Degel v. Majestic Mobile Manor, Inc. , 129 Wash. 2d 43 ( 1996 )

Guy, J.

— This premises liability action was brought on behalf of a small child who was seriously injured when he slid down a steep embankment and into a fast-flowing creek adjacent to the play area near his home. The trial court dismissed the action on summary judgment, ruling as a matter of law that a landowner has no duty to protect an invitee from dangers inherent in a natural body of water.

We granted direct review and reverse. We hold that a landowner is not exempt from the duty to exercise reasonable care to protect invitees against potentially dangerous conditions on the land solely because the potential danger includes risks which are inherent in a natural body of water.

FACTS

Respondent Majestic Mobile Manor and its owners, Respondents Robert and Vivian Tate (hereinafter referred to collectively as "landlord”), stipulated to the following facts for purposes of the motion for summary judgment:

In June 1988 Plaintiff Gary Farris and his family, which at that time included his wife, two stepsons, a stepdaughter and a daughter, moved to Majestic Mobile Manor, a mobile home park in rural Pierce County. Jason Farris was born 10 months later, on April 21, 1989.¹ In addition to their basic rent for a mobile home space, the Farrises were charged an additional $1.00 per day for each child.

The mobile home park is somewhat rectangular in shape, with a perimeter road surrounding the mobile home spaces. At one point the outer corner of this perimeter road passes in the vicinity of Clark’s Creek. This is a clear, shallow, slow-moving creek in summer that can be deep, swift and murky during the winter months. The creek is approximately 10 feet below the level of the road and a total of about 20 feet from the edge of the road. The landlord required families with small children to live at the far end of the mobile home park, away from families without children, and in the area closest to Clark’s Creek. The perimeter road passes just in front of the space where the Farris home was located in January 1992. On the far side of this perimeter road is a grassy area for tents and picnics, as well as the steep embankment leading to Clark’s Creek. The grassy area has a basketball hoop and, with the adjacent perimeter road, is used by resident children as a play area. As many as 20 children at a time would play in this area.

Although the mobile home park is partially fenced, there is no fence running along the property nearest the grassy play area where the steep embankment leading to Clark’s Creek is located. The Farrises did not allow their young children to play outside the house alone and did not allow them to go near the creek by themselves.

The injury to young Jason Farris occurred on January 12, 1992. On that day the child’s father was working on the roof of his mobile home, repairing damage caused by a windstorm. Jason and his four-year-old sister, Nicole, were playing in the grassy tent area near the basketball hoop. While Mr. Farris worked on the roof, Jason, then age two years and eight months, began riding Nicole’s bicycle (equipped with training wheels). At some point Mr. Farris got down off the roof and righted the bicycle for Jason. He then told the children to ride their bicycles in an area where he would be able to watch them from the roof of the home. When Mr. Farris turned to walk back around the mobile home and up the ladder, Jason was riding the bicycle on the road behind him. Mr. Farris had Jason out of his sight "for well less than one minute” when he saw Nicole alone and realized Jason was not within eyesight. Mr. Farris found the bicycle Jason had been riding at the bottom of the embankment, partially submerged in Clark’s Creek. The embankment is wooded , and on that day was covered with grass, leaves and tree branches. It was extremely slippery. A neighbor helping to search for the child eventually found Jason in the creek. As a result of his near drowning Jason suffered severe brain damage and is quadriplegic.

Gary Farris and Jason, through his guardian, brought this action for negligence.

The landlord moved for summary judgment, arguing that a landowner’s duty to maintain the premises in a reasonably safe condition does not require affirmative acts to protect tenants from the inherent dangers of natural bodies of water.

The trial court agreed and granted the landlord’s motion for summary judgment of dismissal. Jason and his father appealed directly to this court and we retained jurisdiction.

ISSUE

Is a landowner excused from the duty to exercise reasonable care to protect invitees from potentially dangerous conditions on the land solely because the danger is, in part, due to risks which are inherent in a natural body of water?

DISCUSSION

In reviewing a grant of summary judgment, an appellate court engages in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982); Jarr v. Seeco Constr. Co., 35 Wn. App. 324, 328, 666 P.2d 392 (1983). A summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” CR 56(c); Marincovich v. Tarabochia, 114 Wn.2d 271, 274, 787 P.2d 562 (1990). The facts and all reasonable inferences therefrom must he considered in the light most favorable to the nonmoving party. Van Dinter v. City of Kennewick, 121 Wn.2d 38, 44, 846 P.2d 522 (1993); Howard v. Horn, 61 Wn. App. 520, 522, 810 P.2d 1387, review denied, 117 Wn.2d 1011 (1991).

In an action for negligence a plaintiff must prove four basic elements: (1) the existence of a duty, (2) breach of that duty, (3) resulting injury, and (4) proximate cause. Tincani v. Inland Empire Zoological Soc’y, 124 Wn.2d 121, 127-28, 875 P.2d 621 (1994); Howard, 61 Wn. App. at 523; W. Page Keeton et al., Prosser and Keeton on The Law of Torts § 30, at 164-65 (5th ed. 1984). We are concerned here only with the first element.

The threshold determination of whether a duty exists is a question of law. Tincani, 124 Wn.2d at 128; Howard, 61 Wn. App. at 523. The existence of a duty may be predicated upon statutory provisions or on common law principles. Bernethy v. Walt Failor’s, Inc., 97 Wn.2d 929, 932, 653 P.2d 280 (1982); Howard, 61 Wn. App. at 523.

Under the common law of this state a landowner’s duty of care to persons on the land is governed by the entrant’s common law status as an invitee, licensee or trespasser. Tincani, 124 Wn.2d at 128; Ertl v. Parks & Recreation Comm’n, 76 Wn. App. 110, 113, 882 P.2d 1185 (1994), review denied, 126 Wn.2d 1009 (1995). The parties involved in the present case agree, for purposes of the motion for summary judgment, that Jason was an invitee at the time he was injured. Generally, a landowner owes trespassers and licensees only the duty to refrain from willfully or wantonly injuring them, whereas to invitees the landowner owes an affirmative duty to use ordinary care to keep the premises in a reasonably safe condition. Ertl, 76 Wn. App. at .113; Van Dinter v. City of Kennewick, 121 Wn.2d at 41-42.

In the context of landlords and tenants, this means that a landlord has an affirmative obligation to maintain the common areas of the premises in a reasonably safe condition for the tenants’ use. Geise v. Lee, 84 Wn.2d 866, 529 P.2d 1054 (1975) (mobile home park owner who has actual or constructive notice of hazard has a duty to remove dangerous accumulations of ice and snow from common areas). See also RCW 59.20.130(4) (landlord of a mobile home park is required to keep the common areas of the mobile home park free from potentially injurious conditions).

The Restatement (Second) of Torts § 343 (1965) states the rule as follows:

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

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger.

Tincani, 124 Wn.2d at 138; Leonard v. Pay 'n Save Drug Stores, Inc., 75 Wn. App. 445, 447, 880 P.2d 61 (1994).

Where the danger to an invitee is known or obvious, the landowner’s liability is limited by the Restatement (Second) of Torts § 343A(1), which provides:

A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.

Tincani, 124 Wn.2d at 139; Seeco Constr. Co., 35 Wn. App. at 326.

In Tincani we recently held:

In limited circumstances, Restatement (Second) of Torts § 343A creates a duty to protect invitees even from known or obvious dangers. This occurs when a possessor "should anticipate the harm despite such knowledge or obviousness.”

124 Wn.2d at 139 (quoting Restatement (Second) of Torts § 343A(1)).

Thus, under the Restatement and this state’s common law, the landlord in this case had a duty to exercise reasonable care to protect all of the tenants of the mobile home park from unreasonable risks which were not known or obvious. An additional duty would exist if the landlord should have anticipated the harm despite the tenant’s knowledge of the danger or despite the obvious nature of the danger.

The question before us is not whether the landlord met or breached the duty owed to Jason, but rather whether the duty, itself, was excused because of the fact that the potentially dangerous condition included a natural body of water. The father and child claim that the potentially dangerous condition at Majestic Mobile Manor included the size and placement of the play area, the requirement that families with small children live in the area nearest the creek, the steepness of the embankment, and the fast flowing, murky water of Clark’s Creek.

The landlord argues that a "natural bodies of water doctrine” exempts a landowner from the duty to exercise reasonable care to protect against the hazards of bodies of water. In the landlord’s view, this doctrine provides that regardless of the status of the injured party, the landowner, in fulfilling his or her duty to exercise reasonable care, is not required to take affirmative steps to make safe, to warn of its presence or to prevent access to the natural body of water.

We have never recognized a "natural bodies of water doctrine” applicable to all premises liabilities actions. The rule advanced by the landlord as a defense in this case has been applied by this court in attractive nuisance cases; however, it does not apply where the injured party is an invitee.

The attractive nuisance doctrine was developed out of concern for the welfare and safety of children who trespass upon land to take advantage of an attractive, but dangerous, condition. Ochampaugh v. City of Seattle, 91 Wn.2d 514, 518, 588 P.2d 1351 (1979). The general rule is that a landowner owes no duty to a trespasser, except to refrain from causing willful or wanton injury to him. Ochampaugh, 91 Wn.2d at 518. Under the exception known as the attractive nuisance doctrine, if all elements are met, the landowner is liable for physical injury caused by artificial conditions to trespassing children when the landowner "fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.” Ochampaugh, 91 Wn.2d at 519 (quoting Restatement (Second) of Torts § 339(e)).²

In Ochampaugh this court held that the attractive nuisance doctrine does not apply when the hazardous condition is a body of water having natural characteristics. The court looked to the Restatement (Second) of Torts § 339 (attractive nuisance doctrine) and stated:

In a caveat at page 197, and comments j and p, the Restatement declares the prevailing rule to be that a natural condition such as a body of water does not constitute the kind of hazard which this doctrine embraces, in the absence of some factor creating a special risk that the child will not realize the danger and avoid it. One reason for the rule which the Restatement gives is that the hazards of such natural phenomena may reasonably be expected to be understood and appreciated by any child of an age to be allowed at large. Another reason frequently cited, and noted in the Restatement, is that in most cases the burden of improving land in a state of nature in order to make it safe for children would be disproportionately heavy.

Ochampaugh, 91 Wn.2d at 520.

We decline to extend the rule applied in Ochampaugh to cases in which the landowner invites a child on the land. The reasons for exempting the landowner from liability in attractive nuisance cases do not exist where the injured party is an invitee, rather than a trespassing child. First, a child invitee is not the equivalent of the trespasser in an attractive nuisance action but is a guest, specifically invited on the property of the landowner. Second, the landowner’s burden to make the property safe for children is not disproportionately heavy, as a matter of law, where the landowner is profiting from the child’s presence on the land or where the child’s presence has been invited and encouraged.

The landowner’s responsibility to an invitee is based on the invitee’s expectation that the premises have been made safe for the invitee’s visit. Seeco Constr. Co., 35 Wn. App. at 326. An invitee

"enters upon an implied representation or assurance that the land has been prepared and made ready and safe for his reception. He is therefore entitled to expect that the possessor will exercise reasonable care to make the land safe for his entry, or for his use for the purposes of the invitation. He is entitled to expect such care not only in the original construction of the premises, and any activities of the possessor or his employees which may affect their condition, but also in inspection to discover their actual condition and any latent defects, followed by such repair, safeguards, or warning as may be reasonably necessary for his protection under the circumstances.”

35 Wn. App. at 327 (quoting Restatement (Second) of Torts § 343 cmt. b).

With respect to child invitees who are known or are to be reasonably anticipated, the possessor must always keep in mind their age, immaturity, natural curiosity and tendency to get into mischief.

Joseph A. Page, The Law of Premises Liability § 4.13, at 94 (2d ed. 1988). See also Tincani 124 Wn.2d at 140 (distraction, forgetfulness or foreseeable reasonable advantages from encountering the danger are factors which trigger the landowner’s responsibility to warn of, or make safe, a known or obvious danger).

The landlord and amicus curiae Washington Defense Trial Lawyers argue that public policy requires an exemption from liability for injuries resulting from dangers inherent in natural bodies of water. Without such an exemption, they argue, landowners will feel the need to fence or barricade the streams, lakes, rivers and beaches of this state. We do not foresee such a drastic effect as a result of our ruling today. Under the attractive nuisance doctrine, landowners already are protected from the risk of liability to trespassing children who are injured by natural bodies of water. Amicus further argues that the imposition of a duty in this case will result in landowners being substituted for parents in the supervision of children. Meyer v. General Elec. Co., 46 Wn.2d 251, 254, 280 P.2d 257 (1955) (court in an attractive nuisance case held ”[t]he presence of danger to an unattended infant is not necessarily a test of anything but the need of parental care”). First, by this decision we do not make the landowner an insurer of the absolute safety of all invitees; nor do we determine that the parents’ duty of supervising the child is shifted to the landowner. Any failure on the part of a parent to properly supervise a child may go to the issues of contributory fault or proximate cause, but not to whether a duty exists. See Lettengarver v. Port of Edmonds, 40 Wn. App. 577, 581, 699 P.2d 793 (1985).

Where the landowner invites a child on the property for business purposes, the landowner has a duty to take reasonable precautions to make the property safe. See Geise v. Lee, 84 Wn.2d 866, 871, 529 P.2d 1054 (1975).

Once the issue of legal duty is determined, it is the function of the trier of fact to decide whether the particular harm should have been anticipated and whether reasonable care was taken to protect against the harm. Tincani, 124 Wn.2d at 141; Lettengarver, 40 Wn. App. at 581.

Thus, whether the landlord involved in this case should have anticipated and guarded against the harm to young Jason in light of all the circumstances is a question for the jury.

The trial court is reversed and the case is remanded for trial.

Dolliver, Smith, Johnson, Madsen, Alexander, and Talmadge, JJ., and Pekelis, J. Pro Tern., concur.

1 Tlie child, who is now six years old, is represented in this proceeding by his guardian, Plaintiff James Degel.

2 The Restatement (Second) of Torts § 339 provides: "A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if

"(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and

"(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and

"(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and

"(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

"(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.”