Mind the Gap: Premises Liability in Washington State

Author: Jenny Silverstein

Guest Editor: Jeremy Freedman

June 3, 2019 10:00am

Since I became a lawyer, I read the fine print more often. I think more about the consequences of my actions. Before my husband and I bought our home, I read the lease to our apartment with a fine tooth comb, which included the landlord’s duties and our responsibilities. Considering we were living in a hip Oakland neighborhood at the time, the landlord was looking for any excuse to break the lease and triple or quadruple the rent to a techie. Fortunately for us, we were able to move out on our own terms. However, I remember some of our neighbors were injured either by slipping on water in the hallway or shoddy construction of the premises to try to keep up with demand. What is premises liability law? When is a property owner-landlord liable for injuries which occur on the property? When is the lessee at fault rather than the property owner? The recent Shannon C. Anderson v. Port of Bellingham, provides guidance in answering these questions.

Shannon C. Adamson v. Port of Bellingham ((April 11, 2019) 438 P.3d 522)

Plaintiff Shannon Adamson, an employee of the Alaska Marine Highway System (AMHS), fell 15 feet when the passenger ramp at the Port of Bellingham’s Bellingham Cruise Terminal (BCT) collapsed. The accident caused Ms. Adamson severe personal injuries.

Since 1989, the State of Alaska had leased BCT from the Port of Bellingham, allowing AMHS ferries to dock at the BCT to load and unload passengers and their vehicles. The Port and Alaska renegotiated this lease in 2009 for another 15 years. Parts of the lease included the definition of “exclusive use” as “sole possession and control of the Areas.” Another part indicated that the Port would be “solely responsible for keeping the leased premises in good repair and tenantable condition” and that the Port would “maintain the leased premises in good and substantial repair and condition.” Lastly, the state of Alaska had the right to make alterations, additions and improvements to the leased premises subject to the “written consent of the Port.” Also of note, the lease required Alaska to “permit the Port to enter upon the premises at all reasonable times to examine the condition of same.”

Passengers boarded the ferries via passenger ramps which, when lowered, connected the terminal to the upper deck of the ferry. It is a suspended ramp with a motorized pulley system. However, the pulley system had a flaw in that the pulley system could continue to unspool the cables when the locking pins were in place, which created slack in the cables. The Port could have fixed the flaw by installing an “interlock” system which would have prevented any slack in the wires.

On November 2, 2012, Plaintiff Adamson was operating the passenger ramp and created slack in the cables. When she removed the locking pins, the ramp collapsed, snapped and she and the ramp fell 15 feet until the ramp caught on the ferry. Plaintiff Adamson lost consciousness and sustained other life-changing injuries.

Plaintiff and her husband sued the Port alleging negligence and seeking damages for medical expenses, loss wages, pain and suffering and loss of consortium. The district court determined Ms. Adamson was the Port’s business invitee and the jury awarded the plaintiffs millions in damages. The jury specifically found Ms. Adamson nor Alaska were negligent, but rather the Port was solely responsible for the incident. The Port appealed the lower court’s ruling.

What is Premises Liability?

Premises liability is a legal concept that typically comes into play in personal injury cases where the injury was caused by some type of unsafe or defective condition on someone’s property. Most personal injury cases are based on negligence, and premises liability cases are no exception. In order to win a premises liability case, the injured person must prove the property owner was negligent with respect to ownership and/or maintenance of the property. In any given premises liability case, negligence generally means  the property owner failed to use reasonable care in connection with the property.

It is important to note, simply because one was injured on someone’s property does not mean the property owner was negligent. Further, mere allegations the property might have been in an unsafe condition or could have been made safer does not automatically mean that the property owner was negligent. To wit, plaintiffs must show the property owner knew or should reasonably have known the premises was in an unsafe condition, and still failed to take proper steps to remedy the hazardous condition.

Given same, often, premises liability cases are slip and fall cases, inadequate maintenance of the premises, defective conditions of the premises, elevator and escalator accidents, dog bites, fires, water leaks or flooding and toxic exposure to fumes or chemicals.

While many states require the property owner to exercise reasonable care in ownership and maintenance of the property with respect to all persons who might enter onto the property, other states still apply an old rule limiting the landowner’s duties depending on whether plaintiff is classified as  an invitee, licensee or trespasser.

Analysis

The Court held the general rule is that a landowner is liable for injuries which occur on the owner’s land, except in some cases where the landowner gives exclusive control of a property over to a lessee. In such situations,  the landowner may no longer be liable as a possessor of the land upon which the incident occured. However, where a landlord reserves a duty to repair the premises, the landlord is liable for its own negligence, even if both the landlord and the lessee know of the dangerous condition.

Here, the Court found the Port affirmatively contracted to maintain and repair the premises under the provisions of the lease. There was no obligation under the lease which existed for AMHS to maintain or repair. Furthermore, AMHS could not make any changes to the property without the written consent of the Port, whereas the Port had the authority to unilaterally make changes to the property and was allowed to enter the leased premises at all reasonable times to examine the condition of the property. Despite the dispute over the lease terms, AMHS could not repair the passenger ramp without the authority and approval of the Port. Therefore, the landowner-lessor, here the Port, could be held liable given its control and  authority over the property.

Important to the Court’s holding, the specific terms of the lease gave the Port access to the property to conduct maintenance and the authority to unilaterally make changes to the property. If the lessee (AMHS) wanted to make any changes, it had to ask the Port for permission to do so. Based on these terms, the Court found the Port had the requisite ability and authority to reduce the risk of harm to entrants like plaintiff because the Port was still in control and in possession of the property. Just because AMHS was in berth and using the ramp did not affect the Port’s liability as a landowner. Based on these two theories, the Court ruled in plaintiffs’ favor and denied the Port’s appeal.

Takeaway

It is important to understand not only premises liability litigation, but also the nuances in how the laws could be applied to invitees, licensees or trespassers. It is also important to retain an attorney who can assert the proper defenses and understand the differences in premises liability defense at both the state and federal levels.

 

About the Author: Jenny A. Silverstein is an associate in the San Francisco office of Tyson & Mendes. She specializes in insurance defense. Contact Jenny at 628-253-5070 or jsilverstein@tysonmendes.com

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