From the desk of Kyle Riley: According to the Washington Court of Appeals, when it comes to premises liability, wet grass is different than ice and snow. Read on to discover how the court draws this distinction when a person attending an outdoor music festival decides to climb up a wet grassy incline instead of a sidewalk.
Claims Pointer: Property owners can be liable for personal injury to invitees that results from dangerous conditions on their land, even when the invitees are aware of the risk. No court, however, has ever held that a landlord should expect an invitee to fail to protect themselves against the dangers of wet grass.
McDonald v. Cove to Clover, 69916-4-1-I, 2014 WL 1202949 (Wash. Ct. App. Jan. 13, 2014)
Clarence McDonald was injured after he slipped and fell on wet grass at an outdoor festival. The outdoor festival was organized by Cove to Clover and was held at the town square in Burien. Burien’s town square consists of concrete sidewalks and a concrete stage, as well as grassy lawns and surrounding landscape areas. For the Cove to Clover event, temporary tents had been added for beer gardens and vendor booths. McDonald attended the Cove to Clover event, having volunteered to work at one of the festival booths.
Shortly before 1:00 p.m., McDonald, who had been seated near the concrete stage, traveled across one of the town square lawns to procure his camera from his car. The grass was obviously wet and the lawn had a slight slope of two to four degrees. McDonald took the same route back to the concrete stage. While walking back, McDonald slipped and fell on the wet grass.
Just prior to McDonald’s fall, another festival attendee had slipped on a steep slope of the lawn. Festival personnel were notified and they then placed cones and tape in front of the steep area as a warning to attendees. There were no warning signs present on or near the location where McDonald fell. McDonald sued Cove to Clover, claiming that Cove to Clover had breached its duty of care to invitees by failing to protect and warn invitees against the perils of the wet grass despite the obviousness of the danger. The trial court dismissed McDonald’s claim on summary judgment and McDonald appealed.
Washington courts have adopted the Restatement (Second) of Torts’ definition of the duty owned to invitees by a possessor of land. Section 343 of the Restatement states that liability arises when a condition of the land causes physical harm to an invitee and the possessor of land (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. The Restatement then states in Section 343A that liability will also attach when an invitee is injured by a danger that is known or obvious to the invitee, so long as the possessor of land should have anticipated the harm.
McDonald argued that Cove to Clover had a duty to warn of or remedy the risk posed by the wet grass, despite its obviousness and McDonald’s knowledge of the condition. His argument was not completely unsupported. In Iwai v. State, an individual slipped and fell on ice and snow that had accumulated in a parking lot. Applying the Restatement, the court held that an invitee’s awareness of a particular dangerous condition does not necessarily preclude landowner liability. McDonald placed significant reliance on The Washington Supreme Court case Musci v. Graoch Assoc. Ltd. P’ship No. 12 which held that landowners have a reasonable duty of care regarding a known risk if the owner should expect that the tenants will fail to protect themselves against it. In Musci, an individual slipped and fell on snow and ice that had accumulated on a marked exit outside of a clubhouse.
The Court of Appeals, however, found that the facts surrounding McDonald’s case were not analogous to the facts in Musci. Instead, they noted McDonald had taken the wet grass path despite the other routes available to him. He was well aware of the risk posed by the wet grass and had testified that he had previously encountered wet grassy areas similar to where he fell. McDonald’s choice to walk on the wet grass instead of a sidewalk was not equivalent to the Musci plaintiff’s choice to leave a clubhouse through a marked exit. Furthermore, McDonald failed to establish that Cove to Clover should have expected that festival attendees would fail to protect themselves against the obvious risk posed by the wet grass where McDonald fell. The Court of Appeals affirmed the lower court’s dismissal of McDonald’s claim on summary judgment.
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