*1 not consideration action such further stances; preclude controversy. in the disposition of equitable estoppel Pro J. J., JJ., C. Barnett, Rosellini, Hale, Ott Tem., concur. denied.
June 1965. for rehearing Petition April 29, En Banc. 36688. [No. 1965.] Appellant, al., Brink et Bennett Feigenbaum, v. William
Respondents.* * Reported in 401 642.
(cid:127) Schweppe, Krug, by Reiter, Doolittle & Beierle, R. Thomas appellant. for respondents.
Wallace & Fraser, for Feigenbaum 1, 1960, J. November Bennett and Ott, Bainbridge Roberta, wife, leased a beach house on from Island Brink Barbara, William and his wife. The sole walkway means of access to the leased awas lead- ing public road, cut above, into the hillside down- past por- hill the Brink residence to the beach house. walkway tion of the with which we are here concerned roughhewn planks, strip was constructed of wooden with a paint planks abrasive down center line. The were sloping degree angle, crosswise, laid at downward about a interspersed irregularly spaced steps, with some and con- point paces tinued to a a few below the Brink residence. along walkway There is a substantial wooden handrail length. for most of walkway parties by was used in common — only
the lessees land access the beach house and woodpile, a common and lessors as access to their woodpile, residence, the common and their boathouse and tool the waterfront. shed on
Early heavy rainfall, December, due abra- wearing paint roughhewn planks sive on wooden was off. There discussions about the condition were several slipped Feigenbaum because Mr. and Mr. Brink had both planks, but lost had not fallen. late balance Feigenbaum’s Brink, with Mr. as- December, 1960, Mr. roofing strips on of combination most sistance, nailed down completed. planks, not the work but was Feigenbaums January re- m, the about 6 at Sunday drive. It afternoon home from a to their turned Feig- raining walkway slippery. Mrs. been and the walkway residence, turn- enbaum their went down the ing Feigenbaum stopped floodlight at the on Mr. en route. placed woodpile three residence, the Brinks’ common above large pieces fireplace forearms, both wood across using proceeded handrail. down without planked portion not been he reached the that had When roofing slipped, fell, and suffered material, covered with leg. a broken against Feigenbaum
Mr. commenced this action Brinks sitting injury. court, The trial without to recover jury, (1) negli- Brink were not found that the defendants gent, (2) Feigenbaum that Mr. had assumed the risk of (3) injury, provision expressly re- that a lease barred covery, (4), special finding, in a had suf- damages general damages special fered of $967 $3,000. Feigenbaum appeals. judgment dismissal,
From the
Mr.
*3
failing
Appellant
the trial court erred in
to
contends that
respondents.
negligence
part
primary
find
With
agree.
majority
contention, a
of the court
respondents
knowledge
slippery
The
had
con
walkway,
keep
duty
in
had a
to
it
a safe condi
dition of
(Schedler Wagner,
230
tion
v.
37 Wn.2d
(1950)),
604
and failed to exercise
26 A.L.R.2d
repair
inference can be
care
it. When but one
reasonable
to
negligence
as a matter
facts,
is established
drawn from
Transport Co.,
760, 766,
38
Berndt v.
of law.
Pacific
(1951);
R.R.,
Union Pac.
20 Wn.2d
Carroll v.
Appellant court erred next contends that the trial nonliability holding lease ex- clause written that walkway. premises The lease described tended to granted home,” and to waterfront the “Brink waterside nonliability walkway. right The to use the lessees provided: clause damage any held liable . not be . . shall Lessor injuries personal defects property caused or
to
may
which
now exist or hereafter occur on
inor
front
premises.
of said
appellant
had no dominion over the common walk-
way leading
duty
keep
leased
and no
repair.
question
in
led from the
road
the rear of the “Brink waterside waterfront home” and
“on
was not
or in
front of” the leased
unequivocal
In the
language,
absence of
nonliability
provisions of a contract will not be extended to include areas
specifically
not
Lloyd’s Register
Ship
described. Giant v.
ping, 141
(1926).
Wash. 253, 262,
The trial court found that had as- injury, knowledge when, sumed risk of with full of its slippery condition, hazardous he loaded both arms fireplace proceeded walkway. wood and down the His preceded him across the wife same area without inci- appellant’s loading The court held that dent. conduct in not could use the arms so handrail his descent risk, rather than an conduct which was estab- negligence. contributory decision, its oral lished court said: contributorily negli- The defense is voluntarily exposed
gent unreasonable that he and also himself to an risk, maxim, which is the volenti non fit difficulty separating negligence injuria. have the defenses volenti. quoted from Walsh v. The court then West Coast Coal *4 (1948), 396, 197 Mines, 411, follows, 31 Wn.2d P.2d 233 as and continued:
“ may voluntary that the ‘It be said conduct of the exposing appreciated plaintiff in himself a known and interposition which, the of an act as between the risk is parties, gent, negli- aspect act, in makes the defendant’s as longer proximate injury; the the at no cause of or participation in as such defendant’s conduct least is
129 preclude recovering ground on the of ” negligence.’ the defendant’s present
In the case, seems to me that rule would apply appreciated by injury of because the risk was well known and Feigenbaum,
Mr. it was Mr. Brink. say negligent And whether we that Mr. Brink was not Feigenbaum contributorily negligent or that Mr. or negligence proximate that Mr. Brink’s was not cause injury, we come out the end same the horn. of (Italics ours.) appears judge It from the record had “diffi- trial culty separating negligence from the of con- defenses tributory negligence findings and volenti,” not as to the applicable fact, but as the nomenclature of the law these defenses. assumption
We have held doctrine of applicable relationship is risk more to those cases where the of master servant than existed to landlord tenant relationships. Grays Cy., See v. Caron Harbor 18 Wn.2d (1943). 397, 148 626, 139 A.L.R. 626 Whether assumption contributory negligence, of risk denominated or knowledge conduct, each refers to same where cases injured party danger by the of an obvious is involved. Siragusa Hospital, v. Swedish Wn.2d 60 (1962), extensively 767 we reviewed the law of master and assumption to the relative doctrine of risk servant held that includes the doctrine of assumption negli- risk, where the risk is created employer. regard, gence In this we said, 319: Knowledge appreciation injury, of the risk of part employee, properly important are factors given weight be which should determination of employer negligent whether the issues of is in main- dangerous taining condition and whether em- negligent ployee contributorily exposing is himself to it.
Subsequent Siragusa case, to the the doc- we abolished relationship trine of of risk in a other than that Engen Arnold, of master and v. servant.
130
(1963).
jurisdictions
P.2d 990
Other
treat
as
the doctrine of
sumption
being
general
of risk as
con
included within the
cept
contributory negligence,
recognize
that,
and
for all
practical purposes,
proper analysis
the
inis
contrib
terms of
utory negligence.
Arguello,
Ford Motor Co. v.
382
886
(Wyo. 1963);
Cyanamid
v.
McGrath American
41
Co., N.J.
(1963); Rocky
Trucking
272,
doctrine of of risk to landlord tenant cases and (with exceptions present) is that a tenant certain not here property In ex takes as he finds it. of an absence agreement, press duty part there the land is no on repair. Hughes 302, v. No. 61 lord to Chehalis School Dist. (1963); Arnold, 34 642 Conradi v. 222, Wn.2d 377 P.2d seq., (1949). The tenant et 491 730, Wn.2d 743 209 P.2d apparent deficiencies leased assumes the risk although walkway, case, instant common ingress egress only residence, means of to appellant. part demised was not a duty repair keep respondents it in a application reasonably permit To condition. safe in this is tantamount the facts case of risk to together, dividing which, consti- factual elements negligence. contributory therefore We tute the defense of Siragusa Engen cases, reasoning adopt assumption of not here risk is hold that the doctrine applicable. appellant’s that a contention merit in find no
We tenancy than to forfeit his other has no alternative tenant negligence by contributory continued guilty of or be knowledge walkway, of its condition. Where of a use premises is a common leased to the access tenant’s sole
131
disrepair, specific performance
will lie
known
McDonough
duty
repair.
v.
to enforce the
landlord’s
Oregon Mining
136,
Co.,
829,
Southern
177
159 P.2d
Ore.
(1945);
Parker,
788
v.
163
164 A.L.R.
Jones
(1895).
Fowler,
Mass.
1044
Paullus v.
N.E.
See
(1961).
The is and the cause remanded with findings contributory instructions to enter such relative to negligence may proper meet be deemed under the facts In of case. the event the court finds that the appellant’s injury conduct did contribute to his and was a proximate damages, judgment cause of dismissal is accordingly. to be entered If no is judgment damages found, in the amounts the court previously is to be determined entered. Costs will abide the final determination of the action. JJ., Tern., J. Pro Hamilton,
Donworth Soule, concur. (concurring result) J. in concur the result Hill, —I majority opinion.
of the I am not at all sure that volenti injuria applicable. non fit is not The alternatives to the existing walkway suggested facetiously by use of the coming concededly dissent, of sea, in air or are fanci- lay slippery ful. The real walkway in how the alternatives known plaintiff clearly was to be used. had the loading, loading, reasonable alternative of or not both arms beginning perilous with firewood before descent. agree majority with the event, the trier of should determine whether one about to facts traverse acting walkway slippery reasonably in is a known to be
prudent both and cautious manner when loads arms with making impossible firewood, it to utilize an thus available walkway. along the handrail . (dissenting part) my opinion in C. J
Rosellini, —In judgment reversed, trial court should be and that of the judgment in
court should be directed to enter favor plaintiff. majority opinion the evidence states, -As the that the had become defective after showed tenancy; beginning plaintiff’s the defendants aware of the notice the defective condition and were danger presented to correct but had failed which inexpensive although the means to do so were condition readily was no other means available; and there access to the demised agree majority
I do not with the statement of plaintiff’s right bring specific perfor- an action for using mance afforded him a reasonable alternative to walkway. containing paragraph authorities cited support they any way this conclusion it, do not nor are question. concerned with the The first two cases cited merely specific performance hold that will lie to enforce lease, the covenants a valid and the third case holds that specific performance provisions will lie to enforce support proposi- even valid contract. These cases do not *7 specific performance compel will lie to a landlord tion that repair where, this, in a such as common case to a imposed by by provi- duty repair is law and not to his the lease. sions of Post-Intelligencer, DeHeer v. Seattle
In the case of quoted approval the fol- we lowing § Restatement, Torts 491: from danger person that another has created a
A who knows doing dangerous the land or chattels act or that is a or dangerous,. chooses and who nevertheless are of another things permit upon his remain within or enter or to recover risk is not entitled to the area of to remain within things by unintentionally him his caused to or harm for premises, by or the condition conduct the other’s except a breach conduct constitutes the other’s where person a duty and has created situa or to a third himto undergo reasonably necessary to a risk it is in which tion mine.) (Italics right protect or avert a harm. a in order to portion, commenting upon the authors the italicized said: of the Restatement right only notify one who a a has that landowner shall not dangerous
him of defects land also shall main- but premises may tain the use, in a safe condition for his be entitled recover from the landowner harm caused though a defective condition aware of it even is might prevented . . . since otherwise he be from exer- cising right using premises. authority Nowhere in the Restatement or other my any suggestion which has come to attention there is availability legal remedy that plain- of a enforce the rights (and remedy always tiff’s such a is available in one rights) form or another if he has such constitutes a reason- able alternative to the use of the It should be obvious that this is not the kind of alternative which will performing duty excuse the landowner to main- plaintiff’s tain the in a safe condition. The lease might expire well while he awaited final decision in his legal action. injuries
When it is said that a lessee cannot recover for using sustained in a defective means of access to his leased premises if he has a alternative, reasonable what is meant is that he cannot recover if there is another means of access which a lessee reasonable would use. In the us, case before only other means of access was air; water or majority in fact other concede reasonable no means of access was at hand. agree majority’s with the conclusion that the doctrine apply of risk does not to the factual situation disagree necessary us,
before but I is remand finding question case for contributory negli- gence. opinion, The trial court, in its memorandum indi- quite clearly cated that it had reached a decision about plaintiff’s ques- the reasonableness of the conduct. On that *8 tion, the court trial said: contributorily negligent
I don’t want to find him because was, somehow don’t believe he but I do think he volun- tarily exposed himself to the risk. question contributory negligence of was before the given court full and was consideration. The memorandum opinion reveals that the court contribu- found there was no tory negligence, any finding and the absence of that there negligence was such con- is consistent with the statement case, in the On tained memorandum. remand guilty finding plaintiff court can not make a that the was changed mind unless has its judgment about the evidence since it rendered its Thus, the trier will be invited review case. facts no decision, own decision and render a new addi- proper tional function for facts before it. This is not perform. the trial court to reading opinion
It is evident from a the memorandum that the court believed that the behaved a reason- admittedly ably prudent manner, the court careful and but plaintiff's pertaining the law to the was confused about walkway, knowing right it was a defec- to use the my opinion dangerous It is condition. tive and right there no other such a if rule is clear: he had reasonably could be used. evi- which means of access equally means that no such alternative clear dence is available. access was appeal by granting dispose court should
This plaintiff. prayed for relief JJ., concur with Rosellini, Hale, Finley, Hunter, J.C. rehearing
July denied. 13, 1965. Petition