Johnson v. Schafer
| Decision Date | 13 April 1987 |
| Docket Number | No. 16905-O-I,16905-O-I |
| Citation | 735 P.2d 419,47 Wn.App. 405 |
| Court | Washington Court of Appeals |
| Parties | Marlene JOHNSON as Guardian ad Litem for Michael G. Russell, a minor, Appellant, v. Harry SCHAFER and Troyce Schafer, his wife, d/b/a S & S Enterprises, Respondents. |
Michael R. Alfieri, Seattle, for appellant Marlene Johnson.
Phillip C. Raymond, Lee V. Cockrum, Ogden, Ogden Murphy & Wallace, Seattle, for respondent Harry Schafer and Troyce Schafer.
Petitioner Marlene Johnson, the mother and guardian ad litem (guardian) of Michael G. Russell, a minor, appeals from a summary judgment dismissing her personal injury action against respondents Harry and Troyce Schafer. We reverse the summary judgment and remand this case for a trial on the merits.
On June 7, 1983, Michael Russell was driving a motorcycle carrying Brian Gatenby as a passenger. The boys, each 14 years old, were traveling from their homes to a nearby supermarket. They were headed southbound on Southeast Witte Road, a public road.
Gatenby told Russell to turn left onto a private road. The road was owned by the Schafers and led to a gravel pit on their property. The motorcycle struck a cable that was suspended across the Schafers' road. Russell was seriously injured; Gatenby was killed.
The private road was constructed of gravel and dirt. The cable was suspended loosely across the private road between two cement blocks approximately 100 feet from Southeast Witte Road. It was strung a foot to 2 feet off the ground. The cable always hung across the road with the exception of occasional work days at the gravel pit when work crews removed the cable. At the time of the accident, there were two barely noticeable yellow ribbons 6 to 8 After the accident, the guardian sought compensation for property damages and personal injuries. The Schafers moved for summary judgment arguing that there was no factual dispute over Russell's status as a trespasser or over a breach of duty by the Schafers to refrain from wilful or wanton misconduct. The motion was granted.
inches long and 2 to 3 inches wide hanging from the cable. A partially obscured "No Trespassing" sign was located to the left of the cable, and several "Private Property" and "No Trespassing" signs were posted near the private road
On appeal, the guardian contends that the trial court erred by failing to submit to a jury issues of fact regarding (1) whether Russell was a traveler rather than a trespasser and (2) whether the Schafers breached a duty to exercise reasonable care to maintain their property.
In reviewing the trial court's grant of summary judgment, this court engages in the same inquiry as did the trial court. Hontz v. State, 105 Wash.2d 302, 311, 714 P.2d 1176 (1986); Bill of Rights Legal Foundation v. Evergreen State College, 44 Wash.App. 690, 693, 723 P.2d 483 (1986). That inquiry is whether the pleadings, depositions, answers to interrogatories, admissions, and affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c). The court must consider all of the facts submitted and reasonable inferences therefrom in the light most favorable to the nonmoving party. Hontz v. State, supra at 311, 714 P.2d 1176. The motion should be granted only if, from all of the evidence, reasonable persons could reach but one conclusion. Morris v. McNicol, 83 Wash.2d 491, 494-95, 519 P.2d 7 (1974). However, where different inferences can be drawn from evidentiary facts as to ultimate facts such as intent, knowledge, good faith and negligence, summary judgment is not warranted. Preston v. Duncan, 55 Wash.2d 678, 681-82, 349 P.2d 605 (1960); Aduddell v. Johns-Manville Corp., 42 Wash.App. 204, 207, 709 P.2d 822 (1985).
Russell first contends that there was a genuine issue of material fact concerning his status as a trespasser.
An owner or occupier of land owes to a trespasser no duty except to refrain from wilfully or wantonly injuring him. Ochampaugh v. Seattle, 91 Wash.2d 514, 518, 588 P.2d 1351 (1979); Winter v. Mackner, 68 Wash.2d 943, 945, 416 P.2d 453 (1966). See generally Younce v. Ferguson, 06 Wash.2d 658, 724 P.2d 991 (1986) (). Washington courts define a trespasser as follows:
A trespasser is one who enters the premises of another without invitation or permission, express or implied, but goes, rather, for his own purposes or convenience, and not in the performance of a duty to the owner or one in possession of the premises.
Winter v. Mackner, supra at 945, 416 P.2d 453 (quoting Schock v. Ringling Bros. and Barnum & Bailey Combined Shows, 5 Wash.2d 599, 605, 105 P.2d 838 (1940)).
Russell fits this definition. First, he admitted that he had never requested or received permission to travel on the Schafers' property. Second, he admitted that he was using the private road for his own purposes--to reach the supermarket. Finally, Russell introduced no facts to show that he was present on the Schafers' road in theperformance of any duty to the Schafers.
Russell maintains that the Schafers negligently misled him into believing that he was traveling on a road commonly used by the public. Therefore, he asserts that he was a traveler rather than a trespasser, and the Schafers owed him a duty of reasonable care. We disagree.
The Washington courts elevate the duty of care owed a trespasser to "reasonable care" when the trespasser is negligently led into believing that a private road is a public road. Rogers v. Bray, 16 Wash.App. 494, 557 P.2d 28 (1976). In Rogers, the plaintiff was injured when he turned off Red Marble Road, the defendants' private road, onto an access road also owned by the defendant. The plaintiff hit a The defendants' knowledge that motorcyclists used Red Marble Road, coupled with (1) the fact that the access road was well used, and (2) the absence of a sign warning travelers that the access road was not for public use, creates by inference a question of fact as to whether Rogers was negligently misled into believing that he was traveling on a road commonly used by the public. If Rogers was misled, then he was not a trespasser and defendants had the duty to exercise reasonable care to maintain the road in a reasonably safe condition for travel.
chain stretched across the access road. The trial court granted the defendants' motion for summary judgment, holding that the plaintiff was a trespasser. In remanding the case for trial, the Court of Appeals stated as follows
(Emphasis added; citations omitted.) Rogers, at 495-96, 557 P.2d 28.
The Schafers' situation is distinguishable from the situation in Rogers. Here, the affidavits, depositions, and admissions considered by the trial court presented no dispute about whether Russell knew he was on a private road. Eric Sullivan, who had conducted a welding business across from the Schafers' road for over 5 years, stated in his affidavit (1) that the access road was used only occasionally and only by gravel pit workers, and (2) that "Private Property" signs were posted on Southeast Witte Road near the entrance to the Schafers' private road. Further, in deposition testimony, Russell stated that there was nothing about the Schafers' road that caused him to believe he was on a public road.
Russell next maintains that there was a genuine issue of material fact regarding whether the Schafers were wilful or wanton in stringing the cable across their road.
Because Russell was a trespasser, the Schafers owed him no duty except to refrain from wilfully or wantonly injuring him. Ochampaugh v. Seattle, supra at 518, 588 P.2d 1351; Winter v. Mackner, supra at 945, 416 P.2d 453. The distinction between "wilful" and "wanton" misconduct is discussed in Adkisson v. Seattle, 42 Wash.2d 676, 684, 258 P.2d 461 (1953), as follows:
[W]ilful misconduct is characterized by intent to injure, while wantonness implies indifference as to whether an act will injure another. Graphically expressed, the difference between wilfulness and wantonness is that between casting a missile with intent to strike another and casting a missile with reason to believe that it...
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Mutual of Enumclaw Ins. Co. v. MacPherson Constr. & Design, Inc.
... ... different inferences can be reasonably drawn from evidentiary ... facts, however, summary judgment is not warranted ... Johnson v. Schafer , 47 Wn. App. 405, 407, 735 P.2d ... 419 (1987), reversed on other grounds , 110 Wn.2d ... 546, 756 P.2d 134 (1988). Thus, a ... ...
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Mutual of Enumclaw Insurance Company v. Macpherson Construction & Design, Inc., No. 57820-1-I (Wash. App. 7/16/2007)
...different inferences can be reasonably drawn from evidentiary facts, however, summary judgment is not warranted. Johnson v. Schafer, 47 Wn. App. 405, 407, 735 P.2d 419 (1987), reversed on other grounds, 110 Wn.2d 546, 756 P.2d 134 (1988). Thus, a motion for summary judgment must be denied i......
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The Estate of Wheat v. Fairwood Park Homeowners Association
... ... such conduct would, in a high degree of probability, ... result in substantial harm to another.'" Johnson ... v. Schafer, 110 Wn.2d 546, 549, 756 P.2d 134 (1988) ... (quoting Adkisson v. City of Seattle, 42 Wn.2d 676, ... 687, 258 P.2d 461 (1953)) ... ...
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Johnson v. Schafer
...Schafers then moved for summary judgment, which was granted by the trial court. The Court of Appeals reversed. See Johnson v. Schafer, 47 Wash.App. 405, 735 P.2d 419 (1987). We now reverse the Court of Appeals and reinstate judgment for the A motion for summary judgment should be granted if......