IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
SUSAN KITZMILLER, DIVISION ONE Appellant, No. 81335-8-I v. UNPUBLISHED OPINION KIRK SCHROEDER,
Respondent.
COBURN, J. — Susan Kitzmiller appeals the trial court’s grant of summary
judgment to Kirk Schroeder, who she sued for negligence after sustaining injuries
from a fall on his boat after sitting next to an open hatch. We hold that Schroeder
had no duty to warn Kitzmiller that boats move on water or that the cabin hatch
door was open because these were open and obvious dangers. The trial court
did not err in dismissing Kitzmiller’s entire complaint because she fails to provide
any factual or legal bases for her other theories of negligence. We affirm.
FACTS
On July 2, 2016, appellant Susan Kitzmiller joined respondent Kirk
Schroeder on his sailboat in Seattle, Washington. Schroeder’s sailboat was a
23-foot sailboat called a Ranger 23. The sailboat had a lower cabin, below the
deck, accessible through a hatch door in the middle of the boat which can be
opened and closed. Kitzmiller and Schroeder had connected online through a
Citations and pin cites are based on the Westlaw online version of the cited material. No. 81335-8-I/2
Pacific Northwest Sailing Group on Meetup.com; this was their first meeting in
person. They planned to sail to Poulsbo, Washington and join other members of
the Pacific Northwest Sailing Group for a multi-day gathering of sailboats in
Liberty Bay for the Fourth of July holiday weekend.
They sailed to Poulsbo in about three hours. Upon arrival, Schroeder tied
his boat to the other boats from the Pacific Northwest Sailing Group in Liberty
Bay. The boats were tied up to each other in the bay away from the docks; this
is referred to as a “raft up.” At least five other boats were already tied up to each
other in the “raft up.” Schroeder’s boat was the smallest and was in the
outermost position in the “raft up.” The group went ashore to Poulsbo where they
socialized at a bar and then returned to the sailboats to spend the night.
Kitzmiller said she had been through the hatch door down to the cabin to sleep
and one or two other times as well.
The next morning, July 3, the group again went ashore to Poulsbo. By
late in the afternoon, the group had returned to the “raft up” and was socializing
on the boats. More boats arrived in the bay. Kitzmiller said that as it was
growing dark she was sitting alone on a boat on the opposite end of the “raft up”
from Schroeder’s boat. She said Schroeder came up and told her she could not
be on that boat and that she needed to return to his boat. She followed
Schroeder back across the boats to Schroeder’s boat.
As the fireworks started, Kitzmiller was seated on the port side, cabin top
of the boat with her legs hanging down. From her seated position, Kitzmiller was
photographing the fireworks with her cell phone camera with her arms extended
2 No. 81335-8-I/3
forward. Kitzmiller said that the boat unexpectedly moved, or rocked, and she
fell from where she was sitting to the deck below. She said she did not know
what caused the boat to rock or move. She said she screamed and Remy Lang,
another passenger on the boat, came quickly to help her.
The fall was not witnessed by anyone. Schroeder said that he saw in his
peripheral vision that Kitzmiller had moved to sitting on the lazarette seat with
both of her feet on the seat in front of her. Schroeder said he did not think
anything was wrong and returned his attention to the fireworks. Lang said she
had a memory of the boat shaking or moving and she looked down and saw
Kitzmiller sitting on the lazarette seat. Lang said Kitzmiller still had her camera
out, so she did not react in any way at that point. Lang stated, “…I don’t
remember anything significant happening other than she’s sitting there now.
Like, it didn’t even really occur to me until later that she slipped and fell there.”
After the fall, Lang and her husband took Kitzmiller back to her own car.
Kitzmiller drove herself to the hospital. Kitzmiller alleges injuries to her hands,
wrists, back, and knee.
Almost three years later, on February 27, 2019, Kitzmiller sued Schroeder
for negligence.
On October 25, 2019, Schroeder moved for summary judgment, alleging
that Kitzmiller’s negligence claim failed as a matter of law because she could not
prove the essential elements of duty and causation.
On February 18, 2020, Kitzmiller filed her opposition to Schroeder’s
motion for summary judgment. Kitzmiller argued that Schroeder’s motion did not
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address all of her theories of liability. She also argued that the hatch was not an
open and obvious danger, and even if it was an open and obvious danger,
Schroeder still had a responsibility to protect his passengers. She said
Schroeder’s causation argument fails because causation is a question for a jury.
Attached to Kitzmiller’s opposition was a declaration from Captain James
Cushman. Cushman opined that Schroeder was negligent because he failed to
provide Kitzmiller with a pre-departure vessel safety and familiarization
orientation and because he should have advised her to move to a “designated
and safer” sitting area. Cushman speculated that these actions would have
prevented Kitzmiller’s injuries.
On February 28, 2020, the trial court conducted a hearing on Schroeder’s
motion for summary judgment. The court granted Schroeder’s motion for
summary judgment after determining that Kitzmiller did not establish the essential
element of duty because there is no duty to warn of objectively open and obvious
dangers.
Kitzmiller moved the trial court to reconsider. The trial court denied her
motion.
Kitzmiller appeals.
DISCUSSION
Legal Standards
We review summary judgments de novo. Strauss v. Premera Blue Cross,
194 Wn.2d 296, 300, 449 P.3d 640 (2019). “Summary judgment is appropriate
when “there is no genuine issue as to any material fact . . . and the moving party
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is entitled to a judgment as a matter of law.’” Id. (alteration in original) (quoting
Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 522, 192 P.3d 886 (2008);
CR 56(c). We must construe all facts and inferences in favor of the nonmoving
party. Scrivener v. Clark College, 181 Wn.2d 439, 444, 334 P.3d 541 (2014). “A
genuine issue of material fact exists when reasonable minds could differ on the
facts controlling the outcome of the litigation.” Dowler v. Clover Park Sch. Dist.
No. 400, 172 Wn.2d 471, 484, 258 P.3d 676 (2011).
Federal maritime law governs this action. Kermarec v. Compagnie
Generale Transatlantique, 358 U.S. 625, 628, 79 S.Ct 406, 3 L.Ed.2d 500 (1959).
(holding that federal maritime law applies to a claim for breach of duty to a
passenger of a cruise ship sailing in navigable waters). “To recover for
negligence, a plaintiff must establish: (1) duty; (2) breach; (3) causation; and (4)
damages.” Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1070 (9th Cir. 2001).
Duty to warn
Kitzmiller alleges that Schroeder should have warned her of the danger of
sitting beside the open cabin hatch. The gist of her argument is that her fall was
caused by a sudden movement of the boat, and that if the hatch door had been
closed, she could have grabbed the hatch door to break her fall, thus preventing
her injuries. In response, Schroeder responds that he had no duty to warn
Kitzmiller that boats move on water or that the cabin hatch door was open.
Whether a duty exists is a question of law we review de novo. Hertog v.
City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999). “[T]he owner of a ship
in navigable waters owes to all who are on board . . . the duty of exercising
5 No. 81335-8-I/6
reasonable care under the circumstances of each case.” Kermarec v. Compagnie
Generale Transatlantique, 358 U.S. at 632.
Courts have held that there is no duty to warn of an obvious and open
danger, including the fact that boats move on water, and they have granted
summary judgment on this basis. In Summers v. Motor Ship Big Ron Tom, 262
F. Supp. 400, 401 (D.S.C. 1967), the plaintiff sued for personal injuries allegedly
sustained when she was a passenger aboard a fishing boat. She alleged that
she was stationed on the deck of the boat, holding onto the railing, when the boat
“suddenly encountered severe and rough seas and swirls causing the bow to
heave and pitch, throwing her to the deck and breaking her ankle.” Id. She
alleged that the boat operator was negligent. Specifically, she claimed that the
boat operator failed to warn her that her position at the bow of the boat was
unsafe under the existing circumstances—she alleged unfavorable weather
conditions—“thereby failing to discharge his duty to her. . .” Id.
The court concluded that “[t]here were no unusual or dangerous
conditions resulting from the weather, tide, or wind existing on that occasion
which required the vessel” to give the passengers “instructions or warnings as to
where they should ride, or what they should do under the circumstances.” Id. at
405. The court further reasoned that it is common knowledge that boats move
on water.
…‘It is a matter of common knowledge that the movements of fishing boats and other small water craft[s] are constantly affected by the waves and thereby made unsteady, and that this is true without regard to the care exercised in their operation. The bigger the waves the more vigorous is the impact on the boat and the more severe and sudden the lurch or jerk caused thereby. Anyone
6 No. 81335-8-I/7
who has ever been on such a boat or who has observed their movements from the shore, particularly when the tide was coming in, has observed how the waves upon occasion cause these boats to pitch and churn. Such vigorous and unpredictable movements may readily cause a person to lose his balance and fall. This is simply one of the natural hazards of this type of venture.’ Lockhart v. Martin, 159 Cal.App.2d 760, 324 P.2d 340, 341, 1962 Am.Mar.Cas. 1076, 1078 (1958).
Id. at 405. The Summers court held that the plaintiff had not established
negligence. Id. at 405.
In The Complaint of Boston Boat III, LLC v. Galioto, 2015 WL 5444162
(S.D. Fla. 2015), the plaintiff sued for negligence after he sustained injuries on a
boat because a fellow passenger lost her balance and fell into him knocking them
both to the ground. Id. at *1. The court rejected the plaintiff’s claim that there
was a duty to warn passengers about the dangers of falling, analogizing the case
to Summers. The court reasoned, “There are hazards inherent to standing on a
boat. Boats float on water which, by nature, is fluid. Therefore, boats are prone
to sudden movement caused by the currents, the wind, the wakes of other boats,
the movements of its passengers, and sometimes wildlife. Reasonable people
know that boats are not stationary even when they are at rest. As such, the
danger that a passenger standing on a moving boat might fall down is an open
and obvious danger for which no duty to warn is required.” Id. at *6. The court
held that the plaintiff was entitled to summary judgment on his claim of
negligence that the defendants had failed to warn passengers of the dangers of
falling during navigation. Id. at *3, *11.
In Salazar v. Norwegian Cruise Line Holdings, Ltd., 188 F.Supp. 3d 1312
(S.D. Fla 2016), a cruise passenger sued the cruise operators for negligence
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after he allegedly sustained injuries from slipping and falling on liquid that had
accumulated on the dance floor of a disco onboard the cruise ship. Id. at 1314.
The court found that the spilled liquid was an open and obvious condition and
thus the cruise operator had no duty to warn of its existence. Id. at 1317. The
court granted the cruise operator summary judgment on that basis. Id.
Here, Kitzmiller alleges that Schroeder should have warned her of the
danger of sitting beside the open cabin hatch. However, Kitzmiller said she knew
that the hatch was there and that she had been in and out of the hatch door She
said she did not recall if she noticed that the hatch was open when she sat down
as the fireworks started. But she observed that Schroeder was going in and out
of the hatch door, opening the hatch door, and leaving it open. Kitzmiller does
not allege that the open hatch was hidden, concealed, or otherwise not obvious.
A photograph of the sailboat shows the open hatch to be large and apparent to a
reasonable person sitting on either side of it.
Kitzmiller alleges on appeal that she felt Schroeder “directed” or “forced”
her to sit on the cabin top. But the record does not support such an allegation
even when all inferences are viewed in Kitzmiller’s favor. Kitzmiller says that
when they returned to Schroeder’s sailboat, Schroeder went first and “said, you
can sit there or wherever. . . He, you know, does, like, a wave, like, you know,
and so that was fine. I just sat right there on that spot . . .” At the time Kitzmiller
took a seat before she fell, it was her second day on the sailboat; she had sailed
8 No. 81335-8-I/9
from Seattle to Poulsbo and spent the night on the sailboat. She was not
boarding the sailboat for the first time.
It is undisputed that Schroeder did not direct Kitzmiller to move to another
seating area. But the record is absent of any indication that the designated
seating areas were “unusable” or “not available for her to use” as Kitzmiller
alleges on appeal. Kitzmiller alleges in an interrogatory response that “[t]here
were no cushions and no chairs for Plaintiff [Kitzmiller] to sit on in Schroeder’s
boat.” It does not follow that the lack of cushions or extra chairs on the boat
transformed the boat’s designated seating area—the built in seating that the
parties are apparently referring to when they refer to the designated seating
area—to be unusable or not available. Indeed, Schroeder and Lang say that
after Kitzmiller fell, they saw her sitting on the lazarette seat with her feet also on
the seat.
Regarding the fact that boats move on water, Kitzmiller stated that she
had experienced boats moving on the water and that she had been on a sailboat
between 10 and 15 times in the years before she went on Schroeder’s sailboat.
On her Meetup.com profile, in the Pacific Northwest Sailing Group, she listed the
following boating background: “Been operating ski boats my entire life. Been on a
54’ sail boat for 3 years.” Kitzmiller said she did not know what caused the
alleged sudden movement of the boat before her fall, and she did not believe that
Schroeder caused the boat to move. The boat was rafted up, and not sailing,
9 No. 81335-8-I/10
when she fell, and she does not allege bad weather or water conditions that may
have posed a greater-than-normal danger.
In short, Kitzmiller admits that she knew the hatch was there, that the
hatch door had sometimes been left open, and that boats move on water. These
conditions, which she now alleges were dangerous, were open and obvious.
Schroeder had no duty to warn her of them. Even viewed in the light most
favorable to Kitzmiller, as the nonmoving party, she has not raised a genuine
issue of material fact.
Kitzmiller argues that we should “hesitate” to “import” the concept of an
open and obvious danger into federal maritime law. Kitzmiller contends that that
open and obvious danger is a “premises liability” concept tied to the distinction in
Washington State law between a licensee and an invitee. But Salazar and
Boston Boat III, LLC illustrate that the concept of an open and obvious danger is
already a part of federal maritime law. We are not importing the idea of licensee
and invitee into federal maritime law as Kitzmiller claims. We agree with
Kitzmiller that Schroeder owed her a duty of reasonable care under the
circumstances as his passenger. See Kermarec, 358 U.S. at 632. This duty of
reasonable care simply does not include the duty to warn of open and obvious
Kitzmiller argues that the issue of failure to warn is not a legal question of
duty to be decided by the court, but instead, is a factual question of breach to be
decided by a jury. Kitzmiller further argues that whether a danger is open and
obvious is also a question of fact for the jury. But in Salazar and Boston Boat III,
10 No. 81335-8-I/11
LLC the courts treated the issue of failure to warn about open and obvious
dangers as a legal question of duty and decided the issue on summary judgment.
They did not treat the issue as a factual question of breach to be decided by a
jury. The courts concluded as a matter of law that the dangers at issue were
open and obvious as a matter of law and granted summary judgment on that
basis.
Kitzmiller cites to other cases where courts have held, under the
circumstances present in those cases, it was for the jury to decide whether a
claimed danger was open and obvious. See, e.g., Diczok v. Celebrity Cruises,
Inc., 263 F. Supp. 3d 1261, 1265 (S.D. Fla. 2017) (determining whether cruise
ship had duty to warn rests on if a table was open and obvious where it was
alleged that cruise ship had removed yellow chairs that had surrounded a dark
table that blended in with a dark wall and dark carpeting); Nathans v. Carnival
Corp., 2018 WL 6308694 (S.D. Fla. 2018) (determining that plaintiff successfully
established a question of whether a reasonable person could even see the water
collected on the deck of the ship at the time of the incident and if the deck was
unreasonably slippery when wet). But we conclude that under the circumstances
here, for the reasons detailed above, Kitzmiller fails to raise a genuine issue of
material fact.
Kitzmiller relies on the declaration and report of her expert, James
Cushman, to support her argument that Schroeder breached his duty of
reasonable care. An affidavit does not raise a genuine issue of fact unless it sets
forth facts evidentiary in nature, i.e., information as to what took place, an act, an
11 No. 81335-8-I/12
incident, or a reality as distinguished from supposition or opinion. Johnson v.
Recreational Equip., Inc., 159 Wn. App. 939, 954, 247 P.3d 18 (2011) (quoting
Snohomish County v. Rugg, 115 Wn. App. 218, 224, 61 P.3d 1184 (2002).
Likewise, ultimate facts, conclusions of fact, conclusory statements of fact, or
legal conclusions are insufficient to raise a question of fact. Id.
Cushman opined that Schroeder should have provided Kitzmiller a pre-
departure safety and orientation briefing and should have told her to move to a
designated seating area, speculating that these actions would have prevented
Kitzmiller’s injuries.
Based on the for[e]going, I feel that Ms. Kitzmiller, though responsible for her own safety, actions and inactions, was in an alien environment, a situation which should have been recognized by Mr. Schroeder and appropriate preventative action taken by him. Had Mr. Schroeder provided the industry standard pre-departure safety and orientation briefing, and assumed the mantel of the person in charge and responsible, it is likely that Ms. Kitzmiller would not have sustained the serious injuries being litigated.
...
It is my opinion that the area where Ms. Kitzmiller was sitting was NOT a designated seating area. There was a designated seating area just in front of Ms. Kitzmiller. Mr. Schroeder should have advised Ms. Kitzmiller not to sit where she was sitting, and to move to a designated and safer location. Such a move would have precluded Ms. Kitzmiller’s unfortunate and preventable fall.
In light of Kitzmiller’s admission that she does not know what caused the
alleged sudden boat movement before her fall, Cushman’s opinion that either a
pre-departure safety briefing or sitting in a designated seating area would have
prevented her injuries is speculation and conclusory. This is not enough to
preclude summary judgment. See, e.g., Strauss v. Premera Blue Cross, 194
12 No. 81335-8-I/13
Wn.2d 296, 301, 449 P.3d 640 (2019) (speculation and conclusory statements
will not preclude summary judgment; the expert’s opinion must be based on fact
and cannot simply be a conclusion or based on an assumption if it is to survive
summary judgment).
Cushman further opined, regarding the ultimate legal conclusion of
negligence, “Mr. Schroeder was negligent in that he failed to provide Ms.
Kitzmiller with a pre-departure vessel safety and familiarization orientation. . .”1
“It is my opinion that Mr. Schroeder was negligent by his actions and inactions,
and contributed to the fall in which Ms. Kitzmiller sustained serious injuries.”
(emphasis in original). Cushman’s statement of this legal conclusion is
insufficient to raise a genuine issue of material fact. See Johnson, 159 Wn. App.
at 224. See also Simmons v. City of Othello, 199 Wn. App. 384, 392, 399 P.3d
546, 550 (2017) (courts will not consider legal conclusions in a motion for
Cushman’s opinions and speculation also appear to be based on the
inadequate factual basis that Kitzmiller had little boating experience. Cushman
states, for example, that “while Ms. Kitzmiller had some experience in boating it
1 Cushman references the appendix of a publication titled “America’s Boating Course,” which lists a “Required Passenger Briefing and Pre-Departure Checklist.” The checklist states that “All persons on board should receive a pre- departure briefing” on various subject matters including “boat stability and cautions for moving about.” The checklist does not include directions to designated seating areas. In any event, an industry publication suggesting an orientation about boat stability does not change established law that operators have no duty to warn of an obvious and open danger, including the fact that boats move on the water. See Summers, 262 F. Supp. at 405; Boston Boat III, LLC, 2015 WL 5444162 at *5-7; Salazar, 188 F. Supp. 3d at 1317.
13 No. 81335-8-I/14
was very limited and [she] was completely ‘out of her element’ on the boat,” that
Kitzmiller had “very little knowledge of boats in general,” and that she was in an
“alien environment.” Cushman’s portrayal of Kitzmiller as someone with little
boating experience contradicts her own online profile in the Pacific Northwest
Sailing Group where she states that she has been operating ski boats her entire
life and been on a 54-foot sailboat for three years. Because Cushman’s opinions
are based on an inadequate factual basis, we do not accord his opinions
sufficient weight to preclude summary judgment. See Rothweiler v. Clark
County, 108 Wn. App. 91, 100, 29 P.2d 758 (2001) (in the context of a summary
judgment motion, an expert must support his opinion with specific facts, and a
court will disregard expert opinions where the factual basis for the opinion is
found to be inadequate).
In short, Schroeder had no duty to warn Kitzmiller that boats move in
water or that the hatch door was open because these are open and obvious
dangers. See, e.g., Summers, 262 F. Supp. at 405; Boston Boat III LLC, 2015
WL 5444162 at *5-7; Salazar, 188 F. Supp. 3d at 1317. As these cases
illustrate, depending on the circumstances, the legal issue of duty and whether a
danger is open and obvious can be a legal issue decided by a court on summary
judgment. We hold that Kitzmiller fails to raise a genuine issue of material fact
regarding these issues.
14 No. 81335-8-I/15
Dismissal of Kitzmiller’s entire complaint
Kitzmiller argues that the trial court erred by dismissing her entire
complaint because Schroeder moved for summary judgment only on his failure to
warn. In addition to the duty to warn about the open hatch and movement of the
boat, addressed above, Kitzmiller’s complaint alleges that Schroeder was
negligent in “consuming alcohol” throughout the day on the boat; failing to keep a
proper lookout; tying the boat to other sailboats in the bay; failing to provide
“adequately trained and competent officers and/or crew;” and “failing to timely
and properly remove” her from the boat.
Kitzmiller fails to provide any factual or legal bases to support these
theories. Kitzmiller said she did not know if Schroeder was drunk. Kitzmiller said
Schroeder seemed to know what he was doing in operating the boat and she did
not feel unsafe in the way he operated the boat. Kitzmiller repeatedly stated that
she did not know what caused the alleged sudden movement of the boat before
her fall and that she did not think Schroeder caused the movement. Because
Kitzmiller does not know what caused the alleged sudden boat movement, she
cannot demonstrate how the “raft up” or alleged lack of a lookout caused her fall.
Kitzmiller states that Schroeder’s sailboat was designed to be manned and
operated by one person, which contradicts her theory that Schroeder was
negligent by failing to have officers or crew. She offers no reason that Schroeder
should have removed her from his boat.
As explained above, the gist of Kitzmillers allegations is that a sudden
boat movement and the open hatch door caused her fall and injuries. Under the
15 No. 81335-8-I/16
facts of this case, Kitzmiller fails to demonstrate a connection between any of her
other alleged theories of negligence and her fall. The trial court did not err in
dismissing Kitzmiller’s complaint.
Schroeder’s motion to strike portions of Kitzmiller’s brief
Schroeder includes in his brief a separate motion to strike portions of
Kitzmiller’s brief because they contain what he describes as “inflammatory and
baseless remarks.” “Motions to strike sentences or sections out of briefs waste
everyone’s time.” O’Neill v. City of Shoreline, 183 Wn. App. 15, 24, 332 P.3d
1099 (2014) (quoting Redwood v. Dobson, 476 F.3d 462, 471 (7th Cir. 2007)).
So long as there is an opportunity to include argument in the party’s brief, the
brief is the appropriate vehicle for pointing out allegedly extraneous materials—
not a separate motion to strike. Id. (quoting Engstrom v. Goodman, 166 Wn.
App. 905, 909 n. 2, 271 P.3d 959 (2012). “A party may include in a brief only a
motion which, if granted, would preclude hearing the case on the merits.” RAP
17.4(d); RAP 10.4(d).
First, Schroeder did not properly include the motion in his brief because
the motion would not preclude hearing the case on the merits if granted. RAP
17.4(d); RAP 10.4(d). In addition, Schroeder was afforded ample opportunity to
point out allegedly extraneous material through argument in his brief. The court
has the record before it and is well able to critically review the record and give
16 No. 81335-8-I/17
appropriate weight to the parties’ briefing. We deny Schroeder’s motion to strike.
Affirmed.
WE CONCUR: