Zenkina v. Sisters of Providence in Washington, Inc.

• Decision Date: 09 September 1996
• Docket Number: No. 36510-0-I,36510-0-I
• Citation: 922 P.2d 171,83 Wn.App. 556
• Parties: Svetlana ZENKINA, a single woman, Appellant, v. SISTERS OF PROVIDENCE IN WASHINGTON, INC., a Washington Corporation, d/b/a Providence Hospital; Emergency Room Physicians, Inc., P.S., a Washington Corporation; and Randal Bensen, Respondents.
• Court: Washington Court of Appeals

Page 556

83 Wn.App. 556

922 P.2d 171

Svetlana ZENKINA, a single woman, Appellant, v. SISTERS OF PROVIDENCE IN WASHINGTON, INC., a Washington Corporation, d/b/a Providence Hospital; Emergency Room Physicians, Inc., P.S., a Washington Corporation; and Randal Bensen, Respondents.

No. 36510-0-I.

Court of Appeals of Washington Division 1.

Sept. 9, 1996.

Gregg L. Tinker and Longfelder Tinker Kidman, Inc., P.S.; and Keith T. McClelland, Seattle, for Svetlana Zenkina

Timothy David Blue, Mary H. Spillane, Williams Kastner & Gibbs, Seattle, for Sisters of Providence in Washington, Inc.

John Coleman Graffe, Tacoma, D. Jeffrey Burnham, New York City, for Emergency Room Physicians, Inc. and Randal Bensen.

KENNEDY, Acting Chief Judge.

Svetlana Zenkina appeals the summary judgment dismissing her negligence claim against Sisters of Providence and others for injuries sustained

when she fainted in the emergency room while observing her nephew receiving stitches. We conclude that under the facts here presented, the medical care providers had no duty to prevent Zenkina from fainting or to warn her that she might faint while watching the medical procedure. Accordingly, we affirm.

FACTS

On September 9, 1992, 10-year-old Roman Kolesnik fell while riding his bicycle and cut his chin. His father Vladimir Kolesnik brought him to the home of Svetlana Zenkina, Roman's aunt. Zenkina drove them to the emergency room at Providence Hospital for treatment. Zenkina, who is a Ukrainian immigrant, speaks better English than Vladimir and Roman, both of whom speak very little English. In the past, Zenkina had transported friends and family members to the emergency room and provided translation assistance.

When they entered the emergency room, Svetlana explained to Vladimir that someone from the hospital would come and ask for information. She then sat down to wait. When a person from the hospital began to ask Vladimir questions, he waived to Zenkina and requested that she assist him. Svetlana answered the person's questions, and then again sat down with Vladimir and her nephew. A few minutes later, a woman who worked for the hospital requested that Vladimir provide her with information to be put into the computer, and he again requested that Zenkina translate for him. Zenkina answered all of the questions. The woman then took Zenkina, Vladimir, and Roman to another area where there was a television and instructed them to wait.

After a few more minutes the name Kolesnik was called and Roman and Vladimir went into another room. Zenkina stayed behind in the television room. The woman returned shortly, asked Svetlana to "please come," and explained that it would be better if she were with the boy In the suturing room, Vladimir and a hospital employee helped Roman onto the table. Dr. Randal Bensen, a physician employed by Emergency Room Physicians, Inc., which had an agreement to provide emergency room services at the hospital, entered and apologized for the delay. Dr. Bensen asked Vladimir to stand at the foot of the table and to hold his son's legs. Dr. Bensen assumed that Zenkina was Roman's mother and understood that she was acting as a translator. He asked Zenkina to stand near Roman's head in order to help interpret. In her deposition, Zenkina testified that Dr. Bensen asked her to hold Roman's hands to restrain him in case the child attempted to move suddenly. Zenkina did not protest, and put her hand on top of Roman's hands to comfort him. When Dr. Bensen opened Roman's wound to clean it, Zenkina fainted, striking her head on the floor. She suffered a concussion, convulsions, nausea, headaches, and other injuries, and was hospitalized for 5 days as a result.

                so that they could "communicate better."   Zenkina accompanied the woman into a room where Vladimir and Roman were waiting.  The three were then shown into the suturing room
                

Zenkina brought a negligence action against Sisters of Providence in Washington, Inc., Dr. Bensen, and Emergency Room Physicians, Inc., alleging that they owed her a duty to warn her of the risks associated with observing the medical procedure, including the risk of fainting. ¹

Respondents moved for summary judgment, arguing that there was no duty on their part to prevent Zenkina from fainting because she was not a patient and because no hospital employee directed her to aid in Roman's treatment. Respondents also argued that Zenkina voluntarily assumed the risk of remaining in the suturing room with her nephew. Judge Castleberry granted the Respondents'

motion for summary judgment, dismissed Zenkina's claim, and ordered her to pay statutory costs and attorney fees. Zenkina's motion for reconsideration was denied. This timely appeal followed.

DISCUSSION

In reviewing an order of summary judgment, the appellate court engages in the same inquiry as the trial court and considers the facts in the light most favorable to the nonmoving party. Young v. Key Pharmaceuticals, Inc., 112 Wash.2d 216, 226, 770 P.2d 182 (1989). Summary judgment will be granted if the record demonstrates that there is no genuine issue as to any material fact, Seven Gables Corp. v. MGM/UA Entertainment Co., 106 Wash.2d 1, 13, 721 P.2d 1 (1986), and that the moving party is entitled to judgment as a matter of law, CR 56(c); Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982).

Premises Liability Theory

Zenkina first contends that the Respondents, as owners and occupiers of the emergency room, owed her a duty of reasonable care to prevent her from fainting. In a negligence action, the threshold question is whether the defendant owes a duty of care to the plaintiff. Kelly v. Falin, 127 Wash.2d 31, 36, 896 P.2d 1245 (1995) (citing Christen v. Lee, 113 Wash.2d 479, 488, 780 P.2d 1307 (1989)). The existence of a legal duty is a question of law. Hutchins v. 1001 Fourth Ave. Assocs., 116 Wash.2d 217, 220, 802 P.2d 1360 (1991).

In actions involving premises liability, the plaintiff's status as either an invitee, licensee, or trespasser determines the scope of the duty of care owed by the owner or occupier of the property. Anderson v. Weslo, Inc., 79 Wash.App. 829, 834, 906 P.2d 336 (1995) (citing Tincani v. Inland Empire Zoological Soc'y, 124 Wash.2d 121, 128, 875 P.2d 621 (1994)). The Washington Supreme Court has adopted the Restatement (Second) of Torts definition of invitee: an invitee, as a business visitor, is 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 v. Ferguson, 106 Wash.2d 658, 667, 724 P.2d 991 (1986). Zenkina entered the hospital for the purpose of obtaining care for her injured nephew, and providing care to injured persons is the business of the hospital. Therefore, Zenkina was an invitee. ² An invitee is owed a duty of ordinary care. Younce, 106 Wash.2d at 667, 724 P.2d 991. Ordinary care requires maintaining premises in a reasonably safe condition, Radford v. City of Hoquiam, 54 Wash.App. 351, 360, 773 P.2d 861 (1989), and the affirmative duty of discovering any dangerous conditions, Egede-Nissen v. Crystal Mountain, Inc., 93 Wash.2d 127, 132, 606 P.2d 1214 (1980) (citing Restatement (Second) Torts § 343, Comment b (1965)) (invitee entitled to expect possessor will discover any latent defects and to give such warning that the visitor may decide intelligently whether to accept the invitation or to protect herself against the danger if she does accept the invitation).

Maintaining a hospital in a reasonably safe condition should include making sure that the floors, entryways, stairs, and other physical elements of the building are in good condition, preventing the escape of noxious substances, providing adequate lighting and otherwise preventing defects in the premises which could cause injury to an unsuspecting or distracted invitee. In contrast, to require a hospital to prevent every non-patient who enters the emergency room from fainting would exceed the level of ordinary care afforded invitees. To impose such an unreasonable burden would require busy emergency room personnel to attend to the nearly impossible task of ensuring that all who enter are kept from any sight, smell, or sound with the potential to cause them to faint. The only practical solution would likely be banning all non-patients from the emergency room, an undesirable result given the comfort and support provided by friends and family members of injured and sick patients. Cf. O'Hara v. Holy Cross Hosp., 137 Ill.2d 332, 341, 148 Ill.Dec. 712, 561 N.E.2d 18 (1990). Zenkina points to no case law requiring such a duty.

We conclude that that the Respondents did not owe Zenkina the duty to protect her from fainting merely because she was an invitee on hospital premises.

Participation In Patient Care Theory

Zenkina next contends that the Respondents owed her a duty to protect her against fainting or to warn her of the risk because, she alleges, they requested and directed her to assist in Roman's care. Zenkina argues that this court should adopt the holding in O'Hara v. Holy Cross Hosp. that a hospital that invites a non-patient to participate in the care and treatment of a patient has a duty to protect the non-patient from fainting during the treatment. O'Hara, 137 Ill.2d at 340, 148 Ill.Dec. 712, 561 N.E.2d 18. Zenkina contends that by asking her to translate and to hold Roman's hands, the Respondents invited her to participate in Roman's care and treatment and, therefore, had a duty to protect her from fainting.

Respondents contend that they had no duty to protect Zenkina, relying on the cases of McElwain v. Van Beek, 447 N.W.2d 442 (Minn.App.), review denied, (1989) and Sacks v. Thomas Jefferson Univ. Hosp., 684 F.Supp. 858, aff'd, 862 F.2d 310 (1988). Respondents further argue that the rule announced in O'Hara would not change the outcome in this case because Zenkina did not participate in Roman's care and treatment in...