                                                                             FILED 

                                                                           JAN 23, 2014 

                                                                   In the Office of the Clerk of Court 

                                                                 W A State Court of Appeals, Division III 





           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                              DIVISION THREE 


RA YMOND ROBINSON,                           )
                                             )         No. 31393-0-III
                    Appellant,               )
                                             )
      v.                                     )
                                             )
U.S. BANCORP,                                )         UNPUBLISHED OPINION
                                             )
                    Respondent.              )

      KORSMO,    C.l - Raymond Robinson appeals the trial court's dismissal at

summary judgment of his action for personal injuries against U.S. Bancorp (Bank). We

agree with the trial court that it was unforeseeable that Mr. Robinson would walk into the

stairway he collided with. The order of dismissal is affirmed.

                                         FACTS

      Mr. Robinson was injured while visiting the Bank's property in Moses Lake on

December 16,2010. He parked his car in the branch bank's parking lot and visited a

teller to obtain some money for his wife. He then returned to his car. When he reached it,

he remembered that he had forgotten to obtain some money for himself. Rather than
No. 31393-0-III
Robinson v. u.s. Bancorp


return to the bank teller, he decided to use the outdoor automatic teller machine (ATM)

on the far side of the building from where he was parked.

       Mr. Robinson walked to the ATM via a concrete area that he thought was a

shortcut around the building. This shortcut led him to a staircase adjacent to the building.

Staring "straight ahead" and failing to duck, the 5'8" Mr. Robinson walked into the

staircase with an approximate clearance of 4' 11 ", thereby striking his head and injuring

himself. After the accident, the Bank erected latticework around the staircase.

       Mr. Robinson sued the Bank for his injuries. The Bank brought a motion for

summary judgment, contending that Mr. Robinson failed to prove it breached any duty to

him. The trial court granted the motion and dismissed the action. Mr. Robinson then

timely appealed to this court.

                                        ANALYSIS

       Mr. Robinson challenges the trial court's dismissal of his action as well as its

refusal to consider the Bank's subsequent action in putting latticework around the

staircase. We will address only the summary judgment issue since it is dispositive. I

       This court reviews a summary judgment de novo, performing the same inquiry as

the trial court. Lybbert v. Grant County, 141 Wn.2d 29,34, 1 P.3d 1124 (2000). The


       I The ER 407 issue arose only in the summary judgment pleadings. The Bank
included a photo of the latticework and indicated it was not waiving the protections of the
rule, while Mr. Robinson argued that the court should consider the repairs as evidence of
negligence. The trial court did not rule on the issue and this court need not do so.

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facts, and all reasonable inferences to be drawn from them, are viewed in the light most

favorable to the nonmoving party. Id. If there is no genuine issue of material fact,

summary judgment will be granted if the moving party is entitled to judgment as a matter

oflaw. Id.

       The moving party bears the initial burden of establishing that it is entitled to

judgment because there are no disputed issues of material fact. Young v. Key Pharm.,

Inc., 112 Wn.2d 216,225, 770 P.2d 182 (1989). If a defendant makes that initial

showing, then the burden shifts to the plaintiff to establish there is a genuine issue for the

trier of fact. Id. at 225-26. "A material fact is one that affects the outcome of the

litigation." Owen v. Burlington N. & Santa Fe R.R. Co., 153 Wn.2d 780, 789, 108 P.3d

1220 (2005). While questions of fact typically are left to the trial process, they may be

treated as a matter of law if "reasonable minds could reach but one conclusion" from the

facts. Hartley v. State, 103 Wn.2d 768, 775, 698 P.2d 77 (1985). A party may not rely

on speculation or having its own affidavits accepted at face value. Seven Gables Corp. v.

MGMlUA Entm't Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986). Instead, it must put forth

evidence showing the existence of a triable issue. Id.

       In a negligence action, a plaintiff must establish "( 1) the existence of a duty owed,

(2) breach of that duty, (3) a resulting injury, and (4) a proximate cause between the

breach and the injury." Tincani v. Inland Empire Zoological Soc y, 124 Wn.2d 121, 127­

28,875 P.2d 621 (1994). Whether a duty of care is owed is a question oflaw. Id. at 128.

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Robinson v.  u.s.
                Bancorp


       In a premises liability action, the common law classifications for a person's status

determine the duty of care owed by a landowner. Id. The duty of care a land possessor

owes to an invitee is:

       ... subject to liability for physical harm caused to his invitees by a 

       condition on the land if, but only if, [he] 


          (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.

Id. at 138 (citing RESTATEMENT (SECOND) OF TORTS § 343 (1965)). Essentially, a

landowner owes his invitees a duty to maintain the property in reasonably safe condition.

Ford v. Red Lion Inns, 67 Wn. App. 766, 770, 840 P.2d 198 (1992).

       If a landowner created the condition, then the landowner's notice of unreasonable

risk of harm is waived, thus satisfying the first part of a defendant's duty of care to an

invitee. Trueax v. Ernst Home Ctr., Inc., 70 Wn. App. 381, 387-88, 853 P.2d 491 (1993),

rev 'd on other grounds, 124 Wn.2d 334, 878 P.2d 1208 (1994). However, even when the

defendant has created the risk, the harm must still be foreseeable as provided in

subsection (b) of the above-quoted Restatement test. Id. The exercise of reasonable care

is undisputed, but as discussed below, it is the foreseeability requirement where Mr.

Robinson fails.




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       When a risk is known and obvious, the'" possessor of land is not liable to ...

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.'" Tincani, 124 Wn.2d at 139 (alteration in

original) (quoting RESTATEMENT § 343A(l». "Distraction, forgetfulness, or foreseeable,

reasonable advantages from encountering the danger are factors which trigger the

landowner's responsibility to warn of, or make safe, a known or obvious danger." Id. at

140.

       Case law confirms that summary dismissal of premises liability claims is proper

on the grounds that a hazard was obvious and the owner could not have anticipated the

harm. For example, in Ford, the plaintiff parked his car in defendant's parking lot,

pursuant to an arrangement made between plaintiffs employer and defendant. Ford,67

Wn. App. at 768. The plaintiff noticed part of the parking lot was covered with ice and

snow while other parts were bare and wet. Id. Over the objection of his supervisor,

plaintiff walked from his vehicle to another area of the parking lot to help move

barricades and injured himself when he fell. Id. In affirming the summary judgment, this.

court determined that there was no question of material fact as to the defendant's exercise

of reasonable care or the existence of an unreasonable risk. Id. at 772-73. See also

Kamla v. Space Needle Corp., 147 Wn.2d 114, 127,52 PJd 472 (2002) (affirming

summary judgment where plaintiffs personal experience working in a dangerous

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situation meant that the defendant could not have anticipated the harm that befell

plaintiff).

        In this case, it is undisputed that Mr. Robinson was an invitee of the Bank.

Therefore, the Bank owed Mr. Robinson a duty to use reasonable care with respect to

conditions on the premises that posed an unreasonable risk of harm. See Tincani, 124

Wn.2d at 138. The question is whether the staircase was known and obvious and whether

the Bank should have anticipated Mr. Robinson's harm.

        There is no evidence that the Bank should have expected that Mr. Robinson would

not discover the risk or would fail to protect himself against it. The presence and height

of a staircase is open and obvious, and any hazard presented by it could have been

avoided had Mr. Robinson exercised reasonable care. Mr. Robinson's actions were

similar to those of the plaintiffs seen in Ford and Kamla. Like the man in Ford who

chose to walk around on an icy parking lot knowing that the conditions were icy, Mr.

Robinson chose to walk on a concrete walkway knowing that there was an obvious

condition-the staircase-in front of him. And like the plaintiff in Kamla who had

personal experience working next to elevators, Mr. Robinson has surely had personal

experience with dangers inherent in low clearance areas, such as the staircase at issue.

       Mr. Robinson contends that the Bank did not need to have notice of the staircase's

unreasonable risk of harm because it installed the staircase. However, Mr. Robinson fails

to take into account the fact that the harm must still be foreseeable in order to impose

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liability on the Bank. See Trueax, 70 Wn. App. at 387-88. While it is foreseeable that an

invitee would walk around the bank on a concrete "walkway" in order to take a shortcut,

it is not reasonably foreseeable that a 5'8" person would walk directly into a staircase

with a 4' 11" clearance without ducking.

       The trial court correctly concluded that the injury was not foreseeable.

Affirmed.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.


                                                        Korsmo, C.J.

WE CONCUR:



      Kulik,l.




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