Rebecca Fowler v. Brent Swift ( 2019 )

Filed
Washington State
Court of Appeals
Division Two
October 8, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
REBECCA FOWLER, an individual, No. 51366-8-II
Appellant, UNPUBLISHED OPINION
v.
BRENT SWIFT, in his individual capacity;
ROSANNE FINN, a single individual,
Respondents,
And
SCOTT BERGFORD and PATRICIA
BERGFORD, and the marital community
comprised thereof; JENNIFER NEVY, in her
individual capacity,
Defendants.
GLASGOW, J. — Brent Swift rented a room on the second floor of a house where he ran his
acupuncturist’s office. Three additional business tenants rented other rooms in the house. One
tenant typically collected the monthly rent from the other tenants and sent it to the building’s
owners. Roseanne Finn was the sole named tenant on an expired written lease for the building,
but Finn had moved her business elsewhere.
Rebecca Fowler, Swift’s patient, slipped and fell down the interior stairs outside Swift’s
office, breaking her tibia and fibula. She sued Swift and Finn for damages related to her injuries,
in addition to other defendants including the building’s owners.
The trial court granted summary judgment for both Swift and Finn, reasoning that neither
owed a duty to Fowler with respect to the stairs, which were in a common area.
No. 51366-8-II
Fowler appeals, arguing that a genuine issue of material fact remained as to whether Swift
and Finn owed her a duty as to the stairs, as well as whether Swift had breached his duty. She
reasons that Swift was a possessor of the stairs and so he owed a duty of care to invitees who used
them, while Finn owed her a duty as a sublandlord of the property.
We conclude that neither Swift nor Finn owed a duty to Fowler with regard to the stairs,
and therefore we affirm. We also deny Fowler’s request for attorney fees on appeal.
FACTS
The relevant underlying facts are not in dispute. Scott and Patricia Bergford leased a
historic home in Olympia to Finn in 2012. Finn began using the building to operate her business,
as did two other tenants who were not named in the lease, including Jennifer Nevy. The lease
agreement expired in November 2013 and converted to a month-to-month tenancy. In February
2014, Finn moved out, giving Nevy the responsibility for the premises and the tenants’ payment
of rent. Nevy then sublet offices in the building to three other professionals, including Swift, an
acupuncturist. None of the four tenants had a written lease. Nevy assumed the responsibility of
paying the full rent to the Bergfords, with each of the other tenants first paying their share to her.
At some point, Swift’s rent increased $30 per month to cover the cost of paying a person to clean
the common areas.
Fowler, who suffers from multiple sclerosis, had been a patient of Swift’s for over 10 years
prior to him moving his office to this new location. Among her symptoms were numbness and
loss of circulation in her feet, which often required her to wear wool socks for warmth. Swift knew
about her condition and its effects.
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Before visiting Swift’s new office for the first time, Fowler learned from her sister, another
patient of Swift’s, that the tenants of the building and their clients typically removed their shoes
upon entering the building. Fowler’s sister also told her that it was customary for clients to leave
their shoes by the bench at the bottom of the stairs, where Swift would meet his patients and escort
them upstairs to his office on the second floor. Swift was one of two tenants with offices on the
second floor. The stairs were hardwood, and at the time, they did not have any slip-resistant
material on them. The stairs and handrail may not have met building code standards according to
the testimony of Fowler’s expert, and Swift admitted that he thought the stairs were narrower than
normal.
In November 2014, Fowler visited Swift’s new office for the first time for an appointment.
When Fowler arrived, she saw Swift and his previous patient walk down the stairs in their socks.
She then removed her shoes but kept her socks on and followed Swift upstairs for her appointment.
Following the appointment, Fowler walked down the stairs by herself. She was half-way down
the stairs when she slipped and fell, breaking her tibia and fibula. After the accident, the tenants
decided together to place signs at the top of the stairs warning that the stairs were narrow and
asking people to keep their shoes on, as well as to install slip-resistant treads on each step.
Fowler brought a personal injury lawsuit, naming Swift, Finn, and the Bergfords as
defendants. Fowler later added Nevy as an additional defendant. Nevy and the Bergfords have
since been dismissed as parties. Both Swift and Finn moved for summary judgment on the grounds
that they did not owe a duty to Fowler with respect to the stairs.
In his declaration, Swift stated that he rented only his office from Nevy and that he was not
responsible for any other area of the house. He explained that the downstairs shoe rack was
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intended for use by clients of the downstairs tenants and that he set up a separate area outside his
office upstairs for his clients to remove their shoes. He claimed that he never told his clients to
remove their shoes downstairs but rather asked them to remove their shoes before entering his
office. On the day of the accident, Swift neither asked Fowler to remove her shoes before entering
his office nor stopped her from removing her shoes at the bottom of the stairs.
In her declaration, Finn stated that during the time that she had an office in the building,
she had no right to make physical alterations or repairs to any fixtures because that was the
Bergfords’ responsibility as owners. She also stated that once she moved out, she believed she
had no right to enter the property without Nevy’s approval. Nevy stated in her declaration that
there was no building-wide “shoes off” policy; each tenant and client was free to do what they
wished. Clerk’s Papers (CP) at 314.
Gary Sloan, a forensic human factors specialist, was retained by Fowler to assess the slip
resistance of the stairs. Using socks similar to those Fowler wore the day of the accident, Sloan
conducted trials and concluded that with socks, the slip index was “at least as slippery as ice.” CP
at 206. He also concluded that the “shape and dimensions of the handrail in combination with the
relatively short runs were additional risk factors.” CP at 207. In Sloan’s opinion, Fowler “would
not have slipped on the stairs and been injured had she been wearing shoes rather than only socks.”
CP at 207.
Swift also submitted evidence, going back more than a decade, that none of the previous
tenants or the Bergfords knew of anyone else ever slipping or falling down the stairs. No one had
reported any concerns about the safety of the stairs during the years the Bergfords owned the house.
The trial court granted summary judgment in favor of both Swift and Finn. Fowler appeals.
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ANALYSIS
I. SUMMARY JUDGMENT STANDARD OF REVIEW
In reviewing a grant of summary judgment, we apply the same standard as the trial court:
summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of law.” CR 56(c);
DeVeny v. Hadaller, 139 Wash. App. 605, 616, 161 P.3d 1059 (2007). We consider the evidence
and the reasonable inferences therefrom in the light most favorable to the nonmoving party. Sutton
v. Tacoma Sch. Dist. No. 10, 180 Wash. App. 859, 864, 324 P.3d 763 (2014). We review the trial
court’s conclusions of law de novo. DeVeny, 139 Wash. App. at 616.
The moving party bears the burden of first showing that there is no genuine issue of
material fact. State v. Grocery Mfrs. Ass’n, 5 Wash. App. 2d 169, 185, 425 P.3d 927 (2018), review
granted, 193 Wash. 2d 1001 (2019). Once the moving party has made such a showing, the burden
shifts to the nonmoving party to set forth specific facts that rebut the moving party’s contentions
and show a genuine issue of material fact. Zonnebloem, LLC v. Blue Bay Holdings, LLC, 200 Wn.
App. 178, 183, 401 P.3d 468 (2017). Responses by an adverse party to a motion for summary
judgment must be made on personal knowledge, must set forth facts that would be admissible in
evidence, and must show affirmatively that the declarant of such facts is competent to testify to
the matters stated therein. Lane v. Harborview Med. Ctr., 154 Wash. App. 279, 286, 227 P.3d 297
(2010).
A genuine issue of material fact exists if the evidence would be sufficient for a reasonable
jury to find in favor of the nonmoving party. Zonnebloem, 200 Wash. App. at 182-83. But where
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reasonable minds could reach only one conclusion from the admissible facts in evidence, that issue
may be determined on summary judgment. Sutton, 180 Wash. App. at 865.
II. SUMMARY JUDGMENT AS TO SWIFT
In an action for negligence, a plaintiff must prove four basic elements: duty, breach, injury,
and proximate cause. Degel v. Majestic Mobile Manor, Inc., 129 Wash. 2d 43, 48, 914 P.2d 728
(1996). Fowler argues that the trial court improperly granted summary judgment with respect to
Swift because there were issues of material fact as to whether Swift owed her a duty as a possessor
of the stairs and whether he breached that duty in failing to maintain them or warn her of any
danger. We hold that summary judgment was properly granted to Swift because he did not owe
Fowler a duty with respect to the stairs.
A. Swift Did Not Owe a Duty to Fowler Regarding the Stairs
The threshold determination of whether a duty exists is a question of law. Coleman v.
Hoffman, 115 Wash. App. 853, 858, 64 P.3d 65 (2003). Under premises liability, a possessor of
property has a duty “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.’” Adamson v. Port of Bellingham, 193 Wash. 2d 178, 188, 438 P.3d 522 (2019)
(quoting 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.’” Id. (quoting RESTATEMENT (SECOND) OF
TORTS § 343A).
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To determine who has the duties described above, “the test in a premises liability action is
whether one is a ‘possessor’ of [the] property, not whether someone is a ‘true owner’ (the
titleholder) of property.” Gildon v. Simon Prop. Grp., Inc., 158 Wash. 2d 483, 496, 145 P.3d 1196
(2006) (quoting Tincani v. Inland Empire Zoological Soc’y, 124 Wash. 2d 121, 127-28, 875 P.2d 621
(1994)). A possessor of land is a person who is “‘in occupation of the land with intent to control
it.’” Coleman, 115 Wash. App. at 860 (quoting Ingersoll v. DeBartolo, Inc., 123 Wash. 2d 649, 655,
869 P.2d 1014 (1994)). 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.’” Adamson, 193
Wash. 2d at 187 (quoting RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND
EMOTIONAL HARM § 49 cmt. c). Control over certain areas may be shared. Id.
Where an owner divides their premises and rents certain parts to various tenants, while
reserving other parts such as entrances and walkways for the common use of all tenants, it is the
landlord’s duty to exercise reasonable care and maintain those common areas in a safe condition
unless otherwise specified in the lease. Minahan v. W. Wash. Fair Ass’n, 117 Wash. App. 881, 891,
73 P.3d 1019 (2003); see also Adamson, 193 Wash. 2d at 187. We typically look to the specific terms
of the rental or lease 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. Adamson, 193 Wash. 2d at 187. Here, Swift did not have any
written lease agreement imposing on him a duty to maintain common areas.
Fowler argues that the question of whether an entity is a “possessor” is a factual
determination for the trier of fact, and so summary judgment should be reversed, citing Coleman
and Mesa v. Spokane World Exposition, 18 Wash. App. 609, 613, 570 P.2d 157 (1977). Br. of
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Appellant at 10. But Coleman did not make this statement as a general rule, but rather reversed
summary judgment because under the specific facts of that case there was a genuine dispute as to
the degree of control the defendants had over an apartment complex. 115 Wash. App. at 862-63.
And though Mesa stated generally that the question of control over premises is a factual matter,
18 Wash. App. at 613, that does not mean that whether a party is the possessor of the premises can
never be determined on summary judgment. If there is no genuine dispute that Swift was not a
possessor of the stairs, then summary judgment is appropriate. And the existence of a duty is a
legal question. Coleman, 115 Wash. App. at 858.
1. Swift was not a possessor of the stairs
The main issue here then is whether Swift was a “possessor” of the stairs, specifically
whether he was in occupation of the stairs with intent to control them. We hold he was not.
Fowler first contends that the trial court erroneously ruled as a matter of law “that only the
property owner or the landlord could owe a duty to protect invitees who used the stairs.” Br. of
Appellant at 11 (emphasis in original). But she does not cite to the record to support this broad
claim; rather, the record shows that the trial court ruled more narrowly that under the facts of this
case, Fowler did not establish a genuine issue of fact as to whether Swift possessed the stairs.
In Coleman, we held there remained an issue of material fact as to whether certain
defendants had possession and control over an apartment complex despite not being the owners.
115 Wash. App. at 862-63. We considered factors such as leasing, making repairs, paying bills,
making management decisions, and responding to tenant complaints. Id. at 862. One defendant,
Hoffman, made repairs and a managerial decision, while another defendant paid utility bills and
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repair costs, collected rents, and hired Hoffman to perform repairs. Id. at 862. These actions
demonstrated enough control over the relevant premises to raise a question of fact as to possession.
In Gildon, our Supreme Court recognized that even though a property management
company was not the title owner of the property, a shopping mall, the company could be liable for
injuries sustained by a cleaner while working on a common walkway, because the management
company “possessed, maintained, and/or operated” that common walkway where the injury
occurred. 158 Wash. 2d at 497.
Here, Swift was the possessor of his upstairs office, but the stairway was a common area.
As a result, Swift is a possessor of the stairway only if he maintained, operated, or otherwise
exerted control over the stairway. See id. at 497.
Fowler claims Swift “exerted managerial decision-making power” over the stairs because
he and the other tenants hired a cleaning person who cleaned the stairs and other common areas.
Br. of Appellant at 11-12. She also claims that after the accident, Swift met with the other tenants
to make the stairway safer by placing signs at the top of the stairs warning that they were narrow
and asking people to keep their shoes on, as well as installing slip-resistant treads on each step.
Although this evidence of subsequent remedial measures would be inadmissible to prove
negligence, it may be admissible to show ownership or control over the stairs. ER 407.
The evidence in the record shows only that all the tenants paid a little extra in rent to offset
the cost of the cleaning person. Nevy, one of the other tenants, collected the rent and hired the
cleaning person. Moreover, evidence of “‘minimal, neighborly maintenance,’” even when
performed regularly over a long period of time, does not elevate a person’s actions to that of control
over a common or public space. Coulson v. Huntsman Packaging Prods. Inc., 121 Wash. App. 941,
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947-48, 92 P.3d 278 (2004) (quoting Contreras v. Anderson, 69 Cal. Rptr. 2d 69, 77 (1997)). In
Coulson, the court reasoned such conduct did not manifest any intent by the defendant to control
the space to the detriment or exclusion of the owner, in that case the City of Kent. Id. at 948.
Under this logic, the fact that part of Swift’s rent paid a cleaning person to maintain the common
spaces did not make him a possessor of the stairs. Nor would the minimal changes made to
promote safety after the accident make him a possessor.
Fowler also analogizes this case to Miniken v. Carr, 71 Wash. 2d 325, 428 P.2d 716 (1967).
There, the client of an attorney fell down stairs to a basement when she thought she was opening
the door to the bathroom because the doors to each were adjacent and unmarked. Id. at 326. The
court rejected the attorney’s argument that his duty did not extend to the bathroom and the stairs
to the basement. Id. at 329-30. But in that case it was undisputed that the attorney possessed the
entire premises, whereas here there is no evidence to contradict Swift’s statement that he was
responsible only for his own office, while the stairs were part of the common area. Miniken does
not support Fowler’s argument that Swift possessed the stairs.
Fowler also contends that Swift is the possessor because, as a tenant on the second floor of
the building, he “was in a special position of control over the staircase because he exerted control
over its use.” Br. of Appellant at 12. She notes that the only access to his office was up the stairs,
and that at the bottom of the stairs was a bench beneath which clients would leave their shoes, and
where Swift would meet clients to escort them upstairs.
But the presence of the bench at the bottom of the stairs does not show that Swift himself
was in a special position of control over whether people wore shoes on the stairs. And in his
declaration Swift stated that he did not require his clients to remove their shoes upon entering the
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building, but rather he had set up a place for clients to remove their shoes just outside his office
upstairs. Fowler does not contest this fact. Although Fowler understood it was customary for
clients to remove their shoes upon entering the building, there is no evidence that Swift himself
told her she had to; indeed it was Fowler’s sister who told her about that practice. Moreover, the
fact that Swift was not the only tenant with an office on the second floor undercuts Fowler’s
argument that he had some degree of special control over the stairs.
In sum, the parties do not dispute the facts, only whether the facts establish that Swift had
possession and control over the stairs. We conclude that the undisputed evidence supports Swift’s
contention that he was not a possessor of the stairs. Although there is no written documentation
of the details of Swift’s rental agreement, Fowler presented no evidence refuting his statement that
he was responsible only for his own office space under his informal rental agreement. The
undisputed presence of a second upstairs tenant goes against Fowler’s suggestion that Swift
somehow had exclusive control over the stairs. And the evidence does not show that Swift had
“managerial decision-making power” over the stairs. Even taking the evidence in the light most
favorable to Fowler, we conclude that Swift did not possess the stairs.
2. Swift did not assume a duty of care toward Fowler with respect to the stairs
Fowler also claims that Swift assumed a duty of care toward her because he “actively
encouraged her to traverse the stairs in her stocking feet, despite her medical condition,” which
gave her “an assurance that it was safe to do so.” Br. of Appellant at 15. She cites Alston v. Blythe,
88 Wash. App. 26, 36, 943 P.2d 692 (1997), where a driver who waved a pedestrian to cross in front
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of his truck was held to have assumed a duty to use reasonable care to ensure the pedestrian was
safe to do so.
But unlike Alston, the undisputed evidence here does not show that Swift affirmatively
assured Fowler that it was safe to use the stairs wearing only socks. As noted above, there is no
evidence that Swift told Fowler to remove her shoes upon entering the building. Fowler’s
understanding of this practice came from her sister. Rather, the evidence shows that Swift only
required his patients to remove their shoes upon entering his office. The fact that Swift saw Fowler
remove her shoes and came down the stairs to greet her in only his socks does not amount to an
“assurance” of safety, because silence and inaction do not give rise to an implied assurance of
safety. Lee v. Willis Enters., Inc., 194 Wash. App. 394, 404, 377 P.3d 244 (2016). Therefore, Swift
did not assume a duty toward Fowler over the stairs.
3. Whether Swift was in a special position to know about the dangers of the stairs does
not affect the outcome
Finally, Fowler argues that Swift was in a special position to know the dangers of the stairs
because he knew they were narrower than most stairs and he was aware that many of his patients,
including Fowler, suffered from medical conditions that increased the risk of a fall. She reasons
that a possessor must take reasonable care to make the premises safe for the invitee’s “‘use for the
purposes of the invitation.’” Reply Br. of Appellant at 7-8 (emphasis omitted) (quoting
RESTATEMENT (SECOND) OF TORTS § 343, cmt. b). Because the purpose of the invitation here was
to treat a patient suffering from multiple sclerosis, Fowler argues, Swift owed a duty to make sure
the premises were safe for such an invitee.
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But the issue is not whether Swift owes a duty to invitees to make his premises safe for the
purpose of the invitation (he does), but rather whether the stairs were a part of the premises for
which Swift owed such a duty. Swift may have owed a duty to Fowler to make his office safe for
the purposes of her visit, but as discussed above, the stairs were not in Swift’s possession and so
were not part of his premises for which he owed a duty of care.
We hold that because Swift was not the possessor of the stairs, he did not owe a duty toward
Fowler with respect to the stairs. There is no evidence to refute his contention that his informal
rental agreement covered only his office space. The evidence of his decision-making authority
within the building, even taken in the light most favorable to Fowler, does not establish a genuine
issue of material fact as to whether he possessed the stairs. Nor does the undisputed evidence
suggest that Swift somehow assumed a duty of care toward Fowler with respect to the stairs. The
trial court properly granted summary judgment to Swift.1
III. SUMMARY JUDGMENT AS TO FINN
Fowler argues summary judgment was improper with respect to Finn because, as a
sublandlord, she had a duty to ensure the safety of the common areas of the premises. We disagree
and conclude that Finn did not have a duty to ensure the safety of the stairs.
“When a tenant absolutely assigns [their] rights to an assignee and thus no longer possesses
the premises, a court has no jurisdiction over that tenant.” Bellevue Square Managers, Inc. v. GRS
Clothing, Inc., 124 Wash. App. 238, 243, 98 P.3d 498 (2004). It is undisputed that Finn’s lease
1
Because Swift did not owe a duty with respect to the stairs, we need not consider Fowler’s
argument that he breached his duty.
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agreement had converted to a month-to-month tenancy, that she assigned all her rights and
responsibilities to Nevy, and she moved out of the building several months before the accident.
Fowler argues Finn did not produce any evidence of a formal assignment, so even though
she verbally agreed to have Nevy take over her lease responsibilities, she remained “a sublessor
with an active lease on the property.” Br. of Appellant at 17. But it is undisputed that Finn no
longer used any part of the premises and had no remaining obligations under the written lease
agreement, which had expired. A possessor of land is one who is “‘in occupation of the land with
intent to control it.’” Coleman, 115 Wash. App. at 860 (quoting Ingersoll, 123 Wash. 2d at 655). Finn
clearly did not occupy the premises when Fowler fell, and Fowler presents no evidence that Finn
manifested any intent to control the premises after she moved out. In fact, Finn stated in her
declaration that she believed she had no right to enter the premises without Nevy’s permission.
Although a landlord has a duty to exercise reasonable care to keep common areas safe from
hazards, Geise v. Lee, 84 Wash. 2d 866, 871, 529 P.2d 1054 (1975), Fowler does not explain how
Finn’s informal assignment of her month-to-month tenancy to Nevy somehow converted her to a
“sublandlord” of the premises. Br. of Appellant at 16. The Bergfords remained the landlords of
the property, and Finn did not pay any rent money to the Bergfords or receive money from any
other tenant after she moved out in February 2014. Fowler argues that, because Finn’s assignment
or lease agreement with Nevy was verbal and informal and without documentary proof, and
because Finn remains the only party named in the lease, there remains a disputed issue of fact as
to whether Finn remains the primary lessee of the property and so the possessor of the premises.
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But as Fowler herself contends, whether a person is a possessor depends on the specific facts of
the case and is not strictly determined by the parties’ formal landlord-tenant relationships. See
Coleman, 115 Wash. App. at 859-60. As discussed above, there is no evidence that Finn occupied
the premises with intent to control them in the months before the accident, and she was not a
possessor of the stairs when the accident occurred. And it is undisputed that Finn’s original rental
agreement had expired and Finn was under no continuing lease obligations.
Fowler also claims that Finn “began the practice of tenants removing their shoes.” Br. of
Appellant at 18. But the record shows that Finn merely stated that she and the other tenants
typically did not wear shoes, but she never asked her clients to remove their shoes. Furthermore,
whether or not Finn created such a practice in the past is irrelevant to whether she continued to
have any control over the practice at the time of Fowler’s accident, eight months after Finn had
left the property.
We hold that Finn did not owe a duty to Fowler because she was not a possessor of the
stairs at the time of the accident. Therefore, the trial court did not err in granting summary
judgment with respect to Finn.
ATTORNEY FEES
Fowler requests attorney fees associated with her appeal without citation to authority. We
reject her request for attorney fees on appeal.
In sum, we affirm the trial court’s grant of summary judgment and deny Fowler attorney
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fees.
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 2.06.040,
it is so ordered.
Glasgow, J.
We concur:
Melnick, P.J.
Sutton, J.
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