Adamson v. Port of Bellingham , 193 Wash. 2d 178 ( 2019 )

This opinion was
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tUnSE coum;81XIE OF WA&O«ST0N
I PATg APR 1 1 Susan L. Carlson
Supreme Court Clerk
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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
CERTIFICATION FROM THE UNITED
STATES COURT OF APPEALS FOR No. 96187-5
THE NINTH CIRCUIT IN
En Banc
SHANNON C. ADAMSON and
NICHOLAS ADAMSON,husband and wife,
Plaintiffs-Appellees,
V.
PORT OF BELLINGHAM,a Washington
Municipal Corporation,
Defendant-Appellant.
SHANNON C. ADAMSON and
NICHOLAS ADAMSON,husband and wife,
Plaintiffs-Appellants,
V.
PORT OF BELLINGHAM,a Washington
Municipal Corporation,
Defendant-Appellee.
Filed APR 1 1 2019
Adamson v. Port ofBellingham, No. 96187-5
JOHNSON,J.—The Ninth Circuit Court of Appeals certified to us a
question of premises liability and a broader version ofthe same overarching
question. The heart of the main question is whether a property owner-landlord is
liable for injuries that occur on its property when the lessee has exclusive
possession at the time of the accident but only priority use under the lease and the
landlord has contracted to maintain and repair the premises.' We answer the first
certified question in the affirmative and need not address the second question.
FACTS AND PROCEDURAL HISTORY
Shannon Adamson, an employee of the Alaska Marine Highway System
(AMHS),fell approximately 15 feet when the passenger ramp at the Port of
Bellingham's (Port) Bellingham Cruise Terminal(BCT)collapsed. The accident
caused Ms. Adamson severe, life-changing injuries.
Since 1989, the State of Alaska has leased the BCT from the Port, allowing
the AMHS ferries to dock at the BCT to load and unload passengers and their
vehicles. The Port and Alaska renegotiated this lease in 2009 for another 15 years.
A summary of the 2009 lease provisions pertinent to this case are as follows:
'We received five amicus curiae briefs, three in support of the Adamsons(Washington
State Labor Council, Inlandboatmen's Union of the Pacific, and Washington State Association
for Justice Foundation) and two in support of the Port(Washington Public Ports Association, and
International Council of Shopping Centers, Washington Retail Association, and Building Owners
and Managers Association Seattle King County).
Adamson v. Port ofBellingham, No. 96187-5
Section 1.2 indicates the scope ofthe leased premises and gives exclusive use of
the reservation and ticketing office, the BCT manager's office, the warehouse, and
the staging and purser booth to AMHS but gives priority use of 125 parking spaces
and the marine facilities, including the vehicle ramp,passenger ramp, and berth 1.
3 Appellant's Excerpt of Record(ER)at 340. Section 1.3 defines "exclusive use"
as "sole possession and control of the Areas," while section 1.4 defines "priority
use" as a "superior but not exclusive right of use" and indicates the Port "may
allow other uses of the priority use areas so long as such use does not unreasonably
interfere with [AMHS's] use." 3 ER at 340(emphasis added). Section 4.1 indicates
that the Port will be "solely responsible for keeping the leased premises in good
repair and tenantable condition," and section 4.1(a) indicates the Port will
"maintain the leased premises ... in good and substantial repair and condition." 3
ER at 343. Section 4.7 indicates the Port will "maintain the leased premises free of
structural or mechanical hazards." 3 ER at 345. Under sections 5.1 and 5.3, Alaska
has the right to make alterations, additions, and improvements to the leased
premises subject to the "written consent ofthe [Port]." 3 ER at 348. Section 5.1
also requires Alaska to "permit the [Port] to enter upon the premises at all
reasonable times to examine the condition of same." 3 ER at 348.
Adamson v. Port ofBellingham, No. 96187-5
In order to allow passengers on foot to board the femes, AMHS operates the
BCT passenger ramp, which, when lowered, connects the terminal to the upper
deck ofthe ferry. The passenger ramp is suspended with three-quarter-inch wide
steel cables on a motorized pulley system that can lift and lower the ramp. Once
the ramp is in place, steel pins are inserted into the ramp so that the cables are not
holding all of the weight of the ramp. However, this system had a crucial flaw; the
pulley system could continue to unspool the cables when the locking pins were in
place, creating slack in the cables. The locking pins could then be removed with
the slack in place, and the passenger ramp would fall until it caught on the
cables—if the cables could withstand the force of the fall.
The Port could have fixed this flaw by installing an "interlock" system
"which does not allow the slackening of the wire rope with pins still in place." 5
ER at 892. The interlock would have been a simple fix: rewiring the control panel
so that the pins cannot be moved unless they were aligned properly and there was
no slack in the cables. The process of interlocking the control panel would have
taken an electrical engineer approximately 15 minutes and would have involved
moving and installing one or two wires. This entire process would have cost less
than $1,000 and prevented the 2012 incident at issue in this case. The Port decided
not to implement the interlock device.
Adamson v. Port ofBellingham, No. 96187-5
On November 2, 2012, Ms. Adamson was operating the passenger ramp and
created slack in the cables. When she removed the locking pins, the ramp
collapsed, snapped the cables, and she and the ramp fell approximately 15 feet
until the ramp caught on the ferry. The force of the fall caused Ms. Adamson to
lose consciousness such that she does not remember the accident or the events
leading up to it, and she sustained multiple other life-changing injuries.
Ms. Adamson and her husband, Nicholas Adamson, sued the Port in federal
courtj alleging negligence and seeking damages for medical expenses, loss of
wages, pain and suffering, and loss of consortium. The district court determined as
a matter of law that Ms. Adamson was the Port's business invitee and instructed
the jury accordingly. The case proceeded to trial and the jury awarded the
Adamsons $16,007,102 in damages, determined that neither Ms. Adamson nor the
State of Alaska was negligent, and found the Port negligent under three separate
theories of liability: duty to a business invitee, duty as a landlord, and promise to
perform repairs under the lease contract. During the case, the Port filed a motion
for summary judgment, a motion for judgment as a matter of law, and a renewed
motion for judgment as a matter of law, all of which the district court denied.
Adamson v. Port ofBellingham, No. 96187-5
The Port appealed the district court's denial of its motions.^ The Ninth
Circuit panel certified two versions of one overarching question of premises
liability to this court, one more detailed and one more broad. See Order of U.S.
Court of Appeals, Adamson v. Port ofBellingham, No. 16-35314(9th Cir. Aug. 14,
2018)(Certification Order).
CERTIFIED QUESTION(S)
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,
[AMHS])at the time ofthe injury, where the lease has transferred
only priority usage, defined as a superior but not exclusive right to use
that part ofthe 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 ofthat part of the property, and where party A had responsibility
for maintenance and repair ofthat part ofthe 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?
Certification Order at 10.
ANALYSIS
A certified question from a federal court is a question oflaw we review de
novo. Brady v. Autozone Stores, Inc., 188 Wn.2d 576, 580, 397 P.3d 120(2017).
The Adamsons cross appealed, alleging that the trial court erred in deciding that the
circumstances of this case arise under Washington law rather than federal maritime law. See
Second Br. on Cross Appeal at 2(9th Cir. No. 16-35314(2017)). The Ninth Circuit affirmed the
disinci comfsmlmg.Adamson V. Port ofBellingham, 907 F.3d 1122, 1133 (9th Cir. 2018).
Adamsonv. Port ofBellingham, No. 96187-5
We do not consider a certified question in the abstract but instead consider it in
light of the certified record from the federal court. Carlsen v. Glob. Client Sols.,
LLC, 171 Wn.2d 486, 493, 256 P.3d 321 (2011); also RCW 2.60.030(2). While
we present the facts from the federal court, we use them only so much as it is
helpful to the analysis of the general premises liability rules implicated in the
certified question.
This certified question presents us with the issue of whether possession at
the time of the accident is sufficient to absolve a landowner who leases property of
liability when the lease indicates that the lessee has only priority use where the
injury occurred and that the landlord contractually obligated itself to maintain and
repair the premises, and reserved the right to lease the property to others. We hold
that a priority use provision, an affirmative obligation to maintain and repair, and
the ability to lease the property to others together create sufficient control of the
property such that a landowner who leases the property is held liable as a premises
owner.
Proceeding to answering the question as framed, the general rule is that a
landowner is held liable for injuries that occur on the land, except in some cases
where the landowner gives exclusive control of a property over to a lessee, then the
Adamson v. Port ofBellingham, No. 96187-5
landowner may no longer be liable as a possessor of land. Regan v. City ofSeattle,
76 Wn.2d 501, 504, 458 P.2d 12(1969).
However, where a landlord^ reserves a duty to repair the premises, the
landlord is liable for its own negligence if it fails to do so, even if both the landlord
and the lessee know of the dangerous condition. Our cases have recognized this
principle.
InRossiter v. Moore, 59 Wn.2d 722, 370 P.2d 250 (1962), this court
reversed a summary judgment dismissal of a claim by a tenant's guest for a
landlord's negligence. In analyzing the issue, we noted that
[i]f a landlord lets premises and agrees to keep them in repair, and he
[or she] fails to do so, in consequence of which any one lawfully upon
the premises suffers injury, he is responsible for his own negligence to
the party injured. . . . And there is no distinction stated in any
authority between cases of a demise of dwelling houses and of
buildings to be used for business purposes. The responsibility of the
landlord is the same in all cases. If guilty of negligence or other
delictum which leads directly to the accident and wrong complained
of, he is liable.
Rossiter, 59 Wn.2d at 726-27 (internal quotation marks omitted)(quoting Edwards
V. N.Y. & Harlem R.R. Co., 98 N.Y. 245, 248-49 (1885)).
This basic rule has been recognized in other contexts. In Regan, we analyzed
a negligence action against the city and the city's lessee for an aecident occurring
^ The Port is both landlord and landowner; thus, the terms are interchangeable in this
case. 1
Adamson v. Port ofBellingham, No. 96187-5
at the lessee's go-kart race track in a city-owned building. In reversing the
summary judgment, we found that although the lessee had control of the premises,
a reasonable person could find that the city, by affirmatively agreeing to help clean
the track between races, could have caused the accident when it negligently failed
to clean a wet spot on the track. This affirmative negligence could cause the city to
be liable, even though sufficient control had passed to the lessee. Regan, 76 Wn.2d
at 503-07. Potential liability under this principle focuses on the responsibilities and
control a landowner-lessor has either retained or affirmatively taken on, such as
within the lease contract.
The Port relies on Regan and its predecessor Hughes v. Chehalis School
District No. 302, 61 Wn.2d 222, 377 P.2d 642(1963), as support for the assertion
that once a landlord gives exclusive control, the landlord carmot be held liable. In
Hughes, an invitee of the lessee slipped on a recessed area of the floor. In
upholding summary judgment, we held that there was no defect and, thus, no duty
to warn as the lessee had exclusive control of the premises for the night of the
lease. Hughes, 61 Wn.2d at 225. But the present case materially differs from both
Regan and Hughes based on the provisions of the lease. Both Regan and Hughes
are premised on the assumption that there was no agreement for the lessor to repair
the premises, as a commercial landlord generally has no duty to maintain or repair
the premises unless the landlord assumes the duty under the lease terms. Regan, 76
Adamson v. Port ofBellingham, No. 96187-5
Wn.2d at 504(^'absent an agreement to repair by the lessor, the lessee takes the
property subject to all apparent defects"(emphasis added)); Hughes,61 Wn.2d at
225 ('"zn the absence ofan express warranty or covenant to repair, there is no
implied contract that the premises are suitable or fit for occupation, or for the
particular use intended, or that they are safe for use'"(emphasis added)(quoting
32 Am.Jur.Landlord and Tenant § 654 (1941))); see also Teglo v. Porter, 65
Wn.2d 772, 774, 399 P.2d 519(1965)(when a lessor agrees to repair and maintain
the premises, and "acquires knowledge or notice of a condition, existing either
before or arising during the tenancy, rendering the premises unsafe,... then the
landlord is liable in tort for the injuries sustained").
While these cases discuss and analyze the correct legal principles, the
general rules focus on control over the leased premises. Here, the Port
affirmatively contracted to maintain and repair the premises under the provisions
of the lease. No obligation under the lease existed for AMHS to maintain or repair.
Further, AMHS could not make any changes to the property without the written
consent ofthe Port, whereas the Port had the authority to unilaterally make
changes to the property and was allowed to enter the leased premises at all
reasonable times to examine the condition of the property. Despite the dispute over
lease terms, we cannot ignore that AMHS could not repair the passenger ramp
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Adamson v. Port ofBellingham, No. 96187-5
without the authority and approval of the Port. The landowner-lessor here is liable
when still holding authority over the property.
In Jordan v. Nationstar Mortgage, LLC, 185 Wn.2d 876, 887, 374 P.3d
1195 (2016), we examined the definition of"possession" in tort law as guidance in
the context of a foreclosure. We looked to the Restatement(Third) of Torts, which
defines a "possessor of land" as "a person who occupies the land and controls it."
Restatement(Third)of Torts: Liability for Physical and Emotional Harm
§ 49(Am.Law Inst. 2012). Comments c and d to § 49 go on to clarify that "[a]
person is in control of the land if that person has the authority and ability to take
precautions to reduce the risk of harm to entrants on the land" and explains that
control over certain areas may be shared and "[e]ven a possessor who cedes
temporary control of property to another may be responsible as a possessor for
conditions on the land that are not in the effective control of the other because of
the temporal and practical limits of the other's possession." We look to the specific
terms of the agreement to see who had authority and ability to reduce risk of harm
and whether there were temporal and practical limits on the lessee's possession
such that the lessor is still liable as a possessor of land.
In addition to the specific terms of the lease, this rule is consistent with other
sections of the Restatement of Torts we have previously embraced. For example, in
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Adamson v. Port ofBellingham, No. 96187-5
Tincani v. Inland Empire Zoological Society, 124 Wn.2d 121, 139, 875 P.2d 621(1994), we opined that Restatement(Second) ofTorts § 343 and § 343A(Am.Law
Inst. 1965) are "the appropriate standard for duties to invitees for known or
obvious dangers." Together, these sections require a possessor of property to
exercise reasonable care to protect an invitee against a condition that creates an
unreasonable risk of harm, including inspecting for said conditions,"followed by
such repair, safeguards, or warning as may be reasonably necessary for [the
invitee's] protection under the circumstances." Restatement(Second)of Torts
§ 343, cmt. b. The possessor is not liable for a condition of the land that is known
or obvious to the invitee, unless the possessor "should anticipate the harm despite
such knowledge or obviousness." Restatement(Second)of Torts § 343A.
Also, in Gildon v. Simon Property Group, Inc., 158 Wn.2d 483,496, 145
P.3d 1196(2006), we embraced Restatement(Second) ofTorts § 328E(Am. Law
Inst. 1965), the predecessor to Restatement(Third) ofTorts: Liabilityfor Physical
and Emotional Harm § 49, to define a "possessor ofland" as one "who occupies
the land with the intent to control." In Teglo, we adopted Restatement ofTorts:
Negligence § 357(Am.Law Inst. 1934), which indicates when a lessor covenants
to repair the premises in a lease and because of disrepair there is unreasonable risk
of injury, the lessor is liable for injuries to the lessee and others that the lessee has
invited on the land. Teglo, 65 Wn.2d at 774-75. Together these Restatement
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Adamson v. Port ofBellingham, No. 96187-5
sections recognize a duty when a lessor has sufficient control and affirmatively
covenants to maintain and repair.
In this case, the Port had access to the property to conduct maintenance; had
the authority to unilaterally make changes to the property, while the lessee needed
written permission; and the Port affirmatively contracted to repair and maintain
with no provision requiring the lessee to repair and maintain. Based on this, the
Port had the requisite ability and authority to reduce the risk of harm to entrants
such that it was still in control and in possession of the property. The fact that
AMHS was in berth and using the passenger ramp at the time of the incident does
not affect the Port's liability as a landowner-lessor. We answer the first certified
question in the affirmative.
The Ninth Circuit also certified a more abstract and broader version of the
previous certified question; "[WJhether priority use can be considered to give
exclusive control, and if so in what circumstances?" Certification Order at 10.
Although answers to certified questions are inherently advisory in nature, because
we answer the first question in the affirmative, we decline to answer the second
question as too abstract.
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Adamson v. Port ofBellingham, No. 96187-5
CONCLUSION
We answer the first certified question in the affirmative: a landowner-lessor
is liable for injuries that occur due to a defect on leased property that was in
exclusive possession of the lessee where the lease provisions provide that the
lessee has only priority use, not exclusive use, ofthe premises, and that the
landowner has contracted to maintain and repair the premises.
WE CONCUR:
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