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Nielsen v. Port of Bellingham7/30/2001
e walking over the surface. This is especially true here in the maritime Pacific Northwest, where virtually every homeowner and boater has learned (sometimes the hard way) that algae forming on a variety of outdoor surfaces -- wooden porches, steps, decks, and floats at marinas among them -- must be removed periodically because it makes such surfaces extremely slippery when wet.
Sufficiency of the Evidence
The Port also contests the trial court's denial of its CR 50(b) motion for judgment as a matter of law. The Port argues that the evidence does not support the jury's verdict because Nielsen failed to present sufficient evidence to prove the Port's breach of a duty of care.
'A challenge to the sufficiency of the evidence admits the truth of the nonmoving party's evidence and all reasonable inferences drawn therefrom. A trial judge may grant the motion for dismissal only when there is no competent evidence or reasonable inference which would sustain a jury verdict in favor of the nonmoving party.' Klink v. G. D. Searle & Co., 26 Wn. App. 951, 954, 614 P.2d 701 (1980) (citing Levy v. N. Am. Co. for Life & Health Ins., 90 Wn.2d 846, 586 P.2d 845 (1978)).
The jury was instructed that the Port was liable for physical harm to Nielsen, a business invitee, from a condition on the premises, if the Port (a) knew of the condition or failed to exercise reasonable care to discover the condition, and should have realized that it involved an unreasonable risk of harm to such business invitees; (b) should have expected that such invitees would not discover or realize the danger, or would fail to protect themselves against it; and (c) failed to exercise reasonable care to protect them against the danger. Dr. Wilkins, Savior Papetti, and Nancy Martin all testified that the area near the bottom of the ramp where Nielsen fell was particularly slippery when wet because of algae accumulation. Dr. Wilkins testified that he tried to get rid of the accumulated moss at the bottom of the ramp several times a year by using bleach, soap, and a garden hose. Papetti and Wilkins both testified that they had slipped on the float because of Algae. Steve and Linda Wilkins testified that they had both slipped walking over the same surface earlier that evening. From this evidence, a rational trier of fact could have found that the algae had been present long enough that the Port should have discovered it if it didn't actually know about it, and should have known that it posed an unreasonable risk of danger, and should have known that people would use the ramp and float notwithstanding the danger as that was the only way to gain access to the boats moored there. Both Arthur Choat, the Port's Squalicum Harbor Master, and Bill Emley, the Port's maintenance manager, acknowledged that algae was more of a problem in shaded areas where there was less pedestrian traffic. Dr. Wilkins and Papetti testified that there was very little foot traffic over the area where Nielsen fell. Emley further testified that the Port did not pressure wash the commercial areas of the marina, such as where Nielsen fell, but did wash the pleasure boat areas (for cosmetic or aesthetic reasons).
Carol Williams, who was in charge of ordering pressure washing work on the docks, could not recall whether Gate One had been pressure washed in 1993 or 1994. Williams further stated that employees were supposed to maintain log sheets for any specific work performed, yet there were no log sheets indicating that Gate One had been pressure washed in 1994.
From this, a rational trier of fact could have found that the Port failed to exercise ordinary care by power washing the float at Gate One on a regular b
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