Jarr v. Seeco Const. Co.
| Citation | 666 P.2d 392,35 Wn.App. 324 |
| Decision Date | 12 July 1983 |
| Docket Number | No. 11076-4-I,11076-4-I |
| Parties | Gary JARR and Carol Jarr, his wife and the marital community composed thereof, Appellants, v. SEECO CONSTRUCTION CO., a corporation; Dan Broome and Jane Doe Broome, husband and wife, d/b/a Zip Acoustic Services; and Terrace Realty, Inc., a corporation, Respondents. |
| Court | Washington Court of Appeals |
Karr, Tuttle, Koch, Campbell Mawer & Morrow, P.S., Charles Kimbrough, James Austin, Philip Talmadge, Seattle, for appellants.
Malcolm S. Spence, Gregory P. Scharmach, Seattle, for respondents.
Plaintiffs Gary Jarr and Carol Jarr appeal the summary judgment of dismissal entered by the trial court in favor of defendant Terrace Realty, Inc. We conclude that genuine issues of material fact are presented and therefore reverse.
On March 18, 1979, Gary Jarr and his parents attended an open house at the Lion's Creek Townhouse Condominiums, which were then under construction. The Jarrs were met at the construction site by Don Hooker, an agent of the listing real estate broker, Terrace Realty, Inc. (Terrace). Hooker told them to have a look around. He did not accompany them, but remained in his automobile. While inspecting an unfinished unit, Gary Jarr pulled two or three sheets of 4' X 12' sheetrock from a quantity of sheetrock leaning against a wall. The pile of sheetrock moved and trapped Jarr, injuring his left leg.
Jarr brought an action for damages against Seeco Construction, Inc., the owner of the condominiums, Dan Broome d/b/a Zip Acoustic Services, the sheetrock supplier and installer, and Terrace. The trial court granted Terrace's motion for summary judgment of dismissal, with a notation in the order making it a final appealable order pursuant to CR 54(b). Jarr appeals, claiming that genuine issues of material fact preclude summary judgment and that the trial court erred in its determination that Terrace owed him no duty of care.
A possessor of land owes a duty of reasonable care to invitees with respect to dangerous conditions on the land, including "an affirmative duty to discover dangerous conditions." Egede-Nissen v. Crystal Mountain, Inc., 93 Wash.2d 127, 132, 606 P.2d 1214 (1980), citing Restatement (2d) of Torts (1965). Section 343 reads:
Dangerous Conditions Known to or Discoverable by Possessor
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(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 danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
Section 343A further delineates the liability of a possessor of land to invitees:
Known or Obvious Dangers
(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.
(2) In determining whether the possessor should anticipate harm from a known or obvious danger, the fact that the invitee is entitled to make use of public land, or of the facilities of a public utility, is a factor of importance indicating that the harm should be anticipated.
The possessor's duty to an invitee is based on the expectation of the invitee that the premises have been made safe for him. Comment b to § 343 states:
One who holds his land open for the reception of invitees is under a greater duty in respect to its physical condition than one who permits the visit of a mere licensee. The licensee enters with the understanding that he will take the land as the possessor himself uses it. Therefore such a licensee is entitled to expect only that he will be placed upon an equal footing with the possessor himself by an adequate disclosure of any dangerous conditions that are known to the possessor. On the other hand an invitee enters upon an implied representation or assurance that the land has been prepared and made ready and safe for his reception. He is therefore entitled to expect that the possessor will exercise reasonable care to make the land safe for his entry, or for his use for the purposes of the invitation. He is entitled to expect such care not only in the original construction of the premises, and any activities of the possessor or his employees which may affect their condition, but also in inspection to discover their actual condition and any latent defects, followed by such repair, safeguards, or warning as may be reasonably necessary for his protection under the circumstances.
As stated in § 342, the possessor owes to a licensee only the duty to exercise reasonable care to disclose to him dangerous conditions which are known to the possessor, and are likely not to be discovered by the licensee. To the invitee the possessor owes not only this duty, but also the additional duty to exercise reasonable affirmative care to see that the premises are safe for the reception of the visitor, or at least to ascertain the condition of the land, and to give such warning that the visitor may decide intelligently whether or not to accept the invitation, or may protect himself against the danger if he does accept it.
As stated in § 342, the possessor is under no duty to protect the licensee against dangers of which the licensee knows or has reason to know. On the other hand, as stated in § 343A, there are some situations in which there is a duty to protect an invitee against even known dangers, where the possessor should anticipate harm to the invitee notwithstanding such knowledge.
A possessor of land is " 'a person who is in occupation of land with intent to control it.' " Strong v. Seattle Stevedore Co., 1 Wash.App. 898, 901, 466 P.2d 545 (1970), quoting Restatement (2d) of Torts § 328E (1965). The possessor need not be the owner of the land, but could be a real estate agent who meets the definition of "possessor" set out in Strong. See, e.g., Coughlin v. Harland L. Weaver, Inc., 103 Cal.App.2d 602, 230 P.2d 141 (1951) (); but see Christopher v. McGuire, 179 Or. 116, 169 P.2d 879 (1946) ().
The Restatement posits liability not only for possessors of land, but also for those persons acting on behalf of the possessor with respect to harm caused by their activities:
Liability of Persons Acting on Behalf of...
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