Mt Baker Highway, AKA Washington State Highway 542 stretches 58 miles from sea level in Bellingham, Washington to Artist’s Point at an elevation of 5,140 feet – a scenic overlook above tree line that on clear days treats visitors to sublime views of Mt Baker and Mt Shuksan.
Since 1992 Whatcom County has had plans to build a pedestrian pathway from Bellingham to Artist’s Point and dubbed it the Bay to Baker Trail (B2B). However due to a number of factors little has been accomplished. Right of way has been established in some areas, and in those areas some sections of the trail is under water for much of the year, some travel heavily undercut banks 100 feet above the North Fork Nooksack River, and at least one section acts as the local garbage dump.
Due to its beauty the highway attracts heavy traffic during the winter ski and summer hiking seasons. RVs, families coming up to recreate in SUVs, sports cars, sport motorcycles traveling at triple digits due to virtually no speed enforcement, and road cyclists all share this road. To compound the mix there are residential communities on the highway with limited options for residents to safely walk or ride bikes to community destination. At the local middle school if a child shows up to school with their bike they are sent home due to the hazard that riding on the road represents.
The mild winter that the Pacific Northwest experienced this last year was a shock to the small, tourist dependent communities in the shadow of Mt Baker. Businesses closed and residents watched as skiers, snowboarders and snowmobilers, who bring much needed revenue to the area, disappeared. It was a call to action as residents and business owners realized that perhaps some diversification of recreational opportunities was in order.
Inventorying the material that they had to work with, a group of residents and business owners has banded together in an attempt to motivate government to take action on the Bay to Baker Trail. John Adam, owner of Glacier Ski Shop, believes that pedestrian infrastructure will not only make the area more attractive to visitors, but will also provide residents with a safe option to getting in a vehicle and burning fossil fuels when they need a quart of milk. Paul Engel, who owns Wild and Scenic River Tours, added that, “Hundreds of reports show that when pedestrian pathways are created in a community it brings nothing but good – the population is healthier, vehicular traffic is reduced, property values are stable and local businesses see more traffic. Everyone benefits”
It would be easy to see why businesses would want to increase tourist traffic, and a small group of locals have pointed fingers at them and stating that they just want to “cash in”. When in reality it is more a matter of staying in businesses. And while a very small group of locals oppose the trail effort, the vast majority are for it. One of those is Marty Grabijas, a product developer in the outdoor industry. According to Marty, “What we have here is so special. The access to big wilderness and high alpine environments is incredible, and I can see why some want this to remain their private paradise. However no matter how much we want it we can’t turn the clock back. We do however have an opportunity to engineer the Mt Baker Highway corridor for the future. With a pedestrian pathway we can reduce vehicle congestion, and provide residents and visitors with a safe way to get around on foot or on a bike. My motive for being involved is to create safe places to walk and ride for everyone. The Mt Baker area is visually stunning, and with a safe pathway in the highway corridor a bike is the perfect vehicle for visiting services in one of the several small towns, or connecting to Forest Service roads and exploring the area.”
This citizens group is in the due diligence stage of forming a pedestrian and equestrian advocacy group. Part of that process is showing a want and need for pedestrian pathways by gauging interest of residents, visitors and potential visitors. By participating in their survey you will provide them with the data points they need to attempt to secure funding in Whatcom County’s 2017 / 18 budget to see portions of the Bay to Baker Trail become reality.
Regardless if you have been to the Mt Baker area, your feedback is valuable.
Go to the Survey Here: https://www.surveymonkey.com/s/MTBAKERTA
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Dive Buddy (co-participant) not liable for death of the diver because the cause of death was too distant from the acts of the plaintiffPosted: February 24, 2014
This case was brought to my attention because of the suit for the ski buddy fatality in Canada in the news recently. (See Canadian suit would hold you liable for your ski buddy’s death.)Are you liable for your buddy’s death if you are participating in a sport together. The issue pivots on whether or not there is an expected responsibility (duty) on behalf of the buddies.
Plaintiff: Cully, Adam, and Brandy Jo Rasmussen, children of the deceased and the estate of the deceased
Defendant: Eugene L. Bendotti, husband of the deceased
Plaintiff Claims: negligence
Defendant Defenses: there was no negligence
Holding: for the defendant
This is one of a few cases where a co-participant or in this case dive buddy is held liable for the injuries or deaths of the other participant. In this case, a husband and wife were diving together to recover a snowmobile 100’ deep in a lake. On the fourth dive of the day, the husband realized he had not attached his power inflator to his buoyance compensator. He dropped his weight belt and ascended, leaving his spouse, dive buddy, below.
The wife was found drowned after becoming entangled in a rope.
The buoyance compensator is a PFD (personal floatation device) designed for diving. It is inflated and deflated as you dive to keep your body at the level or depth in the water you want. Many divers will deflate and inflate the buoyance compensator (BC) several times during a dive as they descend, stay at a level and descend or ascend again.
A trial was held to the court which held that the husband did owe a duty to the spouse. However, that duty was terminated once the husband’s emergency occurred. The court also found that the husband’s failure to act as a proper dive buddy was too distant from the cause of death of the spouse to be the proximate cause of her death.
The plaintiff’s appealed.
In this case, the plaintiff’s appealed the errors; they felt the court made in its decision. Those are called “assignment of error(s).” The plaintiff argued that the court came to the incorrect conclusion in the determination of the facts and the application of the law.
Summary of the case
The court accepted several conclusions of fact and law from the trial court that are necessary to understand its analysis and, which are critical legal issues. The first was a dive buddy owes a duty of care to his or her dive buddy. Consequently, a failure to exercise this duty, which results in an injury to the dive buddy, can be negligent.
The existence of a duty is a question of law. Whether the defendant owed the plaintiff a duty, however, turns on the foreseeability of injury; that is, whether the risk embraced by the conduct exposes the plaintiff to injury. “The hazard that brought about or assisted in bringing about the result must be among the hazards to be perceived reasonably and with respect to which defendant’s conduct was negligent.”
The trial court found the defendant had not breached his duty because his personnel emergency ended any duty he owed to his dive buddy. The trial court labeled this as the emergency doctrine. However, the appellate court defined the emergency doctrine as:
The emergency doctrine was developed at common law and states the commonsense proposition that a person faced with an emergency should not be held to the same standards as someone given time for reflection and deliberation.
A defendant is entitled to the benefit of the emergency doctrine when he or she undertakes the best course of action given an emergency not of his or her own making.
The appellate court did not hold the emergency doctrine did not apply; however, its statements indicate such because it went on to discuss proximate cause.
Proximate cause is the term defined to relate the breach of the duty to the injury.
Proximate cause has two discreet elements. The first, cause in fact, requires some physical connection between the act (the failure to connect the power inflator) and the injury (Bonny’s death). The second element of proximate cause involves legal causation. Id. And that is a policy consideration for the court. The consideration is whether the ultimate result and the defendant’s acts are substantially connected, and not too remote to impose liability. Id. It is a legal question involving logic, common sense, justice, policy, and precedent.
The court ruled that the cause of the plaintiff’s death was the plaintiff’s own acts, not caused by the defendant. The court questioned, “…if Gene had properly connected his power inflator, would Bonny be alive today?” The trial court stated, and the appellate court accepted that the act of the defendant descending was not the cause of the plaintiff’s death.
There was too much between the ascension of the defendant and the entanglement which caused the drowning to be linked. The ascension was not the proximate cause of the plaintiff’s death.
So Now What?
The decision in the Canadian court on whether a ski buddy owes a duty of care to another skier will probably not end with the jury’s decision. See Canadian suit would hold you liable for your ski buddy’s death. Ski buddy meaning the guy you don’t know skiing next to you. However, here we have a definitive decision that a dive buddy in a scuba diving owes a duty to their dive buddy.
This is a very different legal relationship than found in competitive sports where someone may be injured due to another participant and the nature of the game. See Indiana adopts the higher standard of care between participants in sporting events in this Triathlon case. Here one participant in the sport is legal responsible, as defined by the sport or activity or sometimes the two people, for the other person.
If you agree to watch or take care of someone in a sport, you may be accepting liability for that person. Be aware.
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Rasmussen, et al., v. Bendotti, 107 Wn. App. 947; 29 P.3d 56; 2001 Wash. App. LEXIS 1962
Cully C. Rasmussen, as Personal Representative, ET AL., Appellants, v. Eugene L. Bendotti, Respondent.
COURT OF APPEALS OF WASHINGTON, DIVISION THREE, PANEL ONE
107 Wn. App. 947; 29 P.3d 56; 2001 Wash. App. LEXIS 1962
August 21, 2001, Filed
SUBSEQUENT HISTORY: [***1] Order Denying Motion and Reconsideration September 26, 2001, Reported at: 2001 Wash. App. LEXIS 2165.
SUMMARY: Nature of Action: The children and the estate of a diver who drowned during a scuba diving excursion sought damages from the diver’s diving partner based on the diving partner’s failure to perform a self-equipment check prior to commencing the dive. The failure to perform the equipment check caused the diving partner to make an emergency ascent during the dive. While the diving partner was ascending to the water’s surface, the diver’s equipment became entangled in a rope which led to the diver’s drowning.
Superior Court: After denying the defendant’s motion for a summary judgment, the Superior Court for Chelan County, No. 98-2-00754-5, Lesley A. Allan, J., on June 30, 2000, entered a judgment in favor of the defendant.
Court of Appeals: Holding that there was sufficient evidence to support the trial court’s conclusion that the defendant’s failure to perform an equipment check prior to the dive was not a proximate cause of the decedent’s death, the court affirms the judgment.
HEADNOTES WASHINGTON OFFICIAL REPORTS HEADNOTES
 Appeal — Findings of Fact — Failure To Assign Error — Effect Unchallenged findings of fact are verities before a reviewing court.
 Appeal — Conclusions of Law — Review — Standard of Review An appellate court reviews a trial court’s conclusions of law in a civil action by first determining whether the trial court applied the correct legal standard to the facts under consideration. The trial court’s legal conclusions flowing from its findings, or the ultimate facts of the case, are reviewed de novo.
 Negligence — Duty — Question of Law or Fact — Review The existence of a duty of care is a question of law that an appellate court reviews de novo.
 Negligence — Duty — Breach — Resulting Emergency — Termination of Duty — Question of Law or Fact — Review Whether an emergency created by the breach of a duty of care terminates the duty is a question of law that an appellate court reviews de novo.
 Negligence — Duty — Determination — Scope A cause of action for negligence is grounded on the existence of a duty owed specifically to the plaintiff or to a class or group of people to which the plaintiff belongs.
 Negligence — Elements — In General A negligence action is comprised of four elements: (1) duty, (2) breach, (3) proximate cause, and (4) injury.
 Negligence — Duty — Scope — Foreseeability — In General The scope of a duty of care turns on the foreseeability of injury; i.e., it turns on whether the risk embraced by the conduct exposes the claimant to injury.
 Negligence — Duty — Scope — Foreseeability — Test An injury is foreseeable if it is among the dangers to be perceived reasonably and with respect to which the defendant’s conduct is negligent.
 Sports — Scuba Diving — Duty to Diving Partner — Reasonable Prudence A scuba diver owes a duty to a diving partner to act in the manner of a reasonably prudent diver.
 Negligence — Duty — Breach — Question of Law or Fact — In General Whether a legal duty of care has been breached is a question of fact.
 Sports — Scuba Diving — Duty to Diving Partner — Breach — Failure To Perform Equipment Check A scuba diver breaches the duty of reasonable prudence in relation to a diving partner by failing to perform a self or buddy equipment check prior to commencing a dive.
 Negligence — Emergency Doctrine — In General The emergency doctrine is a common law rule by which a person faced with an emergency is not held to the same standards as a person who has time for reflection and deliberation.
 Negligence — Emergency Doctrine — One’s Own Making — Effect The emergency doctrine does not apply to excuse a party’s negligence if that negligence contributed to the emergency.
 Negligence — Emergency Doctrine — One’s Own Making — Evaluation of Conduct For purposes determining whether an actor’s own negligence prevents application of the emergency doctrine, the actor’s conduct is evaluated as of the time of the negligent act or omission, not when the actor later discovers the negligent act or omission and reacts to it.
 Negligence — Proximate Cause — Elements Proximate cause is divided into two elements: cause-in-fact and legal causation. A cause-in-fact is based on the physical connection between an act and an injury. Legal causation is grounded in a policy determination made by the court. The focus in the legal causation analysis is whether, as a matter of policy, the connection between the defendant’s act and the ultimate result is too remote to impose liability. A determination of legal causation depends on mixed considerations of logic, common sense, justice, policy, and precedent.
 Negligence — Proximate Cause — Question of Law or Fact — Deference to Trial Court The issue of proximate cause in a negligence action presents a mixed question of law and fact. Insofar as a trial court’s determination of proximate cause necessarily entails factual considerations of “but-for” causation, it is accorded deference by a reviewing court.
 Negligence — Proximate Cause — Proof — Speculation Speculation is insufficient to establish proximate cause in a negligence action.
COUNSEL: Douglas J. Takasugi (of Jeffers, Danielson, Sonn & Aylward, P.S.), for appellants.
Thomas F. O’Connell (of Davis, Arneil, Dorsey, Kight), for respondent.
JUDGES: Author: DENNIS J. SWEENEY. Concurring: STEPHEN M. BROWN & KENNETH H. KATO.
OPINION BY: DENNIS J. SWEENEY
[**58] [*950] Sweeney, J. [HN1] — To hold a defendant liable for negligence, the plaintiff must show that the defendant proximately caused the plaintiff’s injury. Crowe v. Gaston, 134 Wn.2d 509, 514, 951 P.2d 1118 (1998). [HN2] Proximate cause is generally a question of fact. Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999). Here, the trial court, sitting as the fact finder, found that any negligence on the part of Eugene Bendotti (Gene) was “too attenuated” from Bonny Jo Bendotti’s death to hold Gene legally liable. Gene was Bonny’s scuba diving buddy. He failed to properly attach a power inflator to his buoyancy compensator. This required an emergency ascent. Bonny then drowned after her equipment became [***2] entangled in a rope. We conclude that the trial court’s finding is adequately supported by the evidence, and affirm the judgment dismissing Cully, Adam, and Brandy Jo Rasmussen’s wrongful death suit.
Our factual summary here follows the trial court’s unchallenged findings of fact, including those denominated as conclusions of law. Hagemann v. Worth, 56 Wn. App. 85, 89, 782 P.2d 1072 (1989). We refer to Mr. and Mrs. Bendotti as Gene and Bonny. We intend no disrespect by doing so. We use their first names simply for clarity and ease of reference.
Bonny and Gene were married in 1990. They got interested in scuba diving and completed [**59] the necessary scuba certification in April 1996. Their training included an open water dive course and an advanced open water dive course.
In the fall of 1996, the Bendottis were asked to help recover a snowmobile from Lake Wenatchee. They agreed to [*951] help. On October 4, they made one or two dives, located the snowmobile in approximately 100 feet of water, and marked it with a 50-foot line.
The Bendottis returned to Lake Wenatchee on November 2. At first they were unable to locate the snowmobile or marker line. They located [***3] the snowmobile during the second dive and marked it with a longer line and buoy. They then broke for lunch and refilled their air tanks. After the third dive, the Bendottis and others with them decided to try to attach a line to the snowmobile to drag it from the lake. Both descended for their fourth dive.
Gene had, however, inadvertently failed to reconnect his power inflator to his buoyancy compensator. A power inflator inflates a buoyancy compensator which then allows the diver to rise to the surface. And “[b]ecause he and Bonny did not adequately perform buddy and self-equipment checks, it was not discovered.” Clerk’s Papers (CP) at 561. Once in the water, Gene discovered the equipment problem and immediately surfaced. Bonny, however, became entangled in a rope at the 40-foot level “perhaps while ascending herself.” CP at 561. She was unable to disentangle herself and drowned.
Cully, Adam, and Brandy Jo Rasmussen are Bonny’s children. They sued Gene on behalf of themselves and Bonny’s estate. The court denied Gene’s motion for summary judgment and heard the matter without a jury.
The court concluded that Gene owed a duty to Bonny as her scuba [***4] diving “buddy.” Left unstated, but easily inferable given the court’s other conclusions, is the finding that Gene breached that duty by failing to reconnect his power inflator. The court then goes on to conclude that because Gene’s failure to reconnect his power inflator was an emergency, he acted as a reasonably prudent diver when he ditched his weight belt and ascended. It also concluded that Gene’s duty to Bonny terminated because of this emergency. The court then held that the Rasmussens “failed to prove by a preponderance of the evidence any breach of duty by Gene to Bonny occurring prior to Gene facing his own personal [*952] emergency.” CP at 562. The court dismissed the Rasmussens’ claims with prejudice.
The Rasmussens moved for reconsideration. The court denied the motion, but supplemented its original conclusions of law. It concluded that both Gene and Bonny should have checked Gene’s scuba equipment prior to their fourth dive. But their failure to do so placed only Gene at risk. In its supplemental conclusions, the court further reiterated that a diver’s primary duty is to himself, or herself, and that Bonny became entangled only after Gene faced his own emergency. And Gene’s [***5] duty to Bonny terminated once he faced his own emergency.
Finally, the court concluded that Gene’s failure to attach his power inflator was “too attenuated” from Bonny’s subsequent entanglement in the rope to hold him legally responsible for her death. CP at 435.
The Rasmussens appeal the judgment dismissing their claims. Gene appeals the denial of his pretrial motion for summary judgment.
ASSIGNMENTS OF ERROR
The Rasmussens assign error to a number of the court’s conclusions of law. And those assignments of error delineate the issues before us.
The Rasmussens assign error to the following original conclusions of law, which we paraphrase:
. That Gene’s legal duty to Bonny terminated when he was faced with his own emergency during the fourth dive. Conclusion of Law 4.
. The Rasmussens did not prove any breach of duty by Gene to Bonny prior to Gene’s facing his own personal emergency. Conclusion of Law 5.
[**60] The Rasmussens assign error to the following supplemental conclusions of law, which we also paraphrase:
[*953] Failure to perform equipment checks, their own and their buddy’s, put Gene solely at risk. Supplemental Conclusion of Law 3.
. If Gene had improperly loaded a spear gun [***6] which discharged and struck Bonny, his conduct at the surface would have increased the risk to Bonny. But that did not occur. Supplemental Conclusion of Law 4.
. Gene’s failure to check his equipment did not put Bonny at an increased risk of harm. Supplemental Conclusion of Law 5.
. When Gene surfaced, he acted reasonably and his duty to his dive buddy terminated. Supplemental Conclusion of Law 7.
. The connection between Gene’s failure to attach his power inflator on the surface and Bonny’s subsequent entanglement (and death) is too attenuated to hold Gene legally responsible. Supplemental Conclusion of Law 9.
. To hold Gene responsible would make him a guarantor of Bonny’s safety. Supplemental Conclusion of Law 10.
From these assignments of error, the Rasmussens make four basic arguments:
(1) After concluding that Gene owed a duty of care to Bonny (a duty owed by all dive buddies), the court then inconsistently goes on to conclude that Gene did not breach that duty–despite the fact that Gene negligently failed to reconnect his power inflator and perform adequate equipment checks before the fourth dive, contrary to standard diving practices.
(2) After concluding that Gene owed a duty [***7] to Bonny, the court then goes on to conclude that that duty terminated when Gene was faced with his own emergency. The Rasmussens argue that the duty should not have terminated because the emergency Gene was responding to was one of his own making. Brown v. Spokane County Fire Prot. Dist. No. 1100 Wn.2d 188, 197, 668 P.2d 571 (1983); Pryor [*954] v. Safeway Stores, Inc., 196 Wash. 382, 387-88, 83 P.2d 241 (1938), overruled on other grounds by Blaak v. Davidson, 84 Wn.2d 882, 529 P.2d 1048 (1975).
(3) The court concluded that Gene’s failure to perform a self-equipment check did not put Bonny at any increased risk of harm. The Rasmussens urge that if Gene had a duty, as the court found, then Bonny was certainly within the class of people that the duty was intended to protect.
(4) Finally, the court concluded that the connection between Gene’s negligence and Bonny’s death was too attenuated for the death to proximately flow from the breach of duty. Again, the Rasmussens argue that the very purpose of diving with a buddy, a standard obligatory diving practice, is so one diver is available to assist another who encounters difficulty underwater.
[***8] STANDARD OF REVIEW
 The Rasmussens challenge only the court’s conclusions of law. The findings of fact are therefore verities on appeal. Nordstrom Credit, Inc. v. Dep’t of Revenue, 120 Wn.2d 935, 941, 845 P.2d 1331 (1993).
 [HN3] We review the court’s conclusions of law by first determining whether the court applied the correct legal standard to the facts under consideration. Our review is de novo. See State v. Williams, 96 Wn.2d 215, 220, 634 P.2d 868 (1981) (appellate court determines questions of law). Every conclusion of law, however, necessarily incorporates the factual determinations made by the court in arriving at the legal conclusion (or ultimate fact). See Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 101-02 (3d Cir. 1981) (the logical flow is evidence to basic facts to ultimate facts). For example, the fact that a driver ran a red light is clearly a finding of fact and, therefore, a decision which would demand our deference. But the court’s conclusion of law from that finding that the defendant ran the light and was therefore negligent would be a conclusion (running a red light is negligent), which we [***9] would review de novo.
[**61] [*955]   To be more specific, and address the questions raised here, the question of whether Gene had a duty to Bonny as her diving buddy is a question of law which we review de novo. Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999). Likewise, [HN4] the question of whether an emergency created by a breach of that duty (failure to check his equipment) terminated that duty to his buddy (Bonny) is also a question of law, which we review de novo. Mains Farm Homeowners Ass’n v. Worthington, 121 Wn.2d 810, 813, 854 P.2d 1072 (1993).
But [HN5] the question of the proximal relationship between any breach of Gene’s duty and Bonny’s subsequent death is a mixed question of law and fact, and so requires our deference. See Bell v. McMurray, 5 Wn. App. 207, 213, 486 P.2d 1105 (1971) [HN6] (proximate cause is a mixed question of law and fact, and “is usually for the trier of facts”).
  We begin with the hornbook statement of elements for a cause of action in negligence. [HN7] Negligence requires a duty specifically to the plaintiff or to the class or group of people which includes the plaintiff. See Rodriguez v. Perez, 99 Wn. App. 439, 444, 994 P.2d 874, [***10] [HN8] (“When a duty is owed to a specific individual or class of individuals, that person or persons may bring an action in negligence for breach of that duty.”), review denied, 141 Wn.2d 1020 (2000); Torres v. City of Anacortes, 97 Wn. App. 64, 73, 981 P.2d 891 (1999), review denied, 140 Wn.2d 1007, 999 P.2d 1261 (2000). The plaintiff must then prove that a breach of the duty proximately caused the injury complained of. Hertog, 138 Wn.2d at 275; Crowe v. Gaston, 134 Wn.2d 509, 514, 951 P.2d 1118 (1998); Schooley v. Pinch’s Deli Mkt., Inc., 134 Wn.2d 468, 474, 951 P.2d 749 (1998). Finally, of course, there must be some injury. Hertog, 138 Wn.2d at 275. But injury is not at issue here.
  [HN9] The existence of a duty is a question of law. Hertog, [*956] 138 Wn.2d at 275. Whether the defendant owed the plaintiff a duty, however, turns on the foreseeability of injury; that is, whether the risk embraced by the conduct exposes the plaintiff to injury. Rikstad v. Holmberg, 76 Wn.2d 265, 268, 456 P.2d 355 (1969). “The hazard [***11] that brought about or assisted in bringing about the result must be among the hazards to be perceived reasonably and with respect to which defendant’s conduct was negligent.” Id.
 And on this question, the trial judge’s conclusions of law, while a bit inconsistent, are nonetheless reconcilable.
First, and foremost, the court concluded unequivocally that:
. “[A] scuba diver owes a duty to his buddy . . . .” Conclusion of Law 2, CP at 562.
. “Because Gene and Bonny were dive buddies on November 2, 1996, Gene owed a duty to Bonny to act in the manner of a reasonably prudent diver.” Conclusion of Law 3, CP at 562.
The court’s conclusions are based on its unchallenged factual finding that: “Bonny and Gene received instruction to always dive with a buddy. One reason for this was safety, as a buddy can assist a diver who encounters difficulties underwater.” Finding of Fact 8, CP at 546.
BREACH OF A DUTY OF CARE
  [HN10] Whether a duty of care has been breached is a question of fact. Hertog, 138 Wn.2d at 275. And the court’s findings of fact on this question are instructive. The court found that “[s]tandard diving practices [***12] include performing a buddy check and self equipment check prior to each dive. If these checks had been performed, any problem with Gene’s power inflator would likely have been discovered.” Finding of Fact 25, CP at 555. The court also found that Gene and Bonny did not perform a buddy check before the fourth and fatal dive. Findings of Fact 26 and 47.
Given the duty owed by one diver to his or her buddy and the court’s unchallenged finding of fact that those duties were not performed, the legal conclusion that Gene [*957] breached his duty to Bonny is inescapable. [**62] See Williams, 96 Wn.2d at 221 [HN11] (“Where findings necessarily imply one conclusion of law the question still remains whether the evidence justified that conclusion.” (emphasis omitted)). [HN12] Duties are not owed in the abstract. Nor are duties owed to oneself. Here, the duty owed was to that population intended to be protected by the buddy checks. And that population obviously includes a diver’s buddy–here, Bonny.
Having concluded that Gene owed a duty to Bonny as her dive buddy, the court then went on to conclude that that duty terminated with Gene’s [***13] own personal emergency. Conclusion of Law 4. The issue raised by the Rasmussens’ assignment of error to this conclusion is whether a duty of care ends with an emergency when the emergency is the result of the defendant’s breach of a duty?
 [HN13] The emergency doctrine was developed at common law and states the commonsense proposition that a person faced with an emergency should not be held to the same standards as someone given time for reflection and deliberation. Sandberg v. Spoelstra, 46 Wn.2d 776, 782, 285 P.2d 564 (1955).
The trial judge here concluded that “when Gene was required to so act [because of his personal emergency], his legal duty to Bonny was terminated.” Conclusion of Law 4, CP at 562.
  The emergency here was Gene’s discovery of the results of his earlier omission. That is, he discovered that he had failed to properly connect his power inflator to his buoyancy compensator. But that emergency was of his own making. And because of that, he is not entitled to the benefit of the emergency doctrine. McCluskey v. Handorff-Sherman, 68 Wn. App. 96, 111, 841 P.2d 1300 (1992) [HN14] (“It is a well-established principle that the emergency doctrine [***14] does not apply where a person’s own negligence put him in the emergency situation.”), aff’d, 125 Wn.2d 1, 882 P.2d 157 (1994).
[HN15] [*958] A defendant is entitled to the benefit of the emergency doctrine when he or she undertakes the best course of action given an emergency not of his or her own making. Brown, 100 Wn.2d at 197. So, for example, if Gene, or for that matter Bonny, had inadvertently disconnected Gene’s power inflator while diving and Gene reacted to the emergency by immediately ascending, his conduct could be judged based on the emergency. But here, the court had already found that he had inadvertently, i.e., negligently, failed to perform his self and buddy checks. His conduct must then be evaluated at that time (when he was obligated to check his equipment) and not when he later discovered his negligent omission and reacted to it.
The court then erred by concluding that Gene’s emergency cut off any duty he owed to Bonny. Brown v. Yamaha Motor Corp., 38 Wn. App. 914, 920, 691 P.2d 577 (1984) (emergency doctrine is applicable only if the defendant’s negligence did not contribute to the emergency).
PROXIMATE CAUSE [***15]
The court concluded that “the connection between Gene Bendotti’s failure to attach his power inflator on the surface and Bonny Bendotti’s subsequent entanglement is too attenuated a connection to hold Gene Bendotti legally responsible for Bonny Bendotti’s death[.]” Suppl. Conclusion of Law 9, CP at 435.
  [HN16] Proximate cause has two discreet elements. The first, cause in fact, requires some physical connection between the act (the failure to connect the power inflator) and the injury (Bonny’s death). Meneely v. S.R. Smith, Inc., 101 Wn. App. 845, 862-63, 5 P.3d 49 (2000). The second element of proximate cause involves legal causation. Id. And that is a policy consideration for the court. Id. at 863. The consideration is whether the ultimate result and the defendant’s acts are substantially connected, and not too remote to impose liability. Id. It is a legal question involving logic, common sense, justice, policy, and precedent. Id.
[HN17] The question of proximate cause then is a mixed question [*959] of law and fact. Bell, 5 Wn. App. at 213. We must then defer to the trial judge’s determination [***16] of proximate cause because it necessarily [**63] entails factual considerations of “but-for” causation. Here, the question simply put is, if Gene had properly connected his power inflator, would Bonny be alive today? The court held that the connection between Gene’s breach and Bonny’s death was too attenuated to say that had he connected his power inflator she would still be alive. The evidence amply supports this fact.
Jon Hardy, a scuba diving expert, testified that there was no connection between Gene’s failure to attach his power inflator and Bonny’s subsequent entanglement. Nor did he believe there was a connection between the loss of buddy contact and Bonny’s death. He further stated that he believed the proximate cause of Bonny’s death was her failure to carry a dive knife.
 How Bonny became entangled and why she was not able to free herself is not known. Also unknown is whether Gene could have saved her in any event. So, whether Gene could have saved her is speculation. And [HN18] speculation is not sufficient to establish proximate cause. Jankelson v. Sisters of Charity, 17 Wn.2d 631, 643, 136 P.2d 720 (1943) [HN19] (“‘The cause of an accident may be said to be speculative when, [***17] from a consideration of all the facts, it is as likely that it happened from one cause as another.'”) (quoting Frescoln v. Puget Sound Traction, Light & Power Co., 90 Wash. 59, 63, 155 P. 395 (1916)).
We affirm the trial court’s judgment in favor of Gene because its conclusion that the result (Bonny’s death) was too attenuated from Gene’s breach of his duty (failure to properly attach his power inflator) is amply supported by the evidence.
Brown, A.C.J., and Kato, J., concur.
Recinsideration denied September 26, 2001.
Washington Skier Safety Act
ANNOTATED REVISED CODE OF WASHINGTON
TITLE 70. PUBLIC HEALTH AND SAFETY
CHAPTER 70.117. SKIING AND COMMERCIAL SKI ACTIVITY
GO TO REVISED CODE OF WASHINGTON ARCHIVE DIRECTORY
Rev. Code Wash. (ARCW) § 70.117.010 (2012)
§ 70.117.010. Ski area sign requirements
§ 70.117.015. “Trails” or “runs” defined
§ 70.117.020. Standard of conduct — Prohibited acts — Responsibility
§ 70.117.025. Skiing outside of trails or boundaries — Notice of skier responsibility
§ 70.117.030. Leaving scene of skiing accident — Penalty — Notice
§ 70.117.040. Insurance requirements for operators
§ 79A.45.010. Ski area sign requirements
(1) The operator of any ski area shall maintain a sign system based on international or national standards and as may be required by the state parks and recreation commission.
All signs for instruction of the public shall be bold in design with wording short, simple, and to the point. All such signs shall be prominently placed.
Entrances to all machinery, operators’, and attendants’ rooms shall be posted to the effect that unauthorized persons are not permitted therein.
The sign “Working on Lift” or a similar warning sign shall be hung on the main disconnect switch and at control points for starting the auxiliary or prime mover when a person is working on the passenger tramway.
(2) All signs required for normal daytime operation shall be in place, and those pertaining to the tramway, lift, or tow operations shall be adequately lighted for night skiing.
(3) If a particular trail or run has been closed to the public by an operator, the operator shall place a notice thereof at the top of the trail or run involved, and no person shall ski on a run or trail which has been designated “Closed”.
(4) An operator shall place a notice at the embarking terminal or terminals of a lift or tow which has been closed that the lift or tow has been closed and that a person embarking on such a lift or tow shall be considered to be a trespasser.
(5) Any snow making machines or equipment shall be clearly visible and clearly marked. Snow grooming equipment or any other vehicles shall be equipped with a yellow flashing light at any time the vehicle is moving on or in the vicinity of a ski run; however, low profile vehicles, such as snowmobiles, may be identified in the alternative with a flag on a mast of not less than six feet in height.
(6) The operator of any ski area shall maintain a readily visible sign on each rope tow, wire rope tow, j-bar, t-bar, ski lift, or other similar device, advising the users of the device that:
(a) Any person not familiar with the operation of the lift shall ask the operator thereof for assistance and/or instruction; and
(b) The skiing-ability level recommended for users of the lift and the runs served by the device shall be classified “easiest”, “more difficult”, and “most difficult”.
§ 79A.45.020. “Trails” or “runs” defined
As used in this chapter, the following terms have the meanings indicated unless the context clearly requires otherwise.
“Trails” or “runs” means those trails or runs that have been marked, signed, or designated by the ski area operator as ski trails or ski runs within the ski area boundary.
§ 79A.45.030. Standard of conduct — Prohibited acts — Responsibility
(1) In addition to the specific requirements of this section, all skiers shall conduct themselves within the limits of their individual ability and shall not act in a manner that may contribute to the injury of themselves or any other person.
(2) No person shall:
(a) Embark or disembark upon a ski lift except at a designated area;
(b) Throw or expel any object from any tramway, ski lift, commercial skimobile, or other similar device while riding on the device;
(c) Act in any manner while riding on a rope tow, wire rope tow, j-bar, t-bar, ski lift, or similar device that may interfere with the proper or safe operation of the lift or tow;
(d) Wilfully engage in any type of conduct which may injure any person, or place any object in the uphill ski track which may cause another to fall, while traveling uphill on a ski lift; or
(e) Cross the uphill track of a j-bar, t-bar, rope tow, wire rope tow, or other similar device except at designated locations.
(3) Every person shall maintain control of his or her speed and course at all times, and shall stay clear of any snowgrooming equipment, any vehicle, any lift tower, and any other equipment on the mountain.
(4) A person shall be the sole judge of his or her ability to negotiate any trail, run, or uphill track and no action shall be maintained against any operator by reason of the condition of the track, trail, or run unless the condition results from the negligence of the operator.
(5) Any person who boards a rope tow, wire rope tow, j-bar, t-bar, ski lift, or other similar device shall be presumed to have sufficient abilities to use the device. No liability shall attach to any operator or attendant for failure to instruct the person on the use of the device, but a person shall follow any written or verbal instructions that are given regarding the use.
(6) Because of the inherent risks in the sport of skiing all persons using the ski hill shall exercise reasonable care for their own safety. However, the primary duty shall be on the person skiing downhill to avoid any collision with any person or object below him or her.
(7) Any person skiing outside the confines of trails open for skiing or runs open for skiing within the ski area boundary shall be responsible for any injuries or losses resulting from his or her action.
(8) Any person on foot or on any type of sliding device shall be responsible for any collision whether the collision is with another person or with an object.
(9) A person embarking on a lift or tow without authority shall be considered to be a trespasser.
§ 79A.45.040. Skiing outside of trails or boundaries — Notice of skier responsibility
Ski area operators shall place a notice of the provisions of RCW 79A.45.030(7) on their trail maps, at or near the ticket booth, and at the bottom of each ski lift or similar device.
§ 79A.45.050. Leaving scene of skiing accident — Penalty — Notice
(1) Any person who is involved in a skiing accident and who departs from the scene of the accident without leaving personal identification or otherwise clearly identifying himself or herself before notifying the proper authorities or obtaining assistance, knowing that any other person involved in the accident is in need of medical or other assistance, shall be guilty of a misdemeanor.
(2) An operator shall place a prominent notice containing the substance of this section in such places as are necessary to notify the public.
§ 79A.45.060. Insurance requirements for operators
(1) Every tramway, ski lift, or commercial skimobile operator shall maintain liability insurance of not less than one hundred thousand dollars per person per accident and of not less than two hundred thousand dollars per accident.
(2) Every operator of a rope tow, wire rope tow, j-bar, t-bar, or similar device shall maintain liability insurance of not less than twenty-five thousand dollars per person per accident and of not less than fifty thousand dollars per accident.
(3) This section shall not apply to operators of tramways that are not open to the general public and that are operated without charge, except that this section shall apply to operators of tramways that are operated by schools, ski clubs, or similar organizations.
§ 79A.45.070. Skiing in an area or trail closed to the public — Penalty
A person is guilty of a misdemeanor if the person knowingly skis in an area or on a ski trail, owned or controlled by a ski area operator, that is closed to the public and that has signs posted indicating the closure.
Bad news, the post-accident investigation proved the college was negligent according to the court.
Plaintiff: Stephanie Foster, et al.
Defendant: Alex Kosseff, et al.
Plaintiff Claims: Negligence: Plaintiff was the intended beneficiary of the defendant’s work;
Defendant Defenses: No duty owed to the plaintiff
Holding: For the defendant
This is a follow-up to the article, I wrote Bad luck or about time, however, you look at this decision, you will change the way you work in the Outdoor Recreation Industry. The original article was about a motion to dismiss which the defendant safety audit company lost.
This article is the result of a motion for summary judgment filed on behalf of the defendant auditor which the court granted.
The plaintiff was a student at the defendant college, Whitman College and also worked in the Outdoor Program at the college. While working the plaintiff was asked to bring down the ropes still on the climbing wall. She climbed up to a platform next to the wall and removed the ropes. She then “hooked” into the remaining rope intending to rappel suffering severe and injuries to her spine.
The initial report prepared by the defendant auditors (meaning the individuals and the company the individual(s) worked for) was titled “Draft Risk Management Audit.” The report included extensive language about what the audit would and would not do and was quoted by the court.
The college hired the same auditor to investigate the accident. (Can you say conflict of interest?) The auditor submitted a report on his investigation into the accident. The report stated that the plaintiff had climbed above the Super Shut anchors which released the rope causing her to fall.
The court reviewed the accident report prepared by the defendant and made the following statement.
Thus, Kosseff concluded that both Whitman College and Ms. Foster were negligent in using the Super Shut anchors for a purpose for which they were not designed.
Summary of the case
The first argument the court reviewed was whether the plaintiff was an intended beneficiary of the work with the defendant auditor. The court quickly found that to be true. The Draft Audit stated the audit was being down for the college, employees and students. The college hired the audit for the benefit to the college, students and employees.
The second issue discussed was the scope of an audit. The court first went through the elements to prove negligence and what makes up the first part of the element’s duty, under Washington’s law.
There are four elements in a common law negligence claim in Washington: duty, breach, causation and damages. As to the first element, a duty of care is defined as “an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.” Whether a duty of care exists is a matter of law to be decided by the court rather than by a jury. This is a “threshold question” which involves three separate inquiries: “Does an obligation exist? What is the measure of care required? To whom and with respect to what risks is the obligation owed?”
Under Washington’s law, someone who inspects the premises of another does not become the insurer of anyone injured by the negligence of the inspection. In most states, an inspecting party is only “liable for undiscovered hazards which he or she undertook to discover in the first place.” Meaning, you are only liable for what you say you are going to discover and don’t.
Consequently, the defendant could not be liable, unless he had agreed to inspect the elements of the wall. The audit was directed at procedures and programs not equipment. On top of that, even if the audit looked at equipment, it did not look at how that equipment was used or in this case, misused.
Because the audit was not directed at the equipment which caused the accident, the defendant auditor was dismissed from the suit.
So Now What?
1. If you are a college, with a climbing wall, it needs to be inspected by engineers.
2. If you are a college, do not create a conflict of interest by hiring the company that gave you a review to investigate an accident which the review might have missed. Again, can you say Conflict of Interest?
3. If you are any business do not have an accident investigated by anyone other than who your attorney or insurance company hires. Here, the defendant with the conflict of interest nailed the defendant college to the judgment wall with its report.
Because the report was not done by legal counsel, the report can be used by the plaintiff to prove the defendant negligent. That, however, will not be too difficult since the court in this decision already came to that conclusions based upon the accident report. However, a report that was protected by privilege would not have hung the defendant.
Although the plaintiff is probably upset that one defendant was dismissed, they have to be happy with the decision because of this issue.
The initial outcome of this case is good; the company being paid to review the college was dismissed from the case. However, the long-term effects are multiple.
· Initially, the one defendant won, but only by sinking its co-defendants.
· Long term, colleges are going to be hesitant to build climbing walls because this case is going to settle or go to trial for a large amount of money. Spinal cord injuries are multimillion dollar cases.
· The entire industry has to wise up. Contracts that are created by legitimate risk management firms will be signed in advance and have tons of disclaimer and indemnification language. However, the issue is not who can sue or defend who, but what are you getting for your money?
As a side note, this part of the Draft Audit was quoted by the court.
If an accident does occur, participation in this voluntary program can protect the organization’s reputation and serve, if necessary, as part of a legal defense.
Instead of a defense, it created a legal claim and proof of negligence…….
Other Cases concerning Climbing Walls:
What do you think? Leave a comment.
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Foster, et al., v. Alex Kosseff, et al., 2013 U.S. Dist. LEXIS 40566 (E.D. Wash. 2013)
Stephanie Foster, et al., Plaintiffs, v. Alex Kosseff, et al., Defendants.
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON
2013 U.S. Dist. LEXIS 40566
March 22, 2013, Decided
March 22, 2013, Filed
PRIOR HISTORY: Foster v. Kosseff, 2013 U.S. Dist. LEXIS 5380 (E.D. Wash., Jan. 14, 2013)
COUNSEL: [*1] For Stephanie Foster, Gary Foster, Susan Foster, Plaintiffs: Allen M Ressler, LEAD ATTORNEY, Ressler and Tesh PLLC, Seattle, WA; William S Finger, LEAD ATTORNEY, Frank & Finger PC, Evergreen, CO.
For Alex Kosseff, Adventure Safety International LLC, Defendants: Heather C Yakely, LEAD ATTORNEY, Evans Craven & Lackie PS – SPO, Spokane, WA.
JUDGES: THOMAS O. RICE, United States District Judge.
OPINION BY: THOMAS O. RICE
ORDER GRANTING DEFENDANT ALEX KOSSEFF’S AND DEFENDANT ADVENTURE SAFETY INTERNATIONAL’S MOTION FOR SUMMARY JUDGMENT
BEFORE THE COURT is a motion for summary judgment filed by Defendants Alex Kosseff and Adventure Safety International (ECF No. 80). This matter was heard with oral argument on March 22, 2013. William S. Finger appeared on behalf of the Plaintiffs. Heather C. Yakely appeared on behalf of Defendants Alex Kosseff and Adventure Safety International. The Court has reviewed the briefing and the record and files herein, and is fully informed.
Defendants Alex Kosseff (“Kosseff”) and Adventure Safety International LLC (“ASI”) have moved for summary judgment on Plaintiffs’ negligence claims. Defendants assert that these claims fail as a matter of law because neither Kosseff nor ASI [*2] owed Plaintiff Stephanie Foster (“Ms. Foster”) a duty of care to identify the dangerous condition which caused her to fall from the Whitman College climbing wall on April 28, 2008.
Ms. Foster enrolled as a freshman at Whitman College in the fall of 2007. During the 2007-2008 academic year, Plaintiff enrolled in several rock climbing classes offered through the Whitman College Outdoor Program (“Outdoor Program”). She also accepted a paid position as a student climbing instructor for the Outdoor Program. As a result of this coursework and employment, Plaintiff participated in several climbing sessions on a sport climbing wall located on the Whitman College campus.
On April 28, 2008, Ms. Foster was summoned to the climbing wall by her supervisor, Brien Sheedy (“Sheedy”) to assist in removing several climbing ropes that were hanging from the top of the wall. At Sheedy’s direction, Ms. Foster ascended the wall, climbed atop a platform adjacent to the wall, and removed all but one of the ropes. Having completed her task, Ms. Foster lowered herself back onto the climbing wall with the intention of rappelling down the wall using the remaining rope. Shortly after beginning her descent, however, [*3] the remaining rope became unhooked from two “Super Shut” anchors located near the top of the wall. The release of the rope caused Ms. Foster to free fall approximately 35 feet to the ground, resulting in serious permanent injury to her spine.
In April of 2007, one year prior to Ms. Foster’s fall, Whitman College hired ASI to perform a “risk management audit” of the Outdoor Program. The purpose and scope of this audit are central to the outcome of this case. Unfortunately, the terms of the agreement between Whitman College and ASI were never reduced to writing. In any event, it is undisputed that the audit was conducted by Defendant Alex Kosseff (“Kosseff”) over the course of four days on the Whitman College campus. It is further undisputed that Whitman College paid $3,000 for the audit.
During the course of the audit, Kosseff met with several students and administrators who were involved with the Outdoor Program. He also observed several regularly-scheduled activities, including an open climbing wall session, a pool session offered to students in a kayaking class, a climbing wall session offered to students in a rock climbing class, a training session for an upcoming climbing competition, [*4] and a debriefing session for a glacier mountaineering course. ECF No. 153-5 at 7.
After completing his site visit, Kosseff prepared and submitted a written report of his findings and recommendations to Whitman College. The authenticity of this document, which bears the title, “Draft Risk Management Audit,” (hereafter “audit report”) is undisputed. 1 The audit report contains several passages which are relevant to the issues raised in the instant motion. One such passage, under the heading “Audit Process Introduction” reads as follows:
The ASI Risk Management Audit program is a voluntary program aimed at improving risk management practices in outdoor education and recreation. This program has been designed by ASI and the audit process is handled by one of our experienced staff members. We recognize that each program is unique and that one standardized risk management plan will not work for every organization. With this in mind, the ASI Risk Management audit process does not prescribe specific approaches, but rather aims to assess that different aspects [of] risk management are being addressed.
ASI’s audit program is designed as an accessible step for organizations that want to reduce the [*5] risk of an accident taking place. It gives organizational management, clients/students, and others confidence that prudent steps are being taken to manage hazards. If an accident does occur, participation in this voluntary program can protect the organization’s reputation and serve, if necessary, as part of a legal defense. ASI’s audit program focuses exclusively on risk management and safety concerns and does not address educational, marketing, business and financial management, or other issues.
ECF No. 153-5 at 5.
1 ASI apparently contemplated issuing a final draft after Whitman College had reviewed and implemented its recommendations, but no final draft was ever issued. ECF No. 84-1 at Tr. 35-36.
In another passage, under the heading “Audit Program Disclaimer,” the audit report states:
The nature of Adventure Safety International Risk Management Audit is to gain a general understanding of the risk management practices at the time of the review. This is done primarily through review of the self assessment responses supplied by the management of the program being accredited. This is supplemented with onsite observation and interviews, which occur during a brief site visit.
The major aim [*6] of this voluntary audit is to benchmark the program against the risk management guidelines that ASI believes will promote good risk management practice. The benchmarks have been established, at three levels, in many (but not all) areas of risk management planning. The intent is to identify and share good practice amongst outdoor programs and over time to raise the level of risk management practice.
The audit cannot provide any guarantee that future operations will be free of safety incidents. Rather the audit documents that at the time of the review risk management practices met or exceeded risk management guidelines established by ASI and based on current industry practices.
ECF No. 153-5 at 6.
Finally, the audit report documents ASI’s substantive findings and recommendations across 27 different program evaluation criteria. These criteria vary widely, ranging from training and oversight of activity leaders to safety of passenger vans and drivers. Included among these criteria are ratings for “Equipment” and “Facilities.” ECF No. 153-5 at 30, 35. The audit report assigns the Outdoor Program the highest rating in both categories, noting that the quality of the program’s equipment was “exceptional,” [*7] and that those responsible for the program routinely inspect facilities for potential safety hazards. ECF No. 153-5 at 30, 35.
Shortly after Ms. Foster’s fall on April 28, 2008, Whitman College hired ASI to investigate the cause of the accident. ASI assigned Kosseff to conduct the investigation. Kosseff ultimately concluded that the accident occurred as a result of Plaintiff climbing above the Super Shut anchors and subsequently descending below them. According to Kosseff, the Super Shut anchors were not designed to accommodate a person climbing above them; rather, the anchors were designed for use only at “dead end” locations on a sport climbing wall. Kosseff further noted that the manufacturer of the anchors had issued warnings against climbing above them, noting that the risk of a climbing rope becoming disengaged from an anchor in this situation was about “50/50.” Thus, Kosseff concluded that both Whitman College and Ms. Foster were negligent in using the Super Shut anchors for a purpose for which they were not designed.
In the instant lawsuit, Plaintiffs assign fault to Kosseff for failing to identify the risks posed by the Super Shut anchors during the ASI’s risk management audit. [*8] Had Kosseff identified these risks and reported them to Whitman College, Plaintiffs assert, the problem could have been corrected before Ms. Foster was injured. For the reasons discussed below, the Court finds that ASI’s duty of care arising from the risk management audit did not extend to identifying the risk posed by improper use of the Super Shut anchors.
The Court may grant summary judgment in favor of a moving party who demonstrates “that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The party moving for summary judgment bears the initial burden of showing the absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The burden then shifts to the non-moving party to identify specific genuine issues of material fact which must be decided by a jury. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Id. at 252.
For [*9] purposes of summary judgment, a fact is “material” if it might affect the outcome of the suit under the governing law. Id. at 248. A dispute as to any such fact is “genuine” only where the evidence is such that a reasonable jury could find in favor of the non-moving party. Id. In ruling on a summary judgment motion, a court must construe the facts, as well as all rational inferences therefrom, in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007). Finally, the court may only consider evidence that would be admissible at trial. Orr v. Bank of America, NT & SA, 285 F.3d 764 (9th Cir. 2002).
A. Plaintiff Was an Intended Beneficiary of the Risk Management Audit
In its prior order denying Defendants’ motion to dismiss, the Court remarked that, in its view, the viability of Plaintiffs’ negligence claim hinged on their ability to establish that Ms. Foster was an intended third-party beneficiary of the contract between ASI and Whitman College. ECF No. 72 at 10 (citing Burg v. Shannon & Wilson, Inc., 110 Wash. App. 798, 807-08, 43 P.3d 526 (2002)). Specifically, the Court commented that, in order to avoid summary dismissal of this claim, Plaintiff would need to establish, [*10] as a threshold matter, that “ASI agreed to undertake the risk management audit for the benefit of the college’s employees and students rather than for the benefit of the college itself.” ECF No. 72 at 10.
Having reviewed the record on summary judgment, the Court finds that Plaintiffs have established a triable question of fact on this issue. First, the Draft Risk Management Audit indicates that ASI’s audit program is designed to “give organizational management, clients/students, and others confidence that prudent steps are being taken to manage hazards.” ECF No. 153-5 at 5 (emphasis added). Second, the Director of the Outdoor Program, Brien Sheedy, testified during his deposition that the risk management audit was designed to minimize risks to “all users” of the Outdoor Program, including students and employees. ECF No. 153-10 at 34-35. Third, Whitman College’s chief financial officer, Peter Harvey, testified that the college typically takes an “across the board” approach to risk management by attempting to mitigate risks to students, employees and faculty. ECF No. 153-8 at 25. Finally, Whitman College’s president, George Bridges, testified that he would expect any risk management [*11] audit commissioned by the college “to protect the school and the employees and the students.” ECF No. 153-9 at 44. A rational jury could find from this evidence that Ms. Foster, as an employee and student of Whitman College, was an intended beneficiary of the contract for the risk management audit.
B. The Danger Posed by Misuse of the Super Shut Anchors Was Beyond the Scope of ASI’s Risk Management Audit
There are four elements to a common law negligence claim in Washington: duty, breach, causation and damages. Michaels v. CH2M Hill, Inc., 171 Wn.2d 587, 605, 257 P.3d 532 (2011). As to the first element, a duty of care is defined as “an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.” Affiliated FM Ins. Co. v. LTK Consulting Servs., Inc., 170 Wash.2d 442, 449, 243 P.3d 521 (2010) (internal quotation and citation omitted). Whether a duty of care exists is a matter of law to be decided by the court rather than by a jury. Osborn v. Mason Cnty., 157 Wash.2d 18, 23, 134 P.3d 197 (2006). This is a “threshold question” which involves three separate inquiries: “Does an obligation exist? What is the measure of care required? To whom and with respect to what [*12] risks is the obligation owed?” Affiliated FM Ins. Co., 170 Wash.2d at 449. In deciding whether the law imposes a duty of care, a court must balance “considerations of logic, common sense, justice, policy, and precedent.” Id. at 450 (internal quotations and citations omitted).
Here, Defendants contend that they did not owe Ms. Foster a duty of care to discover the danger posed by misuse of the Super Shut anchors. The Court agrees. In Washington, a private party who inspects another’s premises for safety hazards may be liable to third parties for injuries caused by the inspecting party’s negligence. See Sheridan v. Aetna Cas. & Surety Co., 3 Wash.2d 423, 439-40, 100 P.2d 1024 (1940); (liability insurer which inspected cargo elevator for safety hazards liable to third party who was injured as a result of insurer’s failure to discover dangerous condition); Nielson v. Wolfkill Corp., 47 Wash. App. 352, 359-60, 734 P.2d 961 (1987) (injured worker’s cause of action for negligent safety inspection performed by Department of Labor and Industries inspector barred by Washington Industrial Insurance Act); see also Restatement (Second) of Torts § 324A(b) (1965) (“One who undertakes, gratuitously or for consideration, to render [*13] services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if he has undertaken to perform a duty owed by the other to the third person.”).
Nevertheless, the act of inspecting another’s premises for safety hazards does not transform the inspecting party into a de facto insurer against any and all risks. Although the Court has not located any cases directly on-point in the State of Washington, courts in other jurisdictions have held that an inspecting party is only liable for undiscovered hazards which he or she undertook to discover in the first place. See, e.g., Procter & Gamble Co. v. Staples, 551 So.2d 949, 955-56 (Ala. 1989) (“In defining the nature of the duty undertaken by a voluntary [safety] inspection, two aspects must be considered–the physical scope of the undertaking and the degree of scrutiny and action mandated by conditions observed or reasonably observable.”) (quotation and citation omitted); Winslett v. Twin City Fire Ins. Co., 141 Ga. App. 143, 232 S.E.2d 638, 639 (Ga. App. 1977) (no liability [*14] to third party for failing to discover dangerous condition on construction crane where “evidence was uncontradicted that no detailed inspections of machinery or equipment were contemplated or made”); Lavazzi v. McDonald’s Corp., 239 Ill. App. 3d 403, 606 N.E.2d 845, 849-50, 179 Ill. Dec. 1013 (Ill. App. 1992) (inspectors hired by restaurant to perform food safety inspections at supplier’s plant not liable for negligent inspection where inspectors “did not specifically focus any attention . . . on the piece of equipment involved in the injury”). In other words, the weight of authority from other jurisdictions counsels that an inspecting party’s liability for negligent inspection must be circumscribed by the scope of the inspection actually performed.
The Court concludes that “considerations of logic, common sense, justice, policy, and precedent” support adoption of this rule. See Affiliated FM Ins. Co., 170 Wash.2d at 450. Contrary to Plaintiffs’ assertions, an inspecting party’s duty of care is not synonymous with the foreseeability of a particular injury occurring. As Defendants correctly note, this argument improperly collapses the duty of care and causation elements of a negligence claim. In Washington, a negligence plaintiff [*15] must make a “threshold showing” that the defendant owed her a duty of care before proceeding to the issues of whether the defendant breached its duty and whether the breach was a foreseeable cause of the plaintiff’s injury. See Munich v. Skagit Emergency Commc’ns Ctr., 175 Wn.2d 871, 877, 288 P.3d 328 (2012). While foreseeability can sometimes inform the scope of a duty owed, it cannot create the duty of care in the first instance. Michaels, 171 Wn.2d at 608. Indeed, equating duty with foreseeability in the context of a safety inspection would lead to a perverse result: an inspector would be legally obligated to report each and every manner in which a person might conceivably be injured–regardless of how obvious, inherent or attenuated the danger might be. This result would effectively transform safety inspectors into de facto insurers against all risks. As a matter of logic and public policy, the better approach is to define an inspector’s duty of care according to the types of hazards that were actually targeted by his or her inspection.
Applying this rule to the instant case, the Court finds that the hazard which caused Ms. Foster’s fall–misuse of the Super Shut anchors–was simply beyond [*16] the scope of the risk management audit that ASI performed. As a threshold matter, Plaintiffs have failed to establish that ASI undertook to inspect any individual pieces of equipment maintained by the Outdoor Program. In his deposition, Kosseff testified unequivocally that the Outdoor Program’s equipment was beyond the scope of ASI’s audit:
There were hundreds and hundreds of pieces of equipment within this program. Each of those pieces of equipment, especially the climbing [equipment], have specific ways in which they’re used. There — I was not looking at how this equipment would be utilized in this situation. I was looking at how the college conducted their systems for managing risk.
ECF No. 84-1 at Tr. 94. Similarly, Brien Sheedy states in his declaration that he “understood and expected that the [audit] would not review specific equipment utilized in the Outdoor Program, for example the Fixe Super Shut anchors, as that type of inspection was not envisioned by the audit process based upon the information [he] learned from [Kosseff]” prior to hiring ASI. ECF No. 82 at ¶ 6. Although this testimony is somewhat self-serving, Plaintiffs have not rebutted it.
Moreover, even assuming for [*17] the sake of argument that ASI was charged with inspecting individual pieces of equipment, it could not reasonably have been expected to identify hazards stemming from potential misuse of the equipment. As Defendants correctly note, the Super Shut anchors which Ms. Foster was using at the time of the accident did not truly “fail.” Rather, the anchors did something that they were designed to do–i.e., release a climbing rope–when Ms. Foster used them for an unsupported application.
To whatever extent Kosseff understood the danger of the Super Shuts releasing a rope in this scenario, he was not obligated to address it with Whitman College. ASI did not contract with Whitman College to address dangers caused by misuse of the Outdoor Program’s equipment. While there is no written contract evidencing the scope of work that ASI agreed to perform, the audit report prepared by Kosseff is highly informative. Having reviewed the audit report in its entirety, the Court finds that the purpose of the risk management audit was to improve Whitman College’s safety practices rather than to identify and catalog specific safety hazards. Indeed, there is no evidence that ASI agreed to perform a detailed “safety [*18] inspection” of specific outdoor equipment, buildings, vehicles, etc. Nor is there any evidence that Kosseff actually undertook to perform an inspection at that minute level of detail.
In the final analysis, there is simply no evidence that ASI agreed or undertook to examine the virtually countless ways in which the Outdoor Program’s climbing equipment could have been dangerously misused. Accordingly, Plaintiffs have not met their burden of establishing that ASI owed Ms. Foster a duty of care to discover and report the danger posed by misuse of the Super Shut anchors. In the absence of a duty of care, Plaintiffs cannot prevail on their negligence claim. Defendants’ motion for summary judgment is granted.
ACCORDINGLY, IT IS HEREBY ORDERED:
1. The motion for summary judgment filed by Defendants Alex Kosseff and Adventure Safety International (ECF No. 80) is GRANTED. Plaintiffs’ claims against these Defendants are DISMISSED with prejudice.
2. Plaintiffs’ claim against Defendant Fixe Industry, which has never been served in this action, is DISMISSED without prejudice.
3. All pending motions are DENIED as moot.
The District Court Executive is hereby directed to enter this Order and a judgment [*19] accordingly, provide copies to counsel, and CLOSE the file.
DATED March 22, 2013.
/s/ Thomas O. Rice
THOMAS O. RICE
United States District Judge
ANNOTATED REVISED CODE OF WASHINGTON
TITLE 49. LABOR REGULATIONS
CHAPTER 49.48. WAGES—PAYMENT—COLLECTION
GO TO REVISED CODE OF WASHINGTON ARCHIVE DIRECTORY
Rev. Code Wash. (ARCW) § 49.48.150 (2012)
§ 49.48.150. Sales representatives—Definitions
Unless the context clearly requires otherwise, the definitions in this section apply throughout RCW 49.48.160 through 49.48.190.
(1) “Commission” means compensation paid a sales representative by a principal in an amount based on a percentage of the dollar amount of certain orders for or sales of the principal’s product.
(2) “Principal” means a person, whether or not the person has a permanent or fixed place of business in this state, who:
(a) Manufactures, produces, imports, or distributes a product for sale to customers who purchase the product for resale;
(b) Uses a sales representative to solicit orders for the product; and
(c) Compensates the sales representative in whole or in part by commission.
(3) “Sales representative” means a person who solicits, on behalf of a principal, orders for the purchase at wholesale of the principal’s product, but does not include a person who places orders for his or her own account for resale, or purchases for his or her own account for resale, or sells or takes orders for the direct sale of products to the ultimate consumer.
§ 49.48.160. Sales representatives—Contract—Agreement
(1) A contract between a principal and a sales representative under which the sales representative is to solicit wholesale orders within this state must be in writing and must set forth the method by which the sales representative’s commission is to be computed and paid. The principal shall provide the sales representative with a copy of the contract. A provision in the contract establishing venue for an action arising under the contract in a state other than this state is void.
(2) When no written contract has been entered into, any agreement between a sales representative and a principal is deemed to incorporate the provisions of RCW 49.48.150 through 49.48.190.
(3) During the course of the contract, a sales representative shall be paid the earned commission and all other moneys earned or payable in accordance with the agreed terms of the contract, but no later than thirty days after receipt of payment by the principal for products or goods sold on behalf of the principal by the sales representative.
Upon termination of a contract, whether or not the agreement is in writing, all earned commissions due to the sales representative shall be paid within thirty days after receipt of payment by the principal for products or goods sold on behalf of the principal by the sales representative, including earned commissions not due when the contract is terminated.
§ 49.48.170. Sales representatives—Payment
A principal shall pay wages and commissions at the usual place of payment unless the sales representative requests that the wages and commissions be sent through registered mail. If, in accordance with a request by the sales representative, the sales representative’s wages and commissions are sent through the mail, the wages and commissions are deemed to have been paid as of the date of their registered postmark.
§ 49.48.180. Sales representatives—Principal considered doing business in this state
A principal who is not a resident of this state and who enters into a contract subject to RCW 49.48.150 through 49.48.190 is considered to be doing business in this state for purposes of the exercise of personal jurisdiction over the principal.
§ 49.48.190. Sales representatives—Rights and remedies not exclusive—Waiver void
(1) RCW 49.48.150 through 49.48.190 supplement but do not supplant any other rights and remedies enjoyed by sales representatives.
(2) A provision of RCW 49.48.150 through 49.48.190 may not be waived, whether by express waiver or by attempt to make a contract or agreement subject to the laws of another state. A waiver of a provision of RCW 49.48.150 through 49.48.190 is void.
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