Lizabeth Jessee v. City Council Of Dayton

The plaintiff here tripped, fell, and injured herself on an old



firehouse stairway. The stairway did not comply with current building codes -- the rise



was too tall, the run was too small, and there was no handrail. The court summarily



dismissed the suit after concluding that the plaintiff had voluntarily assumed the risk of



injury. She had commented on the specific shortcomings of the stairway before



encountering the risk those shortcomings posed. We agree that the plaintiff here



voluntarily assumed the risk of injury, the defendant then had no duty to protect her, and



the court therefore properly dismissed her suit for damages.



FACTS



Columbia County and the City of Dayton (City) put on a joint emergency



management exercise. Columbia County provided the City with emergency management



services in exchange for financial and in-kind contributions. Columbia County asked



Lizabeth Jessee to observe and evaluate the exercise. Ms. Jessee worked for the Walla



Walla County Emergency Management Department.



The exercise was in the morning with an "after action review" in the afternoon.



The "after action review" was at Columbia County's emergency operations center on the



second floor of the City's Old Fire Station.



The Old Fire Station's staircase was wooden except for the first two stairs which



were poured concrete. The rise of the two concrete stairs was 7.5 inches; that is a half



inch taller than Uniform Building Code requirements. The tread depth was 10.5 inches;



that is a half inch narrower than the Uniform Building Code requirements and 2.5 inches



narrower than the Life Safety Code recommendations. The cement stairs also had no



handrail. Near the cement stairs, there was a grate with a large hole in it and some bolts



protruding from a wall.



Ms. Jessee noticed that the cement steps seemed taller than "normal" stairs and



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No. 30636-4-III

Jessee v. City of Dayton



that there was no handrail and she commented that the stairs were not "ADA compliant"1



and looked "unsafe," all before she climbed the stairs. Clerk's Papers (CP) at 37-38, 42-



43. She had trouble balancing on the first two stairs, but successfully climbed the stairs.



She, however, misjudged the depth of the last two cement steps as she descended the



stairway, rolled her left ankle, and fell. She put her right foot through the grate's hole



and scraped her back on the bolts as she fell.



Ms. Jessee sued the City of Dayton for damages and claimed negligence. The City



moved for summary judgment. It argued that Ms. Jessee had assumed the risk of injury



because she knew the risk posed by the condition of the stairway and voluntarily chose to



use it anyway. The court concluded that whether Ms. Jessee was an invitee or a licensee



was a material issue of fact and therefore primary assumption of the risk did not



completely bar recovery. The court denied the City's motion for summary judgment.



The City then moved for reconsideration and argued that its liability did not turn



on whether Ms. Jessee was an invitee or a licensee. The City argued that the dispositive



inquiry was whether Ms. Jessee knew the stairs were dangerous and yet chose to use



them anyway. The court reconsidered the earlier ruling, agreed with the City and



summarily dismissed her suit.



1 Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213.



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DISCUSSION



Our review of an order on a motion for summary judgment is, of course, de novo.



Charlton v. Toys "R" Us - Delaware, Inc., 158 Wn. App. 906, 910, 246 P.3d 199 (2010).



Ms. Jessee had to avoid summary judgment by showing a duty on the part of the City,



breach of that duty, and that her damages resulted from the breach of that duty. Id. at



912.



The court ultimately concluded that Ms. Jessee assumed the risk of injury and that



this voluntary assumption of risk relieved the City of liability. The material facts here are



undisputed: the condition of the stairs and Ms. Jessee's knowledge and appreciation of



the condition of those stairs. So the only question is whether those facts support the



City's defense that she assumed the risk of injury as a matter of law. Wirtz v. Gillogly,



152 Wn. App. 1, 8, 216 P.3d 416 (2009).



Court decisions over the years have developed four varieties of assumption of risk.



Gregoire v. City of Oak Harbor, 170 Wn.2d 628, 636, 244 P.3d 924 (2010). Some



varieties completely bar recovery and some are subsumed by contributory negligence and



therefore do not completely bar recovery. Id.



We are here concerned with so-called implied primary assumption of the risk



because it was on that basis that the court dismissed Ms. Jessee's suit. CP at 38-40. The



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question in implied primary assumption of the risk is whether the plaintiff appreciated the



risk of injury and, nonetheless, voluntarily chose to encounter that risk. Erie v. White, 92



Wn. App. 297, 303, 966 P.2d 342 (1998). If the answer to that question is yes here, then



the City had no duty to Ms. Jessee and therefore could not be negligent. See Alston v.



Blythe, 88 Wn. App. 26, 33, 943 P.2d 692 (1997). Implied primary assumption of risk is



a complete bar to recovery. Id.



The City had to prove implied primary assumption of the risk by showing that Ms.



Jessee "(1) had full subjective understanding (2) of the presence and nature of the specific



risk, and (3) voluntarily chose to encounter the risk." Kirk v. Wash. State Univ., 109



Wn.2d 448, 453, 746 P.2d 285 (1987). That is that she knowingly and voluntarily chose



to encounter the risk. Erie, 92 Wn. App. at 303. If reasonable minds could not differ on



the knowledge and voluntariness, there is implied primary assumption of the risk as a



matter of law. Wirtz, 152 Wn. App. at 8.



A plaintiff has knowledge if she "at the time of decision, actually and subjectively



knew . . . all facts that a reasonable person in the plaintiff's shoes would want to know



and consider" at the time she chose to incur the risk. Home v. N. Kitsap Sch. Dist., 92



Wn. App. 709, 720, 965 P.2d 1112 (1998) (emphasis omitted). This requires that the



plaintiff have specific, rather than generalized, knowledge of risk. Id. at 720-21.



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Ms. Jessee had specific knowledge of the risks inherent in descending these



cement stairs. Indeed, the case here is a bit unique in that Ms. Jessee commented on the



specific dangers (no handrail and noncode compliant stair treads) that she later



voluntarily encountered. She contends, nonetheless, that she did not know the specific



risks because she had never descended those stairs before. But she admitted she had



trouble balancing when she climbed them.



The concept of voluntariness required that the City show that Ms. Jessee elected



"to encounter [the risk] despite knowing of a reasonable alternative course of action." Id.



at 721. A plaintiff's actions are voluntary if she voices concern about a risk, but



ultimately accepts the risk. Id. at 721-22 (quoting Restatement (Second) of Torts § 496E



cmt. a (1965)). A plaintiff's actions are voluntary when she feels compelled by outside



considerations to take the risk. Restatement § 496E cmt. b. The Restatement gives two



examples of this. In one, a plaintiff knows that a house is dangerous, but rents it anyway



because she cannot find or afford another. Id. In the second, a plaintiff knows that the



defendant's car has faulty brakes, but asks the defendant to drive her to the hospital



because she is badly bleeding. Restatement § 496E cmt. b. illus. 1. In both examples, the



plaintiff voluntarily assumes the risk.



The facts here are even more compelling than these examples. Ms. Jessee



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voluntarily assumed the risk inherent in the Old Fire Station's stairs. She voiced concern



about the stairs, but she went up them anyway. Ms. Jessee suggests that her choice was



involuntary because she was at work, was expected to attend the meeting, and did not



choose the meeting place. However, these were her concerns. The City did not impose



them on her.



Ms. Jessee also argues that, even if she assumed the risk of the stairs, she did not



assume the risk of the hole in the grate and the protruding bolts. Even when a plaintiff



assumed certain risks, "[t]o the extent a plaintiff's injuries resulted from other risks,



created by the defendant, the defendant remains liable for that portion." Kirk, 109 Wn.2d



at 455. In Kirk, a cheerleader injured herself when she fell on a hard surface during



practice. Id. at 450-51. The court held that the university was not liable for the risks



inherent to cheerleading, but was liable for the portion of the cheerleader's injuries



created by risks caused by failing to adequately supervise the practice and providing an



unsafe practice area. Id.. at 454-55.



Ms. Jessee argues that she did not assume the risk of the hole in this grate or the



protruding bolts even assuming she assumed the risk of the inadequate staircase. That is



not helpful. Neither of those conditions caused her fall and she does not suggest



otherwise. They may have caused further injury but that does not bear upon the central





and dispositive question here -- whether she knew the risk and voluntarily chose to



encounter it.



8

Affirmed