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Johnson v. Jensen9/7/2000
On the afternoon of December 18, 1996, Nathan Johnson, age 15, was walking to Rogers High School in Spokane, when he slipped and fell on an icy public sidewalk abutting the residential property of Harry and Joella Jensen. Nathan's fall landed him in a crosswalk, where he was struck and injured by a passing car. Jensens knew that ice and snow had generally accumulated, but they had not cleared the sidewalk. Nathan, through his parents Curtis J. Johnson and Billia A. Colton (hereinafter Nathan), sued Jensens for negligence. The Spokane County Superior Court dismissed Nathan's claim on summary judgment and he appeals. We affirm.
In reviewing a summary judgment order, this court engages in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). The court must consider all facts submitted and all reasonable inferences from the facts in the light most favorable to the nonmoving party. Id.. Questions of law are likewise reviewed de novo. Bishop v. Miche, 137 Wn.2d 518, 523, 973 P.2d 465 (1999). Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c).
To establish the elements of a negligence action, the plaintiff must show (1) the existence of a duty owed, (2) breach of that duty, (3) resulting injury , and (4) that the breach of duty proximately caused the injury. Iwai v. State, 129 Wn.2d 84, 96, 915 P.2d 1089, 74 A.L.R.5th 711 (1996). To defeat summary judgment, a plaintiff must present evidence to support each element of the cause of action. Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989).
Nathan contends the court erred in granting the summary judgment because there exists factual issues as to whether Jensens breached a duty to him as a public invitee by failing to clear the sidewalk, thereby proximately causing his injuries and entitling him to damages. We disagree. Generally, the legal duty owed by a landowner to a person entering the premises depends on the entrant's common law status as a trespasser, licensee, or invitee. Iwai, 129 Wn.2d at 91. Nathan contends that as a user of the public sidewalk abutting Jensens' property he is classified as a public invitee, i.e., a person who is invited to enter or remain on land as a member of the public for a purpose for which land is held open to the public. Younce v. Ferguson, 106 Wn.2d 658, 667, 724 P.2d 991 (1986). By virtue of this claimed 'public invitee' status, and relying on Iwai, Nathan asserts a common law cause of action against Jensens for failure to remove known accumulations of snow and ice from their sidewalk.
The appropriate common law tests for determining landowner liability to invitees are set forth in Restatement (Second) of Torts sec.sec. 343 & 343A (1965), and recited in Iwai, 129 Wn.2d at 93, 95. But no Washington precedent has been cited or found that applies an invitee analysis to make a residential owner of property abutting a city-owned sidewalk liable to a plaintiff who falls on snow or ice. Nor do we find any Washington case that considered the plaintiff in such cases to be the resident's licensee. A licensee is defined as 'a person who is privileged to enter or remain on land only by virtue of the possessor's consent.' Tincani v. Inland Empire Zoological Soc'y, 124 Wn.2d 121, 133, 875 P.2d 621 (1994) (quoting Restatement (Second) of Torts sec. 330); Singleton v. Jackson, 85 Wn. App. 835, 839, 935 P.2d 644 (1997) (becoming a licensee hinges on whether the possessor has granted consent or permissio
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