The Washington State Court of Appeals (Div. III) recently reversed a trial court’s determination that assumption of the risk barred the plaintiffs from suing over slipping and falling while crossing a store’s icy parking lot. In Little v. Rosauers Supermarkets, Inc., the defendant moved for summary judgment on a theory of implied primary assumption of the risk. The defendant prevailed in the trial court on the argument that the doctrine is a complete defense to premises liability claims. The Court of Appeals reversed, determining that an exception to this rule applied because the defendant land possessor should have anticipated the risk caused by the icy and snow conditions in its parking lot.
The plaintiffs (a husband and wife) filed suit against the grocery store Super 1 Foods owned by Rosauers Supermarkets Inc., alleging negligence for failing to clear ice from the store’s premises, which lead to the primary plaintiff slipping and falling. She had remarked to herself how icy the parking lot was upon opening her car door, and she described using a “penguin walk” to traverse it. While walking back to her car carrying the groceries she purchased at the store, the plaintiff slipped in the icy parking lot, suffering a patella fracture.
The trial court initially dismissed the plaintiffs’ claims after the defendant moved for summary judgment, alleging assumption of the risk. Representatives of the grocery store testified during depositions that icy conditions do not prevent residents of the area from going about their daily lives. Furthermore, the defendant contracted with a plow company to clear and de-ice the parking lot on occasion, and the store’s employees periodically checked the parking lot and applied additional deicer as needed.
Washington recognizes the following four variations of assumption of the risk: 1) express; 2) implied primary; 3) implied unreasonable; and 4) implied reasonable.[i] Implied primary assumption of the risk is a total defense to a negligence claim, as is express assumption of the risk. However, implied unreasonable and implied reasonable assumption of the risk allow negligence claims to proceed while applying comparative fault regarding liability.
The appellate court engaged in a two-part analysis. First, the Court examined the implied primary assumption of the risk rule, and the then the Court applied rule to the facts of the case in the light most favorable to the plaintiffs, as is required under these circumstances.
When asserting a defense of primary assumption of the risk, a land possessor must prove that, “the plaintiff (1) had full subjective understanding (2) of the presence and nature of the specific risk, and (3) voluntarily chose to encounter the risk.”[ii] According to the Restatement (Second) of Torts, land possessors are liable for negligence when they fail to use reasonable care to protect invitees, e.g., store customers, from dangerous conditions on the property.[iii] Implied primary assumption of the risk acts as a defense against premises liability when an invitee is injured while on the possessor’s property.[iv] The key element of using implied primary assumption of the risk as a defense to negligence is whether the invitee knows of the danger or the dangerous condition is obvious to an the invitee.[v] However, a land possessor cannot avail itself of implied primary assumption of the risk as a defense when a possessor can otherwise anticipate the risk.[vi]
Analyzing existing precedent, the court noted that other courts in Washington have found snow and ice accumulation to constitute a risk that property possessors can anticipate.[vii] Therefore, the court reasoned here that the “obvious presence of snow or ice does not preclude a land possessor from liability.” There is an exception to this portion of the rule when a land possessor does not have knowledge of the dangerous conditions created by the ice and snow.[viii] However, the court clarified that the lack-of-knowledge exception to implied primary assumption of the risk has not swallowed the entire rule. In other words, land possessors can still be found liable for dangerous conditions created on their property when ice and snow are present and anticipated.
Here, the court relied on the “predictable” set of facts known to the defendants. For example, the plaintiff used a “common pathway”, i.e., the parking lot, to enter the store during the store’s regular hours of business. Furthermore, the defendant understood that residents of the surrounding area would typically continue to venture to the store in icy and snow conditions. Therefore, because an exception to implied primary assumption of the risk applied, the court reasoned the plaintiffs’ lawsuit should not have been dismissed.
The exception to the application of implied primary assumption of the risk is still valid regarding risks that can be anticipated by land possessors. The court here effectively narrowed the “knowledge exception” that land possessors might claim with regard to dangerous conditions on a property to a slim category of conditions that are essentially hidden from land possessors. Therefore, a land possessor in Washington state cannot readily rely on an implied primary assumption of the risk defense for conditions such as ice and snow in a parking lot when a customer has a slip and fall accident, unless the land possessor can demonstrate a lack of knowledge of the dangerous conditions.
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[i] Gregoire v. City of Oak Harbor, 170 Wn.2d 628 (2010)
[ii] Kirk v. Wash. State Univ., 746 P.2d 285 (Wash.1987) (citing RESTATEMENT, supra, § 496C(1))
[iii]RESTATEMENT, supra, § 332 cmt. a.
[iv]343A(1) of the Restatement
[vii] Mucsi v. Graoch Assoc. Ltd. P’ship No. 12, 144 Wn.2d 847, 859-60, 31 P.3d 684 (2001); Iwai v. State, 129 Wn.2d 84, 93-94, 915 P.2d 1089 (1996).
[viii] Hvolboll v. Wolff Company, 187 Wn. App. 37, 48-49, 347 P.3d 476 (2015).