The Court of Appeals of the State of Washington, Division Three, on December 13, reversed the case dismissal on summary judgment of a case involving a woman who was injured after slipping and falling on ice while walking out of a supermarket.
The court found that the owners of the supermarket should have reasonably expected customers such as the plaintiff to walk across the parking lot while the store was open, even if ice was present. The court found that the supermarket owners had a duty to ensure their parking lot was safe from the accumulation of ice.
The slip and fall case was originally dismissed based on an argument that the plaintiff assumed risk in choosing to walk across an icy parking lot.
The case was remanded for further proceedings.
The plaintiff went to the supermarket on a February 2019 morning to grab some doughnuts for coworkers. Cold weather was present, but snow had not recently fallen, according to the decision.
The plaintiff said to herself, “wow, it’s icy” after arriving at the supermarket and opening the door to her car.
The plaintiff cautiously walked to the store, carrying only a wallet, utilizing a gait which she described as a “penguin walk.” She walked into the store safely, bought some milk and doughnuts, then walked back to her car.
Ice was still present when she attempted to return to her car. She again walked cautiously, utilizing her “penguin walk” while carrying groceries. Unfortunately, while walking back to her car, she slipped on some ice, falling and fracturing her patella.
Representatives of the supermarket, according to the decision, acknowledged that the parking lot can get slippery because of ice, recognizing that people in that part of the country don’t stop going about their daily activities because of icy conditions.
The supermarket, according to the decision, hires a company in the winter to plow and deice its parking lot before the store opens. The supermarket also has its employees inspect the parking lot while the store is open and deice the lot as necessary. This deicer applied by the employees, according to the supermarket, is “effective.”
Case Originally Dismissed
The plaintiff sued the owner of the supermarket for negligence. The supermarket owner then requested a summary judgment, making the argument that it wasn’t liable for the plaintiff’s injury because of implied assumption of risk. The supermarket owner noted that the plaintiff had lived in the area for many years and knew about the risks that ice and winter weather posed.
The plaintiff, according to the decision, saw a “sheet of ice” covering “the whole parking lot” at the supermarket, and the supermarket owner claimed that because of this, the plaintiff assumed a risk of injury by walking across the parking lot.
The trial court was in agreement with this argument, granding summary judgment and dismissing the plaintiff’s case.
Case Dismissal Successfully Appealed
The appeals court’s analysis of the trial court’s case dismissal involved the assumption of risk as a total defense against liability, as well as what the defendants should have anticipated.
Assumption Of Risk As A Total Defense Against Liability
Washington premises liability law, according to the decision, is based on sections 343 and 343A of Restatement (Second) of Torts. Section 343 states that those who possess land can be found negligent and liable for injuries when they fail to be reasonably careful in order to protect those on the land from dangers that conditions on the land pose.
This duty to be reasonably careful, according to the decision, is excused when possessors of land successfully establish implied primary assumption of risk on the part of those on their land.
Defense based on implied primary assumption of risk is recognized in Restatement’s section 343A(1), which states that those who possess land aren’t liable to those on the land when physical harm is caused to them via any condition or activity on the land involving a danger which is obvious or known to the invitee, unless the possessor of land should anticipate harm despite such obviousness or knowledge.
Kirk v. Wash. State Univ (1987) saw the court rule that a defendant arguing primary assumption of risk needs to prove that a plaintiff fully understood the nature and presence of a risk, yet still voluntarily made the choice to encounter said risk.
However, Restatement’s commentary explains that cases exist where land possessors should and can anticipate that even obvious or known dangerous conditions will harm invitees onto the land, and in these cases land possessors aren’t relieved of their duty to be reasonably careful to prevent invitees from being harmed.
Washington state courts, according to the decision, have recognized that land possessors should anticipate harm when ice or snow accumulates on their property.
Mucsi v. Graoch Assoc. Ltd. P’ship No. 12 (2001) recognized that ice and snow in a parking lot creates a situation where invitees onto land will choose to encounter to obvious or known danger since, to a reasonable person, the advantages of encountering the condition will outweigh any apparent risk.
The decision finds that the obvious presence of ice or snow fails to preclude land possessors from liability when harm can be anticipated. Rather, possessors of land need to use reasonable care in order to protect against harm caused by the ice or snow, according to the decision.
The decision notes that it is possible for a defendant to successfully argue a full defense based on implied assumption of risk when accumulated ice or snow is involved in an injury case.
Hvolboll v. Wolff Company saw the court note that Reinstatement focuses on the land owner’s knowledge and what the owner can reasonably anticipate regarding risk of harm. When invitees onto a property choose an unexpected path across icy property, the land owner might not be able to reasonably anticipate any harm. Cases such as these may end up with a successful full defense based on implied assumption of risk. However, the plaintiff’s case was not a case involving an unexpected path across a property.
What The Defendants Should Have Anticipated
The decision focused on what the supermarket owners knew or should have known as well as if they should have anticipated that harm would occur despite the presence of ice being obvious.
The decision states that a “predictable set of facts” existed which the supermarket owners should have anticipated, despite potential harm being obvious.
The decision notes that the plaintiff used a common path (the parking lot) when walking from the supermarket to her car, and notes that the supermarket owners admitted being aware that people who live in that part of the country tend to walk in snowy or icy conditions despite the danger of harm.
The decision states that the supermarket owners are legally expected to be aware that customers who are carrying groceries see an increased risk of distraction.
The decision rules that the facts of the case “fall comfortably” within the argument that the supermarket owners should have reasonably anticipated harm caused by the ice despite the obviousness of the ice and the danger that it posed, reversing the dismissal of the case as a result.