Swanson v. McKain

• Decision Date: 17 September 1990
• Docket Number: No. 12425-4-II,12425-4-II
• Citation: 59 Wn.App. 303,796 P.2d 1291
• Court: Washington Court of Appeals
• Parties: Michael J. SWANSON, Appellant, v. Jerry L. McKAIN and Jane Doe McKain, husband and wife, and the marital community composed thereof, and Eileen McKain, a single person, Respondent.

Page 303

59 Wn.App. 303

796 P.2d 1291

Michael J. SWANSON, Appellant, v. Jerry L. McKAIN and Jane Doe McKain, husband and wife, and the marital community composed thereof, and Eileen McKain, a single person, Respondent.

No. 12425-4-II.

Court of Appeals of Washington Division 2.

Sept. 17, 1990.

Paul L. Stritmatter, Stritmatter Kessler & McCauley, Hoquiam, for appellant.

Alan J. Peizer, Mackin Sorensen Peizer Richards & Edwards, Seattle, for respondent.

ALEXANDER, Chief Judge.

Michael Swanson appeals a summary judgment order of the Pierce County Superior Court dismissing his personal injury action against Jerry and Mary Ellen McKain. We affirm.

Viewing the facts in a light most favorably to Swanson, it is apparent that on the morning of March 15, 1986 Michael Swanson suffered injuries after diving into shallow water off Camano Island. At that time Swanson and four other individuals were guests at a nearby beachfront home owned by Jerry and Mary Ellen McKain. They had all arrived at the home approximately two days before at the invitation of the McKains' daughter, Eileen. On the evening before the accident, the group had gathered at the McKain cabin and discussed getting up at 4 o'clock to watch Haley's Comet which was to appear in the sky the following morning. Eileen McKain proposed that they should all go swimming at that time.

At approximately 4 a.m. the following morning, Eileen McKain, Michael Swanson and two other persons left the McKain house and went down to the beach. Swanson waded out into the water approximately 50 to 75 yards, at which point the water was knee-deep. Swanson then dove into the water and immediately sustained an injury to his head which rendered him a quadriplegic.

Swanson filed a complaint against Jerry and Mary Ellen McKain and Eileen McKain seeking damages for the injuries he sustained. He alleged in his complaint that they breached a duty to warn him of the dangers and characteristics of the tidal waters into which he dove. Specifically, Swanson contended that he struck his head on hidden, floating, transient debris in the water (i.e., "a log or stump"), the existence of which, he alleged, Eileen McKain knew or should have known about and of which she failed to warn.

The McKains moved for summary judgment, alleging that: (1) the injury did not occur on land owned by the defendants and, thus, they owed no duty to the plaintiff; (2) assuming ownership of the property, the defendants did not owe plaintiff a duty to warn of natural conditions and, thus, they did not breach any duty owed to the plaintiff; (3) the defendants are immune from liability under Washington's Recreational Land Use Statute, RCW 4.24.210; and (4) even assuming a duty to warn of the danger of debris in the water, there is no evidence that plaintiff struck his head on such debris as opposed to the shallow bottom and, thus, such a breach could not be shown to be the proximate cause of plaintiff's injuries.

The trial court granted the McKains' motion and dismissed Swanson's lawsuit, concluding that (1) the Recreational Land Use Statute, RCW 4.24.210, barred Swanson's action and (2) that Swanson had exceeded the scope of Eileen McKain's invitation to go "swimming" by diving into the water.

In reviewing a trial court's decision granting summary judgment, an appellate court engages in the same inquiry as does the trial court. Wilson v. Steinbach, 98 Wash.2d 434, 656 P.2d 1030 (1982). Summary judgment should be granted only where the pleadings, affidavits, depositions, and admissions on file, and the reasonable inferences to be drawn therefrom, viewed in the light most favorable to the nonmoving party, demonstrate that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c); Jarr v. Seeco Construction Co., 35 Wash.App. 324, 328, 666 P.2d 392 (1983).

Although the trial court relied on the recreational land use statute and what it believed was the limited scope of the McKains' invitation in granting summary judgment, we find it unnecessary to address those issues because we conclude that there is no foundation in law or equity for a duty to warn a social guest of natural conditions. ¹ Consequently, the evidence considered by the court in the motion for summary judgment does not support a cause of action and dismissal was, therefore, appropriate. ²

A cause of action founded on negligence requires that a plaintiff establish:

(1) the existence of a duty owed to the complaining party; (2) a breach thereof; (3) a resulting injury; and (4) a proximate cause between the claimed breach and resulting injury.

Pedroza v. Bryant, 101 Wash.2d 226, 228, 677 P.2d 166 (1984). The threshold determination of whether a defendant owes a duty to the complaining party is a question of law. Pedroza, 101 Wash.2d at 228, 677 P.2d 166. In deciding questions of duty a court must evaluate public policy considerations. Bernethy v. Walt Failor's Inc., 97 Wash.2d 929, 933, 653 P.2d 280 (1982).

In determining whether the McKains had a duty to warn Swanson of natural conditions pertaining to Puget Sound, the common law classification of persons entering upon real property (i.e. invitee, licensee or trespasser), are determinative of the duty of care owed by the owner or occupier of the property. Younce v. Ferguson, 106 Wash.2d 658, 666-67, 724 P.2d 991 (1986). Where, as here, the facts surrounding the complaining party's entry upon the property in question are not contested, the determination of the legal status of that entrant as either an invitee, licensee or trespasser is a question of law. ³

Swanson contends that he was an "invitee" of the McKains. The classification of "invitee" has been defined as including both public invitees and business visitors. Younce, 106 Wash.2d at 667, 724 P.2d 991 quoting Restatement (Second) of Torts § 332 (1965). Swanson asserts that he was a "business visitor" because his presence economically benefited the McKains due to the fact that he: (1) brought some firewood with him at the request of Eileen McKain, (2) repaired a dripping faucet in the McKains' cabin while there, (3) contributed funds toward the purchase of groceries, and (4) contributed to Eileen McKain's contacts in the legal community as a law student in that Swanson was an attorney.

The term "business visitor" has been defined as:

... a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.

Younce, 106 Wash.2d at 667, 724 P.2d 991, quoting Restatement (Second) of Torts § 332(3) (1965). Swanson relies upon McKinnon v. Washington Federal Savings & Loan Association, 68 Wash.2d 644, 648-49, 414 P.2d 773 (1966), as support for his assertion that the "economic benefit" resulting from the above conduct is sufficient to qualify him as a business visitor.

In McKinnon, the court adopted an "economic benefit" test in determining whether an entrant to one's land is an invitee. McKinnon, 68 Wash.2d at 649, 414 P.2d 773. In applying the test, however, the court stated that in order to qualify as a business visitor, an individual must enter the premises "... for some purpose connected with the business in which the owner or occupant is then engaged...." McKinnon, 68 Wash.2d at 649, 414 P.2d 773.

Accordingly, the court in McKinnon did not hold that mere economic benefit is sufficient to establish status as an invitee. On the contrary, the court in Younce v. Ferguson, supra, expressly rejected an argument that payment of a $4 admission price qualified an entrant upon real property as an invitee. Younce, 106 Wash.2d at 669, 724 P.2d 991. In so holding, the court recognized that prior Washington case law has not focused on monetary contribution as indicative of a plaintiff's status as an invitee. Younce, 106 Wash.2d at 669, 724 P.2d 991.

We conclude from these authorities that the significant factor which establishes an entrant upon real property as a business visitor, for purposes of qualifying that person as an invitee, is whether the entrant was invited to enter or remain on the property for a purpose directly or indirectly connected with business dealings of the owner or occupant. Of the four factors cited by Swanson as support for his argument that he was an invitee, only his allegation that his presence indirectly benefited Eileen McKain's contacts in the legal community is relevant to any "business purpose" of the McKains. Even viewing that fact in the light most favorable to Swanson, as we must, we conclude as a matter of law that the conduct was merely incidental to his status as a guest of the McKains and was insufficient to qualify him as an invitee.

We conclude, therefore, that Swanson was merely a guest of the McKains and, therefore, a licensee. A licensee is defined as a person who is privileged to enter or remain on land only by virtue of the possessor's consent. Younce, 106 Wash.2d at 667, 724 P.2d 991, quoting Restatement § 330. A licensee includes a "social guest," which is defined as a person who has been invited but does not meet the legal definition of invitee. Younce, 106 Wash.2d at 667, 724 P.2d 991.

We now address whether the duty owed to licensees includes a duty to warn of natural conditions associated with bodies of water. Washington has adopted the Restatement (Second) of Torts § 342 (1965), as the standard of care owed to licensees. Memel v. Reimer, 85 Wash.2d 685, 689, 538 P.2d 517 (1975). That section provides as follows:

A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if,

(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and

(b) he fails to exercise reasonable care to make the condition safe, or to warn the...