Kristen Carney And Steven Carney v. Meagan Norris

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
KRISTEN CARNEY and STEPHEN ) No. 80057-4-I
CARNEY, husband and wife, )
) DIVISION ONE
Appellants, )
)
v. )
)
PACIFIC REALTY ASSOCIATES, LP, )
d/b/a PACIFIC REALTY ASSOCIATES, )
A LIMITED PARTNERSHIP, a foreign )
limited partnership; and TVI, INC., d/b/a )
VALUE VILLAGE, a Washington )
corporation, ) UNPUBLISHED OPINION
)
Respondents, )
)
MEAGAN NORRIS and JOHN DOE )
NORRIS, husband and wife; )
MARYSVILLE PLAZA ASSOCIATES, )
LLP, a limited liability partnership; )
SAFEWAY, INC., a foreign corporation; )
and EILAT MANAGEMENT CO., a )
Washington corporation, )
)
Defendants. )
BOWMAN, J. — Kristen and Stephen Carney (collectively Carney) appeal
summary judgment dismissal of their negligence claims against defendants
Pacific Realty Associates LP d/b/a Pacific Realty Associates (Pacific Realty) and
TVI Inc. d/b/a Value Village (TVI) for injuries sustained when Kristen1 was struck
by a van in a parking lot crosswalk near the entrance of a Value Village store at
1
We use Kristen Carney’s first name when necessary for clarity and mean no disrespect
by doing so.
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 80057-4-I/2
the Marysville Plaza shopping center. TVI operates the Value Village store and
leases the commercial space from Pacific Realty. Carney argues that both
Pacific Realty and TVI exercise control over the common-area parking lot and
had a duty to protect Kristen from unreasonable harm in the crosswalk. Carney
also argues that TVI owed Kristen a separate duty of safe ingress and egress
from its place of business. We conclude that TVI and Pacific Realty did not
exercise control over the parking lot sufficient to establish a duty to Kristen as
possessors of the common area. But TVI owes a separate duty of safe ingress
and egress to its business invitees regardless of whether it owns or has control of
the property on which a known hazard exists. We affirm summary judgment
dismissal of Carney’s claims against Pacific Realty but reverse and remand for
further proceedings related to TVI.
FACTS
Marysville Plaza is a shopping center owned by Marysville Plaza
Associates LLP (MPA). In August 1973, lessor MPA and lessee Safeway
Incorporated executed a “Master Lease” for a portion of the shopping center.
Safeway agreed to lease a “building, or portion of the building,” with “related
improvements to be constructed” by MPA. The Master Lease contains
provisions pertaining to the common areas of the shopping center, including its
parking lot:
4. Common areas. Completion and expansion of shopping
center. All those portions of the shopping center not shown as
building areas . . . shall be common areas for the sole and
exclusive joint use of all tenants in the shopping center, their
customers, [and] invitees and employees . . . . Lessor agrees that,
at lessor’s expense, all common areas will be maintained in good
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No. 80057-4-I/3
repair, kept clean and kept clear of snow and ice and adequately
lighted when stores are open for business. . . . Lessor further
agrees that . . . following completion of construction of any portion
of the shopping center, the sizes and arrangements of said
buildings and common areas[ ](including parking areas) will not be
changed without lessee’s written consent.
In exchange for MPA’s control and maintenance of the common areas, Safeway
and other shopping center tenants agreed to a common-area maintenance
charge.
The Master Lease also provides that “at lessor’s sole cost, risk and
expense,” MPA agrees to “construct on the common areas . . . all parking and
service areas, sidewalks, driveways and related improvements.” All construction
was to be done “in accordance with plans and specifications” prepared at MPA’s
expense and by its designated architects.
In October 1982, Safeway executed a lease modification agreement and
remodeled and expanded its Marysville Plaza store. The remodel included the
addition of a diagonal handicap parking stall located next to the curb cutout that
led to the north entrance of the store. MPA reviewed and approved the addition.
At Safeway’s request, MPA painted a crosswalk to the curb cutout in 1994.
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No. 80057-4-I/4
In 1998, Safeway sublet its Marysville Plaza space to Shop & Save Inc.
The sublease provides nonexclusive use of the common areas of the shopping
center subject to the terms of the Master Lease and “to such reasonable rules
and regulations as Sublessor [Safeway] may from time to time promulgate.
Sublessor shall [also] have the right to use portions of the Common Area for any
commercial purposes.” The sublease includes a provision explicitly reserving
master lessor MPA’s obligation to maintain the common areas under the Master
Lease as well as recourse for sublessee Shop & Save should MPA fail to fulfill its
obligations:
4.1 Master Lessor’s Obligation to Maintain. Sublessee
hereby acknowledges that Master Lessor has the obligation under
the Master Lease to maintain the Common Area, and Sublessor
shall have no obligation to do so, except as expressly set forth
herein. With respect to Master Lessor’s obligation under the
Master Lease to maintain the Common Area, Sublessor shall be
required only to use reasonable efforts to cause Master Lessor to
perform such obligation, and then only if Sublessor has actual
notice of Master Lessor’s failure to perform such obligations. If
Master Lessor fails to perform such obligation, then Sublessee
shall prepare and deliver to Sublessor a written notice specifying
such failure to perform in reasonable detail. Sublessor shall then
transmit such notice to Master Lessor. If such default or defaults
as are specified in such notice remain uncured upon the
expiration of the cure periods set forth in the Master Lease, then
Sublessor shall perform such obligation of Master Lessor with
reasonable diligence following receipt of written notice from
Sublessee that Master Lessor has failed to do so.
In March 2000, Safeway assigned its interest in the Master Lease with
MPA and its sublease with Shop & Save to Pacific Realty under a property
acquisition agreement. TVI acquired Shop & Save in 2003. Pacific Realty then
entered a sublease modification agreement with Shop & Save and TVI,
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No. 80057-4-I/5
memorializing the assignment of interests. TVI now operates a Value Village
store in the Marysville Plaza under the Master Lease and sublease.
On August 15, 2016, Kristen parked her car in the Marysville Plaza
parking lot and used the painted crosswalk to walk toward the north entrance of
Value Village. At the same time, Meagan Norris backed her minivan out of the
diagonal handicap parking stall in front of the store. The diagonal orientation of
the handicap parking stall in relation to the crosswalk required Norris to reverse
into the crosswalk to exit the parking lot northward. Norris’ minivan struck Kristen
in the crosswalk. Kristen sustained a traumatic brain injury as a result of the
collision.
Carney filed a personal injury complaint against Norris and MPA, alleging
negligence and requesting damages for medical expenses, pain and suffering,
loss of wages, and loss of consortium. They later amended the complaint to add
Safeway, Pacific Realty, TVI, and Eilat Management Co.2 as defendants.
Safeway moved for summary judgment dismissal of all claims with
prejudice. The trial court granted the unopposed motion. Carney and Eilat
Management entered a stipulation that dismissed all claims against Eilat with
prejudice.
TVI and Pacific Realty also filed separate summary judgment motions to
dismiss Carney’s claims with prejudice. The trial court concluded that TVI and
Pacific Realty owed no duty of care to Kristen and granted the motions. The trial
court entered a partial final judgment under CR 54(b) and certified the case for
2
Carney alleged MPA retained Eilat to provide property management services at
Marysville Plaza.
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No. 80057-4-I/6
appeal, finding that “[a] resolution on appeal of Plaintiffs’ claims against TVI and
[Pacific Realty] will be dispositive of a trial against Norris.”
ANALYSIS
Carney appeals the trial court’s summary judgment dismissal of her
negligence claims against TVI and Pacific Realty. We review orders on summary
judgment de novo. Kim v. Lakeside Adult Family Home, 185 Wn.2d 532, 547,
374 P.3d 121 (2016). “Summary judgment is properly granted when the
pleadings, affidavits, depositions, and admissions on file demonstrate there is no
genuine issue of material fact and the moving party is entitled to judgment as a
matter of law.” Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301(1998) (citing CR 56(c)). The moving party bears the burden of proving there are
no issues of material fact. Kim, 185 Wn.2d at 547. We consider all evidence and
reasonable inferences in the light most favorable to the nonmoving party. Kim,
185 Wn.2d at 547. Summary judgment is appropriate “only if, from all the
evidence, a reasonable person could reach only one conclusion.” Folsom, 135
Wn.2d at 663.
To establish negligence, a plaintiff must show (1) the existence of a duty,
(2) breach of that duty, (3) resulting injury, and (4) proximate cause. Ranger Ins.
Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008). Summary
judgment is proper if a plaintiff cannot meet any of these elements. Ranger Ins.,
164 Wn.2d at 553. In a negligence action, “the threshold question is whether the
defendant owes a duty of care to the injured plaintiff.” Schooley v. Pinch’s Deli
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No. 80057-4-I/7
Mkt., Inc., 134 Wn.2d 468, 474, 951 P.2d 749 (1998). The existence of a legal
duty is a question of law. Schooley, 134 Wn.2d at 474.
Duty as Possessor of Common Area
Carney argues both TVI and Pacific Realty owed Kristen a duty of
reasonable care as possessors in control of the common-area parking lot where
she was injured. TVI and Pacific Realty contend that MPA retained sole control
over all Marysville Plaza common areas under the Master Lease. We agree with
TVI and Pacific Realty.
A landowner has a duty to maintain common areas in a reasonably safe
condition. Mucsi v. Graoch Assocs. Ltd. P’ship # 12, 144 Wn.2d 847, 854, 31
P.3d 684 (2001). As a general rule,
where an owner divides his premises and rents certain parts to
various tenants, while reserving other parts such as entrances and
walkways for the common use of all tenants, it is [the owner’s] duty
to exercise reasonable care and maintain these common areas in a
safe condition.
Geise v. Lee, 84 Wn.2d 866, 868, 529 P.2d 1054 (1975). But a landowner may
not be liable for injury on its property if it has given exclusive control of the
property to a lessee. Adamson v. Port of Bellingham, 193 Wn.2d 178, 184-85,
438 P.3d 522 (2019).
To determine premises liability, we look to “whether one is a ‘possessor’ of
property, not whether someone is a ‘true owner’ (the titleholder) of property.”
Gildon v. Simon Prop. Grp., Inc., 158 Wn.2d 483, 496, 145 P.3d 1196 (2006). A
“possessor” of land is
(a) a person who is in occupation of the land with intent to control it
or
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No. 80057-4-I/8
(b) a person who has been in occupation of land with intent to
control it, if no other person has subsequently occupied it 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 Clauses (a) and (b).
RESTATEMENT (SECOND) OF TORTS § 328E (AM. LAW INST. 1965); Ingersoll v.
DeBartolo, Inc., 123 Wn.2d 649, 655, 869 P.2d 1014 (1994).
A person is in “control” of the land if that person has the authority and
ability to take precautions to reduce the risk of harm to entrants on the land.
Adamson, 193 Wn.2d at 187. Control may be shared over certain areas of
property. Adamson, 193 Wn.2d at 187. To determine control,
[w]e look to the specific terms of the agreement to see who had
authority and ability to reduce risk of harm and whether there were
temporal and practical limits on the lessee’s possession such that
the lessor is still liable as a possessor of land.
Adamson, 193 Wn.2d at 187.
Here, the governing leases establish MPA as a possessor of the common
areas. In section 4 of the Master Lease, MPA agreed to construct the common
areas—including parking lots—at its expense. The Master Lease also
establishes that “all common areas will be maintained in good repair” by MPA
and at MPA’s expense. Section 4.1 of the sublease explicitly affirms MPA’s
control of the common areas. It provides that the “Master Lessor has the
obligation under the Master Lease to maintain the Common Area, and Sublessor
shall have no obligation to do so, except as expressly set forth herein.” Despite
the plain language of the Master Lease, Carney argues that other lease
provisions and the actions of TVI and Pacific Reality show that they share control
of the common-area parking lot with MPA.
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No. 80057-4-I/9
TVI
Carney contends that TVI owed Kristen a duty to protect her from harm in
the crosswalk because “specific rights and responsibilities” granted to TVI under
the leases give TVI the authority and ability to act with regard to the common
area. In support of their argument, Carney points to TVI’s successful requests
for repair and restriping of the parking stalls and fire lanes, replacement of
burned out lightbulbs in the parking lot, removal of trailers from the back parking
lot, repair of a loose concrete slab on the sidewalk in front of the store, and
pothole repair.
TVI’s requests for maintenance are not evidence of its authority over the
common areas. To the contrary, under the leases, TVI must make written
requests for maintenance, and MPA will perform the work only if it approves the
request. TVI submits its written requests to Pacific Realty, who then forwards the
requests to MPA. For example, in March 2008, TVI notified Pacific Reality in
writing that the parking lot needed repairs, restriping, and stenciling. Pacific
Realty forwarded the request to MPA, noting that “[a]s the Master Lessor of the
Property, you are responsible for maintenance of the parking lot.” On another
occasion, TVI e-mailed Pacific Realty to request repair of a “concrete slab that
has come loose at the front of the Value Village.” Pacific Realty forwarded the
information to MPA, who then scheduled the repair.
Carney also points to evidence that TVI and Pacific Realty collaborated on
a plan for significant alterations to the parking lot to improve TVI’s customer
donation drop-off experience. Carney asserts the collaboration is proof that TVI
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No. 80057-4-I/10
could alter the parking lot without MPA’s consent. While evidence showed that
TVI and Pacific Realty worked with an architect to design a plan to modify the
parking lot for a donation drop-off lane, the evidence also showed that TVI and
Pacific Realty stopped short of implementing any changes without MPA’s
approval. Pacific Realty notified TVI by e-mail that “[w]e need to get this
approved by the Master Lessor first.” And during depositions, Pacific Realty
confirmed that it advised TVI of the need for MPA’s approval. Pacific Realty
informed TVI that moving forward with construction before MPA’s authorization
“would be a violation of the master lease.”
Finally, Carney contends that a lease provision restricting MPA from
changing the common-area parking lot without TVI’s written consent is evidence
of TVI’s control over the property. But the ability to veto changes to the parking
lot proposed by MPA is not evidence of TVI’s independent authority and ability to
take precautions to reduce risk of harm. Carney provides no evidence that TVI
could unilaterally change the common areas. MPA alone “had the requisite
ability and authority to reduce the risk of harm to entrants such that it was” solely
in control and possession of the property. Adamson, 193 Wn.2d at 188.
Pacific Reality
Carney contends that Pacific Reality is also a “possessor” of the parking
lot and owed Kristen a duty of care. Carney argues that many of the same lease
provisions that give TVI authority to act independently to reduce risk of harm also
apply to Pacific Realty. Additionally, Carney argues that lease provisions giving
Pacific Realty the ability to impose rules over the common area and to use the
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No. 80057-4-I/11
common area for commercial purposes, as well as Pacific Realty’s obligation
under the leases to maintain the common areas if MPA fails to act, are evidence
of Pacific Realty’s control over the property.
Section 2.2 of Pacific Realty’s sublease with TVI states, in pertinent part:
Sublessee’s use of the Common Area shall be subject to such
reasonable rules and regulations as Sublessor may from time to
time promulgate. Sublessor shall have the right to use portions of
the Common Area for any commercial purposes.
Although Carney cites these provisions as evidence of Pacific Realty’s control
over the common areas, the provisions only allow Pacific Realty to restrict how
TVI uses the property and reserve the right to use portions of the property for its
own commercial purposes. Nothing in these provisions of the sublease
authorizes Pacific Realty to make unilateral changes to the property.
The sublease also requires Pacific Realty to maintain the common areas if
MPA fails to perform its obligations under the lease:
If Master Lessor fails to perform such obligation [under the Master
Lease to maintain the Common Area], then Sublessee shall
prepare and deliver to Sublessor a written notice specifying such
failure to perform in reasonable detail. Sublessor shall then
transmit such notice to Master Lessor. If such default or defaults as
are specified in such notice remain uncured upon the expiration of
the cure periods set forth in the Master Lease, then Sublessor shall
perform such obligation of Master Lessor with reasonable diligence
following receipt of written notice from Sublessee that Master
Lessor has failed to do so.
But this provision gives Pacific Realty only limited authority to act on notice of
MPA’s failure to perform needed maintenance after multiple requests. There is
no evidence that Pacific Reality could change the common areas absent these
conditions precedent. To the contrary, the evidence shows that Pacific Realty
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No. 80057-4-I/12
halted plans to renovate the donation drop-off area of the parking lot to obtain
MPA’s approval to make the changes. Pacific Realty is not a “possessor” of the
common area because it lacked sufficient “authority [over the area] and [the]
ability to reduce risk of harm.” Adamson, 193 Wn.2d at 187.
Duty of Safe Ingress and Egress
Carney argues that TVI also owed a duty of safe ingress and egress from
its retail store to its business invitees. TVI claims that business owners do not
have a duty to ensure safe ingress and egress over adjacent land that they do
not control. TVI also argues that even if it had such a duty, it is not liable for
Kristen’s injuries because the risk associated with using the crosswalk was “open
and obvious.”
Proprietors of a store “have a duty to exercise reasonable care to keep
those portions of the premises used by their customers in a reasonably safe
condition, or to warn the customer-invitees of the dangerous condition.” Baltzelle
v. Doces Sixth Ave., Inc., 5 Wn. App. 771, 774, 490 P.2d 1331 (1971). This
includes “the obligation to use ordinary care to keep the approaches, entrances
and exits in a reasonably safe condition for use of customers who are entering or
leaving the business.” Baltzelle, 5 Wn. App. at 774. The duty to business
invitees of safe ingress and egress arises even if the proprietor does not own or
control the property on which the hazard is located. Rockefeller v. Standard Oil
Co. of Cal., 11 Wn. App. 520, 522, 523 P.2d 1207 (1974).
Carney relies on Rockefeller to support their argument that TVI owed a
duty of safe ingress and egress. In Rockefeller, the plaintiffs were injured when
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No. 80057-4-I/13
the wheels of their pickup truck ran into a ditch located on property next to the
entrance of a Standard Oil service station. Rockefeller, 11 Wn. App. at 520-21.
Although Standard Oil did not own the property where the ditch was located, the
ditch was within four feet of the entrance to its service station. Rockefeller, 11
Wn. App. at 520. The Rockefellers claimed Standard Oil knew the ditch was
difficult to see and that it was negligent for failing to post warnings or provide
adequate lighting to make the ditch visible to those entering the service station.
Rockefeller, 11 Wn. App. at 521.
TVI argues that Rockefeller is distinguishable from this case. TVI
contends that Standard Oil was liable for injuries caused by a hazard on property
it did not control only because Standard Oil failed to replace a light on its own
property, which contributed to the hazardous condition. But Rockefeller defines
the duty of safe ingress and egress more broadly—“To incur liability, Standard
Oil need not own or control the property on which the hazard was located, nor is
it required that Standard Oil create the hazard.” Rockefeller, Wn. App. at 522.
Standard Oil’s liability did not stem only from its failure to replace a light on its
property as TVI asserts. Instead, liability arose from Standard Oil’s failure to take
any reasonable precautions to eliminate a known hazard to invitees entering its
parking lot. Rockefeller, 11 Wn. App. at 522. We held that Standard Oil “should
have taken reasonable precautions to eliminate [the hazard] by, for example,
posting warnings or barriers or providing adequate illumination.” Rockefeller, 11
Wn. App. at 522.3
3
Emphasis added.
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TVI also argues that unlike the hazardous ditch in Rockefeller, “the
condition at issue in this case is located in the common area of a shopping plaza:
a location MPA already signed up to be responsible for under the terms of the
lease.” But the true owner or entity in control of the property plays no role in
assessing the retail owner’s duty to ensure safe ingress and egress for its
business invitees. TVI has a duty to its customer invitees to take reasonable
precautions to eliminate foreseeable hazards to the ingress and egress from its
store, even if it does not own or control the property on which the hazard is
located. Rockefeller, 11 Wn. App. at 522.
Finally, TVI argues that even if it owed Kristen a duty of safe ingress and
egress, it is not liable for her injuries because the hazard at issue was “open and
obvious.” A “landlord has no duty to protect a tenant or guest from dangers that
are open and obvious” unless the landlord should have anticipated the harm.
Sjogren v. Props. of Pac. Nw., LLC, 118 Wn. App. 144, 148-49, 75 P.3d 592(2003). And “there is no duty to warn a business invitee about conditions of
which the invitee has actual knowledge.” Barker v. Skagit Speedway, Inc., 119
Wn. App. 807, 813, 82 P.3d 244 (2003). TVI contends that Kristen had “actual
knowledge” of the hazard because she frequented the shopping center. But a
plaintiff’s respective knowledge of a hazard and whether the hazard is open and
obvious are generally questions of fact for a jury. See Millson v. City of Lynden,
174 Wn. App. 303, 313, 317, 298 P.3d 141 (2013); Sjogren, 118 Wn. App. at
149-50.
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Here, several experts testified that the design of the handicap parking stall
is dangerous to pedestrians because it requires drivers who want to drive north
out of the parking lot to back into the crosswalk when pulling out of the space.
The experts opined that TVI should have known about the poor design and
sought to correct the problem. These material issues of fact as well as whether
the hazard was open and obvious are properly decided by a jury.
We affirm summary judgment dismissal of Carney’s claims against Pacific
Realty but reverse and remand for further proceedings related to TVI’s duty of
safe ingress and egress. 4
WE CONCUR:
4
TVI requests attorney fees and costs on appeal under RAP 14.2 (costs awarded to
substantially prevailing party on appeal). A party is entitled to fees on appeal only if applicable
law grants this right. RAP 18.1(a). A party must demonstrate the right to attorney fees and costs
under private agreement, a statute, or a recognized ground of equity. Buck Mountain Owners’
Ass’n v. Prestwich, 174 Wn. App. 702, 731, 308 P.3d 644 (2013). Because TVI fails to establish
that it is entitled to attorney fees and costs on any ground, we decline its request.
15