### FILED NOV. 26, 2013 In the Office oftheClerkofCourt WA State CourtofAppeals, Division III



### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE JERELYN BIORN, ) 

### No. 30887-1-111 ) 

### Appellant, ) ) 

## v. ) ) 

### KENNEWICK SCH. DIST. NO. 17, ) 

### UNPUBLISHED OPINION ) 

### Respondent. ) 

### BROWN, J. - Jerelyn Biorn appeals adefense verdict in herslip-and-fall negligence suit against Kennewick School District No. 17. She contends the trial court erred by denying hermotion forjudgment as a matterof law and rejecting herproposed constructive noticejury instruction. We disagree with Ms. Biorn, and affirm. FACTS Ms. Biorn worked as a part-time paraeducator at Canyon View Elementary School in Kennewick. Most employees parked vehicles in the staff parking lot before school began around 8:30 a.m. Ms. Biorn was usuallythe last employee to arrive because she began work around 10:30 a.m. On January 5, 2009, Ms. Biorn saw snow accumulation outside, dressed accordingly, and drove hervehicle to Canyon View without losing tiretraction. At the staff parking lot, she saw snow but no ice. She slipped and fell .shortly after parking andNo. 30887-1-111 Biom v. Kennewick Sch. Dist. No. 17 exiting hervehicle. Her impact brushed away a light layer ofsnow, revealing a slippery layerof ice beneath. These layers formed when, beginning around 2:00 a.m., Kennewick experienced rainfall followed by lowtemperatures and snowfall. Underthe school district's snow removal policy, custodians and groundskeepers
remove snow in two phases, completing the walkways and entryways at each school during phase one and the parking lots at each school during phase two. Following this policy, a custodian began his duties under phase one at Canyon View around 7:00 a.m. Likewise, a crew ofgroundskeepers began their duties under phase one at Canyon View sometime after 7:00 a.m. The custodian saw snow in the staff parking lot when he parked his vehiclethere. Butthe staffparking lot never presented major concerns before and, throughoutthe morning, the school district received no reports of ice from the 65 to 70 employees who parked vehicles there. Atthe time Ms. Biorn slipped and fell, the school district had notyet begun phase two at Canyon View because itwas still attending to high schools and middle schools, which began earlier. Ms. Biorn sued the school districtfor negligence based on premises liability and the case proceeded totrial. Atthe close ofevidence, she moved unsuccessfullyfor judgment as a matter of law on the liability issue. Then, she unsuccessfully proposed a constructive noticejury instruction based on Iwai v. State, 129Wn.2d 84, 96, 915 P.2d 1089 (1996) (quoting Pimentel v. Roundup Co., 100 Wn.2d 39,44,666 P.2d 888 (1983»: Todemonstrate constructive notice ofan unsafe condition, the invitee mustshowthatthe speCific unsafe condition had existed for such time as would have afforded defendant sufficient opportunity, and exercise of 

### 2No. 30887-1-111 Biomy. Kennewick Sch. Dist. No. 17 ordinary care, to have made proper inspection of premises and to have removed the danger. Clerk's Papers at 35. Thejury returned a defense verdict. Ms. Biorn appealed. ANALYSIS 

### A. Judgment as a Matterof Law The issue is whetherthe trial court erred by denying Ms. Biorn's motion for judgmentas a matter oflaw. She contendsthe court ignored evidence tending to show the school district had actual or constructive notice ofthe dangerous ice beneath the
snow in the staff parking lot. We review a decision on a motion forjudgment as a matter of lawde novo, applying the same standard asthe trial court. Sing v. John 

### L. Scott, Inc., 134 Wn.2d 24, 29, 948 P.2d 816 (1997); Hill v. BCT/lncome Fund-I, 144 Wn.2d 172, 187,23 P.3d 440 (2001), overruledon othergrounds byMcClarty v. Totem Elec., 157 Wn.2d 214, 137 P.3d 844 (2006). Judgment as a matterof law is proper if"viewing the evidence mostfavorable to the nonmoving party, the court can say, as a matter of law, there is no substantial evidence or reasonable infe"rence to sustain a verdict forthe nonmoving party.,,1 Sing, 134Wn.2d at 29**(citi~g** Indus. Indem. Co. ofthe Nw. v. Kallevig, 114 Wn.2d 907, 915­ 16,792 P.2d 520 (1990»; see CR 50(a)(1). A motion forjudgment as a matterof law

1 Substantial evidence is a "sufficient quantum to persuade afair-minded, rational person ofthe truth cifa declared premise." Helman v. SacredHeartHosp., 62 Wn.2d 136,147,381 P.2d 605 (1963). Thus, evidence sustaining a verdict forthe nonmoving party must "convince 'an unprejudiced, thinking mind'" to be substantial. Indus. Indem. Co. ofthe Nw. v. Kallevig, 114Wn.2d 907, 916, 792 P.2d 520 (1990) (quoting Hojem v. Kelly, 93 Wn.2d 143, 145,606 P.2d 275 (1980». 

### 3No. 30887-1-111 Biom v. Kennewick Sch. Dist. No. 17 "admits the truth ofthe [nonmoving party's] evidence and all inferenceswhich can reasonably be drawn therefrom, and requires thatthe evidence be interpreted most strongly against the moving party and in a light mostfavorable to the [nonmoving party]." Davis v. Early Constr. Co., 63 Wn.2d 252, 254,386 P.2d 958 (1963). Wedefer to thejury on issues ofwitness credibility and evidence weight or persuasiveness. Fau'st v. Albertson, 167 Wn.2d 531, 538, 222 P.3d 1208 (2009). A negligence suit requires proofthe defendant breached a duty ofcare owed to the plaintiff and, thereby, proximately caused the plaintiffto suffer a compensable injury. See Pedroza v. Bryant, 101 Wn.2d 226, 228, 677 P.2d 166 (1984); Hansen v. Wash. Natural Gas Co., 95 Wn.2d 773, 776, 632 P.2d 504 (1981). A person is negligent if he
or shefails to exercise ordinary care-the degree ofcare a person ofordinary prudence would exercise in the same or similar circumstances. La Moreaux v. Fosket, 45 Wn.2d

. 249, 255,273 P.2d 795 (1954). Thus, a person is negligent if he orshe does something
a reasonable person would not do orfails to do something a reasonable person would do in such situations. Sys. Tank Lines, Inc. v. Dixon, 47 Wn.2d 147, 151,286 P.2d 704 (1955). A land possessor's duty ofcare depends on the land entrant's common law classification as an invitee, licensee, ortrespasser. Younce v. Ferguson, 106 Wn.2d 658,659,662-63,667,724 P.2d 991 (1986). The parties agree Ms. Biorn was a business invitee.2 A land possessor owes a business invitee a dutyto exercise ordinary

2 A business invitee is a person expressly or impliedly invited onto the premises forsome purpose connected to the land possessor's business interest or benefit.

. McKinnon v. Wash. Fed. Say. 

### & Loan Ass'n, 68 Wn.2d 644, 649-50, 414 P.2d 773 

### 4No. 30887-1-111 Biom v. KennewickSch. Dist. No. 17
care forthe invitee's safety by keeping the premises reasonably safe for his or her anticipated use. Miniken v. Carr, 71 Wn.2d 325, 327-28,428 P.2d 716 (1967); Enerson

v. Anderson, 55 Wn.2d 486, 489, 348 P.2d 401 (1960); see also Tincani v. Inland EmpireZoologicalSoc'y, 124 Wn.2d 121, 139,875 P.2d 621 (1994) (explaining reasonable care requires the possessorto "inspectfor dangerous conditions, 'followed by such repair, safeguards, orwarning as may be reasonably necessaryfor [the invitee's] protection underthe circumstances'" (alteration in original) (quoting RESTATEMENT (SECOND) OF TORTS 

### § 343 cmt. b (1965))). Where the premises contain a dangerous condition notcaused bythe land possessor, the possessor's duty regarding the danger arises when he or she receives actual orconstructive notice of it. See Pimentel, 100Wn.2d at39; Wiard v. Mkt. Operating Corp., 178 Wash. 265, 268, 34 P.2d 875 (1934); see also Tincani, 124Wn.2d at 138 (explaining premises liability attaches afterthe possessor '''knows or bythe exercise of reasonable care would discoverthe condition, and should realize that it involves an unreasonable risk of harm to

... invitees'" (quoting RESTATEMENT (SECOND) OF TORTS 

### § 343(a»). Actual notice arises ifthe danger is called to the possessor's attention and knowledge. Constructive notice arises ifthe condition "existed for such time as would have afforded [the possessor] sufficient opportunity, in the exercise of ordinary care, to have made a proper inspection ofthe premises and to have removed the danger." Smith v. Manning's, Inc., 13 Wn.2d 573, 580, 126 P.2d 44 (1942); see Wiard, 178Wash. at268. (1966) (quoting RESTATEMENT (SECOND) OF TORTS 

### § 332 (1965»; Gamerv. Pac. Coast 

### 5No. 30887-1-111 Biom v. KennewickSch. Dist. No. 17 Here, viewed inthe light most favorable to the school district, the evidence shows when Ms. Biorn slipped and fell the school district had no more than general awareness ofearlier precipitation and low temperatures in the staff parking lot. And, this general
awareness persisted for about three and one-half hours, during which the school district actively complied with its snow removal policy. The snow concealed the dangerous ice. The staff parking lot never presented major concerns before and, throughoutthe morning, the school district received no reports of icefrom the 65 to 70 employees who parked vehicles there. A rational jury could reasonably conclude the dangerous ice beneath the snow had not been called to the school district's attention and knowledge. Cf. Iwai, 129 Wn.2d at 97-98 (requiring morethan a general awareness ofearlier precipitation and lowtemperatures in a parking lot); Ford v. RedLion Inns, 67 Wn. App. 766, 773, 841 P.2d 49{1992) (requiring more than the mere fact ofsnow and ice accumulation in a parking lot). Further, a rational jury could reasonably concludethe condition had not existed long enough forthe school districtto inspect the staff parking lot and removethe danger in the exercise ofordinary care. Cf. Mucs; v. Graoch Assocs. Ltd. P'ship No. 12, 144Wn.2d 847, 862, 31 P.3d 684 (2001) (concluding two tothree dayswas long enough as to a side exit); Leonardv. Pay'n Save Drug Stores, 75 Wn. App. 445, 451­ 52, 880 P.2d 61 (1994) (concluding fourtofive days was long enough as to a sidewalk); Maynard v. Sisters ofProvidence, 72 Wn. App. 878, 879, 883, 866 P.2d 1272 (1994) (concluding two to four dayswas long enough as to a parking lot). Thus, substantial
Coal Co., 3Wn.2d 143, 148, 100 P.2d 32 (1940). 

### 6No. 30887-1-111 Biom v. Kennewick Sch. Dist. No. 17 evidence exists to sustain a verdictforthe. school district on the issues ofactual and constructive notice

.. Therefore, the trial court did not err by denying Ms. Biorn's motion forjudgmentas a matter of law. B. Constructive Notice Instruction The issue is whetherthe trial court erred by rejecting Ms. Biorn's proposed constructive noticejury instruction. She contends the court prevented herfrom arguing hercase theory and misinformed thejury regarding the law it must apply. 

### "[A1 trial court has considerable discretion in [deciding] howthe instructions will be worded and whetherthe rules contained in general instructions will be orshould be repeated in specific instructions in more detail." Roberts v. Goerig, 68 Wn.2d 442, 455, 413 P.2d 626 (1966). Thus, we review such decisionsfor abuse ofdiscretion.3 See Gammon v. ClarkEquip. Co., 104Wn.2d 613,617,707 P.2d 685 (1985); Peterson v. State, 100 Wn.2d 421, 441,671 P.2d 230 (1983). Jury instructions are sufficient ifthey allowthe parties to argue their case theories, do not mislead thejury and, as awhole, properly inform thejury ofthe law it mustapply. Brown v. Spokane CountyFire Prot. Dist. No.1, 100 Wn.2d 188, 194, 668 P.2d 571 (1983). A trial court may reject a proposed instruction that is cumulative or repetitious of instructions given, orthatwould tend to confuse ratherthan aid thejury.

3 A trial court abuses its discretion if its decision is "manifestly unreasonable," based on "untenable grounds," or madefor "untenable reasons." State ex reI. CaITo11 v. Junker, 79Wn.2d 12,26,482 P.2d 775 (1971); see also In 

### re MaITiage ofLittlefield, 133 Wn.2d 39,47,940 P.2d 1362 (1997) ("A court's decision is manifestly unreasonable if it is outside the range ofacceptable choices, given the facts and the applicable legal standard; it is based on untenable grounds ifthe factual findings are unsupported by the 

### 7No. 30887-1-111 Biorn v. Kennewick Sch. Dist. No. 17 See State v. Benn, 120 Wn.2d 631, 655,845 P.2d 289 (1993); Mathias v. Eichelberger, 182Wash. 185, 192-93, 45'p.2d 619 (1935). In rejecting Ms. Biorn's proposed instruction, the trial court reasoned the pattern instructions it previously accepted upon her request adequately incorporated the concept ofconstructive notice without using legal jargon.4 The court's assessment is sound. See 6AWASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 120.06.02 & cmt. at 20-21,120.07 & cmt. at 26-27 (6th ed. 2012). Therefore, we

record; it is based on untenable reasons if it is based on an incorrect standard orthe facts do not meetthe requirements ofthe correct standard.")

. . 4 Specifically, the trial court mentioned instructions 7 and 10, which stated, As owner ofthe premises, Kennewick School District is liable for any physical injuries to its business invitees caused by a condition on the premises ifthe owner, Kennewick School District, (A) knows ofthe condition or fails to exercise ordinarycare to discoverthe condition and should realize thatthis involves an unreasonable risk of harm to such business invitees, (B) should expectthatthey should not discover or realize the danger orwill fail to protectthemselves against it, and (C) fails to exercise ordinary care to protectthem againstthe danger. An owner ofa premises has a dutyto correct a temporary, unsafe condition ofthe premises thatwas not created bythe owner and thatwas not caused bythe negligence on the part ofthe owner ifthe condition was either broughtto the actual attention ofthe owner or existedfora sufficient length oftime andundersuch circumstances that the ownershouldhave discovereditin the exercise ofordinarycare. Report of Proceedings at 179-80 (emphasis added). Ms. Biorn proposed language identical or nearly identical to these instructions. Therefore, the invited errordoctrine precludes herfrom challenging the sufficiency ofthese instructions. See Ball v. Smith, 87 Wn.2d 717, 720,556 P.2d 936 (1976) ("A party may not request an instruction and later complain on appeal that such requested instruction was given." (citing Vangemert v. McCalmon, 68 Wn.2d 618, 625, 414 P.2d 617 (1966))). 8

### No. 30887-1-111 

### Biom v. KennewickSch. Dist. No. 17 conclude the court did not abuse its discretion in rejecting her proposed instruction as cumulative, repetitious, and confusing, and did not err. Affirmed. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but itwill be 'filed for public record pursuant to RCW 2.06.040. Brown, 

### J. WE CONCUR:

Kulik, 

### J.

9