No. 69338-7-I,69338-7-I
• Court: Washington Court of Appeals
• Parties: DEBRA FULWILER, Appellant, v. ARCHON GROUP, L.P., a foreign entity WHITEHALL STREET REAL ESTATE, L.P., a foreign entity, W2007 SEATTLE OFFICE 10700 BUILDING REALTY, LLC, a Delaware limited liability company; WA-10700 BUILDING, LLC, a Delaware limited liability company; CB RICHARD ELLIS, INC., a Delaware Corporation; and BELLEVUE COLLEGE (formerly BELLEVUE COMMUNITY COLLEGE) (BCC)), a division of the STATE OF WASHINGTON, Respondent.

DEBRA FULWILER, Appellant, v. ARCHON GROUP, L.P., a foreign entity WHITEHALL STREET REAL ESTATE, L.P.,a foreign entity, W2007 SEATTLE OFFICE 10700 BUILDING REALTY, LLC,a Delaware limited liability company; WA-10700 BUILDING, LLC,a Delaware limited liability company; CB RICHARD ELLIS, INC.,a Delaware Corporation; and BELLEVUE COLLEGE(formerly BELLEVUE COMMUNITY COLLEGE) (BCC)),a division of the STATE OF WASHINGTON, Respondent.

No. 69338-7-I

COURT OF APPEALS FOR THE STATE OF WASHINGTON DIVISION ONE

FILED: December 23, 2013

UNPUBLISHED OPINION

SPEARMAN, A.C.J. — Deborah Fulwiler commenced this premises liability personal injury action to recover for injuries from a fall on a set of exterior steps at Bellevue College's north campus. The trial court granted the defendants' motions for summary judgment. Because there is sufficient evidence to raise issues of material fact regarding Fulwiler's claims, we reverse.

FACTS

On September 5, 2008 at about 10:45 a.m., Debra Fulwiler and her friend visited an office building located at 10700 Northrup Way, Bellevue, Washington. Archon Group, Whitehall Street Real Estate, W2007 Seattle Office 10700 Building Realty, LLC, WA-10700 Building (collectively, Archon) owned the building. CB Richard Ellis, Inc. (CBRE) provided property management services. Bellevue College, (herein, BC) leased the building, inclusive of use of the exterior steps and parking lot.

Fulwiler testified at her deposition that she met her friend at BC in order to show her friend where to register for classes and to visit the bookstore before having lunch at another location. Fulwiler had previously taken a class at BC, but was not attending or registering herself for class at that time. In order to enter the building, both women climbed the staircase at issue in this case.

Both Fulwiler and her friend visited the bookstore and browsed for books. In a declaration filed in response to the defendants' motions for summary judgment, Fulwiler stated that her friend did make a purchase at the bookstore.¹ Fulwiler also stated that she had intended to purchase a book if she found something she liked, but, after asking a bookstore employee some questions about a book, she opted not to purchase it.

About 15 minutes later, Fulwiler and her friend emerged from the bookstore and headed toward their parked cars. Fulwiler's friend preceded her down the stairs without incident. Fulwiler testified that she walked down the upper section of the stairs herself without incident. Then, she "lost her balance and fell" on the lower section of the stairs. Clerk's Papers (CP) at 3. She further testified that: "you cannot hardly tell one step from the other here. And that's what l believe that's why l fell . . . . I couldn't see the step." [sic]. CP at 119. In her declaration, she stated that she relied heavily on the handrail while descending the stairs. She stated that she grasped the handrail and, as her foot was in motion leaving the first step, she naturally looked down for cues about where to place her foot on the next step. As she did so, the individual steps of the aggregate rock stairs blended together so that the steps were indiscernible from one another. Fulwiler fell down the stairs on the aggregate rock cement. Injuries to her ankle sustained in the fall left her permanently disabled after multiple surgeries.

Fulwiler commenced this action alleging that all defendants were negligent in maintaining the stairs and/or failing to warn of their unsafe condition.² Fulwiler's response to the defendants' motions for summary judgment, includedher declaration and detailed declarations from two experts.³ The trial court granted the motions for summary judgment. Fulwiler appeals.

DISCUSSION

We review summary judgment decisions de novo. Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008). Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). A genuine issue of material fact exists if "reasonable minds could differ on the facts controlling the outcome of the litigation." Ranger Ins. Co., 164 Wn.2d at 552 (citing Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982)). When determining whether an issue of material fact exists, the court must construe all facts and inferences in favor of the nonmoving party. Id.

Summary judgment is subject to a burden-shifting scheme. Id. The initialburden to show the nonexistence of a genuine issue of material fact is on the moving party. Id; see also Vallandiqham v. Clover Park School Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005). For example, a defendant may move for summary judgment by showing that there is an absence of evidence to support the plaintiff's case. Sliqar v. Odell, 156 Wn. App. 720, 725, 233 P.3d 914 (2010), review denied, 170 Wn.2d 1019, 245 P.3d 772 (2011) (citing Young v. Key Pharm., Inc., 112 Wn.2d 216, 225n.1,770 P.2d 182 (1989) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 LEd.2d 265 (1986))). Once this initial showing is made, the inquiry shifts to the plaintiff to "make a showing sufficient to establish the existence of an element essential to [its] case .. . ." Id. at 725 (citing Celotex, 477 U.S. at 322). In a negligence action, a plaintiff bears the burden of proving four basic elements: (1) the existence of a duty, (2) breach of that duty, (3) resulting injury, and (4) causation.⁴ Coleman v. Hoffman, 115 Wn. App. 853, 858, 64 P.3d 65 (2003) (citing Tincani v. Inland Empire Zoological Soc'y, 124 Wn.2d 121,127-28, 875 P.2d 621 (1994)). If any of these elements cannot be met as a matter of law, summary judgment for the defendants is proper.

Duty

The legal duty owed by a possessor of land to a person entering the premises depends on whether the entrant falls under the common law categoryof a trespasser, licensee, or invitee.⁵ See, Younce v. Ferguson, 106 Wn.2d 658, 662, 724 P.2d 991 (1986). A business invitee 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.'" Beebe v. Moses, 113 Wn. App. 464, 467, 54 P.3d 188 (2002) (quoting RESTATEMENT (SECOND) OF TORTS § 332 (1965)). It is well established that an actual sale need not take place for a potential customer to be considered a business invitee. Kinsman v. Barton & Co., 141 Wash. 311, 314, 251 P. 563 (1926) (even a "window shopper" is a business invitee, and visitors to a store are business invitees even if they do not make a purchase, the mere possibility of a future purchase being sufficient). An indirect business purpose on the property is sufficient for classification as a business invitee. RESTATEMENT (SECOND) OF TORTS § 332 (1965) comment f ("It is not necessary that the visitor's purpose be to enter into immediate business dealings with the possessor. The benefit to the possessor may be indirect and in the future."); see, e.g., Fuentes v. Port of Seattle, 119 Wn. App. 864, 868-69, 82 P.3d 1175 (2003) (A motorist, who was a victim of carjacking while waiting to pick up passenger disembarking from airplane at airport, was an invitee, not a mere licensee because the motorist's purpose for being at the pick-up drive was connected to airport business, and port authority provided pick-up drive for specific purpose for which she was there).

Moreover, a person who enters land incidental to business relations of the possessor and a third party is also a business invitee. RESTATEMENT (SECOND) OF TORTS § 332 (1965) comment g ("Visits incidental to business relations of possessor and third persons. It is not necessary that the visitor shall himself be upon the land for the purposes of the possessor's business. The visit may be for the convenience or arise out of the necessities of others who are themselves upon the land for such a purpose. Thus those who go to a hotel to pay social calls upon the guests or to a railway station to meet passengers or bid them farewell, are business visitors, since it is part of the business of the hotelkeeper and railway to afford the guest and passengers such conveniences. So too, a child taken by a mother or nurse to a shop is a business visitor; and this is true irrespective of whether it is necessary for the customer to take the child with her in order to visit the shop.") see also, Farrier v. Levin, 176 Cal.App.2d 791, 1 Cal. Rptr. 742 (1959) (person accompanying friend into store where friend intended to make a purchase was an invitee); Gustafson v. Mathews, 109 lll.App.3d 884, 441 N.E.2d 388 (1982) (children accompanying father to tavern were invitees in tavern parking lot).

Here, Fulwiler stated in her declaration that she intended to purchase a book if she saw one she liked, and asked a bookstore employee about a book. Although she did not make a purchase herself, she was, at least arguably, "window shopping." She also testified to facts establishing that her visit to the property was incidental to business relations between the possessor and a third person, namely the sale of the book to her friend at the BC bookstore.Additionally, Fulwiler's other purpose for entering the property (to facilitate her friend's enrollment in a course), which is undisputed by the parties, arguably, albeit indirectly, conferred a business benefit on BC, whose primary mission and purpose is to provide such educational course offerings to the community. These facts, if believed by a jury, are sufficient to establish Fulwiler's status as a business invitee.

A possessor of land is liable to invitees for injury-causing conditions if he or she:

"(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the clanger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to

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