Barrett v. Lowe's Home Centers, Inc.

324 P.3d 688, 179 Wash. App. 1
CourtCourt of Appeals of Washington
DecidedAugust 13, 2013
DocketNo. 43024-0-II
StatusPublished
Cited by3 cases

This text of 324 P.3d 688 (Barrett v. Lowe's Home Centers, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barrett v. Lowe's Home Centers, Inc., 324 P.3d 688, 179 Wash. App. 1 (Wash. Ct. App. 2013).

Opinion

Penoyar, J.

¶1 Shirley Barrett was injured by falling boxes while watching John McDowell, a Lowe’s employee, unload the trailer she had delivered. She sued both Lowe’s and McDowell for negligence. The trial court granted summary judgment in favor of Lowe’s.1 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 [4]*4court’s summary judgment order and remand for further proceedings.

FACTS

¶2 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 asked Lowe’s receiving manager, McDowell, for help. Barrett stood back as McDowell opened the trailer doors. They discovered that some large boxes near the doors were held up by a nylon rope. McDowell proceeded to cut through the rope holding the boxes in place. Barrett expressed her concern at McDowell’s actions, asking him, “Are you sure you want to do that?” Clerk’s Papers at 93. She stated in her deposition that she thought the boxes would fall once McDowell cut through the rope.

¶3 While McDowell was attempting to cut the rope, Barrett noticed that the lock she used to secure her trailer was on the ground between her and the trailer. Without saying anything to McDowell or making eye contact, she walked forward and 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 the trailer and hit Barrett, knocking her to the ground and injuring her. Barrett sued Lowe’s for negligence. 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

¶4 Barrett argues that the trial court erred by granting Lowe’s summary judgment motion and concluding that the [5]*5assumption of risk doctrine applies in this case. Because there is no evidence that Barrett consented to relieve Lowe’s of the duty of care owed her, we agree.

¶5 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 judgment as a matter of law. CR 56(c); Folsom, 135 Wn.2d at 663. We construe the facts and reasonable inferences in favor of the nonmoving party. Korslund v. DynCorp TriCities Servs., Inc., 156 Wn.2d 168, 177, 125 P.3d 119 (2005). Summary judgment is appropriate if reasonable persons could reach only one conclusion from the evidence presented. Korslund, 156 Wn.2d at 177.

¶6 There are four varieties of assumption of risk in Washington: (1) express, (2) implied primary, (3) implied unreasonable, and (4) implied reasonable. Gregoire v. City of Oak Harbor, 170 Wn.2d 628, 636, 244 P.3d 924 (2010). 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. 709, 719, 965 P.2d 1112 (1998). Lowe’s does not argue express assumption of risk applies here. Implied primary assumption of risk is shown by the plaintiff engaging in conduct that implies her consent. Home, 92 Wn. App. at 719. The defendant must establish that “ ‘the plaintiff (1) had [knowledge] (2) of the presence and nature of the specific risk, and (3) voluntarily chose to encounter the risk.’ ” Gregoire, 170 Wn.2d at 636 (quoting Kirk v. Wash. State Univ., 109 Wn.2d 448, 453, 746 P.2d 285 (1987)). Knowledge and voluntariness are questions of fact for the jury unless reasonable minds could not differ. Home, 92 Wn. App. at 720. Implied primary assumption of risk is a complete bar to a plaintiff’s recovery. Gregoire, 170 Wn.2d at 636.

[6]*6 ¶7 By contrast, implied unreasonable and reasonable assumption of risk are treated as forms of contributory negligence. Kirk, 109 Wn.2d at 454. They apportion a degree of fault to the plaintiff and reduce her damages. 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. App. 633, 643, 154 P.3d 307 (2007). “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 negligence is all that is necessary and appropriate.” Dorr v. Big Creek Wood Prods., Inc., 84 Wn. App. 420, 426, 927 P.2d 1148 (1996).

¶8 “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 (2000). Washington courts have treated this issue as one of scope, examining whether the 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).

¶9 In order to determine what risks Barrett assumed, it is necessary to determine what duties Lowe’s owed Barrett. See Scott, 119 Wn.2d at 500. The existence of a duty is a question of law. Tallariti v. Kildare, 63 Wn. App. 453, 456, 820 P.2d 952 (1991). Barrett argues that she was an invitee and thus was owed a duty of reasonable care. A “business invitee” is a person who is invited to enter a 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) (quoting Restatement (Second) of Torts § 332 (1965)). The possessor owes the invitee a duty [7]

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324 P.3d 688, 179 Wash. App. 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barrett-v-lowes-home-centers-inc-washctapp-2013.