Jessee v. City Council

293 P.3d 1290, 173 Wash. App. 410
CourtCourt of Appeals of Washington
DecidedFebruary 5, 2013
DocketNo. 30636-4-III
StatusPublished
Cited by6 cases

This text of 293 P.3d 1290 (Jessee v. City Council) 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
Jessee v. City Council, 293 P.3d 1290, 173 Wash. App. 410 (Wash. Ct. App. 2013).

Opinion

Sweeney, J.

¶1 — The plaintiff here tripped, fell, and injured herself on an old firehouse stairway. The stairway did not comply with current building codes — the rise was too tall, the run was too small, and there was no handrail. The court summarily dismissed the suit after concluding that the plaintiff had voluntarily assumed the risk of injury. [412]*412She had commented on the specific shortcomings of the stairway before encountering the risk those shortcomings posed. We agree that the plaintiff here voluntarily assumed the risk of injury, the defendant then had no duty to protect her, and the court therefore properly dismissed her suit for damages.

FACTS

¶2 Columbia County and the city of Dayton (City) put on a joint emergency management exercise. Columbia County provided the City with emergency management services in exchange for financial and in-kind contributions. Columbia County asked Lizabeth Jessee to observe and evaluate the exercise. Ms. Jessee worked for the Walla Walla County Emergency Management Department.

¶3 The exercise was in the morning with an “after action review” in the afternoon. The “after action review” was at Columbia County’s emergency operations center on the second floor of the City’s Old Fire Station.

¶4 The Old Fire Station’s staircase was wooden except for the first two stairs, which were poured concrete. The rise of the two concrete stairs was 7.5 inches; that is a half inch taller than Uniform Building Code requirements. The tread depth was 10.5 inches; that is a half inch narrower than the Uniform Building Code requirements and 2.5 inches narrower than the Life Safety Code recommendations. The cement stairs also had no handrail. Near the cement stairs, there was a grate with a large hole in it and some bolts protruding from a wall.

¶5 Ms. Jessee noticed that the cement steps seemed taller than “normal” stairs and that there was no handrail, and she commented that the stairs were not “ADA compliant”1 and looked “unsafe,” all before she climbed the stairs. Clerk’s Papers (CP) at 37-38, 42-43. She had trouble bal[413]*413ancing on the first two stairs but successfully climbed the stairs. She, however, misjudged the depth of the last two cement steps as she descended the stairway, rolled her left ankle, and fell. She put her right foot through the grate’s hole and scraped her back on the bolts as she fell.

¶6 Ms. Jessee sued the City for damages and claimed negligence. The City moved for summary judgment. It argued that Ms. Jessee had assumed the risk of injury because she knew the risk posed by the condition of the stairway and voluntarily chose to use it anyway. The court concluded that whether Ms. Jessee was an invitee or a licensee was a material issue of fact and therefore primary assumption of the risk did not completely bar recovery. The court denied the City’s motion for summary judgment.

¶7 The City then moved for reconsideration and argued that its liability did not turn on whether Ms. Jessee was an invitee or a licensee. The City argued that the dispositive inquiry was whether Ms. Jessee knew the stairs were dangerous and yet chose to use them anyway. The court reconsidered the earlier ruling, agreed with the City and summarily dismissed her suit.

DISCUSSION

¶8 Our review of an order on a motion for summary judgment is, of course, de novo. Charlton v. Toys “R” Us - Del., Inc., 158 Wn. App. 906, 910, 246 P.3d 199 (2010). Ms. Jessee had to avoid summary judgment by showing a duty on the part of the City, breach of that duty, and that her damages resulted from the breach of that duty. Id. at 912.

¶9 The court ultimately concluded that Ms. Jessee assumed the risk of injury and that this voluntary assumption of risk relieved the City of liability. The material facts here are undisputed: the condition of the stairs and Ms. Jessee’s knowledge and appreciation of the condition of those stairs. So the only question is whether those facts support the City’s defense that she assumed the risk of [414]*414injury as a matter of law. Wirtz v. Gillogly, 152 Wn. App. 1, 8, 216 P.3d 416 (2009).

¶10 Court decisions over the years have developed four varieties of assumption of risk. Gregoire v. City of Oak Harbor, 170 Wn.2d 628, 636, 244 P.3d 924 (2010). Some varieties completely bar recovery and some are subsumed by contributory negligence and therefore do not completely bar recovery. Id.

¶11 We are here concerned with so-called implied primary assumption of the risk because it was on that basis that the court dismissed Ms. Jessee’s suit. CP at 38-40. The question in implied primary assumption of the risk is whether the plaintiff appreciated the risk of injury and, nonetheless, voluntarily chose to encounter that risk. Erie v. White, 92 Wn. App. 297, 303, 966 P.2d 342 (1998). If the answer to that question is yes here, then the City had no duty to Ms. Jessee and therefore could not be negligent. See Alston v. Blythe, 88 Wn. App. 26, 33, 943 P.2d 692 (1997). Implied primary assumption of risk is a complete bar to recovery. Id.

¶12 The City had to prove implied primary assumption of the risk by showing that Ms. Jessee “(1) had full subjective understanding (2) of the presence and nature of the specific risk, and (3) voluntarily chose to encounter the risk.” Kirk v. Wash. State Univ., 109 Wn.2d 448, 453, 746 P.2d 285 (1987). That is, the City had to show that she knowingly and voluntarily chose to encounter the risk. Erie, 92 Wn. App. at 303. If reasonable minds could not differ on the knowledge and voluntariness, there is implied primary assumption of the risk as a matter of law. Wirtz, 152 Wn. App. at 8.

¶13 A plaintiff has knowledge if she, “at the time of decision, actually and subjectively knew ... all facts that a reasonable person in the plaintiff’s shoes would want to know and consider” at the time she chose to incur the risk. Home v. N. Kitsap Sch. Dist., 92 Wn. App. 709, 720, 965 P.2d 1112 (1998) (emphasis omitted). This requires that the [415]*415plaintiff have specific, rather than generalized, knowledge of risk. Id. at 720-21.

¶14 Ms. Jessee had specific knowledge of the risks inherent in descending these cement stairs. Indeed, the case here is a bit unique in that Ms. Jessee commented on the specific dangers (no handrail and non-code-compliant stair treads) that she later voluntarily encountered. She contends, nonetheless, that she did not know the specific risks because she had never descended those stairs before. But she admitted she had trouble balancing when she climbed them.

¶15 The concept of voluntariness required that the City show that Ms. Jessee elected “to encounter [the] risk . .. despite knowing of a reasonable alternative course of action.” Id. at 721.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Loretta K. Williams, V. Surfcrest Condominiums
Court of Appeals of Washington, 2022
John Edwards, et ux v. Colville Motor Sports, Inc.
Court of Appeals of Washington, 2017
Leo Gleason v. Brian And Liza Cohen
368 P.3d 531 (Court of Appeals of Washington, 2016)
Reed-Jennings v. Baseball Club of Seattle, LP
351 P.3d 887 (Court of Appeals of Washington, 2015)
Daniel Lamont v. David M. Savio
Court of Appeals of Washington, 2015
Edward C. Hvolboll v. Wolff Company dba
Court of Appeals of Washington, 2015

Cite This Page — Counsel Stack

Bluebook (online)
293 P.3d 1290, 173 Wash. App. 410, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jessee-v-city-council-washctapp-2013.