Remy Dubreus, Apps v. Lake Forest Estates Homeowners' Assoc., Resps

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
REMY DUPREUS, Ritchy Valmont’s
father, individually and as Personal )
Representative of the Estate of RITCHY)
VALMONT, and MELODIE VALMONT, ) No. 78175-8-I
Ritchy’s Valmont’s mother, individually )
) DIVISION ONE
Appellants, )
)
v.
)
LAKE FOREST ESTATES )
HOMEOWNERS’ ASSOCIATION, a )
domestic corporation, and CHARLES S.)
SANTILLIAN,t JR., and ANGELA E. )
SANTILLIAN, individually and the marital)
community comprised thereof, ) UNPUBLISHED OPINION
Respondents, ) FILED: July 1, 2019
)
and
)
DOUGLASS A. MILLER and SARAH )
MILLER, individually and the marital )
community composed thereof, )
Defendants.
__________________________________________________________________________________)
SMITH, J. —A day after his fourteenth birthday, Ritchy Valmont, who could
not swim, tragically drowned in Lake Wilderness. His family’s lawsuit against the
Lake Forest Estates Homeowners Association (LFEHOA) and Charles and
Angela Santillan was dismissed on summary judgment. Because neither the
t The amended complaint incorrectly spelled the respondents’ last name.
The correct spelling, ‘Santillan,” will be used in this opinion.
No. 78175-8-1/2
LFEHOA nor the Santillans had a duty to warn Ritchy of the open and obvious
danger the lake posed to a person who could not swim, we affirm.
FACTS
On June 23, 2015, Devon Miller invited Ritchy to attend his fourteenth
birthday party at a lakefront park owned and maintained by the LFEHOA. Ritchy
had turned 14 years old the day before. Devon’s parents, Douglass and Sarah
Miller (the Millers), were renting a home from the Santillans, members of the
LFEHOA. As renters in the LFEHOA, Devon and his parents had access to the
gated lakefront park, which is intended for use by members and their guests.
Devon, Ritchy, and several other boys entered the park, although the
parties dispute whether they did so with a key or by jumping the fence. After
entering the gate, on the way to the lake, they passed a kiosk with signs warning,
“Danger[,] Do Not Swim Under Dock” and “No Lifeguard[,] Swim at Your Own
Risk.” Once they got to the lakefront, Devon and the other boys started to swim
off of an L-shaped dock that extended 25 feet into the lake. Another sign in front
of the dock warned, “No Lifeguard Swim at Your Own Risk.” Ritchy did not know
how to swim but removed his shirt, socks, and shoes, and joined the other boys
on the dock. Although witness accounts differ as to whether Ritchy jumped, fell,
or was pushed, he entered the water off of the lake side of the dock. Ritchy
struggled in the water. His friends tried to help him but were unable to, and he
sank. The boys called for help and an off-duty police officer who was in the park
came to help. The officer dove after Ritchy and attempted to bring him to the
surface but could not find him. Forty minutes later, a dive team recovered Ritchy
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25 to 30 feet below the surface. Although he had a pulse when he was pulled
from the water, Ritchy later died at the hospital.
Ritchy’s parents, Remy Dupreus and Melodie Valmont, on their own
behalves, and Dupreus, on behalf of Ritchy’s estate (collectively Ritchy’s family)
sued the Millers, the Santillans, and the LFEHOA for negligence. The Millers
settled with Ritchy’s family, and the trial court dismissed them from the lawsuit.
The LFEHOA moved for summary judgment, arguing that it owed no duty to
Ritchy. Shortly thereafter, the Santillans separately moved for summary
judgment, also arguing that they owed no duty to Ritchy. The trial court granted
both motions. Ritchy’s family appeals.
NEGLIGENCE
Ritchy’s family argues that the trial court erred in granting summary
judgment to the LFEHOA and the Santillans on their negligence claims. We
disagree.
We review summary judgment orders de novo. Hadley v. Maxwell, 144
Wash. 2d 306, 310-11, 27 P.3d 600 (2001). ‘[Sjummary judgment is appropriate
where there is ‘no genuine issue as to any material fact and . . . the moving party
is entitled to a judgment as a matter of law.” Elcon Constr., Inc. v. E. Wash.
Univ., 174 Wash. 2d 157, 164, 273 P.3d 965 (2012) (second alteration in original)
(quoting CR 56(c)). Although the evidence is viewed in the light most favorable
to the nonmoving party, if that party is the plaintiff and he fails to make a factual
showing sufficient to establish an element essential to his case, summary
judgment is warranted. Young v. Key Pharms., Inc., 112 Wash. 2d 216, 225, 770
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No. 78175-8-114
P.2d 182 (1989). Once the moving party shows there are no genuine issues of
material fact, the nonmoving party must bring forth specific facts to rebut the
moving party’s contentions. Elcon Constr., 174 Wash. 2d at 169. Summary
judgment is proper “only if reasonable persons could reach only one conclusion
from all of the evidence.” Hansen v. Friend, 118 Wash. 2d 476, 485, 824 P.2d 483
(1992).
To establish a cause of action for negligence, a plaintiff must demonstrate
that (1) the defendant owed the plaintiff a duty, (2) the defendant breached that
duty, (3) damages resulted, and (4) the defendant’s breach proximately caused
the damages. Tincani v. Inland Empire Zoological Soc’y, 124 Wash. 2d 121, 127-
28, 875 P.2d 621 (1994). “The threshold determination of whether the defendant
owes a duty to the plaintiff is a question of law.” Tincani, 124 Wash. 2d at 128.
“Under common law premises liability, a landowner owes differing duties to
entrants onto land depending on the entrant’s status as a trespasser, a licensee,
or an invitee.” Afoa v. Port of Seattle, 176 Wash. 2d 460, 467, 296 P.3d 800 (2013).
When the facts regarding entry onto the landowner’s property are undisputed,
legal status and the duty owed are questions of law. Degel v. Maiestic Mobile
Manor, Inc., 129 Wash. 2d 43, 48, 914 P.2d 728 (1996); Beebe v. Moses, 113 Wn.
App. 464, 467, 54 P.3d 188 (2002).
Liability of the San tillans
Ritchy’s family argues that the trial court erred in summarily dismissing
their negligence claims against the Santillans. We disagree.
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No. 78175-8-1/5
Both residential tenants and those tenants’ guests are the landlord’s
invitees. Sjocirenv. Props. of Pac. Nw., LLC, 118 Wn. App. 144,148,75 P.3d
592 (2003). “A landlord has an affirmative obligation to maintain common areas
in a reasonably safe condition for a tenant or her guest.” Siociren, 118 Wash. App.
at 148. Furthermore, a landlord has a duty to protect a tenant or guest from
dangers that are open and obvious if the landlord “should anticipate the harm
despite such knowledge or obviousness.” Siogren, 118 Wash. App. at 148-49
(internal quotation marks omitted) (quoting Tincani, 124 Wash. 2d at 139). But this
duty only applies to the “possessor of land” and “condition[s] on the land.”
RESTATEMENT (SECOND) OF TORTS § 343A(1) (AM. LAW INST. 1965). “[A] property
owner does not have a duty to protect visitors from dangers on adjacent lands.”
Smith v. Stockdale, 166 Wash. App. 557, 568, 271 P.3d 917 (2012).
Here, the Santillans were not the possessors of the park where Ritchy
drowned. At oral argument, Ritchy’s family argued that the Santillans cannot be
differentiated from the LFEHOA because they are dues-paying members of the
LFEHOA. But in their appellate briefing, Ritchy’s family does not raise that
argument or otherwise dispute that the Santillans did not own or control the park.
Therefore, Ritchy’s family has waived any argument that the Santillans were
possessors of the land and we hold that the Santillans had no duty to warn
invitees of dangers at the park. See Hall v. Feicienbaum, 178 Wash. App. 811, 817,
319 P.3d 61(2014) (“We deem an issue not briefed to be waived.”). Summary
judgment dismissal of the Santillans was proper.
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No. 78175-8-1/6
LFEHOA ‘s Liability If Ritchy Was a Licensee
Ritchy’s family argues that they raised a genuine issue of material fact as
to whether the LFEHQA breached duties it owed to Ritchy as a licensee by failing
to warn about the danger posed by the lack of visibility and depth of the lake or
by failing to install safety measures on the dock. We disagree.
For purposes of summary judgment, LFEHOA conceded that Ritchy was
at least a licensee. Washington follows the Restatement (Second) of Torts.
Tincani,124 Wn.2d at 133. The Restatement defines a licensee as “a person
who is privileged to enter or remain on land only by virtue of the possessor’s
consent.” RESTATEMENT (SECOND) OF TORTS § 330 (AM. LAW INST. 1965). It also
defines a landowner’s responsibility to licensees for dangerous conditions on the
land as follows:
A possessor of land is subject to liability for physical harm caused
to licensees by a condition on the land if, but only if,
(a) the possessor knows or has reason to know of the
condition and should realize that it involves an unreasonable risk of
harm to such licensees, and should expect that they will not
discover or realize the danger, and
(b) he fails to exercise reasonable care to make the
condition safe, or to warn the licensees of the condition and the risk
involved, and
(c) the licensees do not know or have reason to know of the
condition and the risk involved.
RESTATEMENT (SECOND) OF TORTS § 342 (AM. LAW INST. 1965).
In Tincani, the Supreme Court applied this standard to a natural condition
on land and explained that “{t]he duties in Restatement (Second) of Torts § 342
turn on the respective knowledge of landowner and licensee.” Tincani, 124
Wash. 2d at 133-34. First, the landowner must know, or have reason to know,
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Nb. 78175-8-1/7
“about a hidden danger created by a natural condition.” Tincani, 124 Wash. 2d at
134. And, second, the licensee must know or have reason to know about the
dangers presented by the natural condition. Tincani, 124 Wash. 2d at 134. “A
licensee’s full understanding that a natural condition is dangerous ends any
liability of the landowner for the condition.” Tincani, 124 Wash. 2d at 134.
Therefore, “[w]hether a natural hazard is open and apparent depends on whether
the licensee knew, or had reason to know, the full extent of the risk posed by the
condition.” Tincani, 124 Wash. 2d at 135.
Here, Ritchy’s family argues that the lack of visibility in the water, caused
by an algae bloom, concealed the water’s true depth and, therefore, Ritchy did
not understand the danger the lake posed to him. But Ritchy’s undisputed
inability to know the depth of the water is precisely why he had reason to know of
the danger presented by the lake. Specifically, where an algae bloom made it
impossible for Ritchy to estimate the depth of the water, his observation of that
condition should have given him reason to understand that being in close
proximity to water of an unknown depth when he could not swim was dangerous.
Furthermore, in his deposition, Dupreus stated that he and Ritchy’discussed the
risks associated with water if a person does not know how to swim and that he
told Ritchy, “[I]f you don’t know how to swim do not get in the water.” This
testimony further establishes that Ritchy had reason to know of the danger that
the lake posed to him. Therefore, the trial court did not err by concluding that
there was no genuine issue of material fact as to whether Ritchy knew or had
reason to know about the danger presented by the lake.
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No. 78175-8-118
Ritchy’s family also suggests there is a question of fact as to whether the
dock, which directed swimmers to the deepest part of the lake, was a dangerous
condition that the LFEHOA had a duty to make safe by installing a railing and
safety equipment. But the dock itself was not the dangerous condition. Here, the
risk of harm was that a person who cannot swim, and who is in close proximity to
a lake of unknown depth, may drown. That danger relates to the lake, not to the
dock. Therefore, this argument is not persuasive.
Ritchy’s family also argues that there is no evidence that suggests Ritchy
had knowledge of the dangerous condition posed by the lake. But as described
above, Dupreus testified in his deposition that he talked to Ritchy about the
dangers of going into water and advised him not to go into water if he did not
know how to swim. Ritchy’s family cites to no evidence in the record that rebuts
this evidence or otherwise shows that Ritchy was unaware of the dangers of
being in close proximity to water of an unknown depth when he could not swim.
Therefore, Ritchy’s family has not met their burden on summary judgment to
present a genuine issue of material fact. Summary judgment was proper.
Ritchy’s Status as a Business Invitee
Ritchy’s family argues that they presented evidence raising a genuine
issue of material fact as to whether Ritchy was a business invitee and whether
the LFEHOA breached the duty it owed Ritchy under the invitee standard. We
disagree.
A landowner owes an affirmative duty to invitees to use ordinary care to
keep the common areas of the premises it possesses in a reasonably safe
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No. 78175-8-119
condition. Degel, 129 Wash. 2d at 49. The Restatement (Second) of Torts § 343
(Am. Law Inst. 1965) governs the duty owed to invitees:
“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.”
Degel, 129 Wash. 2d at 49-50 (alteration in original) (quoting Tincani, 124 Wash. 2d at
138). When the danger to an invitee is open and obvious, the Restatement
(Second) of Torts § 343A creates a duty to protect invitees if the possessor
should have anticipated the harm despite the invitee’s knowledge of or the
obvious nature of the danger. Degel, 129 Wash. 2d at 50; Tincani, 124 Wash. 2d at
139. This duty to invitees is more expansive than the duty landowners owe to
licensees where a danger is open and obvious.
Washington recognizes two types of invitees under the Restatement
(Second) of Torts § 332 (Am. Law Inst. 1965): public invitees and business
visitors. Camicia v. Howard S. Wright Const. Co., 179 Wash. 2d 684, 694, 317 P.3d
987 (2014). “A public invitee is a person who is invited to enter or remain on land
as a member of the public for a purpose for which the land is held open to the
public.” RESTATEMENT (SECOND) OF TORTS § 332(2) (1965). Conversely, “[a]
business visitor is a person who is invited to enter or remain on land for a
purpose directly or indirectly connected with business dealings with the
possessor of the land.” RESTATEMENT (SECOND) OF TORTS § 332(3). An important
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No. 78175-8-1110
consideration to determine if an entrant is a business invitee is whether the
entrant bestowed an economic benefit on the possessor. Thompson v. Katzer,
86Wn. App. 280, 286, 936 P.2d 421 (1997).
Here, Ritchy’s family presents two theories that they argue raise a genuine
issue of material fact as to whether Ritchy was a business invitee. First, Ritchy’s
family argues that a homeowner’s association that owns and maintains common
areas for the use of its members and their guests must be held to the same
invitee standard applicable to landlords. See Siogren, 118 Wash. App. at 148 (a
residential tenant and the tenant’s guest are invitees of the landlord). But
Ritchy’s family does not cite any legal authority to support this argument.
Therefore, we need not consider it. Cowiche Canyon Conservancy v. Bosley,
118 Wash. 2d 801, 809, 828 P.2d 549 (1992) (arguments that are not supported by
any citation to authority need not be considered) (citing RAP 10.3(a)(5); McKee
v. Am. Home Prods., Corp., 113 Wash. 2d 701, 705, 782 P.2d 1045 (1989)).
Second, Ritchy’s family argues that Ritchy was a business invitee
because he was a guest of the Santillans, who pay dues to the LFEHOA for
maintenance and access to the park, resulting in an economic benefit to the
LFEHOA. They claim that the rent the Millers paid to the Santillans was intended
to cover access to the park, similar to the access granted to paying members at a
private beach club. This argument is not persuasive. Although the Santillans
paid dues and assessments to the LFEHQA, according to the Declarations of
Covenants, Conditions, and Restrictions, the purpose of those dues and
assessments was not to gain access to the park. Rather, it was to “promote the
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No. 78175-8-I/Il
recreation, health, safety and welfare of the residents,” “for the improvements
and maintenance of the Common Areas and Common Maintenance Areas,” and
“for maintenance, repair, professional services, contract services and other
purposes permitted by this declaration.” And the only benefit Ritchy’s family
alleges Ritchy’s use of the park conferred upon the LFEHOA is the added
attractiveness and increased property values inherent in having such a park
available for members and guests to use. This benefit, without more, is too
tenuous to be “directly or indirectly connected with business dealings” between
Ritchy and the LFEHOA. RESTATEMENT (SECOND) OF TORTS § 332(3). In other
words, even taking the evidence in the light most favorable to Ritchy’s family,
there is no evidence that the LFEHOA invited the Millers or their guest Ritchy to
use the park for its economic benefit. And because there is no genuine issue of
material fact as to whether Ritchy was an invitee, we need not consider whether
the LFEHOA breached a duty to Ritchy under the invitee standard.
For the reasons described above, we affirm the summary judgment
dismissal of Ritchy’s family’s claims.
‘(I
WE CONCUR:
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