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Joan v. Tenney12/19/1989
Patricia Joan Re, as personal representative of her husband's estate, filed a wrongful death and survival action against Martin Tenney, Cargill, Inc., and Walla Walla County, alleging two causes of action based upon negligence and nuisance. Cargill moved for summary judgment dismissal and the trial court granted it. Mrs. Re appeals; we affirm.
Cargill operates a grain elevator on approximately 8 acres at the intersection of Grain Terminal Road and 2nd Street. That intersection is the scene of severe congestion during August when trucks park on both shoulders of the road, waiting to offload grain at the elevator. On August 5, 1986, Terry G. Re was fatally injured while riding his motorcycle southbound on Grain Terminal Road one-half mile north of the elevator. As Mr. Re approached a tractor-trailer rig driven by Martin Tenney, also traveling southbound, he attempted to pass on the left. At that moment, Mr. Tenney began to cross the center line intending to park
on the lefthand shoulder further down Grain Terminal Road until he could offload at the grain elevator. Mr. Re attempted to cut back into the right lane of traffic, but collided with the right rear corner of Mr. Tenney's trailer, sustaining fatal injury to his chest. At the time of the collision, the speed of Mr. Tenney's truck was 10 to 15 m.p.h., the speed of the motorcycle was 45 to 50 m.p.h. and the posted speed was 25 m.p.h. The trial court concluded Cargill did not owe a duty of care to Mr. Re and that Cargill was under no obligation to post signs on the public roadway warning of congestion.
The first issue raised is whether Cargill owed a duty to prevent its business invitees from using the roadway as a staging area, which Mrs. Re asserts it did, or a duty to warn travelers on the public highway adjacent to its property of the possibility of congestion, which Cargill asserts it did not.
Mrs. Re contends an occupier of land cannot create a dangerous condition on an abutting roadway without incurring liability for foreseeable injury, citing Misterek v. Washington Mineral Prods., Inc., 85 Wash. 2d 166, 531 P.2d 805 (1975); Collais v. Buck & Bowers Oil Co., 175 Wash. 263, 266, 27 P.2d 118 (1933); Shamhart v. Morrison Cafeteria Co., 159 Fla. 629, 32 So. 2d 727, 2 A.L.R.2d 429 (1947). Cargill responds that it had no control over the public roadway or the independent drivers who delivered the grain and therefore owed no duty to the traveling public.
[1, 2] Whether a duty is owed to one who is injured is a question of law. Youngblood v. Schireman, 53 Wash. App. 95, 99, 765 P.2d 1312 (1988) (citing Pedroza v. Bryant, 101 Wash. 2d 226, 228, 677 P.2d 166 (1984)). Generally, an abutting property owner must use and keep his premises in a condition so adjacent public ways are not rendered unsafe
for ordinary travel. Collais. The duty, however, is imposed only when correction of the unsafe condition is within the owner's control, as in Kelly v. Gifford, 63 Wash. 2d 221, 386 P.2d 415 (1963), or responsibility, as in Groves v. Tacoma, 55 Wash. App. 330, 777 P.2d 566 (1989) and Stone v. Seattle, 64 Wash. 2d 166, 391 P.2d 179 (1964).
In Kelly, the court held the owner of a developed business center was not responsible for excess surface water which drained from its property and flooded a public highway, causing the plaintiff's brakes to fail. Kelly, at 22
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