Jerelyn Biorn v. Kennewick School District No. 17 ( 2013 )


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  •                                                                           FILED
    NOV. 26, 2013
    In the Office of the Clerk of Court
    W A State Court of Appeals, Division III
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    DIVISION THREE
    JERELYN BIORN,                               )         No. 30887-1-111
    )
    Appellant,               )
    )
    v.                              )
    )
    KENNEWICK SCH. DIST. NO. 17,                 )         UNPUBLISHED OPINION
    )
    Respondent.              )
    BROWN, J. - Jerelyn Biorn appeals a defense verdict in her slip-and-fall
    negligence suit against Kennewick School District No. 17. She contends the trial court
    erred by denying her motion for judgment as a matter of law and rejecting her proposed
    constructive notice jury instruction. We disagree with Ms. Biorn, and affirm.
    FACTS
    Ms. Biorn worked as a part-time paraeducator at Canyon View Elementary
    School in Kennewick. Most employees parked vehicles in the staff parking lot before
    school began around 8:30 a.m. Ms. Biorn was usually the last employee to arrive
    because she began work around 10:30 a.m.
    On January 5, 2009, Ms. Biorn saw snow accumulation outside, dressed
    accordingly, and drove her vehicle to Canyon View without losing tire traction. At the
    staff parking lot, she saw snow but no ice. She slipped and fell .shortly after parking and
    No. 30887-1-111
    Biom v. Kennewick Sch. Dist. No. 17
    exiting her vehicle. Her impact brushed away a light layer of snow, revealing a slippery
    layer of ice beneath. These layers formed when, beginning around 2:00 a.m.,
    Kennewick experienced rainfall followed by low temperatures and snowfall.
    Under the school district's snow removal policy, custodians and groundskeepers
    remove snow in two phases, completing the walkways and entryways at each school
    during phase one and the parking lots at each school during phase two. Following this
    policy, a custodian began his duties under phase one at Canyon View around 7:00 a.m.
    Likewise, a crew of groundskeepers began their duties under phase one at Canyon
    View sometime after 7:00 a.m. The custodian saw snow in the staff parking lot when he
    parked his vehicle there. But the staff parking lot never presented major concerns
    before and, throughout the morning, the school district received no reports of ice from
    the 65 to 70 employees who parked vehicles there. At the time Ms. Biorn slipped and
    fell, the school district had not yet begun phase two at Canyon View because it was still
    attending to high schools and middle schools, which began earlier.
    Ms. Biorn sued the school district for negligence based on premises liability and
    the case proceeded to trial. At the close of evidence, she moved unsuccessfully for
    judgment as a matter of law on the liability issue. Then, she unsuccessfully proposed a
    constructive notice jury instruction based on Iwai v. State, 
    129 Wash. 2d 84
    , 96, 
    915 P.2d 1089
    (1996) (quoting Pimentel v. Roundup Co., 100 Wn.2d 39,44,666 P.2d 888
    (1983»:
    To demonstrate constructive notice of an unsafe condition, the invitee
    must show that the speCific unsafe condition had existed for such time as
    would have afforded defendant sufficient opportunity, and exercise of
    2
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    Biom y. Kennewick Sch. Dist. No. 17
    ordinary care, to have made proper inspection of premises and to have
    removed the danger.
    Clerk's Papers at 35.
    The jury returned a defense verdict. Ms. Biorn appealed.
    ANALYSIS
    A. Judgment as a Matter of Law
    The issue is whether the trial court erred by denying Ms. Biorn's motion for
    judgment as a matter of law. She contends the court ignored evidence tending to show
    the school district had actual or constructive notice of the dangerous ice beneath the
    snow in the staff parking lot. We review a decision on a motion for judgment as a
    matter of law de novo, applying the same standard as the trial court. Sing v. John L.
    Scott, Inc., 
    134 Wash. 2d 24
    , 29, 
    948 P.2d 816
    (1997); Hill v. BCT/lncome Fund-I, 
    144 Wash. 2d 172
    , 187,23 P.3d 440 (2001), overruled on other grounds by McClarty v. Totem
    Elec., 
    157 Wash. 2d 214
    , 
    137 P.3d 844
    (2006).
    Judgment as a matter of law is proper if "viewing the evidence most favorable to
    the nonmoving party, the court can say, as a matter of law, there is no substantial
    evidence or reasonable infe"rence to sustain a verdict for the nonmoving party.,,1 
    Sing, 134 Wash. 2d at 29
    (citi~g Indus. Indem. Co. of the Nw. v. Kallevig, 
    114 Wash. 2d 907
    , 915­
    16,
    792 P.2d 520
    (1990»; see CR 50(a)(1). A motion for judgment as a matter of law
    1 Substantial evidence is a "sufficient quantum to persuade a fair-minded,
    rational person of the truth cif a declared premise." Helman v. Sacred Heart Hosp., 62
    Wn.2d 136,147,381 P.2d 605 (1963). Thus, evidence sustaining a verdict for the
    nonmoving party must "convince 'an unprejudiced, thinking mind'" to be substantial.
    Indus. Indem. Co. of the Nw. v. Kallevig, 
    114 Wash. 2d 907
    , 916, 
    792 P.2d 520
    (1990)
    (quoting Hojem v. Kelly, 
    93 Wash. 2d 143
    , 145,606 P.2d 275 (1980».
    3
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    Biom v. Kennewick Sch. Dist. No. 17
    "admits the truth of the [nonmoving party's] evidence and all inferences which can
    reasonably be drawn therefrom, and requires that the evidence be interpreted most
    strongly against the moving party and in a light most favorable to the [nonmoving
    party]." Davis v. Early Constr. Co., 
    63 Wash. 2d 252
    , 254,386 P.2d 958 (1963). We defer
    to the jury on issues of witness credibility and evidence weight or persuasiveness.
    Fau'st v. Albertson, 
    167 Wash. 2d 531
    , 538, 
    222 P.3d 1208
    (2009).
    A negligence suit requires proof the defendant breached a duty of care owed to
    the plaintiff and, thereby, proximately caused the plaintiff to suffer a compensable injury.
    See Pedroza v. Bryant, 
    101 Wash. 2d 226
    , 228, 
    677 P.2d 166
    (1984); Hansen v. Wash.
    Natural Gas Co., 
    95 Wash. 2d 773
    , 776, 
    632 P.2d 504
    (1981). A person is negligent if he
    or she fails to exercise ordinary care-the degree of care a person of ordinary prudence
    would exercise in the same or similar circumstances. La Moreaux v. Fosket, 45 Wn.2d .
    249, 255,273 P.2d 795 (1954). Thus, a person is negligent if he or she does something
    a reasonable person would not do or fails to do something a reasonable person would
    do in such situations. Sys. Tank Lines, Inc. v. Dixon, 
    47 Wash. 2d 147
    , 151,286 P.2d 704
    (1955).
    A land possessor's duty of care depends on the land entrant's common law
    classification as an invitee, licensee, or trespasser. Younce v. Ferguson, 106 Wn.2d
    658,659,662-63,667,724 P.2d 991 (1986). The parties agree Ms. Biorn was a
    business invitee. 2 A land possessor owes a business invitee a duty to exercise ordinary
    2 A business invitee is a person expressly or impliedly invited onto the premises
    for some purpose connected to the land possessor's business interest or benefit.
    . McKinnon v. Wash. Fed. Say. & Loan Ass'n, 
    68 Wash. 2d 644
    , 649-50, 
    414 P.2d 773
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    No. 30887-1-111
    Biom v. Kennewick Sch. Dist. No. 17
    care for the invitee's safety by keeping the premises reasonably safe for his or her
    anticipated use. Miniken v. Carr, 
    71 Wash. 2d 325
    , 327-28,428 P.2d 716 (1967); Enerson
    v. Anderson, 
    55 Wash. 2d 486
    , 489, 
    348 P.2d 401
    (1960); see also Tincani v. Inland
    Empire Zoological Soc'y, 
    124 Wash. 2d 121
    , 139,875 P.2d 621 (1994) (explaining
    reasonable care requires the possessor to "inspect for dangerous conditions, 'followed
    by such repair, safeguards, or warning as may be reasonably necessary for [the
    invitee's] protection under the circumstances'" (alteration in original) (quoting
    RESTATEMENT (SECOND) OF TORTS      § 343 cmt. b (1965))).
    Where the premises contain a dangerous condition not caused by the land
    possessor, the possessor's duty regarding the danger arises when he or she receives
    actual or constructive notice of it. See 
    Pimentel, 100 Wash. 2d at 39
    ; Wiard v. Mkt.
    Operating Corp., 
    178 Wash. 265
    , 268, 
    34 P.2d 875
    (1934); see also 
    Tincani, 124 Wash. 2d at 138
    (explaining premises liability attaches after the possessor '''knows or by the
    exercise of reasonable care would discover the condition, and should realize that it
    involves an unreasonable risk of harm to ... invitees'" (quoting RESTATEMENT (SECOND)
    OF TORTS   § 343(a»). Actual notice arises if the danger is called to the possessor's
    attention and knowledge. Constructive notice arises if the condition "existed for such
    time as would have afforded [the possessor] sufficient opportunity, in the exercise of
    ordinary care, to have made a proper inspection of the premises and to have removed
    the danger." Smith v. Manning's, Inc., 
    13 Wash. 2d 573
    , 580, 
    126 P.2d 44
    (1942); see
    Wiard, 178 Wash. at 268.
    (1966) (quoting RESTATEMENT (SECOND) OF TORTS § 332 (1965»; Gamer v. Pac. Coast
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    No. 30887-1-111
    Biom v. Kennewick Sch. Dist. No. 17
    Here, viewed in the light most favorable to the school district, the evidence shows
    when Ms. Biorn slipped and fell the school district had no more than general awareness
    of earlier precipitation and low temperatures in the staff parking lot. And, this general
    awareness persisted for about three and one-half hours, during which the school district
    actively complied with its snow removal policy. The snow concealed the dangerous ice.
    The staff parking lot never presented major concerns before and, throughout the
    morning, the school district received no reports of ice from the 65 to 70 employees who
    parked vehicles there.
    A rational jury could reasonably conclude the dangerous ice beneath the snow
    had not been called to the school district's attention and knowledge. Cf. 
    Iwai, 129 Wash. 2d at 97-98
    (requiring more than a general awareness of earlier precipitation and
    low temperatures in a parking lot); Ford v. Red Lion Inns, 
    67 Wash. App. 766
    , 773, 
    841 P.2d 49
    {1992) (requiring more than the mere fact of snow and ice accumulation in a
    parking lot). Further, a rational jury could reasonably conclude the condition had not
    existed long enough for the school district to inspect the staff parking lot and remove the
    danger in the exercise of ordinary care. Cf. Mucs; v. Graoch Assocs. Ltd. P'ship No.
    12, 
    144 Wash. 2d 847
    , 862, 
    31 P.3d 684
    (2001) (concluding two to three days was long
    enough as to a side exit); Leonard v. Pay'n Save Drug Stores, 
    75 Wash. App. 445
    , 451­
    52, 
    880 P.2d 61
    (1994) (concluding four to five days was long enough as to a sidewalk);
    Maynard v. Sisters of Providence, 
    72 Wash. App. 878
    , 879, 883, 
    866 P.2d 1272
    (1994)
    (concluding two to four days was long enough as to a parking lot). Thus, substantial
    Coal Co., 
    3 Wash. 2d 143
    , 148, 
    100 P.2d 32
    (1940).
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    No. 30887-1-111
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    evidence exists to sustain a verdict for the. school district on the issues of actual and
    constructive notice.. Therefore, the trial court did not err by denying Ms. Biorn's motion
    for judgment as a matter of law.
    B. Constructive Notice Instruction
    The issue is whether the trial court erred by rejecting Ms. Biorn's proposed
    constructive notice jury instruction. She contends the court prevented her from arguing
    her case theory and misinformed the jury regarding the law it must apply. "[A1 trial court
    has considerable discretion in [deciding] how the instructions will be worded and
    whether the rules contained in general instructions will be or should be repeated in
    specific instructions in more detail." Roberts v. Goerig, 
    68 Wash. 2d 442
    , 455, 
    413 P.2d 626
    (1966). Thus, we review such decisions for abuse of discretion. 3 See Gammon v.
    Clark Equip. Co., 104 Wn.2d 613,617,707 P.2d 685 (1985); Peterson v. State, 
    100 Wash. 2d 421
    , 441,671 P.2d 230 (1983).
    Jury instructions are sufficient if they allow the parties to argue their case
    theories, do not mislead the jury and, as a whole, properly inform the jury of the law it
    must apply. Brown v. Spokane County Fire Prot. Dist. No.1, 
    100 Wash. 2d 188
    , 194, 
    668 P.2d 571
    (1983). A trial court may reject a proposed instruction that is cumulative or
    repetitious of instructions given, or that would tend to confuse rather than aid the jury.
    3 A trial court abuses its discretion if its decision is "manifestly unreasonable,"
    based on "untenable grounds," or made for "untenable reasons." State ex reI. CaITo11 v.
    Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971); see also In re MaITiage of Littlefield, 133
    Wn.2d 39,47,940 P.2d 1362 (1997) ("A court's decision is manifestly unreasonable if it
    is outside the range of acceptable choices, given the facts and the applicable legal
    standard; it is based on untenable grounds if the factual findings are unsupported by the
    7
    No. 30887-1-111
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    See State v. Benn, 
    120 Wash. 2d 631
    , 655,845 P.2d 289 (1993); Mathias v. Eichelberger,
    
    182 Wash. 185
    , 192-93, 45'p.2d 619 (1935).
    In rejecting Ms. Biorn's proposed instruction, the trial court reasoned the pattern
    instructions it previously accepted upon her request adequately incorporated the
    concept of constructive notice without using legal jargon. 4 The court's assessment is
    sound. See 6A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL
    120.06.02 & cmt. at 20-21,120.07 & cmt. at 26-27 (6th ed. 2012). Therefore, we
    record; it is based on untenable reasons if it is based on an incorrect standard or the
    facts do not meet the requirements of the correct standard.") .
    . 4 Specifically, the trial court mentioned instructions 7 and 10, which stated,
    As owner of the premises, Kennewick School District is liable for
    any physical injuries to its business invitees caused by a condition on the
    premises if the owner, Kennewick School District,
    (A) knows of the condition or fails to exercise ordinary care to
    discover the condition and should realize that this involves an
    unreasonable risk of harm to such business invitees,
    (B) should expect that they should not discover or realize the
    danger or will fail to protect themselves against it, and
    (C) fails to exercise ordinary care to protect them against the
    danger.
    An owner of a premises has a duty to correct a temporary, unsafe
    condition of the premises that was not created by the owner and that was
    not caused by the negligence on the part of the owner if the condition was
    either brought to the actual attention of the owner or existed for a sufficient
    length of time and under such circumstances that the owner should have
    discovered it in the exercise of ordinary care.
    Report of Proceedings at 179-80 (emphasis added). Ms. Biorn proposed language
    identical or nearly identical to these instructions. Therefore, the invited error doctrine
    precludes her from challenging the sufficiency of these instructions. See Ball v. Smith,
    
    87 Wash. 2d 717
    , 720,556 P.2d 936 (1976) ("A party may not request an instruction and
    later complain on appeal that such requested instruction was given." (citing Vangemert
    v. McCalmon, 
    68 Wash. 2d 618
    , 625, 
    414 P.2d 617
    (1966))).
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    conclude the court did not abuse its discretion in rejecting her proposed instruction as
    cumulative, repetitious, and confusing, and did not err.
    Affirmed.
    A majority of the panel has determined this opinion will not be printed in the
    Washington Appellate Reports, but it will be 'filed for public record pursuant to RCW
    2.06.040.
    Brown, J.
    WE CONCUR:
    Kulik, J.
    9