The Harper Law Blog

The Harper Law Blog offers news, announcements, thoughts and articles on life, law and our practice areas of emphasis.

When a dangerous condition is reasonably foreseeable liability can be established

Posted Thursday, February 01, 2024 by Ed Harper

A defendant’s liability often hinges upon answering this question - was it reasonably foreseeable a dangerous condition would arise on the premises?

A recent Washington Court of Appeals case, Moore v. Fred Meyer, 532 P.3d 165 (2023) points out “reasonable foreseeability” should stand alongside actual and constructive notice, to prove a defendant’s liability in a premises case. The Moore court relied on Washington Supreme Court opinion, Johnson v. State of Washington, 197 Wash.2d 605, 486 P.3d 125 (2021).

Johnson created the ability for a plaintiff to establish a defendant’s liability for an injury on their property based on the nature of the business and the method of operation. A jury will determine if an unsafe or dangerous condition on the premises was reasonably foreseeable. Johnson, at 619, points out that the mode of operation and the nature of defendant’s business allows a plaintiff to establish the reasonably foreseeable conditions leading to the plaintiff being injured.

In Johnson, water was tracked into a liquor store operated by the State of Washington. Ms. Johnson was injured as she slipped and fell on water within the store. It had been raining the day of the slip and fall and an issue arose over the store clerk’s knowledge of the presence of water on the waxed linoleum flooring surface before the fall.

The Johnson holding states (we create) “a general rule that an invitee may prove notice with evidence that the ‘nature of the proprietor’s business and his methods of operation are such that the existence of unsafe conditions on the premises is reasonably foreseeable.’” Johnson, at 619.

The trial court in Moore committed reversible error when they did not give the following jury instruction:

“The nature of the proprietor’s business and its methods of operation are such that the existence of unsafe conditions on the premises is reasonably foreseeable”.

The instruction the trial court in Moore gave stated the following:

“(The owner of the premises is liable), if (it) knows of the condition or fails to exercise, ordinary care to discover the condition, and should realize that it involves an unreasonable risk of harm to such business invitees.”

In Moore, Division 2 of the Washington Court of Appeals determined the trial court improperly failed to allow for the reasonable foreseeability exception to actual or constructive notice on behalf of the defendants.

To succeed, a plaintiff must provide evidence a dangerous condition existed, and it was reasonably foreseeable someone would be injured, and the defendant did not take adequate steps to prevent injuries.

So, this case will likely lead to an assessment by the jury of evaluating what steps were taken by the defendant once it was foreseeable for an incident to occur.

This is important because in the past defendants were successfully arguing the plaintiff was required to prove the “actual cause” of the dangerous condition.

Now, a plaintiff can provide proof of what was likely to happen if the condition arose. Answering the question - Whether it was reasonably foreseeable someone would be injured with the dangerous condition in existence. The plaintiff was the one by happenstance to come upon the condition, through no fault of their own, and was injured, although many people similarly situated as the plaintiff could have been injured.

Therefore, with reasonable foreseeability, the causation element is established. That the defendants breached their duty of ordinary care to the plaintiff, causing their injury. Johnson, at 612.

In Moore, the case centered upon the plaintiff, slipping and falling on spilled water. The spill occurred in the dry goods section in the grocery store operated by Fred Meyer. In the past, the plaintiff would have had to prove notice by the defendant, either constructive or actual notice. So, in the past, the plaintiff would have been required to prove how the item actually ended up on the floor.

Now, the argument can be made that due to the mode of operation for a grocery store, which lets one peruse the many and various articles for purchase, and it is reasonably foreseeable items will be dropped, or mishandled by customers, or employees, it is foreseeable dangerous substances will end up on the floor.

Finally, the burden remains on the defendant to show they took adequate steps to prevent customers from slipping and falling on items that are reasonably foreseeable to end up on the floor causing injury.

Call Harper Law if you have been injured through no fault of your own by the negligence of someone else.

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Walking and driving in inclement weather

Posted Wednesday, January 24, 2024 by Ed Harper

Walking and driving in inclement weather

Walking and driving in inclement weather creates a heightened duty of care on all who use the public roads here in the State of Washington.

Inclement weather, places an added burden of care on both driver and pedestrian, but pedestrians still have the right of way in a crosswalk. See Miller v. Edwards, 25 Wn.2d 635, 171 P.2d 821 (1946).

In Miller v. Edwards, a pedestrian and a companion were walking in a crosswalk. It was late at night, and heavy fog obscured the vision for the driver driving was walking. “A very heavy, wet fog prevailed at the time and place of the accident, greatly reducing visibility.” Miller, at 637. These conditions required greater vigilance by the driver as the pedestrian had the right-of-way.

More specifically, the crash occurred in the city of West Kelso Washington, on December 29, 1944, a few moments before midnight. The plaintiff Charles Miller was walking north across Main Street, within the pedestrian crosswalk on the east side of the intersecting street. A very heavy fog prevailed. Visibility was poor. The car, driven by Mrs. Edwards, struck plaintiff, while crossing a short distance north of the centerline of Main Street, seriously injuring him.

The court’s instruction to the jury was as follows “under the law, a pedestrian crossing at an intersection within the marked pedestrian lane, has the right away over vehicular traffic, and the plaintiff had the right of way, if crossing on such crosswalk, and he had the right to assume that the defendants would operate the car driven by them with due care it would not violate such rule, And the plaintiff had the right to govern his action according to this assumption, until it appeared, or in the exercise of due care on his part, should have appeared to the plaintiff that the driver was not so proceeding.“

The jury instruction today - WPI 70.03 establishes a right-of-way for a pedestrian within a crosswalk.

A pedestrian within a crosswalk has the right to assume that all drivers of approaching vehicles will yield the right of way to the pedestrian. This right continues until the pedestrian knows otherwise or until surrounding circumstances should have alerted the pedestrian to the fact that an approaching vehicle is not going to yield the right of way to the pedestrian. Absent such circumstances, a pedestrian within a crosswalk has no duty to look for approaching vehicles.

WPI, 70.6 states a person has the right to assume others will obey the law on our streets or highways.

Every person using a public street or highway has the right to assume that other persons thereon will use ordinary care and will obey the rules of the road and has a right to proceed on such assumption until he or she knows, or in the exercise of ordinary care should know, to the contrary.

In the case, Oberlander v. Cox, 75 Wn.2d 189, 449P. 2d 388 (1969) the court stated:

“Neither fog nor inclement weather lessens the protection afforded by the marked crosswalk, if the pedestrian is properly within it, unless he suddenly left a place of safety, or walked, or ran into the path of a vehicle, so close to him, as to make it impossible for the driver to yield.” Citing, Miller v. Edwards.

The result is pedestrians in crosswalks, have the right to rely upon the drivers of motor vehicles to exercise “ordinary care, and will obey the rules of the road.” Pedestrians, for their own safety, must not, however, rely on this duty of care, especially if the weather conditions justify a heightened duty of care.

The facts of every crash are different and the plaintiff has the burden in proving the defendant’s breach of their duty of care. With inclement weather, all participants have a greater responsibility and thus a higher duty. If you have been injured through no fault of your own, or if you have any questions regarding a crash for you or your loved one, contact Harper Law today.

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Pedestrian's Right of Way in a Crosswalk is not Absolute

Posted Friday, January 19, 2024 by Ed Harper

When does a pedestrian not have the right of way in a crosswalk?

The pedestrian has a duty to look and then actually recognize approaching vehicles. A Washington state statute states that a pedestrian shall not suddenly leave a curb, or other place of safety, and move into the path of a vehicle that is so close it is impossible for the driver to stop. Therefore, there are times a pedestrian can be deemed “at-fault” even though walking in a crosswalk.

RCW 46.61.235(2)

Typically, the driver of a motor vehicle must yield the right way to all pedestrians, bicyclists, and other personal delivery devices, which are in a crosswalk.

A driver that strikes a pedestrian in a crosswalk has a heavy burden to exonerate himself. If the pedestrian is within a marked crosswalk in plain view of an approaching driver, the driver does not get a free pass, even though he looked, and did not see, for he cannot be heard to say he (or she) did not see that which was there to be seen. Overlander v. Johnson, 11 Wn.App 331 (1974).

However, the duty does not arise until the driver, exercising reasonable care, should have seen the pedestrian.

So that brings up a question of when should a driver exercising reasonable care see a pedestrian?

A driver is only responsible for seeing what is in plain view, and is negligent as a matter of law, if he (or she) fails to yield the right of way to a pedestrian. Daley v. Stephens, 64 Wn.2d 806 (1964).

In the case of Overlander, the court stated a driver is responsible for the weather conditions and driving conditions, even if unfavorable. “Inclement weather and unfavorable driving conditions, place added burdens upon both driver and pedestrian, and do not excuse the driver’s duty to maintain a continuous observation to see what is there to be seen. Burnham v Nehren, 7 Wn.App. 860 (1972).

However, a jury must determine the time a driver had to see a pedestrian to permit the otherwise reasonably prudent driver, the ability to yield the right of way. Before the statutory duty arises, he must either know the presence of the pedestrian or, exercising, reasonable care, he (or she) should have learned of the pedestrians presence in the crosswalk.” Overlander, p. 335.

The facts in Overlander are tragic, in that a young child, when she was less than three years old, darted into a crosswalk in Morton, Washington. The child was struck by a car operated by defendant Johnson. The jury returned a verdict in favor of the defendant.

The appellate court upheld the decision, stating the trial court properly instructed the jury as follows “although the duty is upon the operator of a motor vehicle to yield the right of way to a pedestrian in a crosswalk, before this duty arises, said operator must be in a situation, whereby he is either aware of the presence of pedestrian, with a crosswalk, or, if he had been exercising reasonable care, and looking out for an anticipating the presence of a pedestrian within such crosswalk, he should have become aware of his presence there in.” Overlander, pgs. 331–32.

In other words, a driver is only responsible for collisions in a crosswalk, when there is a reasonable opportunity to see a pedestrian entering and being present while in the crosswalk.

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The purpose of tort law is to provide for public safety through deterrence

Posted Tuesday, January 09, 2024 by Ed Harper

The Washington Supreme Court has noted that “the underlying purpose of tort law is to provide for public safety through deterrence.” Davis v. Industrial Contractors Inc., 159 Wn.2d 413, 150 P.3d 545 (2007).

So, you may ask, what is a tort or what is tort law? The definition of a tort as given by the Washington Courts in advising jurors states: A tort is an injury or wrong committed, with or without force, to the person or property of another, which gives rise to a claim for damages. Tort cases, (tort law) comprise a large portion of civil litigation, especially relating to personal injury claims. Additionally, damages is defined as: Compensation recovered in the courts by a person who has suffered loss, detriment or injury to his or her person, property or rights, through the unlawful act or negligence of another.(https://www.courts.wa.gov/newsinfo/resources/?fa=newsinfo_jury.termguide)Justice Tom Chambers, who authored Davis v. Industrial Contractors Inc., quoted Justice Benjamin N. Cardozo’s watershed opinion where he explained “we have put aside the notion that the duty to safeguard, life and limb, when the consequences of negligence may be foreseen, grows out of contract, and nothing else. We have put the source of the obligation where it ought to be. We have put its source in the law.“ Cardozo’s landmark opinion, MacPherson v. Buick Motor Company, 111 NE 1050, 217 N.Y. 382, 397 (1916).

Thus, the deterrent effect of tort law was relied on and established as a premise for extinguishing the “completion and acceptance” doctrine.

The “completion and acceptance” doctrine was abandoned in Davis, because “the doctrine is also harmful because it weakens the deterrent effect of tort law on negligent builders.” Justice Chambers in citing an Illinois case, Johnson v. Equipment Specialists, stated “an underlying purpose of tort law is to provide for public safety through deterrence of negligent designers and builders. This purpose cannot be accomplished if these persons are insulated from liability, simply by the act of delivery.” Citing Johnson 58 Ill. App. 3d 133, 373 N.E.2d 837, 843 (1978).

In Johnson, an individual was killed due to a leak in an underground pipe in December 2000. The construction and installation of a network of pipes was completed in April 1997. Evidence showed that one of the high density, polyethylene pipes, which had a useful life of up to 100 years, had failed. The defendant alleged as a contractor, that they had finished the project and it was “completed and accepted” by the owner. The trial court agreed, and dismissed the plaintiff’s lawsuit under the “completion and acceptance” doctrine, which prevented the lawsuit from going further subject to this Washington Supreme Court decision. The Supreme Court decision sent the case back to the trial court, after an elimination of the “acceptance and completion” doctrine.

Accountability is the essence of tort law and placing responsibility is something our civilized society places on the wrongdoer. Our system works because of the premise that people should act in a certain way, and conduct themselves as a reasonably prudent person would behave. Therefore, as a society we seek to reduce injuries and injurious events by deterring unreasonable and unsafe behavior. This will discourage people from engaging in conduct due to the threat of the imposition of liability, if their actions are considered deficient.

In Davis, Justice Chambers’ decision correctly places responsibility on the culpable party.

So, in a negligence case, a jury needs to decide is what a reasonably careful and prudent person would have done based on the same or similar circumstances as the defendant faced.

Then, once the jury has found a failure to act responsibly for a “tort”, the jury will then determine the amount of compensation (damages) is necessary to make amends for the harm caused by the defendant’s negligent behavior.

Finally, an award for damages is supposed to put the injured person in a place where they would have been if not for the injury. In other words, to make up for what they have lost.

Bottom Line: Having the verdict rendered against the responsible defendant (to pay for what they have broken) will encourage and incentivize good behavior.

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Personal Injury Settlement for $2.75 million

Posted Tuesday, November 01, 2022 by Ed Harper

Recently, Ed Harper of Harper Law PLLC teamed with David Crump of The Crump Law Firm representing a young mother of three who was seriously injured due to a Washington State Dept. of Transportation (WSDOT) employee who made an illegal U-turn on State Route 522 causing her vehicle to roll several times. Thankfully, she and her 2 1/2 year old son were able to be extricated.

The State of Washington admitted liability for the crash and paid the sum of $2.75 million to resolve this claim two weeks short of trial.

Ed and David were prepared to go to trial and were honored to represent this young mother in her battle against the State which had denied liability until three weeks before the scheduled trial date.

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