Insurers should be aware that the Washington Court of Appeals recently held that a plaintiff who took a short-cut down a damp and grassy slope to the parking lot while at the movie theater, could not recover for her injuries when she could have taken a concrete walkway which also led to the parking lot. The plaintiff presented no evidence that the grassy slope was negligently maintained. Moreover, the wet grass was an obviously dangerous condition, which plaintiff should have protected herself against.
Claims Pointer: Washington courts will not reward an invitee who takes an obviously dangerous route when an alternative safe route of travel is available. In other words, the court will not reward a plaintiff who takes a dangerous short-cut and in doing so, injures herself.
Lauwers v. Regal Cinemas, Inc., et al., 180 Wash. App. 1030 (2014) (Unpublished).
On April 2, 2009, Jolene Lauwers (“Lauwers”) and her son attended a movie at the Regal Cinemas and entered through the parking lot, up a concrete stairway. After the movie ended, Lauwers and her son proceeded outside on a concrete walkway that surrounded the theater complex, but instead of using the walkway, Lauwers and her son followed a few patrons down a landscaped grassy slope towards the sidewalk and adjoining parking lot. When she reached the bottom of the slope, Lauwers’ feet slid from underneath her, causing her to fall backward and break her ankle.
Lauwers filed suit against Regal for negligent design and maintenance of the grassy slope, as well as Walmart who had previously performed construction near the slope. In her deposition Lauwers testified that she took the grassy slope to the parking lot because it was the most direct route to the parking lot and other customers were doing so. Regal and Walmart moved for summary judgment arguing, (1) Lauwers failed to establish the grassy slope presented an unreasonable risk of harm or alternatively, (2) invitees should have anticipated the obvious risk associated with taking the short-cut to the parking lot. In response, Lauwers submitted the declaration of a certified ergonomist who stated that because the patrons had used the slope as an exit ramp, and it lacked handrails as well as a non-slip surface at the time of the incident, the grassy slope violated the Uniform Building Code’s requirements for ramps. The trial court granted summary judgment, and Lauwers appealed.
On appeal, it was undisputed that Lauwers was an invitee. Lauwers argued that the entire grassy area created an unreasonable hazard that should have been recognized and remedied by the defendants, and also that the decision to use the short-cut down the ramp was reasonable.
The Court disagreed, and held that Lauwers failed to demonstrate that either defendant breached any duty of design, construction, or maintenance of the slope. In reaching its conclusion, the Court noted that Lauwers’ argument was based on the ergonomist whose analysis assumed that the grassy slope was a pedestrian ramp subject to the Uniform Building Code and provided no supporting authority regarding the same, making the evidence irrelevant. The Court also found that although a pedestrian’s use of a landscaped grassy area may be anticipated, these areas were not sidewalks and could not be expected to be maintained in the same condition.
The Court also found that Lauwers raised no factual issue suggesting that the condition of the grassy area was anything other than open and obvious, and that invitees would fail to protect themselves against it, citing Washington law regarding a landowner’s duty to invitees. The parties did not allege lighting was an issue, since the incident occurred at 2 p.m. Specifically, the Court noted that no Washington court has ever held that a land owner should expect that an invitee would fail to protect themselves against wet grass.
Note: This opinion has not been published. It is provided to demonstrate how the court approaches the issues involved in the case. It cannot be cited as authority to a court of law.
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