Singleton v. Jackson

• Decision Date: 25 April 1997
• Docket Number: No. 20575-1-II,20575-1-II
• Citation: 85 Wn.App. 835,935 P.2d 644
• Parties: Karleen SINGLETON, Appellant, v. Zoe JACKSON and John Doe Jackson, wife and husband, Respondents. Division 2
• Court: Washington Court of Appeals

Page 835

85 Wn.App. 835

935 P.2d 644

Karleen SINGLETON, Appellant, v. Zoe JACKSON and John Doe Jackson, wife and husband, Respondents.

No. 20575-1-II.

Court of Appeals of Washington,

Division 2.

April 25, 1997.

Todd William Simpson, Vancouver, for Appellant

Terrance D. Hannan, Wolfe Mullins Hannan & Mercer, Vancouver, for Respondents.

SEINFELD, Judge.

Karleen Singleton, a Jehovah's Witness, slipped and fell on the front porch of a house owned by Zoe Jackson. Singleton brought a premises liability action against Jackson, alleging that she had breached the duty of care owed to a licensee. The superior court dismissed the action on summary judgment, holding that Singleton was a trespasser and that Jackson had not breached the corresponding duty of care. We disagree, concluding that Jackson was a licensee. Nonetheless, we find no breach of duty by Jackson. Accordingly, we affirm.

In the fall of 1993, Singleton approached a house owned by Jackson, intending to engage in religious solicitation. The house appeared to Singleton to be a residence, but Jackson did not then live there full-time. Rather, Jackson's son and daughter-in-law, Hugh and Patricia Colson, used one bedroom of the house as an office for their business.

The approach to the front of the house led up three steps to a wooden deck. From the top of the steps, the front door was to the left, while immediately ahead was a sliding glass door to a bedroom used by the Colsons as an As Singleton and her companion went up the steps, they saw Patricia Colson through the sliding glass door to the bedroom office. Colson met them at the sliding door, explained that the house was used for business, and stated that she did not wish to speak with them. As Singleton turned from the door to leave, she stepped off the shingle pathway on to the deck's bare wood and slipped and fell, injuring herself.

office. Strips of asphalt shingle roofing material had been stapled to the deck creating pathways to both doors, and a mat was laid in front of the sliding glass door.

A week later, Singleton returned to the house and took a closer look at the deck's surface. At first, she thought that the bare part of the deck was simply "weathered." Upon touching the surface, however, she realized that this wood was "slimy," as though covered with "algae."

In support of her motion to dismiss Singleton's lawsuit, Jackson argued in the alternative that (1) Singleton was a trespasser and there had been no breach of the corresponding duty of care, and (2) that Jackson did not breach the standard of care owed to a licensee. The summary judgment court relied upon only the first alternative in dismissing the complaint.

On appeal, Singleton argues that the superior court erred when it applied the standard of care owed a trespasser. She also argues that the trial court's conclusion that she was a trespasser conflicts with state and federal constitutional guaranties protecting the right to free exercise of religion.

DISCUSSION

Standard of Review

When reviewing an order for summary judgment, this court conducts the same inquiry as the trial court. Sherman v. State, 128 Wash.2d 164, 183, 905 P.2d 355 (1995). We will affirm a summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Sherman, 128 Wash.2d at 183, 905 P.2d 355. All facts and reasonable inferences are considered in the light most favorable to the nonmoving party; all questions of law are reviewed de novo. Sherman, 128 Wash.2d at 183, 905 P.2d 355.

Singleton's Status

A possessor of land owes a higher duty of care to a licensee than to a trespasser. Tincani v. Inland Empire Zoological Soc., 124 Wash.2d 121, 128, 875 P.2d 621 (1994); compare RESTATEMENT (SECOND) OF TORTS § 333 (duties generally owed to a trespasser), § 342 (duties generally owed to a licensee). A "trespasser," for purposes of premises liability, 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, 68 Wash.2d 943, 945, 416 P.2d 453 (1966) (quoting Schock v. Ringling Bros. & Barnum & Bailey Combined Shows, 5 Wash.2d 599, 605, 105 P.2d 838 (1940)), overruled on other grounds, Potts v. Amis, 62 Wash.2d 777, 384 P.2d 825 (1963). A "licensee," on the other hand, is " 'a person who is privileged to enter or remain on land only by virtue of the possessor's consent.' " Tincani, 124 Wash.2d at 133, 875 P.2d 621 (quoting RESTATEMENT (SECOND) OF TORTS § 330). Thus, the determination of whether a person is a trespasser or a licensee hinges on whether the possessor has granted consent or permission to enter the property.

The possessor of property may consent to a licensee's entry through conduct, omission, or by means of local custom, as well as through oral or written consent. ¹ See RESTATEMENT (SECOND) OF TORTS § 330, cmts. b, c, d, e. The courts of this state have not directly spoken to the issue of when a possessor of land has impliedly consented to a stranger approaching the front entry of a private residence. Several jurisdictions, however, have recognized such consent or permission for a stranger to approach the front entrance and attempt to make contact with the occupant, unless the possessor expressly communicates otherwise. Jones v. Manhart, 120 Ariz. 338, 341, 585 P.2d 1250, 1253 (App.1978); Prior v. White, 132 Fla. 1, 19, 180 So. 347, 355, 116 A.L.R. 1176 (1938); City of Osceola v. Blair, 231 Iowa 770, 773-74, 2 N.W.2d 83, 85 (1942); Smith v. VonCannon, 283 N.C. 656, 663, 197 S.E.2d 524, 529 (1973). Notice that consent has been withdrawn can be accomplished in a variety of ways, including the posting of a "No Trespassing" or "No Solicitation" sign.

Comment "e" of the RESTATEMENT (SECOND) OF TORTS § 330 explains the rationale underlying this rule:

The consent which is necessary to confer a license to enter land, may be expressed by acts other than words. Here again the decisive factor is the interpretation which a reasonable [person] would put upon the possessor's acts. Thus one who constructs and opens a roadway across his land for the benefit of his friends and neighbors may thereby express his willingness to permit the entry of strangers who wish to cross the land, unless he posts a notice to the contrary; and this is true although the possessor in fact intends to permit the entry only of particular individuals.

Applying this rationale, several courts have observed that strangers approaching a private residence may reasonably interpret the presence of a doorbell or a pathway leading to the front door as tacit consent to approach the residence and attempt to contact its occupants. See Breard v. City of Alexandria, La., 341 U.S. 622, 626, 71 S.Ct. 920, 924, 35 A.L.R.2d 335, 95 L.Ed.2d 1233 (1951) ("the knocker on the front door is treated as an invitation or license to attempt an entry, justifying ingress to the home by solicitors, hawkers and peddlers of all kinds of salable articles") (citing of RESTATEMENT OF THE LAW OF TORTS § 167 (1936)); Citizens for a Better Environment v. City of Park Ridge, 567 F.2d 689, 691 (7th Cir.1975) (presence of knocker or bell on a door constitutes license to enter premises) (citing Breard, 341 U.S. at 626 and 630, 71 S.Ct. at 924 and 926 Am.Jur.2d Peddlers, Solicitors and Transient Dealers § 57 (1972)); VonCannon, 283 N.C. at 662, 197 S.E.2d at 529 ("construction of a driveway or walkway leading to the entrance of a residence may, in the absence of notice to the contrary, be reasonably construed ... as an expression of the landowner's consent to ... entry thereon for the purpose of approaching and entering the house on any lawful mission"). Accordingly, courts from other jurisdictions have regularly concluded that door-to-door solicitors are licensees, as opposed to trespassers or invitees.

While no Washington court has specifically held that door-to-door solicitors, like Singleton, qualify as licensees in a premises liability context, ² the court in Konick v Champneys, 108 Wash. 35, 183 P. 75, 6 A.L.R. 459 (1919) recognized as much in dicta. The Konick court observed that "a peddler or solicitor, or a person seeking a purchaser for something he had to sell" does not qualify as an invitee. 108 Wash. at 40, 183 P. 75. "Such persons ... are mere licensees, and their right of entry is subject to be revoked by the owner at any time and for any cause that may seem to the owner sufficient." 108 Wash. at 40, 183 P. 75. These observations are consistent with comment "b" of the RESTATEMENT (SECOND) OF TORTS § 332 (1965), which implicitly recognizes that a door-to-door solicitor remains a licensee, until such time as the possessor accepts the solicitor's invitation to transact further business.

We adopt this analysis here. Singleton testified that she entered the premises through an open driveway leading to the deck and the front door. There was no evidence that Jackson or the Colsons notified her by posting signs or by installing physical barriers that she was not welcome. Thus, it was reasonable for Singleton to believe that she had permission to approach the front door of the house and attempt to contact its occupants. Although there was a small sign directing persons entering from the driveway to the "Office," at most, this sign would place a person on notice that some commercial activity was taking place on the premises. Standing alone, it cannot be construed as a withdrawal of permission to enter. Cf. Manhart, 120 Ariz. at 341, 585 P.2d at 1253 (canvasser was a licensee, as sign posted in front of house, " 'Trespassers will be eaten,' could be reasonably interpreted as a joke"). Accordingly, we find that Singleton was a licensee, not a trespasser, and that the trial court erred when it concluded otherwise. ³

Duty to a Licensee

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