Christopher Parsons v. Estate Of Helen Parsons ( 2016 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CHRISTOPHER PARSONS, No. 72859-8-1
Appellant, DIVISION ONE
ESTATE OF HELEN PARSONS, UNPUBLISHED
deceased, by THEODORE H.
PARSONS III and LAURA E. HOEXTER FILED: March 14, 2016
as co-Personal Representatives for the
Estate of Helen Parsons,
Respondents.
Cox, J. — Christopher Parsons appeals the grant of summary judgment in
favor of the estate of Helen Parsons. There are no genuine issues of material
fact, and the estate is entitled to judgment as a matter of law. Parsons argues
that the trial court abused its discretion by denying his oral motion to amend the
complaint to add a new claim following the court's oral grant of the summary
judgment. He is wrong. We affirm in all respects.
This is a personal injury action that arises from Parsons's fall from a ranch
house roof that the estate of Helen Parsons, deceased, owns. Theodore
Parsons, the estate's personal representative, is Christopher Parsons's brother.
We refer to the personal representative as "Theodore" to avoid confusion.
No. 72859-8-1/2
Parsons lived in the house for about 20 years, rent free, to maintain a
presence on the property. As "caretaker," Parsons conducted general property
maintenance. He also conducted roof repairs as needed: patching, tarping, and
replacing shingles. He purchased the necessary materials without
reimbursement. Parsons did not pay either the utilities or property taxes for the
property.
In April 2011, Parsons went onto the roof to replace a tarp, which was
there to protect the house from rain. It appears the roof needed repairs since
2006 due to falling trees.
He "misstep[ped]," fell, and sustained personal injuries from the fall.
There is no indication in the record that what caused Parsons to "misstep" was
hidden.
He commenced this action in September 2013. His complaint for
damages asserts that the estate is his employer. It also asserts that the estate is
a property owner under the common law. Finally, it asserts the estate is a
contractor. Based on these assertions and others, he contended the estate
owed him various duties, the breach of which proximately caused his damages.
In October 2014, the estate moved for summary judgment. At the hearing,
the trial judge orally granted the estate's motion. Following this, Parsons orally
moved to amend his complaint to add a new claim for breach of fiduciary duty
against Theodore. The trial court orally denied this motion, stating it was
"procedurally out of order."
Parsons appeals.
No. 72859-8-1/3
PERSONAL INJURY CLAIM DISMISSAL
Parsons asserted a personal injury claim in his complaint for damages.
He argues that the estate owed him a duty of care. Because none of the legal
theories asserted in the complaint raise any genuine issues of material fact, and
the estate is entitled to judgment as a matter of law, we disagree.
Summary judgment is proper only when "there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law."1 "A
genuine issue of material fact exists when reasonable minds could differ on the
facts controlling the outcome of the litigation."2 This court draws all reasonable
inferences in favor of the nonmoving party and reviews the evidence in the light
most favorable to that party.3
We review de novo a trial court's grant of summary judgment.4
Here, the complaint states several alternative legal grounds for liability.
Parsons asserts the estate is an "employer," who violated the Washington
Industrial Safety and Health Act (WISHA) by forcing him to repair the roof of the
house owned by the estate. He also claims the estate, as "property owner,"
owes him a duty under the common law. He finally claims the estate is a
"general contractor," who violated WISHA. We now address each of these
theories.
1 Rose v. Anderson Hav & Grain Co.. 184 Wash. 2d 268, 286, 358 P.3d 1139
(2015); see also CR 56(c).
2 Dowler v. Clover Park Sch. Dist. No. 400. 172 Wash. 2d 471, 484, 258 P.3d 676
(2011).
3 Rickman v. Premera Blue Cross. 184 Wash. 2d 300, 311, 358 P.3d 1153 (2015).
4 Rose. 184Wn.2dat286.
No. 72859-8-1/4
Duty to Maintain a Safe Workplace
Parsons argues that the estate owed him a duty to maintain a safe
workplace as an employer orjobsite owner. Duty is one of the elements that he
must prove for this tort claim. It is a legal question that we review de novo.5 He
fails to show that the estate owed him any duty.
Under WISHA, an "employer" is:
any person, firm, corporation, partnership, . . . legal representative,
or other business entity which engages in any business, industry,
profession, or activity . . . and employs one or more employees or
who contracts with one or more persons, the essence of which is
the personal labor of such person or persons . . . .[6]
Although "business" is not defined in the statute, a "business" is "[a]
commercial enterprise carried on for profit."7
WISHA requires employers to "comply with two distinct duties."8 The
second duty "runs to any employee who may be harmed by the employer's
violation of the safety rules."9
This "duty does not require a direct employment relationship."10 "[Wjhere
a principal retains control over 'some part of the work,' [Washington courts]
disregard the 'independent contractor' designation and require the principal... to
5 Garrison v. Saqepoint Fin.. Inc.. 185 Wash. App. 461, 485, 345 P.3d 792, review
denied. 183 Wash. 2d 1009 (2015).
6 RCW 49.17.020(4).
7 Black's Law Dictionary 239 (10th ed. 2014).
8 Afoa v. Port of Seattle. 176 Wash. 2d 460, 470, 296 P.3d 800 (2013).
9 Id. at 471 (emphasis omitted).
10 Id. at 473.
No. 72859-8-1/5
maintain safe common workplaces for all workers on the site."11 Jobsite owners
must also "comply with WISHA regulations if they retain control over the manner
and instrumentalities of work being done on the jobsite."12
When determining whether a person retains control, "the proper inquiry [is]
whether there is a retention of the right to direct the manner in which the work is
performed, not simply whether there is an actual exercise of control. . . ."13 For
example, a party retains control if it supplies safety equipment and actively
supervises and actually controls all safety activities.14 "'It is not enough that [the
employer] has merely a general right to order the work stopped . . . , to inspect its
progress . . . , to make suggestions . . . which need not necessarily be followed,
or to prescribe alterations and deviations.'"15 "There must be such a retention of
a right of supervision that the contractor is not entirely free to do the work in his
own way.'"16
"Employment status is a mixed question of fact and law."17 "Where the
facts are disputed, the determination of employment status is properly a question
11 [d, at 477 (quoting Kellev v. Howard S. Wright Constr. Co.. 90 Wash. 2d 323, 330,
582 P.2d 500 (1978)).
12 ]d at 472.
13 Kamla v. Space Needle Corp.. 147 Wash. 2d 114, 121, 52 P.3d 472 (2002).
14 See Kinnev v. Space Needle Corp.. 121 Wash. App. 242, 247, 85 P.3d 918
(2004).
15 Kamla. 147 Wash. 2d at 121 (quoting Restatement (Second) of Torts § 414
cmt. c(1965)).
16 id (quoting Restatement (Second) of Torts § 414 cmt. c).
17 Anfinson v. FedEx Ground Package Svs.. Inc.. 159 Wash. App. 35, 72, 244 P.3d
32 (2010), affd, 174 Wash. 2d 851, 281 P.3d 289 (2012).
No. 72859-8-1/6
for the trier of fact."18 "A party prevails on its motion for summary judgment if the
evidence . . . shows that there is no genuine issue of material fact regarding
retained control."19
Here, the estate did not owe Parsons a duty to maintain safe working
conditions under WISHA. The estate does not fall within the employer definition
because it does not engage in any "business, industry, profession, or activity," as
the statute requires.20 Likewise, it does not employ "one or more employees."21
Thus, the plain words of the WISHA statute do not apply to the estate. There
simply is no duty. Accordingly, no factual dispute is material for summary
judgment purposes.
To the extent further inquiry is warranted, Parsons also failed to
demonstrate that the estate retained the right to control the manner and
instrumentalities of his attempt to fix the roof. He maintained the roof as needed
and purchased the materials without reimbursement from the estate. Parsons
even stated that Theodore "rarely" inspected the home or made
"recommendations for needed repairs." He also stated that Theodore "never
gave . . . any instruction as to how to do the work on the roof." The record does
not show that Theodore directed Parsons to climb the roof, how and when to
repair the roof, or which materials to use. These facts are fatal to Parsons's
18 ]d
19 Humes v. Fritz Cos.. Inc.. 125 Wash. App. 477, 492, 105 P.3d 1000 (2005).
20 RCW 49.17.020(4).
21 id
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No. 72859-8-1/7
claim. There is no genuine issue of material fact: the estate did not owe him a
duty to maintain a safe work site. Summary judgment was appropriate.
Parsons argues that the estate retained control over the manner in which
the roof was repaired. He argues that this control is demonstrated by Theodore's
rejection of Parsons's request to hire a professional roofer and his instruction to
Parsons to "climb the roof and do the work himself." But Theodore's rejection of
Parsons's request does not show that Theodore retained "'a right of supervision'"
in such a way that Parsons was "'not entirely free to do the work in his own
way.'"22
Parsons also argues that the estate owed him a duty of care because he
was "required" to live in the house to maintain it for the "business of selling" the
house. To support this argument, he argues that Theodore's compensation for
his services is "tantamount to a business activity." Parsons cites no authority for
this argument, and we need not further consider it.23
Premises Liability
Parsons argues that the estate owed him a duty of care as landowner. It
did not.
22 Kamla. 147 Wash. 2d at 121 (quoting Restatement (Second) of Torts § 414
cmt. c).
23 See Darkenwald v. Emp't Sec. Dep't. 183 Wash. 2d 237, 248, 350 P.3d 647
(2015); RAP 10.3(a)(6).
No. 72859-8-1/8
"[T]he test in a premises liability action is whether one is the 'possessor' of
property, not whether someone is a 'true owner' (the titleholder) of property."24
The determinative issue is whether a party "actually possessed the premises."25
The Restatement (Second) of Torts provides that a possessor of land is:
(a) a person who is in occupation of the land with intent to
control it or
(c) a person who is entitled to immediate occupation of the
land, if no other person is in possession under Clause[] (a). . . .[26]
One who assumes control and management of property, but does not
have title, '"cannot escape liability for injuries resulting from its defective
condition.'"27 Genuine issues of material fact regarding a party's possession and
control of property may be found if that party makes repairs and managerial
decisions, pays utility bills and repair costs, and collects rent.28 But rent
collection, by itself, does not establish possession and control.29
Here, the estate did not possess the ranch house when Parsons was
injured. Parsons lived in the house for 20 years and conducted general property
maintenance. He purchased the materials he needed to repair the roof, without
24 Gildon v. Simon Prop. Grp. Inc.. 158 Wash. 2d 483, 496, 145 P.3d 1196 (2006).
25 Coleman v. Hoffman, 115 Wash. App. 853, 859, 64 P.3d 65 (2003).
26 Restatement (Second) of Torts § 328E (1965).
27 Coulson v. Huntsman Packaging Prods. Inc., 121 Wash. App. 941, 945, 92 P.3d
278 (2004) (quoting Fitchett v. Buchanan. 2 Wash. App. 965, 972, 472 P.2d 623 (1970)).
28 See Coleman. 115 Wash. App. at 862-63.
29 [d at 862.
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No. 72859-8-1/9
reimbursement from the estate, and repaired the roof when he determined it was
necessary. He also allowed a friend to live on the property, rent free.
Based on these facts, Parsons falls within the definition of possessor
under section (a) of the Restatement (Second) of Torts. Accordingly, the estate
was not a possessor under section (c). Thus, there is no genuine issue of
material fact over possession of the ranch house. Summary judgment was
appropriate.
Parsons argues, without citation to authority, that the "role of actual
possession ... is subordinate to the question of who had the paramount right
and duty to possess and control the property." Because Parsons cites no
authority for this argument, we need not further consider it.30
Landlord Duty
Parsons argues that "a material issue of disputed fact" exists whether the
estate satisfied its duty as a landlord. He is wrong again.
A tenant may sue a landlord "under any of three legal theories: the
[Residential Landlord Tenant Act (RLTA)], the rental agreement, or the common
law."31
It is important to remember that Parsons's complaint for damages
asserted a claim for relief under the common law against the estate as
landowner. He did not assert any claim based on the RLTA or any rental
agreement. Moreover, in his reply to the estate's motion for summary judgment,
30 See Darkenwald. 183 Wash. 2d at 248; RAP 10.3(a)(6).
31 Landis & Landis Constr.. LLC v. Nation, 171 Wash. App. 157, 162, 286 P.3d 979
(2012).
No. 72859-8-1/10
he cited a case based on the common law duty of a landlord to its tenants—
Mucsi v. Graoch Associates Limited Partnership No. 12.32 Thus, only the
common law duty is at issue here.
In Mucsi, a tenant was injured by falling on snow and ice located in the
common area of a building. The supreme court discussed a landowner's
common law duty to a tenant under the Restatement (Second) of Torts section
343:
[A] landowner is subject to liability for harm caused to his tenants
by a condition on the land, if the landowner (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
tenants; (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 the tenant against
danger.'331
This record demonstrates that there is no evidence of the second of the
three conditions for landlord liability under the common law. There is nothing in
this record to show that the roof condition was hidden or that the estate had any
reason to expect that Parsons would fail to discover the condition. Absent such a
showing, no factual dispute is material.
MOTION TO AMEND COMPLAINT
Parsons argues that the trial court abused its discretion by denying his
oral motion to amend his complaint to add a new claim following the oral grant of
summary judgment to the estate. We hold that the court properly exercised its
discretion.
32 -|44 Wn 2d 847, 31 P.3d 684 (2001).
33 ]d at 855-56 (emphasis added).
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No. 72859-8-1/11
CR 15(a) governs pleading amendments and provides that the moving
party "shall" attach a proposed amended pleading to the motion. "The use of the
word 'shall' is a mandatory directive."34 This requirement provides parties with
adequate notice of the basis for claims asserted against them, facilitates proper
decisions on the merits, and allows amendment except where it would result in
prejudice to the opposing party.35 "The touchstone for the denial of a motion to
amend is the prejudice such an amendment would cause to the nonmoving
party.'"36
Factors courts may consider "'in determining whether permitting
amendment would cause prejudice include undue delay [and] unfair surprise.'"37
Undue delay "constitutes grounds to deny a motion to amend only where such
delay works undue hardship or prejudice upon the opposing party."38 "But
'[w]hen a motion to amend is made after the adverse granting of summary
judgment, the normal course of proceedings is disrupted and the trial court
should consider whether the motion could have been timely made earlier in the
litigation.'"39
34 Planned Parenthood of Great Nw. v. Bloedow, 187 Wash. App. 606, 622, 350
P.3d 660 (2015).
35 Wilson v. Horslev. 137 Wash. 2d 500, 505, 974 P.2d 316 (1999).
36 Cambridge Townhomes. LLC v. Pac. Star Roofing. Inc.. 166 Wash. 2d 475, 484,
209 P.3d 863 (2009) (quoting Wilson. 137 Wash. 2d at 505-06).
37 id
38 Oliver v. Flow Int'l Corp.. 137 Wash. App. 655, 664, 155 P.3d 140 (2006).
39 Enslev v. Mollmann, 155 Wash. App. 744, 759, 230 P.3d 599 (2010) (alteration in
original) (quoting Doyle v. Planned Parenthood of Seattle-King County. Inc., 31 Wn.
App. 126, 130-31, 639 P.2d 240 (1982)).
11
No. 72859-8-1/12
We review for abuse of discretion the denial of a motion to amend.40
In Hook v. Lincoln County Noxious Weed Control Board, the appellant
sought leave to amend his complaint, without submitting a proposed amended
complaint, after the order granting summary judgment for the respondents was
presented.41 He did not comply with the rule, and the trial court denied his
motion.42 Division Three of this court stated that both the trial court and
respondents had "a legitimate need to see the proposed amended pleading in
order to address and assess relevant issues of prejudice .. . ."43 The court also
recognized that the respondents were prejudiced by the appellant's request "to
file an as-yet unprepared amended complaint."44 Thus, the court determined that
the appellant's "failure to [comply with]. . . CR 15(a) was a sufficient basis for
denying the motion."45
Here, the trial court did not abuse its discretion in denying Parsons's oral
motion to amend his complaint to add a new claim. First, CR 15(a) required that
Parsons attach a proposed amended complaint to his motion. Obviously, the
rule contemplates a written motion, not an oral one. He failed to comply with this
40 See Cambridge Townhomes. LLC. 166 Wash. 2d at 483.
41 166 Wash. App. 145, 150, 269 P.3d 1056 (2012).
42 id
43 id at 159.
44 id at 160.
45 id
12
No. 72859-8-1/13
rule, and the trial court denied his motion, stating it was "procedurally out of
order."
As stated in Hook, the estate had "a legitimate need to see the proposed
amended pleading in order to address and assess relevant issues of prejudice . .
. ,"46 On this basis alone, the trial court's ruling was correct.
To the extent there is any need for additional inquiry, it is clear that the
trial court could reasonably have determined that allowing the amendment would
create prejudice. The discovery cutoff date was 31 days after the summary
judgment hearing and the trial date was less than three months away.
Further, Parsons's original complaint did not plead any breach of fiduciary
claim. As the trial court made clear during its oral ruling on the motion for
summary judgment, such a claim was not then before the court. And there is
nothing in this record to explain why Parsons could not earlier have moved to
amend the complaint to add this new claim.
Parsons argues that new witnesses or evidence were not required for the
new claim. He specifically argues that his new claim related to Theodore's duties
and that these duties were intrinsic to the claims and defenses of the case. But
Parsons offers no support for these conclusory assertions, and we simply
disagree with them.
Parsons also argues that actual prejudice, including undue delay and
unfair surprise, was not offered as a "serious concern." Again, we simply
disagree for the reasons we already stated.
46]dat159.
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No. 72859-8-1/14
MOTION TO STRIKE
Finally, the estate moved to strike from the record Parsons's motion for
reconsideration of the order granting summary judgment. At oral argument of
this case, the parties clarified that the trial court never considered this motion.
Accordingly, there is no ruling for us to review. We have disregarded the object
of the estate's motion. Thus, there is no need to grant the motion to strike.
We affirm the summary judgment order and the denial of the oral motion
to amend the complaint. We deny the motion to strike.
^7X,J-
WE CONCUR:
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