Ganno v. Lanoga Corp.

80 P.3d 180, 119 Wash. App. 310, 52 U.C.C. Rep. Serv. 2d (West) 144, 2003 Wash. App. LEXIS 2765
CourtCourt of Appeals of Washington
DecidedNovember 25, 2003
DocketNo. 29762-1-II
StatusPublished
Cited by6 cases

This text of 80 P.3d 180 (Ganno v. Lanoga Corp.) 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
Ganno v. Lanoga Corp., 80 P.3d 180, 119 Wash. App. 310, 52 U.C.C. Rep. Serv. 2d (West) 144, 2003 Wash. App. LEXIS 2765 (Wash. Ct. App. 2003).

Opinion

Hunt, C. J.

Henry Ganno appeals the trial court’s grant of summary judgment to Lanoga Corporation, d/b/a Lumbermen’s Building Centers in Fife, in Ganno’s action for injuries he claims were caused by Lumbermen’s negligent loading of a beam into his truck. Ganno argues that Lumbermen’s breached the duty of care that a business owner owes its customers when it failed to secure his load before he left the premises. We hold as a matter of law under the facts of this case that it was Ganno’s duty, not Lumbermen’s, to make sure his load was secure before driving onto the public highways. We affirm.

FACTS

Henry Ganno went to the Fife Lumbermen’s store, where he purchased a 12-foot beam weighing 100 pounds. In the lumberyard, a Lumbermen’s employee approached Ganno, took his receipt, and used a forklift to place the beam in the open bed of Ganno’s truck. The employee placed one end of the 12-foot beam on top of a toolbox that Ganno had in the bed of his truck and the other end on top of the truck’s tailgate. Ganno’s truck bed was six feet, six inches long with the tailgate down, and the beam projected about four feet from the end of the truck. The employee asked Ganno if he wanted the beam flagged, Ganno said “yes,” and the employee flagged the beam. The employee did not tie down or otherwise secure the beam before authorizing Ganno to leave the loading area.

There was a sign posted in the lumberyard that stated Lumbermen’s policy not to secure loads for customers:

[313]*313[[Image here]]

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Br. of Resp’t, Exhibit No. 5. Ganno had to drive by this sign when he entered the lumberyard, although he claims the sign was obscured and was too small to read. The employee and Ganno did not discuss securing the beam, although Ganno claims that the employee implied that he had done so when he said, “That’s it.”

At no time did Ganno leave his truck, tie down the beam, attempt to use the twine provided for customers near the lumberyard’s entrance, or check his load to make sure that it was secure. Instead, he drove out of the lumberyard with the long, heavy beam propped on the toolbox and extended [315]*315more than four feet out from the end of the truck bed. As he turned a corner, the beam fell off the truck into the public street. As Ganno attempted to retrieve the beam, another motorist hit it, which caused the beam to strike Ganno’s leg and shatter his kneecap.

Doctors surgically removed a substantial portion of Ganno’s kneecap. He continues to experience residual pain, disability, and weakness in the injured knee.

Ganno sued Lumbermen’s for his injuries. The trial court granted summary judgment to Lumbermen’s. Ganno appeals.

ANALYSIS

I. Standard of Review

A trial court properly grants summary judgment when the pleadings, affidavits, and depositions on file demonstrate that there is no issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). When reviewing an order of summary judgment, we engage in the same inquiry as the trial court. Marincovich v. Tarabochia, 114 Wn.2d 271, 274, 787 P.2d 562 (1990). Therefore, we consider all evidence in the light most favorable to the nonmoving party, and we review issues of law de novo. Shellenbarger v. Brigman, 101 Wn. App. 339, 345, 3 P.3d 211 (2000).

II. Business Owner’s Duty to Invitee — Premises Liability

Ganno argues that Lumbermen’s owed a duty to him as an invitee on Lumbermen’s property. Lumbermen’s counters that Ganno’s action is not a premises liability case because the injury did not occur on Lumbermen’s property; thus, Lumbermen’s owed him no duty. We agree with Lumbermen’s, but on somewhat different grounds.

Ganno relies on the Restatement (Second) of Torts §§ 343, 343A (1965). But the Restatement does not support his claim. Premises liability arises from dangers on a [316]*316landowner’s property and a landowner’s duty to correct or warn an invitee about these dangers. Restatement (Second) of Torts § 343 (1965). The key to liability from obvious or known dangers is that a condition or activity causing the injury occurs on the landowner’s property. Restatement (Second) of Torts § 343A (1965). But such is not the case here. There is no evidence that a condition or activity on Lumberman’s property caused Ganno’s injury: Contrary to Ganno’s assertions, he did not delegate to Lumbermen’s his duty to secure his load before driving away; nor did Lumbermen’s at any time undertake to secure the load. Thus, there is no premises liability here, and Ganno’s premises liability claim fails. See McMann v. Benton County, Angeles Park Cmtys. Ltd., 88 Wn. App. 737, 742-43, 946 P.2d 1183 (1997), review denied, 135 Wn.2d 1005 (1998).

III. Voluntary Rescue Doctrine

Ganno also asserts that Lumbermen’s is liable under the voluntary rescue doctrine. He contends that Lumbermen’s (1) undertook a duty to warn when it placed a sign in the lumberyard telling customers that it does not tie down merchandise for customers and (2) then gratuitously undertook to perform a tie-down service for him when its employee selected the beam, loaded it into his truck, and flagged it. We disagree.

Under the voluntary rescue doctrine, a duty to rescue arises when the rescuer knows a danger is present and takes steps to aid an individual in need. Restatement (Second) of Torts §§ 323, 324A (1965); French v. Chase, 48 Wn.2d 825, 829-30, 297 P.2d 235 (1956). A person may be liable for attempting a voluntary rescue and making the plaintiff’s situation worse if that person (1) increases the danger, (2) misleads the plaintiff into believing the danger has been removed, or (3) deprives the plaintiff of possible help from others. Folsom v. Burger King, 135 Wn.2d 658, 676, 958 P.2d 301 (1998). None of these situations existed here.

Ganno contends that Lumbermen’s was negligent in loading the beam without securing it. Because this act occurred before Ganno was in peril, it could not trigger the [317]*317voluntary rescue doctrine. Folsom, 135 Wn.2d at 677. Lumbermen’s neither created nor increased the danger of Ganno’s unsecured load simply by placing the beam in Ganno’s truck.

Furthermore, Lumbermen’s did not attempt to rescue Ganno from any danger, including the danger that Ganno created by his own inaction. Rather, Lumbermen’s stated policy was not to tie down materials for customers. In addition to the warning sign, Lumbermen’s provided twine for customers to use at the front of the lumberyard. Lumbermen’s never told Ganno that it was securing his load, nor did Ganno ask the employee to do so. Moreover, Lumbermen’s did not in any way deprive Ganno of the possibility of help from others.

Ganno simply assumed that the employee had secured the beam after loading it into his truck bed with the forklift.

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Ganno v. Lanoga Corp.
80 P.3d 180 (Court of Appeals of Washington, 2003)

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Bluebook (online)
80 P.3d 180, 119 Wash. App. 310, 52 U.C.C. Rep. Serv. 2d (West) 144, 2003 Wash. App. LEXIS 2765, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ganno-v-lanoga-corp-washctapp-2003.