Liability – Three Cases decided by the Washington Supreme Court, 1) Iwai v. State of Washington,
129 Wash.2d 84 (1996), and 2) Mucsi v. Graoch Associates Ltd. Partnership No. 12, 144 Wash.2d
847 (2001), and 3) Geise v. Lee, 84 Wash.2d 866 (1975), clearly define a landowners duty to protect its invitee’s from injuries due to accumulated snow or ice. These three cases have been attached for your review. In summary, a landowner has a duty to make the common areas of his property safe for invitee’s if he knows or should know of the condition that causes the unreasonable risk of harm and should expect the invitee will fail to protect themselves against the risk. I have pasted relevant parts of Musci, Geise, and Iwai below:
In Musci, there was a large snowfall several days before Plaintiffs injury. The snow/ice remained in the common areas of the apartment complex for at least three days. Musci, walking in the common areas, slipped and fell on the snow/ice.
Landowner’s Duty to Safely Maintain Premises: A landowner has an affirmative duty to maintain common areas in a reasonably safe condition. Iwai v. State, 129 Wash.2d 84, 91, 915 P.2d 1089 (1996). “The general rule in the United States is that where an owner divides his premises and rents certain parts to various tenants, while reserving other parts such as entrances and walkways for the common use of all tenants, it is his duty to exercise reasonable care and maintain these common areas in a safe condition.” Geise v. Lee, 84 Wash.2d 866, 868, 529 P.2d 1054 (1975).
[A tenant] ” ‘enters upon an implied representation or assurance that the land has been prepared and made ready and safe for his reception. He is therefore entitled to expect that the possessor will exercise reasonable care to make the land safe for his entry, or for his use for the purposes of the invitation. He is entitled to expect such care not only in the original construction of the premises, and any activities of the possessor or his employees which may affect their condition, but also in inspection to discover their actual condition and any latent defects, followed by such repair, safeguards, or warning as may be reasonably necessary for his protection under the circumstances.’ “
Degel v Majestic Mobile Manor, Inc.
Under the Restatement (Second) of Torts, a landowner is subject to liability for harm caused to his tenants by a condition on the land, if the landowner (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 tenants; (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 the tenant against danger. Restatement (Second) of Torts§ 343 (1965). “Reasonable care requires the landowner to inspect for dangerous conditions, ‘followed by such repair, safeguards, or warning as may be reasonably necessary for [a tenant’s] protection under the circumstances.’ ” Tincani v. Inland Empire Zoological Soc’y, 124 Wash.2d 121, 139, 875 P.2d 621 (1994) (quoting Restatement (Second) of
Torts § 343, cmt. b. (1965).
Accumulated Snow and Ice in Common Areas: An accumulation of snow or ice is analyzed under the general rules of a landowner’s duty to invitees. Maynard v. Sisters of Providence, 72 Wash.App. 878, 882, 866 P.2d 1272 (1994). This duty extends to the removal of snow and ice and is based upon the tenant’s expectation that the premises have been made safe for the tenant’s use. Degel, 129 Wash.2d at 53, 914 P.2d 728. Prior to 1975, however, this was not the case in the state of Washington.
The Plaintiff in Geise was a tenant in mobile home park who fell on accumulated snow and ice in the common driveway. Geise also makes clear a landlord’s duty to exercise reasonable care in providing safe common areas upon his rental premises, free from dangerous accumulations of snow and ice, even though the landlord has not previously undertaken to provide such a service. “We believe that today a landlord, armed with an ample supply of salt, sand, scrapers, shovels and even perhaps a snow blower, can acquit himself quite admirably as he takes to the common passageways to do battle with the fallen snow, the sun-melted snow now turned to ice, or the frozen rain. We fail to see the rationale for a rule which grants a seasonal exemption from liability to a landlord because he has failed to take adequate precautions against the hazards that can arise from the presence of unshoveled snow or unsanded or salt-free ice found in the areas of his responsibility but yet hold him liable on a year-round basis for other types of defects attributable to the workings of mother nature in the very same portions of his property…. To draw such a distinction … ‘create[s] in the law another of those strange anomalies which, once created, live on to haunt successive legal generations.’ “Geise v. Lee, 84 Wash.2d 866 (1975). Thus, a landowner must exercise reasonable care in keeping all common areas reasonably safe from hazards likely to cause injury, including snow and ice. Id. at 871, 529 P.2d 1054.
More than 20 years following the Geise decision, the Washington Supreme Court again addressed a landowner’s duty to exercise reasonable care in providing safe common areas, free from dangerous accumulations of snow and ice. In Iwai, the plaintiff fractured her wrist when she slipped and fell on snow and ice left in the parking lot of the Washington Employment Security Department. Iwai, 129 Wash.2d at 87, 915 P.2d 1089. Two days before the plaintiff fell, the parking lot had been plowed; however, there remained a light dusting of new snow and the parking lot had not been sanded. Id. The Iwai Court stated that to prevail, a plaintiff must prove (1) the landowner had actual or constructive notice of the danger, and (2) the landowner failed within a reasonable time to exercise sensible care in alleviating the situation. Id.
Tenant’s Knowledge of the Hazardous Condition Does Not Preclude Landowner Liability: A possessor of land is not liable to his [or her] 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. Iwai, 129 Wash.2d at 94, 915 P.2d 1089 (citing Restatement (Second) of Torts § 343A(l) (1965)). In the Iwai case, it was observed “Mrs. Iwai may have known about the ice in the parking lot, but if Employment Security ‘c[ ould] and should [have] anticipate[d] that the dangerous condition w[ould] cause physical harm to the invitee notwithstanding its known or obvious danger,’ then section 343A may impose liability.” Id. Liability may manifest where the landowner has reason to expect the tenant will encounter the known or obvious danger because to a reasonable person in that position the advantages of doing so would outweigh the apparent risk. Id. (citing Restatement (Second) of Torts
§ 343Acmt. f(1965)).
Multi-family dwelling complexes have become a major commercial enterprise, which directly affects the lives of literally thousands of people who must rely on this style of living for shelter…. The landlord cannot passively refrain from negligent conduct….” Geise, 84 Wash.2d at 871. To prevail, a plaintiff must prove (1) the landowner had actual or constructive notice of the danger, and
(2) the landowner failed within a reasonable time to exercise sensible care in alleviating the situation. Id.
Washington case law places the burden on landowners to exercise reasonable care to maintain common areas in a safe condition. Washington has adopted the Restatement (Second) of Torts§ 343 (1965), which places a duty of reasonable care on a landowner for a known risk if the owner should expect that the tenants will fail to protect themselves against it. A landowner or possessor is not a guarantor but owes a duty to an invitee to exercise reasonable care to maintain common areas in a safe condition. Degel, 129 Wash.2d at 53, 914 P.2d 728. The landowner or possessor has a duty with respect to conditions on the land if the owner (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 tenants; and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it. Restatement (Second) of Torts§ 343 (1965). The Washington Supreme Court has adopted the Connecticut rule, which requires a landowner to exercise reasonable care to keep all common areas reasonably safe from hazards likely to cause injury, including the removal of ice and snow. Geise, 84 Wash.2d at 871, 529 P.2d 1054. The fact a tenant has knowledge of the hazardous condition does not, in itself, relieve the landowner or possessor of land of that duty. Iwai, 129 Wash.2d at 94, 915 P.2d 1089. There must be evidence of actual or constructive notice or foreseeability, and a reasonable time to alleviate the situation. Id.