No. 35251-6-II.The Court of Appeals of Washington, Division Two.
June 26, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-2-10969-1, Katherine M. Stolz, J., entered August 3, 2006.
Reversed
and remanded by unpublished opinion per Bridgewater, J., concurred in by Van Deren, A.C.J., and Quinn-Brintnall, J.
BRIDGEWATER, J.
Derek J. Benally, age 15, appeals from a summary judgment in favor of the Tacoma School District based on his assumption of the risk and lack of proximate cause. Benally fell 20 feet from a Lincoln High School stairway while sitting on top of a railing and leaning backwards. We hold that there were genuine issues of material facts and reverse and remand for trial.
FACTS
On September 30, 2003, Benally and his school friends congregated on a second story breezeway at Lincoln High School in Tacoma. His friends had previously warned him not to sit on the railing that protected students from falling 15 or 20 feet to the ground below. But after lunch that day, Benally sat on the railing, leaning backwards into space. As his friends had predicted, he lost his balance and fell to the concrete floor below, sustaining wrist fractures, a compound leg fracture, a broken tooth, and minor internal injuries.
Benally’s fall was linked to a square stone cap that sat on top of a pillar next to the stairs leading to the ground floor. The school security officer described the cap as a “heavy stone top.” CP at 73. In their depositions, two of his friends recounted that as Benally was leaning back, holding onto the stone cap with one hand and the railing with the other. One friend remembered that “the rock slipped, kind of slid, and he lost his balance, and that’s how he fell backwards.” CP at 126. He admitted, however, that he saw Benally’s hand on the rock, saw him fall, then saw that the rock had shifted. The other friend recalled that the stone cap shifted as he fell. Everyone agrees that after Benally fell, the stone cap had shifted.
Benally did not remember anything about the fall or the events leading up to it. He admitted that, in retrospect, it was stupid to sit on the railing. In his words, it was common sense not to lean out over the railing. He also testified in his deposition that before his fall, he did not know that the stone caps on the pillars could be moved.
In opposition to the District’s summary judgment motion, Benally presented evidence that the stone caps at Lincoln High School had come loose before his accident. He submitted three maintenance reports, two from 2000 and one from 2003, detailing repairs for loose stone caps. In addition, he offered deposition transcripts from some District employees indicating that they remembered loose stone caps at the school. One of the employees recounted that he had told the “building chief” employee that he was tired of waiting on maintenance and that one of the stone caps would come off periodically. CP at 137. It is not clear from the deposition whether these were separate incidents from those in the maintenance reports.
The depositions also contain some suggestion that Lincoln High School staff members knew that kids sat on the railing and stood on adjoining benches. Benally remembers school staff members telling students to stop horsing around when they would sit on the capstones or stand on the benches. But Benally could not remember ever seeing students sitting on the railing. One of Benally’s friends remembered staff members telling students not to sit on the railing. Grant Hosford, the principal, could not remember ever seeing students sitting on the railing.
On July 25, 2005, Benally sued, alleging that the District failed to maintain the school grounds in appropriate manner, failed to warn students about the danger of sitting on the railing, and failed to adequately supervise the students while on break from classes. The District moved for summary judgment on several grounds, arguing that (1) the railing was not in a dangerous condition, (2) Benally had assumed the risk of his behavior, (3) the District had no notice the cap was loose or that students sat on the railing, and (4) Benally’s actions were the only proximate cause of his fall.
On August 3, 2006, based on the facts above, the trial court granted the District’s summary judgment motion. The order did not specify grounds for the summary judgment, but, at oral argument, the trial court reasoned that Benally assumed the risk of falling by sitting on the railing and that Benally would have fallen whether the stone cap had moved or not. The trial court denied Benally’s reconsideration motion.
ANALYSIS I. Assumption of Risk
Benally argues that the trial court improperly applied the assumption of risk doctrine as a complete bar to his recovery because there is a genuine issue of material fact as to whether Benally knew that the heavy stone cap was loose and assumed that risk. The District argues that by sitting on the railing, Benally voluntarily assumed the risk of falling so the District cannot be held liable for his injuries.
We review a trial court’s decision to grant summary judgment de novo, engaging in the same inquiry as the trial court. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 860, 93 P.3d 108 (2004). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact.” CR 56(c); Brown v. Stevens Pass, Inc., 97 Wn. App. 519, 522, 984 P.2d 448
(1999), review denied, 141 Wn.2d 1004 (2000). In determining whether there is a genuine issue of material fact, we consider the facts and reasonable inferences from them in the light most favorable to the nonmoving party. Vallandingham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005). When summary judgment turns on a factual question, it is only appropriate when, from all the evidence, reasonable persons can reach only one conclusion. Vallandingham, 154 Wn.2d at 26.
Traditionally, the assumption of risk doctrine is divided into four classifications: (1) express assumption of risk; (2) implied primary assumption of risk; (3) implied reasonable assumption of risk, and (4) implied unreasonable assumption of risk. Scott v. Pac. W. Mountain Resort, 119 Wn.2d 484, 496, 834 P.2d 6 (1992). After Washington’s enactment of the comparative negligence and comparative fault statutes, the third and fourth classifications became mere forms of contributory negligence and retain no independent significance. Scott, 119 Wn.2d at 497. Thus, in Washington, assumption of risk must be either express or implied primary.
Our inquiry under both express and implied primary assumption of risk is whether the plaintiff consented, before the accident or injury, to the negation of a duty that the defendant would have otherwise owed the plaintiff. Erie v. White, 92 Wn. App. 297, 302, 966 P.2d 342 (1998) review denied, 137 Wn.2d 1022 (1999). The difference between express and implied primary assumption of risk is the way in which the plaintiff manifests consent. Erie, 92 Wn. App. at 302-03. Under the implied theory, we must infer consent from the plaintiff’s conduct. Erie, 92 Wn. App. at 303.
In order to establish implied primary assumption of risk, the District must show that Benally “(1) had a full subjective understanding (2) of the presence and nature of the specific risk, and (3) voluntarily chose to encounter the risk.” Kirk v. Washington State Univ., 109 Wn.2d 448, 453, 746 P.2d 285 (1987). To prove the first two elements, or Benally’s knowledge of the risk, the District must show that, at the time of the decision, Benally actually and subjectively knew of the facts that a reasonable defendant would know and disclose or all the facts that a personal plaintiff would want to know and consider. Erie, 92 Wn. App. at 303-04. To prove Benally voluntarily decided to encounter the risk, the District must show that he elected to sit on the railing despite having a reasonable alternative course of action. Erie, 92 Wn. App. at 304. Both knowledge and voluntariness are questions of fact for the jury except when reasonable minds could not differ. Erie, 92 Wn. App. at 303.
The consequences of finding assumption of risk are dispositive. If the plaintiff consents to relieve the defendant of its duty, “the defendant does not have the duty[, and] there can be no breach and hence no negligence.” Scott, 119 Wn.2d at 497. Thus, assumption of risk, either express or implied primary, is a complete bar to recovery. Erie, 92 Wn. App. at 302. Because these facets of assumption of risk bar recovery, they tend to undermine Washington’s comparative negligence principles. Kirk, 109 Wn.2d at 455-56; Dorr v. Big Creek Wood Prods. Inc., 84 Wn. App. 420, 425-26, 927 P.2d 1148 (1996). Thus, Division One of this court has warned that the doctrine must be “boxed and carefully watched” and 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.” Dorr, 84 Wn. App. at 425-26.
In order to avoid allowing assumption of risk to undermine our comparative fault tort regime, the Supreme Court has indicated that it is “essential” to first define what duties a defendant owes a plaintiff Scott, 119 Wn.2d at 500; Dorr, 84 Wn. App. at 427. Once we identify the duties a defendant owes a plaintiff, we segregate those duties into (a) those, if any, that the plaintiff consented to negate, and (b) those, if any, the defendant retained. Alston v. Blythe, 88 Wn. App. 26, 34, 943 P.2d 692 (1997). Where an injury is caused by a combination of assumed or inherent risks and a defendant’s negligence, comparative fault applies. Brown, 97 Wn. App. at 526. In other words, assumption of risk bars recovery only for those risks assumed; it “does not preclude recovery for injuries resulting from risks not known or not voluntarily encountered.” Kirk, 109 Wn.2d at 456.
In this case, the District owes Benally at least two duties. First, because the school has a special relationship with its students, it must exercise such reasonable supervision as a reasonably prudent person would exercise under the same or similar circumstances. J.N. v. Bellingham Sch. Dist. No. 501, 74 Wn. App. 49, 57, 871 P.2d 1106 (1994). This duty extends to foreseeable risks of harm that are within the general field of danger covered by the specific duty owed by the defendant. J.N., 74 Wn. App. at 57.
Benally contends that this is a heightened duty and that assumption of risk is therefore not applicable. He directs this court to a line of cases in which our Supreme Court has held that a student cannot be contributorily negligent when abused by a teacher or school employee. See e.g., Christiansen v. Royal Sch. Dist. No 160, 156 Wn.2d 62, 67, 124 P.3d 283 (2005)). As the District points out, however, that holding was unique to sexual abuse. Christiansen, 156 Wn.2d at 69. The court held that children, as a matter of public policy, have no duty to protect themselves from sexual abuse by teachers. Christiansen, 156 Wn.2d at 70.
This does not mean that a 15-year-old boy does not have a duty to avoid falling off of railings or is unable to appreciate the risk of falling and assume the risk of doing so. Children from 6 to 16 are held to the same standard of conduct that a reasonably careful child of the same age, intelligence, maturity, training, and experience would follow Scott, 119 Wn.2d at 503. In fact, in Scott, the Washington Supreme Court discussed the assumption of risk in the context of a 12-year-old skier and reasoned that “[The 12 year-old] assumed the risks inherent in the sport of skiing.” Scott, 119 Wn.2d at 501. By easy analogy, Benally is capable of assuming the risk that he might fall from a railing.
The second duty is that of a possessor of land. The extent of this duty depends on Benally’s common law classification as an invitee, licensee, or trespasser. Tincani v. Inland Empire Zoological Soc’y, 124 Wn.2d 121, 128, 875 P.2d 621 (1994). The District concedes that Benally was an invitee. Accordingly, the District is subject to liability for physical harm caused by conditions on its property if it:
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against danger.
Kamla v. Space Needle Corp., 147 Wn.2d 114, 125-26, 52 P.3d 472 (2002) (citing Restatement Second of Torts §§ 343, at 215-16 (1965)). If the danger is known or obvious, the District is not liable unless it should have anticipated the harm despite such knowledge or obviousness. Kamla, 147 Wn.2d at 126.
In this case, Benally alleges that he faced three separate dangers. First, he faced a fall from a second story breezeway. Second, he faced the danger that the heavy stone cap might dislodge and cause injury. Third, he faced inadequate supervision.
Turning to the first danger, the fall from the second story breezeway was an obvious danger. The District took the reasonable precaution of installing a railing[1] to prevent students from falling off. All the evidence in the record establishes that Benally bypassed the District’s safety measure by sitting on top of the railing. The evidence clearly establishes that reasonable persons could come to only one conclusion, that Benally was subjectively aware that this behavior exposed him to a fall. Although Benally argues that there is no direct evidence that he understood the risk of falling because he cannot remember falling, there is more than enough evidence to establish his knowledge. For example, when warned by his friends that he would fall, he replied that they should not jinx him. As this indicates, he was aware of the risk he was taking. There is no genuine issue of material fact as to knowledge.
The record also establishes that he voluntarily exposed himself to that risk. His friends warned him that he would fall if he sat on the railing. He had a reasonable opportunity at that point to step down from the railing, and he chose not to do so. From this evidence, a reasonable trier of fact would infer that Benally consented to relieve the District of its duty to prevent his fall over the railing.
While Benally did assume the risk of falling if he lost his balance on the railing, there are two other dangers that he did not necessarily assume: maintenance of the stone caps and adequate supervision. Because assumption of risk does not bar recovery for unassumed risks, if Benally’s injury can be attributed to either of these dangers, summary judgment based on assumption of risk is inappropriate.
First, turning to the role that the stone cap played in Benally’s fall, the record establishes that there is a genuine issue of material fact about whether Benally assumed the risk that the District would negligently maintain the heavy stone caps. There is no evidence to suggest that Benally, or anyone for that matter, knew that the particular stone cap in question was loose. Benally testified that he did not know that the caps were loose or could be loose. This is enough to create a genuine factual dispute over whether Benally subjectively knew the cap might shift or whether he voluntarily assumed that risk. Because assumption of risk does not bar recovery for dangers or risks about which the plaintiff was unaware, Kirk, 109 Wn.2d at 456, Benally is entitled to recover for damages caused by the District’s negligence in maintaining its stone caps.
The District argues that summary judgment is still appropriate on this theory because it could not reasonably foresee that Benally would use the stone cap to balance himself. Thus, the District asserts it had no duty to Benally to secure the stone caps. As indicated above, the District’s duty to Benally is limited to prevention of foreseeable harms. J.N., 74 Wn. App. at 57; Kamla, 147 Wn.2d at 126. A harm is reasonably foreseeable if it falls within a general field of danger that should have been anticipated. McLeod v. Grant County Sch. Dist. No. 128, 42 Wn.2d 316, 321, 255 P.2d 360 (1953). This is true even if the actual sequence of events leading to the harm was unusual. McLeod, 42 Wn.2d at 322. Normally, foreseeabilty is a jury question, but it can be resolved by a court where it is so highly extraordinary as to be wholly beyond the range of expectability. Raider v. Greyhound Lines, Inc., 94 Wn. App. 816, 819, 975 P.2d 518, review denied, 138 Wn.2d 1011 (1999).
In this case, it is easily foreseeable that someone might lean against the stone cap or use it to pull themselves up the steps. If the cap were to shift or fall, it might well cause someone to fall down the stairs. Thus, the school owed a general duty to keep the caps secure. Even though the District might not have foreseen students using the caps to balance themselves, a fall causing injury is within the general field of danger from heavy loose stone caps. Accordingly, even if Benally’s decision to balance on the railing was not specifically foreseeable, the harm he suffered was foreseeable and the District may be liable. McLeod, 42 Wn.2d at 322.
Moreover, there is some indication in the record that District officials were aware that students stood on benches near this railing or sat on the railing. A reasonable juror might conclude that it was foreseeable that a student might use the cap for something other than decorative purposes. Therefore, there is at least a genuine issue of material fact about whether Benally’s actions were foreseeable. Thus, the District is not entitled to summary judgment.
We note that the District cannot avoid liability by arguing that it did not know about the loose stone caps. To an invitee like Benally, a possessor of land owes a duty to discover dangerous conditions. Kamla, 147 Wn.2d at 126. And Benally presented evidence that the District was aware that there were some loose caps around the school. Taking all inferences in favor of Benally, a reasonable trier of fact might conclude that the District should have discovered that the cap involved in this accident was loose.
Regarding the alleged breach of supervisory duty, there is a factual dispute because the record contains some suggestions that students often congregated on this breezeway and may have sat on the railings regularly. If this was a common occurrence, it might be that the District had an enhanced duty of supervision to prevent students from horsing around over the 20-foot fall. Benally’s expert asserts that the school’s supervision levels were inadequate, even though staff members, when aware of it, told Benally and other students not to stand on benches near the railing and to get off. But from our records, when Benally fell, there was no school staff member present to prevent dangerous conduct. There is an issue of material fact; hence, this is an independent theory of recovery and would defeat summary judgment.
II. Proximate Cause
Benally also argues that the trial court erred when it appeared to hold that the shifting stone cap was not a proximate cause of Benally’s fall. We agree that the evidence establishes a genuine issue of material fact as to what role, if any, the stone cap played in Benally’s fall. We review this issue under the same summary judgment standards described above.
Proximate cause consists of two elements: cause in fact and legal causation. Tyner v. Dep’t of Soc. Health Servs., 141 Wn.2d 68, 82, 1 P.3d 1148 (2000). Cause in fact asks the court to determine if the injury would have occurred “but for” the defendant’s negligence. Tyner, 141 Wn.2d at 82. Cause in fact is a factual question for the fact finder and summary judgment is only appropriate if reasonable minds can come to only one conclusion. Joyce v. Dep’t of Corr., 155 Wn.2d 306, 322, 119 P.3d 825 (2005).
Benally introduced evidence suggesting that the stone cap was a but-for cause of his fall. As noted in the facts, one of Benally’s friends remembered that “the rock slipped, kind of slid, and he lost his balance, and that’s how he fell backwards.” CP at 126. And everyone agrees that after Benally fell, it was apparent that the stone cap had shifted. The District contends that Benally’s reckless behavior was also the proximate cause of his fall. While Benally’s actions contributed to his fall, that does not bar recovery for the proportion of fault that a jury might assign to the District for failing to secure its heavy stone caps. A reasonable trier of fact might infer from the record that Benally would not have fallen had the stone cap not shifted. Thus, summary judgment on this issue was inappropriate.
Legal causation is ground in policy and focuses on whether the connection between the ultimate result and the defendant’s act is too remote to establish liability. Tyner, 141 Wn.2d at 82. This determination depends on mixed considerations of logic, common sense, justice, policy and precedent. Schooley v. Pinch’s Deli Market, 134 Wn.2d 468, 478-79, 951 P.2d 749 (1998). We hold that the District’s alleged failure to maintain its stone caps can be a legal cause of Benally’s fall. The relationship between the stone cap and the fall is immediate if Benally’s evidence is accurate. Therefore summary judgment on the issue of causation was inappropriate.
Thus, based on this record, there was no assumption of the risk and there were genuine issues of material facts regarding whether the stone cap and inadequate supervision were proximate causes in Benally’s injury. We reverse and remand for trial.
Reversed and remanded.
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.
QUINN-BRINTNALL, J. and VAN DEREN, A.C.J., concur.