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                                                                                                         151011 11

                                                                                              2013 AUG 13    AM 10: 29
      IN THE COURT OF APPEALS OF THE STATE OF WASHIN                                              O
                                                                                                  7   O4SHE          TON

                                               DIVISION II                                    B
                                                                                                            TY
SHIRLEY BARRETT, individually,                                               No. 43024 0 II
                                                                                       - -


                                     Appellant,

           M0




LOEW'S          HOME      CENTERS, INC., aka                         UNPUBLISHED OPINION
LOWE'S,a business entity; and JEFF aka
JOHN MCDOWELL, individually„


           PENOYAR, J. —      Shirley Barrett was injured by falling boxes while watching John

McDowell, a Lowe's employee, unload the trailer she had delivered. She sued both Lowe's and
McDowell for         negligence.     The trial court granted summary judgment in favor of Lowe's.
Barrett appeals, arguing that the trial court erred by concluding that implied primary assumption
of risk    applied   to bar her recovery.     Because Barrett did not assume the risk of McDowell's

negligence in unloading the trailer, we reverse the trial court's summary judgment order and
remand for further proceedings.

                                                     FACTS


           Barrett, a long haul truck driver, delivered a trailer to the Longview Lowe's on August 3,
                           -

2006. Her job did not include unloading the trailer, but she would sometimes open the trailer
doors in the loading dock. When she attempted to open the trailer doors in the Lowe's loading
dock, she noticed that the cargo had shifted and some boxes appeared to be pressed against the
doors.      Barrett asked Lowe's       receiving   manager,   McDowell, for help. Barrett stood back as

McDowell opened the trailer doors. They discovered that some large boxes near the doors were

1
                                   refer to both defendants   collectively   as   Lowe'
                                                                                      s.
    For   simplicity's sake, we
11-
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held up    by   a    nylon   rope.    McDowell proceeded to cut through the rope holding the boxes in

place.    Barrett expressed her concern at McDowell's actions, asking him, Are you sure you
                                                                           "
want to do that ?"       Clerk's Papers at 93. She stated in her deposition that she thought the boxes

would fall once McDowell cut through the rope.

          While McDowell was attempting to cut the rope, Barrett noticed that the lock she used to

secure   her trailer    was on       the   ground   between her and the trailer.      Without saying anything to

McDowell        or   making    eye contact, she walked forward and bent to retrieve the lock.
                                                                                              At that


moment, McDowell succeeded in cutting the rope, and the boxes held by the rope came sliding
out of the trailer and hit           Barrett, knocking her       to the   ground and injuring      her. Barrett sued


Lowe's for negligence. Lowe's moved for summary judgment, arguing that the assumption of
risk doctrine barred her claim. The trial court agreed and granted Lowe's motion. Barrett filed a

motion for reconsideration, which the trial court denied. Barrett appeals.

                                                       ANALYSIS


          Barrett argues that the trial court erred by granting Lowe's summary judgment motion
and   concluding that the assumption of               risk doctrine   applies   in this   case.   Because there is no


evidence that Barrett consented to relieve Lowe's of the duty of care owed her, we agree.

          We review a summary judgment order de novo, engaging in the same inquiry as the trial

court. Folsom v. Burger King, 135 Wn. d 658, 663, 958 P. d 301 (1998).Summary judgment
                                    2                  2

is appropriate when there is no genuine issue of material fact and the moving party is entitled to




                                                             2
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judgment as a matter of law. CR 56( );
                                  c Folsom, 135 Wn. d at 663. We construe the facts and
                                                  2
reasonable inferences in favor of the nonmoving party. Korslund v. DynCorp Tri-
                                                                              Cities Servs.,

Inc., Wn. d 168, 177, 125 P. d 119 (2005).Summary judgment is appropriate if reasonable
    156 2                  3

persons could reach only one conclusion from the evidence presented. Korslund, 156 Wn. d at
                                                                                     2
177.


         There are four varieties of assumption of risk in Washington: ( )express, 2)implied
                                                                       1           (

primary, 3)
         ( implied unreasonable, and (4)implied reasonable. Gregoire v. City of Oak Harbor,
170 Wn. d 628, 636, 244 P. d 924 (2010). Express
      2                  3                                   and implied primary assumption of risk

apply when the plaintiff has consented to relieve the defendant of a duty regarding specific
known risks.        Gregoire,   170 Wn. d at 636.
                                      2              Express assumption of risk exists if the plaintiff

states that she consents to relieve the defendant of any duty owed. Home v. N. Kitsap Sch. Dist.,

92 Wn. App. 709, 719, 965 P. d 1112 (1998).Lowe's does not argue express assumption of risk
                           2
applies here. Implied primary assumption of risk is shown by the plaintiff engaging in conduct
that   implies   her consent. Home, 92 Wn. App. at 719.        The defendant must establish that "`
                                                                                                 the


plaintiff (1)had [ knowledge] (2)of the presence and nature of the specific risk, and (3)
voluntarily      chose to encounter the risk. "'   Gregoire, 170 Wn. d at 636 (quoting Kirk v. Wash.
                                                                   2

State Univ.,109 Wn. d 448,
                  2                 453, 746                    Knowledge
                                               P. d 285 ( 1987)).
                                                2                                and voluntariness are

questions of fact for the jury unless reasonable minds could not differ. Home, 92 Wn. App. at
720. Implied primary assumption of risk is a complete bar to a plaintiff's recovery. Gregoire,
 170 Wn. d at 636.
       2




                                                       3
43024 0 II
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         By contrast, implied unreasonable and reasonable assumption of risk are treated as forms
of   contributory negligence. Kirk, 109 Wn. d
                                          2         at 454.   They apportion a degree of fault to the

plaintiff and reduce her damages. Gregoire, 170 Wn. d at 636. They arise where the plaintiff
                                                  2
knows about a risk created by the defendant's negligence but chooses to voluntarily encounter it.
Lascheid   v.   City of Kennewick,      137 Wn.   App. 633, 643, 154    P. d 307 ( 2007). In most
                                                                         3                "

situations, a plaintiff who has voluntarily encountered a known specific risk has, at worst, merely
failed to use ordinary care for his or her own safety, and an instruction on contributory

negligence is all that is necessary and appropriate." Dorr v. Big Creek Wood Prods.,Inc.,
                                                                                        84
Wn. App. 420, 426, 927 P. d 1148 (1996).
                        2

         The difficulty is to determine in which case the plaintiff's conduct is merely negligent

and is covered by comparative fault rules and in which case it manifests a consent to accept the
entire risk and is   a   complete   bar to the claim."DAN B.DOBBS, THE LAW    OF   TORTS §   212,at 541

2000).     Washington courts have treated this issue as one of scope, examining whether the

plaintiff impliedly consented to the risks inherent in participating in a particular activity. When
the defendant's negligent acts increase the risks, then the plaintiff is not assumed to have
consented to those additional risks. See Scott v. Pac. W. Mountain Resort, 119 Wn. d 484, 503,
                                                                                 2

834 P. d 6 (1992).
     2

         In order to determine what risks Barrett assumed, it is necessary to determine what duties

Lowe's owed Barrett. See Scott, 119 Wn. d at 500. The existence of a duty is a question of law.
                                      2

Tallariti v. Kildare, 63 Wn. App. 453, 456, 820 P. d 952 (1991).Barrett argues that she was an
                                                 2

invitee and thus owed a duty of reasonable care. A business invitee is a person who is invited to

enter premises for a purpose connected with business dealings with the land's possessor. Younce
v. Ferguson, 106 Wn.2d 658, 667, 724 P. d 991 (1986) quoting RESTATEMENT (SECOND) OF
                                      2              (
                                                     rd
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                    The possessor
TORTS §. 332 (1965)).                  owes   the.invitee   a   duty   of reasonable   care.   Younce, 106

Wn. d at 667. Here, Barrett was on the premises to engage in business dealings with Lowe's.
  2

Therefore, she was an invitee and was owed a duty of reasonable care. Lowe's failed to establish

that Barrett consented to relieve them of that duty.

       In Scott, our Supreme Court held that implied primary assumption of risk did not bar an

injured skier's recovery. 119 Wn. d at 503. There, a 12- old was injured during ski school
                                2                      year -
when he went off of the course and hit an abandoned tow rope shack. Scott, 119 Wn. d at 488.
                                                         -                       2

He sued the ski resort for negligence, and the resort argued that he was completely barred from

recovery,because he had assumed the risk. Scott, 119 Wn. d at 488, 499. The court concluded
                                                       2
that the skier had assumed the risks inherent in skiing, but he had not assumed the risk of

negligent operation by the resort. Scott, 119 Wn. d at 503. The court noted that the skier may
                                                2
have been negligent, but his negligence was a question of fact for the jury and did not operate as

a complete bar to his recovery. Scott, 119 Wn. d at 503.
                                             2

        Similarly, in Kirk, 109 Wn.2d at 454, the Supreme Court held that implied primary

assumption of risk did not * ar a cheerleader's recovery after she was injured during an
                           b
unsupervised practice. Although she had assumed the risks inherent in cheerleading, she had not
assumed the risks created by the school's negligence in failing to supervise the practice and

provide adequate practice facilities. Kirk, 109 Wn. d at 454 55.
                                                  2          -

        In this case, Barrett did not assume the risks created by McDowell negligently unloading

the trailer. Arguably, falling freight is an inherent risk of unloading a trailer. But, Barrett's job
duties did not include unloading the trailer, and she was not helping to unload when she was
           -

injured by the boxes. Moreover, as the Scott and Kirk cases demonstrate, the assumption of risk
doctrine does not bar recovery for actions caused by the defendant's negligence. Here, there are
                                                  5
43024 0 II
      - -




facts indicating that McDowell was acting negligently by cutting the rope holding the boxes in

place. McDowell's alleged negligence was not an inherent risk of Barrett's job.

       Additionally, none of Barrett's actions manifest an intent to relieve Lowe's of its duties.

In Leyendecker v. Cousins, 53 Wn. App. 769, 775, 770 P. d 675 (1989), court determined
                                                      2             the
that the application of primary implied assumption of risk was inappropriate where the plaintiff
walked into   a   spinning helicopter   rotor.   Although the plaintiff saw the rotor, appreciated the

risk it posed, and still voluntarily chose to walk near it,there was no evidence that the plaintiff
consented to relieve the defendant of any duties before encountering the risk. Leyendecker, 53

Wn. App. at 775.       The court reasoned that the plaintiff was not expecting to encounter the

helicopter and the defendant did not know that the plaintiff would risk walking near it.
Leyendecker, 53 Wn. App. at 775. Similarly, here, Barrett was not expecting to encounter this
                      Her job did not include    unloading the trailer, and   her actions —backing   up and
particular hazard.

asking McDowell if he was sure he wanted to cut the rope—
                                                        indicate that his actions were

unexpected. Additionally, the defendants did not know that she would risk walking near where
McDowell was working she was not involved in unloading the trailer and she did not warn
                     —

McDowell that she had stepped closer.

        Finally,this case is distinguishable from cases where primary assumption of risk has
barred a plaintiff's recovery. For example, in Wirtz v. Gillogly, 152 Wn.App. 1, 3 4,216 P. d
                                                                                   -      3
416 (2009), plaintiff was injured by a falling tree while helping the defendant clear trees from
          the
his property. The court granted the defendant's motion for summary judgment because the
plaintiff had assumed the risk of injury. Wirtz, 152 Wn.App. at 7. He knew the tree could fall
and injure him because he had observed and discussed the tree felling process and he had

planned an escape route to avoid the falling tree. Wirtz, 152 Wn. App.at 10. Additionally, his
                                                       n
43024 0 II
      - -



actions were voluntary because he could have refused to help at any point. Wirtz, 152 Wn.App.

at 10 11.
      -


       Wirtz is distinguishable because the plaintiff was injured by a risk inherent in the activity

he was engaged in and because he manifested consent to assume that risk. A tree falling and

injuring a participant is a risk inherent in tree felling. But McDowell's negligence in unloading
the trailer was not a risk inherent in Barrett's job. Further, the plaintiff in Wirtz manifested his

consent to assume the risk: he voluntarily participated in the tree -felling process and did not

argue that it was unsafe or attempt to remove himself from the situation. By contrast, Barrett did
not manifest her consent to assume the risk of Lowe's negligence: she did not voluntarily

participate in unloading the freight and she expressed concern at McDowell's actions and backed
away from the trailer.

        We hold that Barrett did not assume the risk of Lowe's and McDowell's negligence.

Barrett may have been contributorily negligent when she stepped closer to the trailer, but this is a

question    of fact for the   jury   and should not bar her   negligence   claim   entirely. Therefore, we

reverse the trial court's summary judgment order and remand for further proceedings.




                                                      7
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      A majority of the panel having determined that this opinion will not be.printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

040,
2.6.it is so ordered.
 0




We concur:




      Hunt, J.




        j or ,   J.
