Hughes v. Chehalis School Dist. No. 302

• Decision Date: 10 January 1963
• Docket Number: No. 36361,36361
• Citation: 61 Wn.2d 222,377 P.2d 642
• Court: Washington Supreme Court
• Parties: Charles W. HUGHES and Myrtle L. Hughes, husband and wife, Appellants, v. CHEHALIS SCHOOL DISTRICT NO. 302, Respondent.

Page 222

61 Wn.2d 222

377 P.2d 642

Charles W. HUGHES and Myrtle L. Hughes, husband and wife, Appellants, v. CHEHALIS SCHOOL DISTRICT NO. 302, Respondent.

No. 36361.

Supreme Court of Washington, Department 2.

Jan. 10, 1963.

Hull, Armstrong & Vander Stoep, Chehalis, and McCutcheon, Soderland & Wells, Seattle, for appellants.

O'Leary, Meyer & O'Leary, Olympia, for respondent.

OTT, Judge.

October 14, 1959, the Sacajawea Chapter of the Orthopedic Guild conducted its annual style show in the high school of Chehalis School District No. 302. The members of the guild acted as models, ushers, and prepared and served refreshments to those attending the show.

Myrtle L. Hughes had been a member of the guild for approximately ten years, and had, on previous occasions, assisted in this guild activity at the high school. While performing kitchen duties, she was injured when she slipped and fell, due to a lower elevation in the kitchen floor near the coffee maker. Her claim for damages resulting from the fall was rejected by the school district. She and her husband commenced this action against the Chehalis school district to recover judgment for her injuries.

For convenience, Myrtle L. Hughes will be referred to as though she were the sole plaintiff, the Sacajawea Chapter of the Orthopedic Guild as the guild, and Chehalis School District No. 302 as the school district.

Plaintiff's complaint alleged, inter alia, that she was an invitee of the school district, and that her fall was caused by a dangerous and defective condition of the floor, which 'condition was, or in the exercise of reasonable care, should have been known to defendant.' The answer alleged, inter alia, that the particular part of the school district premises where plaintiff was injured had been rented by the guild, and that plaintiff was an invitee of the guild while she was on the premises.

Several discovery depositions and affidavits were presented to the court. The school district moved for summary judgment of dismissal. The court granted the motion. From the judgment of dismissal, plaintiff has appealed.

Appellant asserts that 'The single question on this appeal is whether any genuine issue of material fact exists.'

In Jolly v. Fossum, 59 Wash.2d 20, 365 P.2d 780 (1961), we stated that the purpose of a summary judgment is to avoid a useless trial, but that a trial is necessary where there is disputed evidence relating to a material fact. The function of the court, in ruling upon a motion for summary judgment, is not to resolve such factual issues, but, rather, to determine whether a genuine issue as to any material fact exists. The burden is upon the moving party to establish the absence of a genuine issue as to a meterial fact. See Bates v. Bowles White & Co., 56 Wash.2d 374, 353 P.2d 663 (1960); Preston v. Duncan, 55 Wash.2d 678, 349 P.2d 605 (1960).

Our review of the record discloses that the undisputed facts are as follows: The guild paid $10 or $15 to the school district for the use of a particular part of the premises, including the kitchen. The appellant, a member of the guild, was on the premises of the respondent for the sole purpose of participating in the guild activities. At the time of the accident, she was preparing refreshments in the kitchen for the patrons of the guild's style show. The school district's kitchen, as constructed in 1951, included a coffee maker, which was installed in a tiled, recessed area three or four inches deep, at the bottom of which was a floor drain. Appellant was injured when she stepped on the edge of the recessed area and fell to the floor.

The relationship of landlord and tenant is established where the owner of the premises permits another to take possession thereof for a determinate period of time. Sanders v. General Petroleum Corp., 171 Wash. 250, 17 P.2d 890 (1933); McCourtie v. Bayton, 159 Wash. 418, 294 P. 238 (1930); McLennan v. Grant, 8 Wash. 603, 36 P. 682 (1894). The evidence established a landlord and tenant relationship between the guild and the school district. When this relationship is shown to exist, we are committed to the rule announced in 32 Am.Jur., Landlord and Tenant § 654, p. 515, as follows:

'* * * A lessee takes the hired premises, in the absence of warranty, fraud, or misrepresentation, in the condition and quality in which they are. The tenant takes the property as he finds, it with all existing defects which he knows or can ascertain by reasonable inspection. He takes the risk of apparent defects. As between himself and his landlord, where there is no fraud or false representation or deceit, and in the absence of an express warranty or covenant to repair, there is no implied contract that the premises are suitable or fit for occupation, or for the particular use intended, or that they are safe for use. Any implied contract relates only to the estate, and not to the condition, of the property. In other words, in the absence of fraud or concealment on the part of the landlord, a rule similar to that of caveat emptor applies and throws upon the lessee the...