Shirley Barrett, Appellant V. Lowe's Hiw, Inc., Aka Lowes, Et Al., Respondents (Majority and Order)
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FILED
Oii R;T OF APPEALS
'
DIVISION 11
20h JAN 28
IN THE COURT OF APPEALS OF THE STATE OF W
BY
DIVISION II
A-
J.
I- Ep
No. 43024 -0 -II
SHIRLEY BARRETT, individually,
Appellant,
ORDER GRANTING
RECONSIDERATION IN PART,
m
AMENDING OPINION,
LOEW' S
HOME
LOWE' S,
a
CENTERS,
business
entity;
INC.,
and JEFF
aka
AND PUBLISHING
aka
JOHN MCDOWELL, individually„
Respondent filed a motion for reconsideration of our August 13, 2013 unpublished
opinion. After further review of the records and files herein, we grant the motion in part and
amend the opinion as follows:
It is ordered that the first sentence of the third full paragraph of page 5 that reads:
In this case, Barrett did not assume the risks created by McDowell
negligently unloading the trailer.
1
i
is deleted. The following sentence is inserted in its place:_
Viewing the facts presented to the trial court at summary judgment in a
light most favorable to Barrett, she did not assume the risks created by McDowell
negligently unloading the trailer.
It is further ordered that, through the court' s own motion, this opinion is published. The
final
paragraph
that
reads: "
A majority of the panel having determined that this opinion will not be
printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW
2. 06. 040, it is
so ordered."
is deleted.
8. 50
43024 -0 -II
r7
Dated this
a'
2,
day
2014.
of ,
Y,
L
Bjoen, J
2
F' 11- ED
COURT OF APPEALS
DIVI 31011 II
2013 AUG 13
w
THF. r01rMT OF APPFAT, S
OF THE STATE OF WASHIN
AM 10: 29
0
SHI
DIVISION II
DE
TY ..
No. 43024 - -II
0
SHIRLEY BARRETT, individually,
Appellant,
0
LOEW' S
LOWE' S,
a
INC.,
CENTERS,
HOME
business
UNPUBLISHED OPINION
aka
and JEFF aka
entity;
JOHN MCDOWELL, individually„
PENOYAR, J. —
McDowell,
a
Lowe'
McDowell for
Shirley Barrett was injured by falling boxes while watching John
s employee, unload the trailer she
had delivered. She sued both Lowe' s and
The trial court granted summary judgment in favor of Lowe' s.'
negligence.
Barrett appeals, arguing that the trial court erred by concluding that implied primary assumption
of risk applied
to bar her recovery.
Because Barrett did not assume the risk of McDowell' s
negligence in unloading the trailer, we -reverse the trial court' s summary judgment- order and
remand for further proceedings.
FACTS
Barrett, a long -haul truck driver, delivered a trailer to the Longview Lowe' s on August 3,
2006.
Her job did not include unloading the trailer, but she would sometimes open the trailer
doors in the
loading
dock.
When she attempted to open the trailer doors in the Lowe' s loading
dock, she noticed that the cargo had shifted and some boxes appeared to be pressed against the
doors.
Barrett
McDowell
1
asked
opened
For simplicity'
Lowe'
the trailer
s
receiving
doors.
s sake, we refer
manager,
McDowell, for
Barrett stood back as
help.
They discovered that some large boxes near the doors were
to both defendants collectively as Lowe'
s..
TOP4
43024 -0 -II
held up
by
Barrett
place.
want
a nylon rope.
expressed
to do that ?"
McDowell proceeded to cut through the rope holding the boxes in
her
concern at
Clerk' s Papers
at
93.
McDowell' s
actions,
asking him, "Are you sure you
She stated in her deposition that she thought the boxes
would fall once McDowell cut through the rope.
While McDowell-was attempting to cut the rope, Barrett noticed that the lock she used to
secure
her
McDowell
trailer was
or'
making
on
the
ground
between her
eye contact, she walked
and
the trailer.
forward
and
Without saying anything to
bent to
retrieve
the lock.
At that
moment, McDowell succeeded in cutting the rope, and the boxes held by the rope came sliding
out of
Lowe'
the trailer
s
for
and- hit
negligence.
Barrett, knocking her to the
ground
and
injuring her.
Barrett sued
Lowe' s moved for summary judgment, arguing that the assumption. of
risk doctrine barred her claim. The trial court agreed and granted Lowe' s motion. Barrett filed a
motion for reconsideration, which the trial court denied. Barrett appeals.
ANALYSIS
Barrett argues that the trial court erred by granting Lowe' s summary judgment motion
and
concluding that the
assumption of risk
doctrine
applies
in this case.
Because there is no
evidence that Barrett consented to relieve Lowe' s of the duty - f care owed her, we agree.
o
We review a summary judgment order de novo, engaging in the same inquiry as the trial
court.
Folsom
v.
Burger
King,
135 Wn.2d 658, 663, 958 P. 2d 301 ( 1998).
Summary judgment
is appropriate when there is no genuine issue of material fact and the moving party is entitled to
2
43024 -0 -II
judgment
as a matter of
reasonable
law. CR 56( c); Folsom, 135 Wn.2d
inferences in favor
of
persons could reach
only
one conclusion
663.
We construe the facts and
Korslund v. DynCorp Tri- Cities Servs.,
the nonmoving party.
Inc., 156 Wn.2d 168, 177, 125 P. 3d 119 ( 2005).
at
Summary judgment is appropriate if reasonable
from the
evidence presented.
Korslund, 156 Wn.2d at
177.
There
four
are
primary, ( 3) implied
varieties
of risk
of assumption
unreasonable, and (
4) implied
170 Wn.2d 628, 636, 244 P. 3d 924. ( 2010).
in Washington: ( 1)
express, (
2) implied
Gregoire v. City of Oak Harbor,
reasonable.
Express and implied primary assumption of risk
apply when the plaintiff has consented to relieve the defendant of a duty regarding specific
known
risks.
Gregoire, 170 Wn.2d
at
636.
Express assumption of risk exists if the plaintiff
states that she consents to relieve the defendant of any duty owed. Home v. N. Kitsap Sch. Dist.,
92 Wn.
App.
applies
here.
that implies
plaintiff (
Implied primary assumption of risk is shown by the plaintiff engaging in conduct
her
consent.
Home, 92 Wn.
had [ knowledge] ( 2)
1)
voluntarily
Lowe' s does not argue express assumption of risk
709, 719, 965 P. 2d 1112 ( 1998).
chose
to
encounter
the
of
App.
the
risk. "'
at
719.
presence
The defendant
and
nature of the
720.
fact for the jury
Implied primary
risk,
and (
3)
Knowledge and voluntariness are
unless reasonable minds could not
assumption of risk
specific
that "` the
Gregoire, 170 Wn.2d at 636 ( quoting Kirk v. Wash.
State Univ., 109 Wn.2d 448, 453, 746 P. 2d 285 ( 1987)).
questions of
must establish
is
a complete
170 Wn.2d at 636.
3
bar to
differ.
Home, 92 Wn. App. at
a plaintiffs
recovery.
Gregoire,
43024- 0- 11
By contrast, implied unreasonable and reasonable assumption of risk are treated as forms
of
contributory
negligence.
plaintiff and reduce
Kirk, 109 Wn.2d
her damages.
at
454.
They apportion a degree of fault to the
Gregoire, 170 Wn.2d
at
636.
They arise where the plaintiff
knows about a risk created by the defendant' s negligence but chooses to voluntarily encounter it.
Lascheid
v.
City
of Kennewick, 137 Wn.
154 P. 3d 307 ( 2007). "
App. 633, 643,
In most
situations, a plaintiff who has voluntarily encountered a known specific risk has, at worst, merely
failed to use ordinary care for his or her own safety, and an instruction on contributory
is
negligence
all
that is necessary
and appropriate."
Dorr
v.
Big
Creek Wood Prods., Inc., 84
Wn. App. 420, 426, 927 P. 2d 1148 ( 1996).
The difficulty is to determine in which case the plaintiff' s conduct is merely negligent
and is covered by comparative fault rules and in which case it manifests a consent to accept the
entire risk and
is
a complete
bar to the
claim."
DAN B. DOBBS, THE LAW
OF
TORTS § 212, at 541
Washington courts have treated this issue as one of scope, examining whether 'the
2000).
plaintiff
impliedly
consented
to the
risks
inherent in participating in
a particular
activity. When
the defendant' s negligent acts increase the risks, then the plaintiff is not assumed to have
consented
to those
additional risks.
See Scott v. Pac. W Mountain Resort, 119 Wn.2d 484, 503,
834 P. 2d 6 ( 1992).
In order to determine what risks Barrett assumed, it' is necessary to determine what duties
Lowe'
s owed
Tallariti
invitee
v.
and
Barrett. See Scott, 119 Wn.2d
Kildare, 63 Wn.
thus
owed a
App.
duty
of
at
500.
The existence of a duty is a question of law.
453, 456, 820 P. 2d 952 ( 1991).
reasonable
care.
Barrett argues that she was an
A business invitee is a person who is invited to
enter premises for a purpose connected with business dealings with the land' s possessor. Younce
v:
Ferguson, 106 Wn.2d 658, 667, 724 P. 2d 991 ( 1986) (
4
quoting RESTATEMENT ( SECOND) OF
43024 -0 -II
TORTS §. 332 ( 1965)).
Wn.2d
at
667.
The
possessor owes
the. invitee a
duty
of reasonable care.
Younce, 106
Here, Barrett was on the premises to engage in business dealings with Lowe' s.
Therefore, she was an invitee and was owed a duty of reasonable care. Lowe' s failed to establish
that Barrett consented to relieve them of that duty.
In Scott, our Supreme Court held that implied primary assumption of risk did not bar an
injured
when
skier' s
he
recovery.
went off of
the
119 Wn.2d
course and
at
hit
503.
There, a 12- year -old was injured during ski school
an abandoned
r
tow - ope
Scott, 119 Wn.2d at 488.
shack.
He sued the ski resort for negligence, and the resort argued that he was completely barred from
recovery. because he had
assumed
the
risk.
Scott, 119 Wn.2d
at
488, 499.
The court concluded
that the skier had assumed the risks inherent in skiing, but he had not assumed the risk of
negligent operation
by
the
resort.
Scott, 119 Wn.2d
at
503.
The court noted that the skier may
have been negligent, but his negligence was a question of fact for the jury and did not operate as
a complete bar to his recovery. Scott, 119 Wn.2d at 503.
Similarly, in Kirk, 109 Wn.2d at 454, the Supreme Court held that implied primary
assumption of risk did not ' bar a cheerleader' s recovery after she was injured during an
unsupervised practice. Although she had assumed the risks inherent in cheerleading, she had not
assumed the risks created by the school' s negligence in failing to supervise the practice and
provide adequate practice facilities. Kirk, 109 Wn.2d at 454 -55.
In this case, Barrett did not assume the risks created by McDowell negligently unloading
the trailer.
Arguably, falling
freight is
an
inherent
risk of
unloading
a
trailer.
But, Barrett' s job
duties did- not include 'unloading the trailer, and she was not helping to unload when she was
injured
by
the boxes.
Moreover, as the Scott and Kirk cases demonstrate, the assumption of risk
doctrine does not bar recovery for actions caused by the defendant' s negligence. Here, there are
5
43024 -0 -II
facts indicating that McDowell was acting negligently by cutting the rope holding the boxes in
place. McDowell' s alleged negligence was not an inherent risk of Barrett' s job.
Additionally, none of Barrett' s actions manifest an intent to relieve Lowe' s of its duties.
In Leyendecker
v.
Cousins, 53 Wn.
App.
769, 775, 770 P. 2d 675 ( 1989), the court determined
that the application of primary implied assumption of risk was inappropriate where the plaintiff
walked
into
a
spinning helicopter
rotor.
Although the plaintiff saw the rotor, appreciated the
risk it posed, and still voluntarily chose to walk near it, there was no evidence that the plaintiff
consented
to
Wn. App.
relieve
at
775.
the defendant
any duties before encountering the
of
risk.
Leyendecker, 53
The court• reasoned that the plaintiff was not expecting to encounter the
helicopter and the defendant did not know that the plaintiff would risk walking near it.
Leyendecker, 53 Wn. App. at 775. Similarly, here, Barrett was not expecting to encounter this
particular
hazard. Her job did
asking McDowell if he
unexpected.
McDowell
was
not
include unloading the trailer,
sure
he
wanted
to
cut
the
and
her
backing up and
actions —
indicate that his actions were
rope —
Additionally, the defendants did not know that she would risk walking near where
was
she
working —
was not involved in unloading the trailer and she did not warn
McDowell that she had stepped closer.
Finally, this case is distinguishable from cases where primary assumption of risk has
barred a plaintiffs recovery. For example, in Wirtz v. Gillogly, 152 Wn. App, 1, 3 -4, 216 P. 3d
416 ( 2009),
the plaintiff was injured by a failing tree while helping the defendant clear trees from
his property. The court granted the defendant' s motion for summary judgment because the
plaintiff had assumed the risk of injury. Wirtz, 152 Wn. App. at 7. He knew the tree could fall
and injure him because he had observed and discussed the tree felling process and he had
planned an escape route
to
avoid
the
falling
tree.
0
Wirtz, 152 Wn. App. at 10. Additionally, his
43024 -0 -II
actions were
voluntary because he
could
have
refused
to
help
at
any
point.
Wirtz, 152 Wn. App.
at 10 -11.
Wirtz is distinguishable because the plaintiff was injured by a risk inherent in the activity
he
was engaged
injuring
in
a participant
the trailer was
because he
and
is
a risk
not a risk
manifested consent
inherent in tree
inherent in Barrett'
s
to assume that risk.
A tree falling and
felling. But McDowell' s negligence in unloading
job. Further, the plaintiff in Wirtz manifested his
consent to assume the risk: he voluntarily participated in the tree -felling process and did not
argue that it was unsafe or attempt to remove himself from the situation. By contrast, Barrett did
not
manifest
her
consent
to
assume
the
risk
of
Lowe'
s
negligence:
she did not voluntarily
participate in unloading the freight - nd she expressed concern at McDowell' s actions and backed
a
away from the trailer.
We hold that Barrett did not assume the risk of Lowe' s and McDowell' s negligence.
Barrett may have been contributorily negligent when she stepped closer to the trailer, but this is a
question
of
fact for the
jury
and should not
bar her
negligence
claim
entirely.
Therefore, we
reverse the trial court' s summary judgment order and remand for further proceedings.
7
43024- 0- 11
A majority of the panel having determined that this opinion will not be. printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
We concur:
Hunt, J.
r
A or ,
J.
3
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