The Harper Law Blog

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

Premises Liability - Location, Location, Location

Posted Thursday, September 22, 2016 by Ed Harper

There are 3 definitions that govern premises liability as well as real estate property values.

The State of Washington relies on an antiquated distinction articulated for numerous centuries, dating back to English Common Law – of liability and the duty of the landowner – which depends on the status of the one on the property. They are defined as Invitees, Licensees, and Trespassers.

The standard of care which a possessor of land owes to an entrant upon the land depends upon whether the entrant is a trespasser, licensee or business invitee. (Restatement (Second) of Torts Sections 328-344 (1965)) So to be clear, the three items are defined as follows:

Invitee is “one who is invited onto the premises, either by express or implied permission, to enter or remain on land for a purpose directly or indirectly connected with the business dealings (providing an economic benefit) of the possessor of the land.” (Restatement (Second) of Torts Sec. 332, and Thompson v. Katzer, 86 Wn.App. 280, 286, 936 P.2d 421)

A licensee is “a person who is privileged to enter or remain on land only by virtue of the possessor’s consent.” (Restatement (Second) of Sec. Torts 330, and Younce v. Ferguson, 106 Wn.2d 658 at 667, 724 P.2d 991 (1965))

And a trespasser is “a person who enters or remains upon land in possession of another without a privilege to do so created by the possessor’s consent or otherwise.” (Restatement (Second) of Sec. Torts 329)

Why should we care about the status of a person? For the reason that this determines the amount of care or responsibility we need to offer to those on our property. Section 343 of the Restatement Second of Torts, “establishes that 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:1. he 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 2. should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and 3. fails to exercise reasonable care to protect them against the danger.

(Iwai v. State, 129 Wn2d 84, 93-94, 915 P.2d 1089 (1996))

To a licensee, a possessor of land is liable for injuries caused by a condition on the land only if:1. 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 2. the possessor rails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and 3. the licensees do not know or have reason to know of the condition and the risk involved.

(Tincani v. Inland Zoological Society, 124 Wn. 2d 121, 133, 875 P.2d 621)

And to a trespasser, generally no duty of care with respect to safety of conditions of premises (exception for some known trespassers) but cannot intentionally ignore them and possessor must still refrain from intentionally or willfully injuring them.

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Two Cars Meet in an Unexpected Manner

Posted Monday, September 19, 2016 by Ed Harper

Two Cars Meet in an Unexpected Manner

Whenever there is an automobile accident at an uncontrolled intersection, one may ask “who is at fault?” this is a common occurrence for cars especially on small side streets in modern suburbia.

An uncontrolled intersection is one where there are no traffic control devices (signs, and/or signals) to inform a driver to yield or stop at the intersection.

There is a basic rule for cars arriving at an uncontrolled intersection. (RCW 46.61.180) When cars approach or enter an intersection from different highways at approximately the same time, the car on the right becomes the favored driver. Thus, the car on the left needs to yield the right of way.

However, issues often arise. In an intersection case, the favored driver on the right may assume that the driver on the left will yield the right of way. This assumption continues in effect until the favored driver becomes aware, or in the exercise of reasonable care should have become aware, that the right of way will not be yielded. (Massengale v. Svangren, 41 Wn.2d 758, 252 P.2d 317 (1953))

Thus, one may ask, when does a driver “become aware, or in the exercise of reasonable care should have come aware, that the right of way will not be yielded”? This requires a factual inquiry, and depends on each case. Reasonable care requires drivers to look and see that which is there to be seen. “Every person has a duty to see what would be seen by a person exercising ordinary care.” (Washington Pattern Jury Instruction 12.06). Liability can flow if the driver, even the favored driver, does not look. And if he had looked, he would have seen the other car not yielding the right of way.

Therefore, the favored driver status is not iron-clad and does not establish liability on the non-favored driver if these cars unexpectedly meet in the intersection – via an automobile accident. If one does not keep a proper lookout for his own and others safety immediately prior to the crash, the favored driver will be found at fault. Focusing on objects around you, especially vehicles traveling to your right and left as you approach and enter an intersection, is reasonable.

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Reasonably Safe Roads for Ordinary Travel

Posted Thursday, September 15, 2016 by Ed Harper

Reasonably Safe Roads for Ordinary Travel

Recently, the Washington Supreme Court provided clarification for what constitutes the extent of a municipality’s duty and the effect on legal causation. In Lowman v. Wilbur, 178 Wn.2d 165, 309 P.3d 387 (2013) the court looked at an opportunity to “clarify the interrelationship between questions of duty and legal causation in the context of a municipality’s obligation to design and maintain reasonably safe roadways.” Lowman at 389.

On the night of August 5, 2005, Nathan Lowman and Jennifer Wilbur left a bar together. Wilbur drove and as her car was proceeding down a steep, winding hill, she lost control of her vehicle, left the road and hit a PSE (Puget Sound Energy) utility pole. The utility pole was located 4.47 feet from the edge of the roadway. Lowman was severely injured.

Lowman brought a negligence claim against Wilbur, PSE, Skagit County and others. As to PSE and Skagit County, Lowman presented evidence that the utility pole placement was too close (within a 10 foot clear zone) from the edge of the roadway. However, other evidence showed that Wilbur was speeding at the time of the accident and that she was driving while under the influence of alcohol. Lowman at 389.

“This court in Keller v. Spokane, 178 Wn.2d 170, has held that a ‘municipality owes a duty to all persons, whether negligent or fault free, to build and maintain its roadways in a condition that is reasonably safe for ordinary travel.’” Keller at 249. Thus, the Wilbur court was going to have to decide if this included the actions of Wilbur and Lowman, even though they may have been under the influence. As mentioned above, the municipality and utility company’s responsibility does extend to all persons using the road in an ordinary manner. As the court in Lowman articulates, “We cannot disregard Keller’s holding that the responsibility to design and maintain reasonable safe roadways extends to both at fault and fault free drivers.” Lowman, at 390.

The question of legal causation is based on how far public policy should extend to protect the innocent and the not so innocent drivers, if their actions are foreseeable. “Legal cause ‘is grounded in policy determinations as to how far the consequences of a defendant’s actions should extend’”. Lowman, at 391. Thus, if Lowman’s injuries were in fact caused by the placement of the utility pole, and/or in any combination thereof, then “they cannot be deemed too remote for purposes of legal causation.” Lowman, at 391.

Thus, the court found no reasonable basis to not extend the potential responsibility, contrary to the trial court’s finding, to the municipality and the utility company for their agreed negligent placement of the pole, in being too close to the roadway.

“Whatever the reasons for a car’s departure from a roadway, as a matter of policy, we reject the notion that a negligently placed utility pole cannot be the legal cause of resulting injury.” Lowman at 391.

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Parent-Teen Driving Agreement

Posted Tuesday, September 13, 2016 by Ed Harper

Parent-Teen Driving Agreement

Following up on a recent blog post, “Teen Driving Tips”, we have decided to type up a Parent-Teen Driving Agreement. This agreement is downloadable, and will allow you and your teen to know exactly what expectations the other person has, hopefully adding peace-of-mind to a sometimes stressful transition period.

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Clear Zones

Posted Thursday, September 08, 2016 by Ed Harper

Clear Zones

Experts agree that auto accidents due to fixed immovable objects are a hazard that impacts all users of our state’s highways. The area surrounding the highway is also the government’s responsibility. This includes a “clear zone”. A “clear zone” is the area adjacent to the roadway where it is foreseeable that vehicles could drive even though this area is not deemed part of the roadway itself. According to AASHTO (American Assoc. of State Highway and Transportation Officials) “the term clear zone is used to designate the unobstructed, relatively flat area provided beyond the edge of the traveled way for the recovery of errant vehicles”.

This includes what is commonly known as the shoulder, recoverable slope, run out area, or a turn out. Engineers measure the distance of this clear zone from the inside of the fog line away from the road.

As mentioned in a previous blog post, roadside objects play an integral role in the safety of drivers and passengers on roads. Fixed, immovable objects on the sides of roads have been identified as hazardous to cars, especially as they enter and leave the roadway. The definition of what constitutes a “fixed object”, according the Washington State Department of Transportation (WSDOT) includes items such as the following:

  • Nonbreakaway steel sign posts
  • Nonbreakaway light standards
  • Trees having a diameter of 4 inches or more measured at 6 inches above the ground surface
  • Fixed objects extending above the ground surface by more than 4 inches
  • Existing guardrail that does not conform to current design guidance
  • Drainage items, such as culvert and pipe ends

The mandate for new or redesigned roads are 10 foot clear zones for 35 mph roads and greater for higher speed roads.

Municipalities – city, state, and county governments – may be found negligent for having a roadway defect, including a fixed object with in this 10 foot clear zone. Governments in regard to clear zones need to take a pro-active approach vs. a reactive approach. This, in conjunction with the Wuthrich ruling, (see previous blog post) for assessment and possible removal of roadside vegetation will hopefully make drivers and their passengers safer. Identification and then inventory of dangerous hazards, and enacting a coordinated plan to remove potentially dangerous hazards (or guard against them) before it’s too late.

Rural roadways often have immense numbers of trees and other objects which pose safety hazards, but a highway must be reasonably safe for ordinary travel. Further, removal of dangerous conditions is the municipalities’ (state and utility district’s) responsibility. No longer will municipalities and the state be allowed to argue the vast number of objects as a defense.

Removing roadside trees or installing guardrails on rural roads will save lives.

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