Don’t Walk on Thin Ice: The Defense of Implied Primary Assumption of the Risk May Render Unavailable in Snow and Ice Slip and Fall Cases

From the Desk of Brian Schiewe:

The Washington State Court of Appeals (Div. III) recently reversed the summary judgment dismissal of a slip-and-fall on ice that was based on Defendants’ affirmative defense of primary assumption of risk. In Washington, primary assumption of risk is treated as a complete defense to premises liability claims. However, in this case, the Court of Appeals held that when a landowner fails to take reasonable care to protect invitees against the dangers of accumulated snow or ice, and a plaintiff can prove the elements of a negligence claim, then the plaintiff can recover damages regardless of whether the presence of the snow or ice was obvious. 

Claims Pointer:  

The implied primary assumption of risk doctrine is still alive in Division III; however, this decision effectively narrows the “knowledge exception” and seems to suggest that an assumption of risk defense cannot be relied upon for conditions such as snow and ice in areas the landowners should expect its invitees to traverse.    

Little v. Rosauers Supermarkets, Inc., 521 P.3d 298, 300 (Wash. Ct. App. 2022) 

Facts: 

This case involves a slip-and-fall that occurred in an icy parking lot of a grocery store in a part of Washington known for cold winter weather. On the date of the incident, Plaintiff stopped at the defendant’s grocery store to pick up some doughnuts for her coworkers. Although it was very cold, there had not been a recent snowfall. Upon exiting her vehicle, she noticed that the parking lot was covered in ice. She subsequently made her way without incident to the store’s entrance by doing what she described as a “penguin walk”. She resumed the penguin walk on the way back to her car, now holding the doughnuts, but this time she slipped on the ice and fell, breaking her kneecap.  

When deposed, representatives of the grocery store stated that the parking lot was known to become slippery with ice and that they knew that such conditions did not tend to stop people in the Inland Northwest from going about their daily activities. They also acknowledged on record that the grocery store contracted with a snow removal company and had its own procedures for icy conditions such as designating employees to inspect the parking lot during business hours and applying more deicer as needed.  

Plaintiff sued the grocery store for negligence. In turn, the grocery store moved for summary judgement on the basis that Plaintiff had assumed the risk of falling when she walked over a parking lot that was covered in a “sheet of ice”. The trial court sided with the defendant and dismissed the case. Plaintiff appealed. 

Law:  

Washington follows the law of premises liability to determine the liability of a landowner when an invitee is injured by a dangerous condition on their property. See Johnson v. Liquor & Cannabis Bd., 197 Wn. 2d 605, 612, 486 P.3d 125, 131 (2021) (citing Restatement (Second) of Torts § 343. Under this doctrine, a landowner will be liable in negligence if they fail to exercise reasonable care to protect invitees from dangerous conditions on the property. Restatement (Second) of Torts § 343.   

This duty can be excused if the defendant can prove that the invitee assumed the risk of the condition. Id at § 343A(1). In the Restatement, the affirmative defense of implied primary assumption of risk contains two clauses: “[1] A possessor of land is not liable to … invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to [an invitee], [2] unless the possessor should anticipate the harm despite such knowledge or obviousness.” Id.  

Under the first clause of § 343A(1), the defendant must also prove the following: “the plaintiff (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). If the second clause applies, the defendant will be unable to assert the defense. Thus, assumption of the risk will not be available to a landowner, even if the risk is obvious, if the landowner has a reason to believe an invitee will voluntarily encounter the danger regardless. 

Analysis: 

The Court determined that Defendant’s use of the implied primary assumption of the risk defense turned on the second clause of § 343A. This necessitated an analysis into whether Defendant knew or should have known that Plaintiff would voluntarily encounter the ice despite its obvious danger.  

The Court considered a combination of circumstances. First, the grocery store was open at its regularly scheduled time on the day of the accident. Second Plaintiff took a common pathway to the entrance of the store by walking across the parking lot. This distinguished her fall from that of the plaintiff in Hvolboll v. Wolff Co., 187 Wn. App. 37, 347 P.3d 476 (2015)  who ventured over a snow berm instead of using the designated walkway.  

The Court further noted that Rosauers admitted that it was understood that Inland Northwesterners would not be deterred by ice from going about their daily business. Finally, the court also pointed out that comment f to § 343A(1) of the Restatement states that a possessor of land is legally required to anticipate when an invitee’s attention is diverted from the obvious danger. The Court applied this to the factual scenario of the case, stating that a grocery store should anticipate that its customers would be distracted while trying to balance their groceries. The court did not opine as to whether there are limits on what sorts of distractions a defendant must anticipate.  

Taking these facts together, the court concluded that Plaintiff had produced enough evidence to avoid dismissal on summary judgement.  

The matter was reversed and remanded.  

The Big Picture:

Once again, the Court of Appeals has affirmed the limited availability of the implied assumption of the risk defense when it comes to the harm posed by accumulated snow and ice. Both Musci and Hvolboll limited the use of this defense for ice and snow cases. Now, Little v. Rosaurs has added in the Plaintiff’s distracted state of mind, (albeit their anticipated state of mind), and demographic (regional tendency to venture out into snow) as additional hurdles to the defense’s availability. It is of great importance that your insureds, especially those that live in areas with cold weather, take extra care in the creation and implementation of their snow and ice removal plans.