Filed Washington State Court of Appeals Division Two
March 24, 2026
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
JAMIE BEENEN, an individual, No. 59591-5-II
Appellant,
v.
SKYDIVE TOLEDO, a Limited Liability UNPUBLISHED OPINION Company in the State of Washington; and HEATHER WHITTAKER; an individual; JOSEPHINE AIR, a Limited Liability Company in the State of Washington and LEWIS COUNTY d/b/a ED CARLSON MEMORIAL FIELD-SOUTH LEWIS COUNTY AIRPORT, a public entity,
Respondents.
MAXA, P.J. – Jamie Beenen appeals the trial court’s grant of summary judgment in favor
of Lewis County in her personal injury lawsuit against the County. The action arose from an
incident in which Beenen was seriously injured because of a skydiving accident. The skydiving
company that took her skydiving, “Skydive! Toledo” (ST), was based at the County’s airport.
Beenen alleges that she was injured because ST provided inadequate skydiving instruction before
and during her skydive. No. 59591-5-II
The County owns the Ed Carlson Memorial Field-South Lewis County Airport (the
Airport). Heather Whittaker owns and is the sole employee of both ST and Heather Whittaker
d/b/a Josephine Air, LLC (Josephine Air). Josephine Air leased a hangar (hangar 18) at the
Airport from the County. Whittaker conducted some of ST’s business in the hangar, including
providing skydiving training to customers.
Whittaker also owns a property adjacent to the Airport, which she used for skydiving
training and as the landing zone for skydivers. The ST worker that instructed Beenen during her
skydive was stationed on Whittaker’s property. Beenen was injured when she landed on this
property.
After her skydiving accident, Beenen filed a lawsuit against ST, Whittaker, Josephine Air,
and the County. The trial court granted the County’s motion for summary judgment, holding that
the County did not owe Beenen a duty.1
Beenen argues that the County is liable under a premises liability theory because ST’s
skydiving operation was a dangerous activity that existed on the County’s property. We hold that
Beenen’s premises liability claim against the County fails because as the lessor of hangar 18, the
County owed no duty regarding dangerous activities arising from the leased premises. And we
hold that the County did not retain control over hangar 18 so as to subject the County to landlord
liability. Accordingly, we affirm the trial court’s grant of summary judgment in favor of the
County.
1 This appeal relates only to the liability of the County, not the liability of ST, Whittaker, or Josephine Air.
2 No. 59591-5-II
FACTS
Background
The County owns and operates the Airport. The County maintains runways and taxiways
for use by people using the Airport. It sells aircraft fuel to people operating planes out of the
Airport. And the County leases hangars on the premises to various entities.
Josephine Air leased one of these hangars, hangar 18, from the County. Whittaker owns
Josephine Air and ST, the business that took Beenen skydiving. Whittaker is the sole employee
of both Josephine Air and ST. Whittaker has operated ST from the Airport since 2011.
The County previously leased hangar 18 to another tenant. The lease required written
permission from the County to assign the lease or sublease the premises. In 2015, the previous
tenant assigned the lease of hangar 18 to Josephine Air. The assignment stated that Josephine Air
“pledge[d] to abide by the rules, regulations and ordinances governing the occupancy and use of
the airport.” Clerk’s Papers (CP) at 76. The County approved the assignment.
The County’s lease agreement stated: “Lessor covenants that Lessee shall quietly have
and enjoy the demised premises without hindrance or interference by Lessor, subject to
covenants, agreements, terms, provisions, and conditions of this agreement.” CP at 82. The
lessee agreed to maintain the premises in a clean and orderly condition, including making any
needed repairs and replacements at the lessee’s expense. But the County “reserve[d] the right to
inspect the premises and improvements upon prior request at any reasonable time throughout the
term of this agreement.” CP at 89.
The lease provided that the lessee would use the premises “solely for the purpose of
aircraft storage and repair and shall make no other use of the premises without the advance
written consent of Lessor.” CP at 84. The lease also required the lessee to exercise reasonable
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caution to prevent fire and accidents on the premises. And the lease required the lessee to
maintain liability insurance and to provide the County with a copy of the policy.
With regard to common areas at the Airport, the lease stated:
Lessee . . . shall have the right of nonexclusive use in common with others of the Airport of public facilities and improvements which are now . . . provided at the Airport including approaches to a hanger and to the runway. . . . Lessee, its . . . invitees, . . . and other persons doing business with Lessor shall have the right of ingress and egress to and from the premises over the airport roadways, subject to regulations governing the use of the Airport.
CP at 84.
Josephine Air allowed ST to use hangar 18. There is no evidence that Josephine Air
received permission from the County to sublease hangar 18 to ST.
ST used hangar 18 to conduct some of its skydiving business. ST’s customers had to
cross the Airport’s property to access hangar 18. ST’s customers signed waivers, could purchase
merchandise, and received some pre-skydive training in the hangar. To take a person skydiving,
the aircraft that ST used had to taxi and take off using common areas controlled by the County.
ST purchased fuel for its aircraft from the Airport.
Whittaker also owned and controlled property adjacent to the Airport. ST conducted
additional pre-skydive training with its customers on this property. And ST used this property as
its landing zone, the area where it intended its customers to land at the conclusion of their
skydiving experience. This property also was where workers hired by ST stood while they
instructed ST customers who had jumped from the aircraft. There is no dispute that the County
had no interest in or control over the adjacent property Whittaker owned.
ST’s Interactions with the County
Whittaker began operating ST in 2011. She operated out of a different hangar at the
Airport before she assumed the lease for hangar 18. In July 2013, County officials and
4 No. 59591-5-II
Whittaker met to discuss ST’s activities at the Airport. The issues they discussed included the
following:
• The pilot for [ST] directed an unidentified pilot to disregard the standard operating practices for “direction of turns.”
• The pilot for [ST] refused to connect the ground wire to his aircraft.
• The pilot’s movement from the runway to the taxiway is not observing the area(s) designated for that purpose.
• Parked planes blocking the active taxiway.
CP at 787. They discussed that the primary concern was safety.
After this discussion, the County and Whittaker also had a conversation with an inspector
from the Federal Aviation Administration (FAA). In this conversation, the FAA inspector
discussed the interpretation of federal regulations that applied to parachute operations and
operations at the Airport and how they applied to certain situations.
County officials subsequently discussed the meeting with Whittaker at community
development board meetings in July and August of 2013. The meeting minutes stated that ST’s
parachute operations were being checked into, including whether ST had liability insurance. The
County also discussed that it was researching how other airports handled issues with skydiving,
and that they were exploring the idea of requiring a business license for skydiving to give the
County leverage if airport users did not follow the airport’s rules. At a later meeting, the minutes
stated that Whittaker was “still not following all the rules and regulations – subletting and such.”
CP at 488.
Whittaker does not remember the County asking about insurance. The County knew that
ST had no liability insurance.
5 No. 59591-5-II
In June 2015, the Airport manager observed a skydiver landing on the asphalt taxiway
rather than on the adjacent Whittaker property. The person’s nose was broken and bleeding, and
he was moaning. The person was taken away by ambulance. The County apparently did not
investigate this incident.
There were at least six other incidents involving injuries to skydivers between August
2013 and January 2017. These incidents were reflected in records of the Lewis County
communications center.
Beenen’s Skydiving Incident
In July 2017, Beenen and her fiancé decided to go skydiving to celebrate their upcoming
wedding. Beenen purchased two vouchers for skydiving with ST. It was Beenen’s first time
skydiving. On the day of her skydiving experience, ST told Beenen that she would have to sign
a nine page waiver to go skydiving.
The waiver stated that Beenen was waiving her right to sue for negligence and that she
was releasing claims “as to the adequacy of the training, [or] the competency of the staff.” CP at
39. The waiver also stated: “I therefore release and discharge . . . the South Lewis County
Airport . . . as well as the owners and lessees of land . . . utilized for skydiving and related
activities.” CP at 40. Beenen was told that she could not get her money back if she decided not
to jump. Beenen signed the waiver.
Beenen also asked about injuries or deaths related to skydiving at ST. She alleges that an
ST worker told her that only two people had been injured, and that the injured parties were at
fault in those incidents. Beenen stated that she chose to jump based on these representations and
because ST was located at a county airport. She stated that after her jump she learned about
6 No. 59591-5-II
more injuries associated with ST, and had she known about these injuries, she would not have
jumped.
Beenen received several hours of instruction both in hangar 18 and on Whittaker’s
adjacent property. The instruction included learning about when to flare a parachute, which is a
maneuver where a person manipulates the controls on the parachute to slow their rate of descent
as they approach the ground.
The instructor who guided Beenen to the ground during her skydive was a trainee
learning to become a skydiving coach. Beenen states that she was not told that the instructor was
a trainee and not fully certified. She stated that had she known this, she would have insisted on a
different instructor or refused to jump. She also states that had she known that ST was violating
its lease at the Airport, or that the County was concerned about the safety of ST, she would not
have jumped.
Beenen loaded onto the plane used by ST, and the plane taxied and took off from the
Airport without incident. Beenen jumped from the aircraft. The instructor was stationed on
Whittaker’s property adjacent to the Airport. Beenen stated that during her descent, she received
adequate instruction at first. However, Beenen stated that the radio eventually fell silent.
Fearing that the instructor no longer was paying attention to her or the radio had gone out,
Beenen flared her parachute at the time she believed was appropriate as she approached the
ground. Beenen alleges that when she did this, the ST instructor yelled “No! No! No!” CP at
323. In response, she states that she released her flare. This caused her to crash into the ground.
She landed on Whittaker’s property adjacent to the Airport. As a result of this landing, Beenen
was paralyzed from the chest down.
7 No. 59591-5-II
Summary Judgment
Beenen filed suit against ST, Whittaker, Josephine Air, and the County. Beenen alleged
that she was the business invitee of all the defendants, including the County, and that the
defendants owed her a duty to exercise ordinary care for her safety. Specific to the County,
Beenen alleged that the County “owed a duty to Plaintiff to use reasonable care, which includes
an affirmative duty to use reasonable care in discovering dangerous conditions and an affirmative
duty to warn Plaintiff” and that the County “failed to ensure the safety of its premises, as those
premises were being used for skydiving.” CP at 12.
The County filed a motion for summary judgment, arguing that it did not owe Beenen a
duty as a premises owner, that Beenen waived her right to sue by releasing all claims against the
County, and that she assumed the risk of skydiving.
In opposition, Beenen submitted a declaration in which she described her interaction with
ST as stated above. She also stated,
I have also learned through the course of this litigation that Lewis County permitted and benefitted from Skydive Toledo operating a Skydive instruction business on the property but that the County a) had various safety concerns about Skydive Toledo before my jump in 2017; b) had not enforced the lease which limited Ms. Whittaker to only use Hangar 18 for airplane storage; and c) did not enforce the provision of the lease that any business carried out at the airport demonstrate they are they are insurable by having liability insurance. Had I known what Lewis County knew about Skydive Toledo’s safety issues, and how Lewis County was treating the company, I would not have jumped that day.
CP at 323-24.
Beenen submitted a declaration from an airport executive expert, who stated,
Many of Lewis County’s actions (or inactions) with respect to its decision to allow Skydive Toledo to use its property to operate a separate skydiving instruction business fell below and often greatly below industry standards and conflict with federal regulations and guidance applicable to the owners and operators of public airports. This included failing to vet Skydive Toledo, its business operations, and safety practices before allowing it to operate its business on County property.
8 No. 59591-5-II
CP at 586-87.
Beenen also submitted a declaration from a real estate management expert, who stated,
[T]he County would have purposefully entered into a lease with Josephine Air for airplane storage and repair, while allowing a separate company (SDT) [to] operate a skydive business in violation of the lease. A reasonably prudent landowner would terminate the lease or take other remedial action as soon as it learned that its tenant had violated the terms of the lease by putting the premises to a use not contemplated by the contract.
. . . This is especially true here given that the inherent risks of skydiving are profound in comparison to simply storing and repairing airplanes. The County’s decision to allow the skydive company to run unchecked in violation of the lease constitutes conduct falling greatly below what is expected of a municipality running a public airport.
CP at 346. The expert also stated that “allowing SDT to operate from County property without
any applicable insurance greatly deviated from the standard applicable to municipal landowners.”
CP at 347.
The trial court granted the County’s summary judgment motion, holding that Beenen was
not an invitee of the County and that the County did not owe Beenen a duty. The court also
concluded that Beenen waived her right to sue the County by signing the waiver, but later stated
that its summary judgment holding regarding the County was not based on the waiver.
Subsequently, Beenen voluntarily dismissed her claims against the other defendants.
Beenen appeals the trial court’s summary judgment order granting.
ANALYSIS
A. SUMMARY JUDGMENT STANDARD
We review summary judgment orders de novo. Mihaila v. Troth, 21 Wn. App. 2d 227,
231, 505 P.3d 163 (2022). We view all evidence in the light most favorable to the nonmoving
party, including all reasonable inferences. Id. Summary judgment is appropriate when no
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genuine issues of material fact exist and the moving party is entitled to judgment as a matter of
law. Id. A genuine issue of material fact exists if reasonable minds can come to different
conclusions on a factual issue. Id. But summary judgment can be determined as a matter of law
if the material facts are not in dispute. Antio, LLC v. Dep’t of Revenue, 26 Wn. App. 2d 129, 134,
527 P.3d 164 (2023).
We can affirm a trial court’s grant of summary judgment on any ground supported by the
record. Johnson v. Liquor & Cannabis Bd., 197 Wn.2d 605, 611, 486 P.3d 125 (2021).
B. LEGAL PRINCIPLES
Beenen argues that the trial court erred by granting summary judgment in favor of the
County because the County owed a duty to Beenen as its invitee. We disagree.
1. Premises Liability Duty
To prevail on a negligence claim, a plaintiff must show that (1) the defendant owed them
a duty, (2) the defendant breached that duty, (3) the plaintiff was injured as a result of the breach,
and (4) that the defendant’s breach was the proximate cause of the injury. Stanley v. Sierra Pac.
Land & Timber, 34 Wn. App. 2d 762, 770, 567 P.3d 1161 (2025), review denied, 5 Wn.3d 1030
(2026). If the plaintiff fails to make a showing on any of these elements, summary judgment is
appropriate. Id. at 771.
The threshold question in a negligence claim is whether the defendant owed the plaintiff
a duty. Payne v. Weyerhaeuser Co., 30 Wn. App. 2d 696, 711, 546 P.3d 485 (2024). The
existence of a duty typically is a question of law. See id. But the existence of a duty can depend
on the resolution of disputed material facts. See Mihaila, 21 Wn. App. 2d at 235-37.
Under premises liability law, the duty of a possessor of land to a person entering onto the
land depends on the person’s status as an invitee, licensee, or trespasser. Eylander v. Prologis
10 No. 59591-5-II
Targeted U.S. Logistics Fund, LP, 2 Wn.3d 401, 408, 539 P.3d 376 (2023). An invitee for
premises liability purposes includes (1) a public invitee, who “is a person who is invited to enter
or remain on land as a member of the public for a purpose for which the land is held open to the
public”; and (2) a business invitee, who “is a person who is invited to enter or remain on land for
a purpose directly or indirectly connected with business dealings with the possessor of the
land.” RESTATEMENT (SECOND) OF TORTS § 332(2), (3) (AM. L. INST. 1965).
Beenen argues that she was the County’s public or business invitee when she went to the
Airport to go skydiving with ST. The County does not address this issue. Therefore, we assume
without deciding that Beenen was the County’s invitee on the day that she was injured.
Section 343 of the Restatement (Second) of Torts states the general rule for the duty a
possessor of land owes to an invitee:
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, he
(a) 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
(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 the danger.
See Eylander, 2 Wn.3d at 408.
When the danger is known or obvious to the invitee, we apply § 343A of the Restatement,
which states “A possessor of land is not liable to his invitees for physical harm caused to them by
any activity or condition on the land whose danger is known or obvious to them, unless the
possessor should anticipate the harm despite such knowledge or obviousness.” See Eylander, 2
Wn.3d at 408.
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The rationale for the general rule of nonliability for known and obvious dangers is as
follows:
If [the invitee] knows the actual conditions, and the activities carried on, and the dangers involved in either, he is free to make an intelligent choice as to whether the advantage to be gained is sufficient to justify him in incurring the risk by entering or remaining on the land. The possessor of the land may reasonably assume that he will protect himself by the exercise of ordinary care, or that he will voluntarily assume the risk of harm if he does not succeed in doing so. Reasonable care on the part of the possessor therefore does not ordinarily require precautions, or even warning, against dangers which are known to the visitor, or so obvious to him that he may be expected to discover them.
RESTATEMENT § 343A cmt. e (emphasis added); see Mihaila, 21 Wn. App. 2d at 234.
However, the second part of § 343A(1) states that a possessor of land may have a duty if
they should anticipate the harm even if the danger is known or obvious. Mihaila, 21 Wn. App.
2d at 234. “ ‘Distraction, forgetfulness, or foreseeable, reasonable advantages from encountering
the danger are factors which trigger the landowner’s responsibility to warn of, or make safe, a
known or obvious danger.’ ” Id. (quoting Tincani v. Inland Empire Zoological Soc’y, 124 Wn.2d
121, 140, 875 P.2d 621 (1994)).
Beenen also relies on § 343A(2) of the Restatement, which states, “In determining
whether the possessor should anticipate harm from a known or obvious danger, the fact that the
invitee is entitled to make use of public land . . . is a factor of importance indicating that the
harm should be anticipated.”
2. Type of Danger
The parties disagree whether premises liability principles apply to a possessor’s activities
on land as well as conditions on land. Section 343 of the Restatement refers to “a condition on
the land.” Section 343A(1) refers to “any activity or condition on the land.” (Emphasis added.)
In Saralegui Blanco v. Gonzalez Sandoval, the Supreme Court stated that “the conditions
12 No. 59591-5-II
generally associated with premises liability duties involve physical features of the property.” 197
Wn.2d 553, 563, 485 P.3d 326 (2021) (emphasis added).
Resolving this issue is not essential to our holding. Therefore, we assume without
deciding that premises liability principles apply to a possessor’s activities on land.
3. Location of Dangerous Condition
Both § 343 and § 343A(1) apply to a dangerous condition (or the possessor’s activity)
“on the land.” This language necessarily means that a possessor of land has no duty regarding
dangerous conditions or activities that are not on the possessor’s land. “The key to liability from
obvious or known dangers is that a condition or activity causing the injury occurs on the
landowner’s property.” Ganno v. Lanoga Corp., 119 Wn. App. 310, 316, 80 P.3d 180 (2003).
C. DUTY OF LANDLORD
Beenen argues that the County owed her a duty under § 343A(1) of the Restatement. But
the threshold issue is whether the County owed any duty to Beenen as the lessor of hangar 18.
Beenen argues that the County owed her a duty regarding ST’s skydiving operation even though
Josephine Air leased hangar 18 from the County. We disagree.
1. Legal Principles
A premises liability duty extends only to a “possessor of land” where the dangerous
condition exists. RESTATEMENT § 343, 343A(1). “To establish the existence of a duty, a plaintiff
must show that the defendant possessed the land.” Saralegui Blanco, 197 Wn.2d at 559.
The Restatement (Third) of Torts: Liability for Physical and Emotional Harm defines
“possessor of land” as “a person who occupies the land and controls it.” RESTATEMENT (THIRD)
OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM § 49(a) (AM. L. INST. 2012). The
court in Saralegui Blanco adopted this definition. 197 Wn.2d at 559-60. A party controls the
13 No. 59591-5-II
land if they have “ ‘the authority and ability to take precautions to reduce the risk of harm to
entrants on the land.’ ” Adamson v. Port of Bellingham, 193 Wn.2d 178, 187, 438 P.3d 522
(2019) (quoting RESTATEMENT (THIRD) § 49 cmt. c).
In general, when a landowner leases land to a tenant, possession and control of the land is
transferred to the tenant. Saralegui Blanco, 197 Wn.2d at 560. “[A] tenancy is equivalent to a
conveyance: a lessor surrenders both possession and control of the land to the lessee during the
term of the tenancy.” Clemmons v. Fidler, 58 Wn. App. 32, 38, 791 P.2d 257 (1990). “By
definition, a landlord is not the possessor of noncommon areas.” Phillips v. Greco, 7 Wn. App.
2d 1, 6, 433 P.3d 509 (2018).
Based on this principle, a landlord’s liability for dangerous conditions is limited. A
landlord can be liable for latent or hidden defects that existed when the tenancy began. Frobig v.
Gordon, 124 Wn.2d 732, 735, 881 P.2d 226 (1994). And a landlord has a duty to maintain
common areas in a reasonably safe condition. Degel v. Majestic Mobile Manor, Inc., 129 Wn.2d
43, 49, 914 P.2d 728 (1996). Sections 343 and 343A(1) of the Restatement apply to common
areas. Id. at 49-50.
However, a landlord has no duty regarding dangerous conditions that “develop or are
created by the tenant after possession has been transferred.” Frobig, 124 Wn.2d at 736. The fact
that the landlord has knowledge of the dangerous condition created by the tenant “has no
significance.” Id. at 737.
Further, a landlord has no duty regarding the tenant’s operation of the leased premises.
“ ‘The duty and liability of the invitor-lessor do[es] not, as a rule, extend to matters having to do
merely with the lessee’s management or operation of premises which would be safe except for
such management or operation, at least where the lessee is in sole actual control.’ ” Id. at 736
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(quoting Peterick v. State, 22 Wn. App. 163, 170-71, 589 P.2d 250 (1977), overruled on other
grounds by, Stenberg v. Pacific Power & Light Co.,104 Wn.2d 710, 709 P.2d 793 (1985)).
There are exceptions to the general rule of nonliability for a condition that develops after
the start of the tenancy. As noted in Frobig, a landlord has no duty only if “ ‘the lessee is in sole
actual control.’ ” of the leased premises. 124 Wn.2d at 736 (quoting Peterick, 22 Wn. App. at
170). “A claim . . . can exist in situations where the landlord retains control over a portion of the
leased premises.” Saralegui Blanco, 197 Wn.2d at 560. If the landlord retains control of the
property, the landlord may have a duty regarding dangerous conditions on the property. See
Adamson, 193 Wn.2d at 188-89.
In Adamson, the plaintiff was injured when a passenger ramp at a ferry terminal
collapsed. Id. at 182-83. The Port of Bellingham leased the ferry terminal to a tenant to operate
a ferry service. Id. at 181. However, the lease gave the tenant only priority use – not exclusive
use – of various facilities, including the passenger ramp at issue. Id. The Port could allow others
to use these facilities. Id. In addition, the lease required the Port – not the tenant – to maintain
the leased premises in good repair and condition. Id. The court concluded as follows: “We hold
that a priority use provision, an affirmative obligation to maintain and repair, and the ability to
lease the property to others together create sufficient control of the property such that a
landowner who leases the property is held liable as a premises owner.” Id. at 184.
In Regan v. City of Seattle, the City leased the Seattle Center Coliseum for a miniature car
racing jamboree. 76 Wn.2d 501, 502-03, 458 P.2d 12 (1969). The Supreme Court stated the
general rule that “the lessor is not liable for injuries caused by apparent defect after exclusive
control of the property has passed to the lessee.” Id. at 504. However, the court stated that a
landlord still could be liable for its affirmative acts of negligence. Id. at 505. In that case, there
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was evidence that the City affirmatively undertook to help clean the track between races. Id. at
507. And there was evidence that the city’s negligent cleaning could have caused the accident.
Id. at 508.
2. Analysis
Beenen argues that the general rule that a lessor no longer is the possessor of a property
and is not liable for the negligence of its tenants does not apply here because there is a question
of fact whether the County retained control over the premises associated with the cause of her
harm. We disagree.
a. Hangar 18
It is undisputed that Josephine Air leased hangar 18 from the County. As noted above,
the general rule is that when a landowner leases land to a tenant, both possession and control of
the land is transferred to the tenant. Saralegui Blanco, 197 Wn.2d at 560.2 As a result, the
landlord generally does not have a duty regarding dangerous conditions on the leased land.
Frobig, 124 Wn.2d at 736. But the landlord may have a duty if the landlord retains control over
the leased premises. Saralegui Blanco, 197 Wn.2d at 560.
Here, in the lease the County expressly transferred possession and control of hangar 18 to
the lessee: “Lessor covenants that Lessee shall quietly have and enjoy the demised premises
without hindrance or interference by Lessor, subject to covenants, agreements, terms, provisions,
and conditions of this agreement.” CP at 82. The lessee, not the County, had the obligation to
2 Beenen argues that this rule is limited to single residential units. The court in Saralegui Blanco did state that this rule applies to single residential units, 197 Wn.2d at 562, but this is because that case involved a single residential unit. There is no authority for the proposition that a commercial lease does not transfer possession and control the same as a residential lease.
16 No. 59591-5-II
maintain the premises in a clean and orderly condition, including making any needed repairs and
replacements at the lessee’s expense.
Beenen argues that a question of fact exists as to whether the County retained control
over hangar 18. First, Beenen notes that the County did not lease any property interest to ST,
who was not on the lease with Josephine Air. But the key fact is that the County leased hangar
18 to Josephine Air. Regardless of whether ST’s use was permissible under the lease, Josephine
Air, not the County, was the party entitled to occupy and control hangar 18 during the duration of
the lease.
Second, Beenen argues that the County retained control over hangar 18 because the lease
required Josephine Air to use the hangar only for aircraft storage and repair without the County’s
permission, abide by airport rules, and exercise caution to prevent accidents. But a landlord does
not retain control over a property if they (1) restrict use of the property by limitations or
reservations in the lease agreement, Regan, 76 Wn.2d at 504; (2) require a tenant to receive
permission to make changes or conduct certain activities, Saralegui Blanco, 197 Wn.2d at 560-
62; or (3) retain the ability to require compliance with applicable safety laws and regulations,
Peterick, 22 Wn. App. at 172. We conclude that the lease provisions on which Beenen relies do
not show that the County retained the right to control hangar 18.
Third, Beenen argues that the County retained control over hangar 18 because the County
had authority to inspect the premises and enforce any lease violations. But all landlords have the
right to enforce provisions of the lease. That does not mean that the landlord retains control over
the leased premises. Beenen references the 2013 meeting with Whittaker regarding safety issues
as an attempt to control Whittaker’s conduct. But these meetings related to the conduct of ST’s
pilot while he was in common areas at the Airport and in the air, not activity in hangar 18 or
17 No. 59591-5-II
related to skydiving operations. In any event, a landlord’s knowledge of a dangerous activity on
the leased premises “has no significance.” Frobig, 124 Wn.2d at 737.
Fourth, Beenen argues that the County retained control over hangar 18 because the
County could tell Whittaker what businesses she could and could not conduct at the hangar. But
as noted above, a landlord does not retain control over a property if they restrict use of the
property by limitations or reservations in the lease agreement, Regan, 76 Wn.2d at 504. In
Frobig, shortly before the plaintiff was injured the landlord actually ordered the tenant to cease
operating a commercial business on the property. 124 Wn.2d at 734. But that did not subject the
landlord to liability. See id. at 740-41. The ability to forbid a certain kind of business does not
mean that the County retained control over hangar 18.
This case is unlike Adamson and Regan, the two Washington cases in which a landlord
was found liable for injuries on leased premises. In Adamson, the landlord retained the right to
allow others in addition to the lessee to use the passenger ramp where the injury occurred and
agreed to maintain and repair the ramp. 193 Wn.2d 181-82. Those facts are not present here. In
Regan, the landlord was subject to liability for its affirmative acts of negligence – undertaking to
help clean a race track between races. 76 Wn.2d at 505-08. The County did not undertake any
responsibility regarding ST’s skydiving operations.
We conclude that the County did not retain control over hangar 18 when it leased the
hangar to Whittaker. Therefore, what happened inside the hangar could not be the basis for a
premises liability claim against the County. Accordingly, we hold that the County did not owe
Beenen a duty as the landlord of hangar 18.
18 No. 59591-5-II
b. Common Areas
Beenen argues that the County did retain possession and control of the common areas at
the Airport, including the taxiways and runways that ST used in its skydiving operations. She
claims that because use of these common areas was necessary to take her skydiving, the County
owed her a duty.
As noted above, the County possessed the Airport’s common areas and therefore had a
duty to exercise reasonable care to maintain these areas in a reasonably safe condition for use by
airport visitors. See Degel, 129 Wn.2d at 49. But assuming § 343A(1) of the Restatement only
extends to the existence of a dangerous condition or activity on the land, Beenen does not allege
that there was a dangerous condition or activity in the common areas. And Beenen’s use of the
Airport’s common areas did not cause or contribute to her injuries.
Accordingly, we hold the County did not owe Beenen a duty regarding the Airport’s
common areas.
c. Affirmative Negligence
Beenen cites to Regan to argue that the County assumed a duty to ensure ST was
operating in a safe manner by meeting with Whittaker to discuss safety. We disagree.
Unlike in Regan, there is no evidence that the County agreed to help with or participate in
ST’s skydiving operation. And there is no evidence that the meetings with Whittaker discussing
ST’s operations at the Airport affirmatively created or increased the danger to Beenen like the
potentially negligent cleaning discussed in Regan. See 76 Wn.2d at 507-08. Even if the
meetings evidenced some undertaking to render ST’s pilot’s conduct safer generally, there is no
evidence that the County undertook to regulate who ST hired to train its customers on skydiving.
See Pruitt v. Savage, 128 Wn. App. 327, 333, 115 P.3d 1000 (2005) (affirming dismissal because
19 No. 59591-5-II
Defendant did not attempt to fix a garage door that fell at random times, even though he tried to
fix other problems with garage door).
Accordingly, we hold that the County was not subject to liability based on affirmative
negligent conduct.
d. Summary
We hold that the trial court did not err by granting summary judgment in favor of the
County.3
CONCLUSION
We affirm the trial court’s grant of summary judgment in favor of the County.
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 in accordance with RCW
2.06.040, it is so ordered.
MAXA, P.J.
We concur:
LEE, J.
GLASGOW, J.
3 Because of our holding, we do not address the County’s argument that Beenen’s claim is barred because she signed an express release of her claims against the County.