Garron v. Pier Point Condominiums Association, No. 63421-6-I (Wash. App. 7/27/2009), 63421-6-I.
| Court | Court of Appeals of Washington |
| Writing for the Court | Schindler |
| Docket Number | No. 63421-6-I.,63421-6-I. |
| Parties | MADELINE BRAY GARRON, Appellant, v. PIER POINT CONDOMINIUMS ASSOCIATION, Respondent. |
| Decision Date | 27 July 2009 |
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v.
PIER POINT CONDOMINIUMS ASSOCIATION, Respondent.
Appeal from Island County Clerk Court. Docket No: 07-2-00163-2. Judgment or order under review. Date filed: 07/23/2008. Judge signing: Honorable Alan R Hancock.
Counsel for Appellant(s), Kenneth C Pickard, Attorney at Law, Po Box 207, Coupeville, WA, 98239-0207.
Counsel for Respondent(s), Jeffrey Twersky, Johnson & Twersky, PLLC, 620 Kirkland Way Ste 104, Kirkland, WA, 98033-6021.
Jennifer Laurenm, Johnson & Twersky PLLC, 620 Kirkland Way Ste 104, Kirkland, WA, 98033-6021.
Pamela A. Okano, Reed McClure, Two Union Square, 601 Union St Ste 1500, Seattle, WA, 98101-1363.
Michael Neil Budelsky, Reed McClure, Attorneys at Law, 601 Union St Ste 1500, Seattle, WA, 98101-1363.
SCHINDLER, C.J.
Madeline Bray Garron appeals summary judgment dismissal of her personal injury lawsuit against the Pier Point Condominium Association (the Association) and the decision denying her motion to amend the complaint to sue individual condominium owners. While cleaning one of the condominium units, Garron slipped and fell on a wet tiled walkway. Garron claimed the Association owed her a common law duty of care as an invitee. The Association asserted that the duty of care the Association owed to Garron was as a licensee. In the alternative, the Association argued that even if Garron was an invitee, there was no evidence that the Association knew or should have known about the wet and slippery walkway. On summary judgment, the court ruled that as a matter of law Garron was a licensee, and dismissed her lawsuit. Even if the Association owed Garron a duty as an invitee, because she did not carry her burden to present evidence that the Association knew or should have known that slippery and wet tiles on the walkway created a dangerous condition, we affirm summary judgment dismissal of the lawsuit against the Association. We also conclude that the trial court did not abuse its discretion in denying Garron's motion to amend the complaint to sue individual condominium owners.
The Pier Point Condominium is a small eight unit condominium in Oak Harbor.
The Association is a nonprofit corporation that manages and maintains the condominium and the condominium common areas. Eugene Lindbeck owned a condominium unit on the second floor. There is a covered exterior tiled walkway that leads from Lindbeck's unit down a stairway to the door of his garage. There is no dispute the walkway is a common area of the condominium.
Garron worked for Lindbeck as a housecleaner. Garron said that she cleaned Lindbeck's unit every week for several years. According to Garron, when it rained, the walkway titles were wet and slippery. Garron said that she slipped on the walkway tiles one other time but did not fall. Lindbeck also testified that he believed the walkway was dangerous when it rained, and that he told the Association's president that he was concerned about rain puddles on the walkway.
Lindbeck sold his condominium unit in 2004. After Lindbeck moved out, Garron cleaned the unit. According to Garron, it was raining that day and she noticed that the walkway tiles were wet and slippery.
Q. When you got there in the morning, was this walkway outside of the condo, was it wet and slippery?
A. Yes.
Q. You recognized that?
A. Yes.
Garron said that on her way to Lindbeck's garage, she slipped on the tiles near the end of the walkway and fell down the stairs.
Garron sued the Association for personal injury damages. In her lawsuit, Garron alleged that the Association knew about the danger created by the wet tiles on the walkway but failed to make repairs.
Garron filed a motion for partial summary judgment, arguing that as a matter of law, the Association owed her a common law duty of care as an invitee.1 The Association filed a motion for summary judgment arguing that it owed Garron a duty as a licensee, not as an invitee. The Association asserted that it was not liable to Garron as a licensee because she admitted knowing the tiles on the walkway were wet and slippery.2 In the alternative, the Association argued that even if the Association owed Garron a duty as an invitee, there was no evidence that the Association knew or should have known about the alleged danger created by wet tiles on the walkway. In support, the Association relied on excerpts from the depositions of Memel v. Reimer, 85 Wn.2d 685, 538 P.2d 517 (1975) (citing Restatement (Second) of Torts § 342 (1965)).
Garron and Lindbeck.
In response to the Association's motion for summary judgment, Garron conceded that if the Association owed her a duty as a licensee, the Association was not liable. Garron presented no evidence in opposition to the Association's alternative argument. Before the hearing on the cross motions for summary judgment, Garron filed a motion to amend the complaint to sue each of the individual condominium owners except Lindbeck.
The trial court ruled that as a matter of law, the Association owed Garron a duty of care as a licensee and granted summary judgment in favor of the Association. The court denied Garron's motion to amend the complaint to sue the individual condominium owners.
Summary Judgment Dismissal
Garron contends the trial court erred in ruling that the Association owed her a duty of care as a licensee rather than as an invitee.3 Assuming, without deciding, that the Association owed Garron a duty of care as an invitee, because she failed to carry her burden on summary judgment, we affirm dismissal of her lawsuit. LaMon v. Butler, 112 Wn.2d 193, 200, 770 P.2d 1027 (1989) (on appeal, the court can affirm summary judgment on any theory raised below that is supported by the pleadings and the
We review summary judgment de novo, engaging in the same inquiry as the trial court. Kruse v. Hemp, 121 Wn.2d 715, 722, 853 P.2d 1373 (1993). The moving party bears the initial burden of showing the absence of an issue of material fact.
Young v. Key Pharmaceuticals., Inc., 112 Wn.2d 216, 234, 770 P.2d 182 (1989); Seybold v. Neu, 105 Wn. App. 666, 677, 19 P.3d 1068 (2001). If the defendant shows there is no evidence to support the plaintiff's claim, the burden then shifts to the plaintiff to present evidence sufficient to show there are material facts in dispute. Atherton Condominium Apartment-Owners Ass'n Bd. of Directors. v. Blume Dev. Co., 115 Wn.2d 506, 515, 799 P.2d 250 (1990). If the plaintiff fails to carry its burden, summary judgment is properly granted because "'[t]here can be ' no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily...
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