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Bess v. Geraldine12/4/1998
Source of Appeal: Appeal from Superior Court of Kitsap County Docket No: 95-2-03162-7 Judgement or order under review Date filed: 12/12/97 Judge signing: Hon. Jay B. Roof
Judges: Authored by J. Dean Morgan Concurring: Karen G. Seinfeld Carroll C. Bridgewater
Victoria Bess appeals from a summary Judgement dismissing her negligence claim against the estate of Geraldine Brumbaugh. The superior court ruled that Bess was a licensee on Brumbaugh's property, not a business invitee. Because Bess's relationship with Brumbaugh was primarily an economic one that benefited both parties, we reverse and remand.
Victoria Bess was Geraldine Brumbaugh's full-time caretaker. She provided patient care, light housekeeping, shopping, cooking, and meal preparation, staying with Brumbaugh Monday through Friday. She was paid for these services through the Department of Social and Health Services, which contracted with Bess as an "individual personal care provider" (hereinafter, provider). Bess's agreement with DSHS provided that they would pay her $5.76 an hour and Bess would provide services to Community Option Program Entry Systems (COPES) eligible clients. DSHS would pay the provider directly, although the client could choose the provider. The agreement specifically stated that the provider was not an employee or agent of DSHS.
On February 7, 1994, Bess slipped on a ramp that provided the only access to Brumbaugh's residence. The ramp was twice as steep as allowed by the Uniform Building Code. Its indoor-outdoor carpet was slick after a rain earlier that day and when Bess stepped on it, her left foot slipped and she fell, resulting in serious and permanent injuries to her hip and back.
After Ms. Brumbaugh's death on March 30, 1994, Bess commenced this action against the estate. She alleged that the ramp was defective and that the decedent was negligent for failing to provide a reasonably safe ramp for her as an invitee. On the estate's motion for summary Judgement, the trial court determined that Bess was a licensee, not an invitee. Bess conceded that she could not prevail as a licensee and the trial court dismissed her cause.
Bess appeals, making only one contention. She claims the trial court erred in ruling as a matter of law that she was a licensee, not a business invitee, while at Brumbaugh's residence.
An appellate court reviewing a summary Judgement makes the same inquiry as the trial court. Summary Judgement is appropriate if the evidence and inferences taken in the light most favorable to the nonmoving party shows that the moving party is entitled to Judgement as a matter of law. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982).
This court recently set out the definitions of an invitee and a licensee:
"An invitee is either a public invitee or a business visitor."{6} "A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public."{7} "A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land."{8}
In contrast, a "licensee" enters the occupier's premises with the occupier's permission or tolerance, either (a) without an invitation or (b) with an invitation but for a purpose unrelated to any business dealings between the two.{9} The term "licensee" includes, at a minimum, (1) persons who come on the land solely for purposes of their own, (2) members of the occupier's household (except a boarder, servant or other person whose relationship with the occupier is primarily econ
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