Maynard v. Sisters of Providence

• Decision Date: 07 February 1994
• Docket Number: No. 32864-6-I,32864-6-I
• Citation: 866 P.2d 1272,72 Wn.App. 878
• Court: Washington Court of Appeals
• Parties: Eugene MAYNARD and Verna Maynard, husband and wife, Appellants, v. SISTERS OF PROVIDENCE, Respondent.

Page 878

72 Wn.App. 878

866 P.2d 1272

Eugene MAYNARD and Verna Maynard, husband and wife, Appellants, v. SISTERS OF PROVIDENCE, Respondent.

No. 32864-6-I.

Court of Appeals of Washington Division 1.

Feb. 7, 1994.

Grant K. Weed, Keithly, Weed & Graafstra, Snohomish, for appellants.

Karen J. Kvale, Williams, Kastner & Gibbs, Seattle, for respondent.

MARSHALL FORREST, Judge Pro Tem. ^*

Eugene Maynard appeals the trial court's order granting Sisters of Providence's motion for summary judgment on the grounds that the trial court erred in finding as a matter of law that Sisters of Providence had discharged its duty of reasonable care. We reverse and remand for trial.

On the afternoon of February 16, 1990, Eugene Maynard (Maynard) took his wife, Verna Maynard, to Providence Hospital (Providence) in Everett, Washington. She was found to be suffering from a serious liver illness and was scheduled for surgery the next day. Maynard observed some snow on the ground at this time. During the night, after Maynard left, it snowed "quite heavily, three or four inches on the roadway."

Maynard returned the following morning at 6 a.m. and, because of the slushy conditions, parked in the main visitor's parking lot. As he visited with his wife, he noticed it was snowing again. At 1:15 p.m. he left Providence. The parking lot had not been cleared of ice and snow, nor did he notice Providence taking any measures to clear the ice and snow. Earlier, however, Maynard had seen sanding taking place in the lot next to the hospital building reserved for doctors and hospital staff.

As he left the main entrance of the hospital, Maynard noticed the slush had turned to ice on the lot, a condition which worsened as he neared the visitor's lot where he was parked. Once in his car, Maynard found he could not get the car out of the parking space because of the ice. A man in a truck with chains was also unable to move Maynard's car. Maynard decided to return to the hospital to get sand for traction. On his way back, Maynard offered to help push another's car. While walking toward the rear of this other vehicle, Maynard fell and sustained a knee injury.

An aid car arrived from the Everett Fire Department soon afterwards. Scott Dunn, who arrived in the aid car, stated that, even with chains, he and his partner were unable to drive the car up the hill to treat Maynard because it was too slippery. Further, Dunn stated that when his partner stepped out of the car, he immediately slipped and fell down.

Maynard filed suit alleging Providence was negligent in allowing an accumulation of ice and snow, failing to maintain a safe common area for a business invitee, and failing to warn invitees of a known hazard. Providence moved for summary judgment, which the trial court granted. Maynard subsequently filed a motion for reconsideration using as additional evidence the declaration of Dunn and weather records from the City of Everett. The trial court denied the motion for reconsideration. Maynard filed a timely appeal to this court.

I

In reviewing a summary judgment the appellate court engages in the same inquiry as the trial court. ¹ The court must affirm the summary judgment

if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Atherton Condo Ass'n v. Blume Dev. Co., 115 Wash.2d 506, 516, 799 P.2d 250 (1990). Maynard is entitled to all reasonable inferences arising from the facts in determining whether there is a factual issue.

II

As a preliminary matter, Providence argues that, because Maynard's brief only assigns error to the summary judgment order and not to the motion for reconsideration, the additional evidence of Everett's weather records and Dunn's declaration should not be reviewed by this court under RAP 10.3(g). ²

This court may review Maynard's additional evidence given that appellate procedural rules are to be interpreted liberally. ³ Providence was aware of the issues in dispute and in its brief analyzes the challenged evidence thereby minimizing any prejudice resulting from this court's review. We treat the supplemental materials as properly before us.

III

We look to the Restatement (Second) of Torts § 343 (1965) for guidance in reviewing problems of landowner liability. Egede-Nissen v. Crystal Mountain, Inc., 93 Wash.2d 127, 132, 606 P.2d 1214 (1980). This division has recently applied the Restatement in the context of a fall in an icy parking lot. Ford v. Red Lion Inns, 67 Wash.App. 766, 840 P.2d 198, review denied, 120 Wash.2d 1029, 847 P.2d 481 (1993). Here, the dangerous condition of the parking lot was obvious and known to Maynard. He had walked across it, his car had no traction and could not move even with the assistance of a truck with chains. Accordingly, the applicable Restatement rule is (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.

(Emphasis added.) Restatement (Second) of Torts § 343A(1) (1965). As to when the possessor should anticipate the harm despite its being obvious, comment (f) of this subsection states that a landowner should expect a harm to an invitee where:

the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk.... In such cases the fact that the danger is known, or is obvious, is important in determining whether the invitee is to be charged with contributory negligence, or assumption of risk. It is not, however, conclusive in determining the duty of the possessor, or whether he has acted reasonably under the circumstances.

(Emphasis added.) Restatement (Second) of Torts § 343A(1), comment (f), (1965). See also Jarr v. Seeco Constr. Co., 35 Wash.App. 324, 327, 666 P.2d 392 (1983) ("[t]here 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."). In Ford v. Red Lion Inns, 67 Wash.App. 766, 840 P.2d 198 (1993), this court held that the Restatement's rules as to a landowner's duty to an invitee applied to the icy parking lot of a motel and rejected the reasoning of Schaeffer v. Woodhead, 63 Wash.App. 627, 821 P.2d 75 (1991), whose court applied the "natural accumulations" rule. ⁴ We agree and hold that a fall on snow or ice is analyzed under the general rules of a landowner's duty to invitees.

Providence urges that since the facts are similar and since the Ford court affirmed summary judgment dismissing the plaintiff's complaint, that we must do likewise. We disagree. InFord an invitee was injured after falling on ice in a parking lot of a Red Lion Inn. Prior to the accident, he had noticed the presence of ice and snow in parking his own car. When he stayed in the lot to help his employer remove barricades in spite of being told he was free to go home, he slipped, fell and was injured. The appellate court upheld the trial court's ruling that because he was aware of the icy conditions and could have avoided the risk by leaving and because he had presented insufficient evidence as to the existence of an unreasonable risk, or Red Lion's failure to exercise reasonable care, he failed to state a cause of action. We find the facts are distinguishable from those before us.

In this case, Everett's weather records show that low temperatures and precipitation had been occurring for the preceding 4 days. A permissible inference would be that Providence could foresee that ice and snow were likely to be present and that what was slush when Maynard...