Amy Biggs, V. Puget Sound Energy, Inc. ( 2024 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
AMY BIGGS, No. 85010-5-I
Appellant, DIVISION ONE
v. UNPUBLISHED OPINION
PUGET SOUND ENERGY, INC., a
Washington public utility corporation,
Respondent.
FELDMAN, J. — Amy Biggs (Biggs) appeals from a trial court’s summary
judgment order dismissing her premises liability claim against Puget Sound
Energy (PSE). Finding no error, we affirm.
I
Biggs and her husband were staying at the Salish Lodge (Lodge) on
November 24, 2018. Around 8 p.m., after having dinner at the Lodge, Biggs and
her husband walked to the Snoqualmie Falls Park (Park), which is next to the
Lodge, to view Snoqualmie Falls. When they entered the Park, they passed a
sign, which PSE had posted, stating “PARK CLOSED DUSK TIL DAWN.” They
then continued down a stairway, along the pathway, and past another sign, also
posted by PSE, which likewise stated “PARK CLOSED DUSK TIL DAWN.” After
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passing the second sign, Biggs proceeded down a second stairway where she
fell. Biggs suffered a serious injury (a tibial plateau fracture), requiring surgery.
Biggs sued PSE as the owner of the premises and claimed PSE
“negligently failed to maintain the pedestrian area in a reasonably safe condition.”
PSE filed a motion for summary judgment asserting that it “did not owe [Biggs] a
duty of ordinary care at the time of her fall because she was a trespasser as a
matter of law.” Biggs opposed the motion and asserted that she was not a
trespasser when she fell because PSE “impliedly gives permission” for the
“public to enter the Park to view the Falls at night.” To support that argument,
Biggs asserted, among other things, that the pathway was open to the public,
PSE maintains lights along the path and illuminates Snoqualmie Falls after dark,
and PSE had not installed any chains, gates, or other devices prohibiting access
to the Park even though it knows that visitors enter the Park after dusk.
The trial court granted PSE’s motion. The court ruled that Biggs was
“trespassing when she entered the park because there were signs informing her
the park was closed. She walked by those signs. Because she was trespassing,
PSE owed her no duty, except to refrain from [causing] willful and wanton injury
to her. Plaintiff does not allege those occurred.” Biggs appeals.
II
We review summary judgment rulings de novo. Werlinger v. Clarendon
Nat’l Ins. Co., 129 Wn. App. 804, 808, 120 P.3d 593 (2005). Summary judgment
is properly granted when the pleadings and affidavits show there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of
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law. CR 56(c). We review all evidence and reasonable inferences in the light
most favorable to the nonmoving party. Ghodsee v. City of Kent, 21 Wn. App. 2d
762, 768, 508 P.3d 193 (2022). Where reasonable minds could reach but one
conclusion from the admissible facts in evidence, summary judgment should be
granted. Welch v. Brand Insulations, Inc., 27 Wn. App. 2d 110, 114, 531 P.3d
265 (2023).
Under Washington law, landowners owe no duty to trespassers “except to
refrain from causing willful or wanton injury.” Sikking v. Nat’l R.R. Passenger
Corp., 52 Wn. App. 246, 247, 758 P.2d 1003 (1988). Because there is no
evidence or argument that PSE caused willful or wanton injury to Biggs, the
dispositive issue here is whether Biggs was a trespasser at the time of her injury.
The record shows without dispute that at the time of her injury Biggs was walking
on a trail that was open to the public and fell down a stairway that was also open
to the public. In that narrow sense (ignoring any posted notice to the contrary),
Biggs was on PSE’s property with its consent. See Singleton v. Jackson, 85 Wn.
App. 835, 839-40, 935 P.2d 644 (1997) (possessor of property may consent to
entry through conduct, by omission, or by means of local custom, as well as
through oral or written consent).
But such consent can be withdrawn in a variety of ways, including by
posting a sign. We have adopted Comment “e” of the Restatement (Second) of
Torts § 330 (Am. Law Inst. 1965), which squarely addresses that issue. See
Singleton, 85 Wn. App. at 839. It states:
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The consent which is necessary to confer a license to enter land,
may be expressed by acts other than words. Here again the
decisive factor is the interpretation which a reasonable [person]
would put upon the possessor’s acts. Thus one who constructs and
opens a roadway across his land for the benefit of his friends and
neighbors may thereby express his willingness to permit the entry
of strangers who wish to cross the land, unless he posts a notice to
the contrary; and this is true although the possessor in fact intends
to permit the entry only of particular individuals.
RESTATEMENT (SECOND) OF TORTS § 330 cmt. e (emphasis added). The
Restatement thus confirms that while consent may be communicated in
numerous ways—including by conduct or omission—it may also be withdrawn by
posting notice to the contrary.
Division Two’s opinion in Singleton is in accord with these legal principles.
The court there addressed whether Singleton, a Jehovah’s Witness, was a
trespasser when she slipped and fell on the front porch of a house owned by
Jackson and part of which the Colsons (Jackson’s son and daughter-in-law) used
as a business office. 85 Wn. App. at 837. In addition to adopting the legal
principles set forth in the Restatement, as recited above, the court reiterated, “A
‘trespasser,’ for purposes of premises liability, is one ‘who enters the premises of
another without invitation or permission, express or implied, but goes, rather, for
his own purposes or convenience, and not in the performance of a duty to the
owner or one in possession of the premises.’” Id. at 839 (quoting Winter v.
Mackner, 68 Wn.2d 943, 945, 416 P.2d 453 (1966)). The court ultimately
concluded that Singleton was not a trespasser at the time of her injury, in part,
because “[t]here was no evidence that Jackson or the Colsons notified her by
posting signs . . . that she was not welcome.” Id. at 842.
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Here, the record shows, without dispute, that PSE provided the requisite
notice by posting signs that Biggs was not welcome in the Park at the time of her
injury because the Park was “CLOSED DUSK TIL DAWN.” While PSE posted
such signs throughout the Park (and similar information can be found in publicly
accessible websites and PSE’s filings with the Federal Energy Regulatory
Commission), Singleton focuses the inquiry on notice to the alleged trespasser.
See 85 Wn. App. at 842 (examining whether Jackson or Colsons “notified
[Singleton] by posting signs”). Biggs walked past two such signs before her fall.
The signs are clear, unobstructed, and next to the path, and a reasonable person
would interpret these signs as notice of PSE’s intent to prohibit visitors from
entering or remaining in the Park from dusk to dawn. And it is also undisputed
that Biggs entered the Park after dusk (at approximately 8 p.m. in the month of
November). As such, reasonable minds can reach but one conclusion from the
admissible facts in evidence, which is that Biggs did not have PSE’s consent to
be in the Park—and was therefore a trespasser—at the time of her injury.
Notwithstanding the foregoing analysis, Biggs argues that the “signs are
small, cluttered among other signs, and are not conspicuous,” she “did not see”
the signs as she and her husband walked along the path, and “whether the signs
provide an adequate warning is a question of fact precluding summary
judgment.” These arguments fail because the applicable test is an objective one:
“the decisive factor is the interpretation which a reasonable [person] would put
upon the possessor’s acts.” RESTATEMENT (SECOND) OF TORTS § 330 cmt. e
(emphasis added). Washington courts have similarly held that when applying the
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reasonable person standard to a plaintiff’s conduct, “‘the inquiry is whether or not
[the plaintiff] exercised that reasonable care for [their] own safety which a
reasonable [person] would have used under the existing facts and
circumstances.’” Dunnington v. Virginia Mason Med. Ctr., 187 Wn.2d 629, 637-
38, 389 P.3d 498 (2017) (emphasis added) (quoting Rosendahl v. Lesourd
Methodist Church, 68 Wn.2d 180, 182, 412 P.2d 109 (1966)). Applying an
objective standard of reasonableness based on consideration of all the existing
facts and circumstances—including the content, visibility, and placement of the
signs that Biggs admittedly walked past before her fall—no reasonable juror
could conclude that Biggs had PSE’s permission to enter or remain on its
property at the time of her injury. 1
Lastly, Biggs argues that the following evidence shows that PSE either
“impliedly consent[ed]” or “negligently induced” her to believe she had permission
to enter the park: (1) there is a contiguous paved pathway from the Lodge to the
Park that does not give any indication of separate ownership of the two
properties; (2) there are no barriers on the pathway between the Lodge property
and the PSE property along the walkway; (3) PSE illuminates the paved pathway
to the observation deck where guests can view Snoqualmie Falls; and (4) PSE is
aware that the guests who stay at the Lodge visit the Park at night to view the
1 Additionally, even if Biggs’s subjective perspective were relevant here, the record does
not support her assertion that she “did not see” the signs as she and her husband walked along
the path. Biggs did not testify that she never saw a “PARK CLOSED DUSK TIL DAWN” sign
posted by PSE, but rather that “I don’t recall seeing it.” Biggs also testified that she visited the
Park “over 20 times” before her fall, and she admitted that she saw a sign indicating “no drone or
UAV flying allowed,” which is similar in size and placed in close proximity to the “PARK CLOSED
DUSK TIL DAWN” sign that she walked past prior to her fall.
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falls, which PSE illuminates. Even when this evidence is viewed in the light most
favorable to Biggs, it does not show that a reasonable person could properly
conclude that they had PSE’s permission to enter or remain on its property after
dusk and before dawn despite walking past two of PSE’s prominently posted
signs stating “PARK CLOSED DUSK TIL DAWN.”2
III
The trial court correctly ruled that Biggs was a trespasser at the time of
her injury and, as a result, correctly granted summary judgment in PSE’s favor.
We affirm. 3
WE CONCUR:
2 Biggs also argues that even if she were a trespasser, under the “constant trespasser
doctrine” landowners owe a duty to warn trespassers of known, artificial, latent, and dangerous
conditions. Washington has not adopted the “constant trespasser” exception to the general rule
of trespass. Sikking, 52 Wn. App. at 248-49. Nevertheless, Biggs argues that our Supreme
Court’s decision in Clark v. Longview Public Service Co., 143 Wn. 319, 255 P. 380 (1927),
permits us to adopt this exception. Biggs overlooks or ignores the portion of the opinion that
narrows its analysis to possessors of land containing “high-voltage electricity” where the
possessor may have reason to believe trespassers “may come into its proximity.” Id. at 323.
Because no such facts are presented here, we reject this argument.
3 The trial court also ruled, in the alternative, that the recreational use immunity statute
(RCW 4.24.210) applies to PSE and immunizes it from this lawsuit. Because we agree with the
trial court that Biggs was a trespasser when she suffered her injury, we do not reach the immunity
issue.
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