     IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

MIGUEL GAONA,
                                                 DIVISION ONE
                    Appellant,
                                                 No. 71022-2-



GLEN ACRES GOLF & COUNTRY                        UNPUBLISHED OPINION
CLUB, a Washington business, form
unknown; and GLEN ACRES
HOMEOWNER'S ASSOCIATION, INC.
a Washington corporation,

                     Respondents.                FILED: November 17, 2014


      Dwyer, J. — Landowners are not liable for injuries to invitees caused by

dangerous conditions on their property unless, among other things, the
landowner should expect that the invitee will notdiscover the danger or will fail to
protect himself or herself against it. In this case, there was no evidence that the
landowner should have expected that the employee of a company hired to

maintain the landowner's grounds, including its trees, would not discover or

protect himself against the danger posed by a tree that fell and injured him.
Therefore, the trial court properly dismissed the employee's action against the

landowner on summary judgment.
No. 71022-2-1/2




      Glen Acres Golf and Country Club is comprised of 225 condominium units

and an adjacent golf course. Bill's Maintenance Company (BMC) provides

gardening and landscaping services for Glen Acres, including tree care and

inspection. BMC has performed those services for over 30 years.

       On February 2, 2009, a willow tree at Glen Acres struck and seriously

injured BMC employee Miguel Gaona while he was mowing grass. Gaona sued
Glen Acres and its homeowners' association, alleging that they breached their

duty "to warn or otherwise protect [him], an invitee . . . , ofdangerous conditions"

on the property.

       Glen Acres moved for summary judgment, arguing that it had no actual or

constructive notice of the tree's dangerous condition, that it fulfilled any duty it

owed Gaona by hiring BMC to maintain and inspect its trees, and that it was not

liable for any negligence of BMC. Glen Acres supported its motion with the

declaration of Bill Placek, the owner and operator of BMC.

       Placek stated that BMC had maintained the grounds at Glen Acres for 32

years. Its duties included periodic inspections of trees for indications that they
were unhealthy or hazardous. He visually inspected the trees on the grounds by

looking for dead or diseased limbs, dead or thinning leaves, abnormal growth or
development, or insect infestations. He consulted an arborist whenever a tree

had "an issue" or was "possibly a danger." Over the years, he had reported

issues with various trees to the homeowners' association and some of the trees
No. 71022-2-1/3



had been removed. Placek said he visually inspected the tree that fell on Gaona

"countless times" and saw no signs of distress. His inspections did not include

looking beneath the ivy at the base of the tree.

      Jane Placek stated in her declaration that she was the community

association manager for the Glen Acres Homeowners' Association when the

accident occurred. She confirmed that the decisions that BMC was hired to

perform "included making periodic visual inspections of the grounds for any

safety issues including advising the association if any trees on the grounds

looked potentially hazardous." She said there had been occasions when the

association had "trees . . . removed from the property because of concerns they

might be hazardous." She swore that "[n]o one at any time informed me that

there was any concern about the tree which struck the plaintiff prior to his injury."

In his deposition, Gaona stated that he had worked near the subject tree "a lot"

and never noticed any sign that it was unhealthy. Nor did anyone ever suggest

to him that the tree showed indications of being unhealthy or dangerous.

       In response to Glen Acres' summary judgment motion, Gaona argued that

questions of fact existed regarding the adequacy of BMC's inspections and Glen

Acres' negligence in hiring BMC. In support, Gaona submitted the declaration of

Scott Baker, an arborist who inspected the tree's stump approximately three

years after the accident. During his inspection, Baker removed ivy covering the

base of the stump and discovered decay in the roots and trunk, an absence of

roots on one side of the tree, and evidence that the tree had leaned in one



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No. 71022-2-1/4



direction. He concluded that the tree failed due to the decay at its base. He

believed that the decay was present when the tree failed, that the decay was

discoverable by pulling back the ivy, and that, more likely than not, there was

also significant and visible die-back in the crown of the tree prior to its failure. In

Baker's opinion, BMC's tree inspections, which did not include an examination of

the portions of the tree beneath the ivy, were inadequate.

       The court granted Glen Acres' motion for summary judgment. In its oral

ruling, the court stated in part:

              I don't think there's a requirement that they hire someone
       who is an arborist, who . . . would take away the ivy, poke
       around . . . .

               They had a regular visual inspection which is, I think,
       probably more than they even had to do.

               And there was no indication that... the hiring of him was
       negligent. That he was incapable of doing a normal visual
       inspection ....

               Mr. Bill may have been negligent. And there may be a
       question of fact as to that. But that's, as we've all agreed, that's
       between him and his employee. The Homeowner's Association is
       not liable for that....

Gaona appeals.

                                            II


       The sole issue on appeal is whether the trial court erred in granting

summary judgment. We review that ruling de novo, viewing the facts and all
reasonable inferences therefrom in the light most favorable to the nonmoving

party. Dumont v. Citv of Seattle, 148Wn. App. 850, 861, 200 P.3d 764 (2009).


                                          -4
No. 71022-2-1/5



Summary judgment will be upheld ifthere is no genuine issue of material fact and

the moving party is entitled to judgment as a matter of law. CR 56(c); Snohomish

County v. Ruqq, 115 Wn. App. 218, 224, 61 P.3d 1184(2002).

      Citing the Restatement (Second) of Torts, section 343, Gaona contends

that summary judgment was improper because there exist fact questions as to

whether Glen Acres fulfilled its duty of reasonable care to discover dangerous

conditions on its property. This contention overlooks other prerequisites to

liability under the Restatement.

      As an employee of an independent contractor hired by Glen Acres, Gaona

was an invitee to whom Glen Acres owed certain duties under section 343 of the

Restatement (Second) of Torts. Hvmas v. UAP Distribution, Inc., 167 Wn. App.

136, 160, 272 P.3d 889 (2012) (employee of independent contractor is an

invitee), review denied, 175 Wn.2d 1006 (2012); Kamla v. Space Needle Corp.,

147 Wn.2d 114, 125, 52 P.3d 472 (2002) (section 343 governs landowner's

duties to invitee in Washington). Section 343 provides as follows:

       A possessor of land 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.

Restatement (Second) of Torts § 343, at 215-16 (1965). The duty of

"[reasonable care requires the landowner to inspect for dangerous conditions,
No. 71022-2-1/6



'followed by such repair, safeguards, or warning as may be reasonably

necessary for [the invitee's] protection under the circumstances.'" Tincani v.

Inland Empire Zoological Soc'v, 124Wn.2d 121, 139, 875 P.2d 621 (1994)

(alteration in original) (quoting Restatement (Second) of Torts § 343 cmt. b);

Iwai v. State. 129 Wn.2d 84, 93-94, 915 P.2d 1089 (1996). A landowner's

responsibility for the condition of the land does not, however, make the

landowner liable for the negligent acts or omissions of an independent contractor.

Hvmas. 167 Wn. App. at 161. The owner owes no duty to the employee of an

independent contractor "to protect him from the negligence of his own master."

Hvmas. 167 Wn. App. at 162.

       Gaona failed to demonstrate a fact issue as to subsection (b) of

Restatement section 343.1 He presented no evidence demonstrating that Glen

Acres "should expect" that BMC and its employees would "not discover or realize

the danger" from the tree or would "fail to protect themselves against it."

Restatement (Second) of Torts § 343(b). BMC had inspected and maintained

the trees for 30 years. There was no evidence that, prior to the accident, Glen

Acres knew of any instances in which BMC failed to discover a dangerous tree.

Gaona's own expert stated that a tree suffering from the condition that killed the

subject tree would more likely than not show significant distress in the crown.

Thus, if anything, the record supports a conclusion that Glen Acres should have


       1Although this precise argument was not advanced below, our review is de novo and we
may sustain the superior court's decision on any basis supported by the pleadings and proof.
Swanson v. Holmquist. 13 Wn. App. 939, 941, 539 P.2d 104 (1975).


                                            -6-
No. 71022-2-1/7



expected BMC and Gaona to discover the dangerous condition of the tree.

Indeed, that was one of the very purposes for Glen Acres having engaged the

services of BMC over more than three decades.

      Similarly, Glen Acres points out, and Gaona does not dispute, that the

"extent of the duty to inspect is dependent upon the circumstances and the

relationship between the landowner and the invitee." Stimus v. Haqstrom, 88

Wn. App. 286, 294, 944 P.2d 1076 (1997).2 Thus, "landowners who invite

individuals with superior knowledge onto their property to make repairs on the

property should not be required to know of defects the repairs were intended to

discover and remedy or to anticipate defects within the expertise of the experts."

Stimus. 88 Wn. App. at 296. In such circumstances, "[t]he duty owed . ..

extends only to dangers which the contractor or his servants could not

reasonably have discoveredand of which the owner knew or should have

known." Stimus, 88 Wn. App. at 296 (emphasis added).

       It is undisputed that Glen Acres hired BMC "to oversee maintenance of the

complex and provide landscaping and tree care/inspection." It is also undisputed

that, by virtue of Bill Placek's 30 years of working with the trees, BMC had

superior knowledge of the trees at Glen Acres, if not superior knowledge of tree

care in general. Citing these facts and Stimus. Glen Acres contends it owed

Gaona no duty because BMC had superior knowledge and any defect in the tree

was one which BMC or its employee, Gaona, could have reasonably discovered.


       2 This argument was raised below.
No. 71022-2-1/8



Gaona fails to address Stimus or Glen Acres' arguments based on its reasoning.

In the absence of any response to the arguments, Stimus provides an alternative

basis for sustaining the trial court's order of summary judgment.

       Finally, Gaona's argument that an adequate inspection in these

circumstances required inspection by, or consultation with, an arborist, and that

Glen Acres is liable for any inadequate inspection, fails for several reasons.

First, even assuming BMC's inspections were inadequate under current law or

the law envisioned by Gaona, Glen Acres is not liable for injuries to an employee

of an independent contractor that are caused by the contractor's negligence.

Hvmas. 167 Wn. App. at 161. While Gaona suggested below that Glen Acres

could still be liable on a theory of negligent hiring, he has not advanced that

theory on appeal. Second, requiring an arborist's inspection would greatly

exceed the lay inspection for "patent danger" or "readily observable" defects that

is currently required under Washington law. See Lewis v. Krussel. 101 Wn. App.

178, 186-87, 2 P.3d 486 (2000). No compelling reasons for departing from this

standard of care are advanced here. And contrary to Gaona's assertions, the

facts of this case do not support an arborist inspection requirement since the

defect in the subject tree could have been readily observed by BMC by simply

pulling back the ivy at the base of the tree.

       The court did not err in granting Glen Acres' motion for summary

judgment.




                                          8
No. 71022-2-1/9



      Affirmed.


                  1 J^l^-j/^ s
We concur:




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