Shannon Adamson v. Port of Bellingham ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHANNON C. ADAMSON and No. 16-35314
NICHOLAS ADAMSON, Husband
and Wife, D.C. No.
Plaintiffs-Appellees, 2:14-cv-01804-MJP
v.
PORT OF BELLINGHAM, a
Washington Municipal
Corporation,
Defendant-Appellant.
SHANNON C. ADAMSON and No. 16-35368
NICHOLAS ADAMSON, Husband
and Wife, D.C. No.
Plaintiffs-Appellants, 2:14-cv-01804-MJP
v.
ORDER
PORT OF BELLINGHAM, a CERTIFYING
Washington Municipal QUESTION TO
Corporation, WASHINGTON
Defendant-Appellee. STATE SUPREME
COURT
2 ADAMSON V. PORT OF BELLINGHAM
Filed August 14, 2018
Before: Ronald M. Gould and Sandra S. Ikuta, Circuit
Judges, and John R. Tunheim,* Chief District Judge.
Order
SUMMARY**
Certified Question to Washington Supreme Court
The panel certified the following question of state law to
the Supreme Court of Washington:
Is party A (here the Port of Bellingham) liable
as a premises owner for an injury that occurs
on part of a leased property used exclusively
by party B (here the Alaska Marine Highway
System – the “Ferry”) at the time of the
injury, where the lease has transferred only
priority usage, defined as a superior but not
exclusive right to use that part of the property,
to party B, but reserves the rights of party A
to allow third-party use that does not interfere
*
The Honorable John R. Tunheim, Chief United States District Judge
for the District of Minnesota, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ADAMSON V. PORT OF BELLINGHAM 3
with party B’s priority use of that part of the
property, and where party A had
responsibility for maintenance and repair of
that part of the property?
COUNSEL
Michael Barr King (argued), Jason W. Anderson, and Rory D.
Cosgrove, Carney Badley Spellman P.S., Seattle,
Washington; Frank J. Chmelik and Seth A. Woolson,
Chmelik Sitkin & Davis P.S., Bellingham, Washington; for
Defendant-Appellant/Cross-Appellee.
Philip A. Talmadge (argued), Talmadge/Fitzpatrick/Tribe,
Seattle, Washington; James Jacobsen and Joseph Stacey,
Stacey & Jacobsen LLP, Seattle, Washington; for Plaintiffs-
Appellees/Cross-Appellants.
ORDER
We respectfully ask the Washington State Supreme Court
to answer the certified question presented below, pursuant to
Revised Code of Washington § 2.60.020, because we have
concluded that maritime law does not apply to these claims,
and therefore “it is necessary to ascertain the local law of
[Washington] state in order to dispose of [this] proceeding
and the local law has not been clearly determined.”
This case involves a tort claim under Washington law for
which a jury awarded approximately $16,000,000 in damages
to Sharon Adamson, the plaintiff. Adamson’s damages arose
when a passenger ramp that she was operating at the Port of
4 ADAMSON V. PORT OF BELLINGHAM
Bellingham (“the Port”) fell about 15 feet, snapping the
cables that supported it, and causing her severe injuries. The
Port claimed that it was not liable for the damages, because
the ramp was under the exclusive control of its tenant, the
Alaska Marine Highway System (“the Ferry”), at the time of
the accident. On the Port’s theory, it was liable only for
notifying the Ferry of hidden defects, and had no duty as a
possessor of land. See Restatement (Second) of Torts
§§ 328E, 343, 343A, 356, 360. The plaintiffs claimed and the
district court held, in contrast, that under the lease the Port
was liable as a possessor of land for damages occurring on
the ramp.
I
We summarize the material facts. At the time of the
accident, Adamson, an employee of the Ferry, was operating
a passenger ramp at the Port’s Bellingham Cruise Terminal
facility. The ramp was designed to be raised and lowered
with three-quarter inch thick cables. But once the ramp was
in the proper position for passengers to board or disembark
from a ship, hydraulic pins would be inserted to hold the
ramp in place, rather than requiring the cables to bear the
weight of people crossing the ramp.
There was, however, a flaw in this system: Once the pins
were in place, it was still possible to continue to unspool the
cables. Although the pins would prevent the ramp from
descending, slack would build up in the cables. And then if
the pins were removed while there was slack in the cables, the
ramp would drop precipitously until the cables caught the
slack—assuming that the cables could withstand the force of
the ramp’s fall.
ADAMSON V. PORT OF BELLINGHAM 5
While she was operating the ramp, Adamson attempted to
lower the ramp while the pins were in place, putting slack in
the cables. She then removed the pins and the ramp dropped
about 15 feet, severing the cables, and causing Adamson’s
extensive injuries. Available evidence showed that the ramp
could have been modified at little cost to prevent slack in the
cables when the pins were in place, thus preventing the
serious type of injury that occurred in this case. Evidence
also showed that the Port was aware of the potential risk
because a similar incident had occurred previously, but
fortunately without any resulting injuries.
The district court held as a matter of law that based on the
agreement between the Port and the Ferry, the Port had not
conveyed exclusive possession to the Ferry and that the Port
faced liability as a possessor of property. The district court
instructed the jury in accordance with this holding, and the
jury returned a verdict in favor of Adamson and against the
Port.
The agreement between the Port and the Ferry contains
the following provisions that are relevant to the issues on
appeal:
(1) Section 1.2 describes the leased premises. It notes
that the Ferry will have “exclusive use” of the
“Reservation and Ticketing Office,” the “Bellingham
Cruise Terminal Manager’s office,” “the Warehouse
space located in Warehouse No. 4,” and “the Staging
and pursuer booth.” The Ferry will have “priority
use” of “approximately 125 parking spaces” and “the
Marine Facilities, including the vehicle ramp,
passenger ramp, and Berth 1—Pier and Dolphins.”
The passenger ramp was the location of the injury.
6 ADAMSON V. PORT OF BELLINGHAM
(2) Section 1.3 defines “exclusive use” to mean “the sole
possession and control of Areas subject only to the
terms and conditions of this Lease.”
(3) Section 1.4 defines “priority use” to mean “the
[Ferry] is entitled to superior but not exclusive right
of use to the identified areas. The [Port] may allow
other uses of the priority use areas so long as such use
does not unreasonably interfere with [the Ferry’s]
use.”
(4) Section 4.1 of the agreement states that “[t]he lessor
will be solely responsible for keeping the leased
premises in good repair and tenantable condition.
The term ‘repair’ includes repairs of any type
including but not limited to exterior and interior,
structural and nonstructural, routine or periodic,
except as in case of damage arising from the
negligence of the [Ferry’s] agents or employees.”
(5) Section 5.1 of the lease allows the Ferry “to make
alterations of additions in or to the premises only with
written consent of the Lessor, which consent will not
unreasonably be withheld.”
II
On Appeal the Port contends vigorously that under
Washington law, whenever the Ferry was in port, exclusive
control of the ramp passed to the Ferry, and the Port was no
longer liable to the Ferry’s invitees. In support of this
conclusion, the Port argues, first, that the priority use
provision meant, as a practical matter, that the Ferry had
exclusive control over the ramp whenever it was in port; only
ADAMSON V. PORT OF BELLINGHAM 7
one ship could be docked at the ramp at a time. And the Port
argued second, that it never allowed a third party to use the
ramp for docking purposes, so, in fact, only the Ferry ever
used the ramp.1
As we understand Washington law, as a general rule
property that is conveyed to a lessee becomes the
responsibility of the lessee, and the landlord is no longer
treated as a possessor of land. See Restatement (Second) of
Torts § 328E (1965); Regan v. City of Seattle, 76 Wash. 2d
501, 504 (1969) (“the lessee takes the property subject to all
apparent defects; and, with some exceptions, the lessor is not
liable for injuries caused by apparent defects after exclusive
control of the property has passed to the lessee . . . a lessor
owes no greater duty to invitees, guests or sublessees of his
tenant than he does to the tenant himself”); Clemmons v.
Fidler, 58 Wash. App. 32, 38 (1990). But where property is
given over to the use of a tenant, some parts of the property
can be the responsibility of the tenant, while other parts of the
property remain the responsibility of the landlord. See
Andrews v. McCutcheon, 17 Wash. 2d 340 (1943) (upholding
jury’s conclusion that a landlord maintained control of a
stairway that provided access to the leased premises and was
liable for an injury occurring in the stairway, despite the fact
that normally a stairway to the leased premises used
exclusively by the tenant would be considered part of the
leased premises and hence the responsibility of the tenant).
As a general rule, the landlord has a responsibility “to
exercise reasonable care to maintain common areas in a safe
condition,” Mucsi v. Graoch Assocs. Ltd. P’ship No. 12,
1
Adamson cross-appealed, urging us to sustain the jury’s verdict
under a federal maritime negligence theory. We have rejected this
argument in an opinion filed concurrently herewith.
8 ADAMSON V. PORT OF BELLINGHAM
144 Wash. 2d 847, 863 (2001), but not areas where “other
tenants and the general public have no right of access.”
Resident Action Council v. Seattle Hous. Auth., 162 Wash. 2d
773, 780–81 (2008).
Also, as we understand Washington law, property can
become the responsibility of a lessee, even if rented only for
a short period of time. Hughes v. Chehalis Sch. Dist.,
61 Wash. 2d 222, 224 (1963) (holding that a landlord tenant
relationship had been created even where the property was
only leased for an evening). And property can be the
responsibility of the lessee even if the agreement between the
parties includes some reservations regarding use. See Regan,
76 Wash. 2d at 504 (“If this control has passed, even though
the use is restricted by limitations or reservations, then a
landlord-tenant relationship is established”).
But we find little guidance in the Washington precedents
on how to assess which parts of the property given over to the
use of a tenant count as parts of the property transferred into
the tenant’s control, rather than portions of the property “the
tenant is entitled to use as appurtenant to the part leased to
him.” Restatement (Second) of Property: Landlord & Tenant,
§ 17.3 (1997). Here, for instance, the question of usage is
mixed. As a practical matter, only the Ferry used the
passenger ramp, and the priority use provision effectively
gave the Ferry exclusive control of the ramp when it was in
Port—no other ship could dock at that time. But the
agreement also gave the Port control over the ramp when the
Ferry was not in port. For example, the Port could allow third
parties to use the ramp without material restriction when the
Ferry was not there. The Port also had responsibilities for
maintenance and repair of the ramp, and could have had
access to the ramp to make such repairs at any time
ADAMSON V. PORT OF BELLINGHAM 9
throughout the lease term when the Ferry was not docked.
And the Ferry could not unilaterally alter the ramp without
the Port’s consent.
Under these circumstances, this case offers the
Washington State Supreme Court the opportunity to provide
more clarity about the conditions under which a lessor is
absolved of responsibility for injuries occurring on a part of
the property subject to a mixed use by both lessor and lessee.
Especially relevant here is the apportionment of responsibility
where the lessee, as a practical matter, has exclusive use of a
part of the property for intermittent periods of time, short of
the entire term of the lease agreement.
Because we have concluded that this important question
of Washington law is not entirely settled and involves matters
of policy best left to resolution by the State of Washington’s
highest court, certification of a question to the Washington
State Supreme Court is the most appropriate course of action.
If the Washington State Supreme Court concludes that a
lessee’s right to priority usage of a part of a facility is
sufficient to transfer responsibility for injuries entirely away
from the lessor, we will reverse the district court with
instructions to hold a new trial that appropriately instructs the
jury on bases of liability not premised on the assumption that
the Port is liable as a premises owner. If, however, the
Washington State Supreme Court decides that a priority usage
agreement does not absolve a landlord of liability as a
possessor of property, we will affirm the district court.
III
In light of the foregoing discussion, and because the
answer to this question is “necessary to ascertain the local law
10 ADAMSON V. PORT OF BELLINGHAM
of this state in order to dispose” of this appeal, RCW
§ 2.60.020, we respectfully certify to the Washington State
Supreme Court the following question:
Is party A (here, the Port) liable as a premises
owner for an injury that occurs on part of a
leased property used exclusively by party B
(here, the Ferry) at the time of the injury,
where the lease has transferred only priority
usage, defined as a superior but not exclusive
right to use that part of the property, to party
B, but reserves the rights of party A to allow
third-party use that does not interfere with
party B’s priority use of that part of the
property, and where party A had
responsibility for maintenance and repair of
that part of the property?
Perhaps stated more broadly, the question of
Washington law presented is whether priority
use can be considered to give exclusive
control, and if so in what circumstances?
We do not intend our framing of this question to restrict
the Washington State Supreme Court’s consideration of any
issues that it determines are relevant. If the Washington State
Supreme Court decides to consider the certified question, it
may in its discretion reformulate the question. Broad v.
Mannesmann Anlagenbau AG, 196 F.3d 1075, 1076 (9th Cir.
1999).
If the Washington State Supreme Court accepts review of
the certified question, we designate appellant Port of
Bellingham as the party to file the first brief pursuant to
ADAMSON V. PORT OF BELLINGHAM 11
Washington Rule of Appellate Procedure (“WRAP”)
16.16(e)(1).
The clerk of our court is hereby ordered to transmit
forthwith to the Washington State Supreme Court, under
official seal of the United States Court of Appeals for the
Ninth Circuit, a copy of this order and all relevant briefs and
excerpts of record pursuant to Revised Code of Washington
§§ 2.60.010, 2.60.030 and WRAP 16.16.
Further proceedings in our court are stayed pending the
Washington State Supreme Court’s decision whether it will
accept review, and if so, receipt of the answer to the certified
question. This case is withdrawn from submission until
further order from this court. The panel will resume control
and jurisdiction on the certified question upon receiving an
answer to the certified question or upon the Washington State
Supreme Court’s decision to decline to answer the certified
question. When the Washington State Supreme Court
decides whether or not to accept the certified question, the
parties shall file a joint report informing this court of the
decision. If the Washington State Supreme Court accepts the
certified question, the parties shall file a joint status report
every six months after the date of the acceptance, or more
frequently if circumstances warrant.
It is so ORDERED.