Slip-and-Fall Claims in Washington: How Premises Liability Works

A fall on someone else's property is a claim about that property's condition and the duty of the person who possesses it. Washington sets the duty by the visitor's status. Notice, an open hazard, recreational-use immunity, and a pre-claim rule for government property can each change the case. What follows is general education, not advice about one fall. Our personal injury practice page describes how we handle injury matters.

Negligence requires a duty, a breach, an injury, and proximate cause. Whether a duty exists is a question of law. In a premises case, the scope of the duty depends on whether the person was an invitee, a licensee, or a trespasser. Tincani v. Inland Empire Zoological Society restated that rule and declined to replace the categories with a single duty of reasonable care.

Invitees, Licensees, and Trespassers

Washington rejected economic benefit as the only test of an invitee. An invitee includes a person led to believe the premises were intended for visitors, as members of the public, for the purpose that person was pursuing, and that reasonable care had been taken to make the place safe for that purpose. A shopper is one example. Someone on property held open to the public can be an invitee.

Tincani applied Restatement (Second) of Torts section 343. The possessor is subject to liability for a condition on the land only when the possessor knows of it, or would discover it with reasonable care, and should realize the unreasonable risk; should expect that invitees will not discover the danger or will fail to protect themselves; and fails to use reasonable care to protect them. That care is inspection, then repair, safeguards, or warning as may be reasonably necessary. An invitee is entitled to expect it.

The invitation covers only part of the land. Tincani holds that a visitor is an invitee only while on the part to which the invitation extends. A student who paid to enter a zoo was a business invitee on the main trail and, the jury found, a licensee once he left it and climbed a rock outcropping. Failing to mark the boundary can extend the invitation. It does not preserve invitee duties after the person has left the area a patron could reasonably believe was open.

A licensee may enter or remain only by consent. A social guest is the usual example. Under Restatement (Second) of Torts section 342, the possessor must know or have reason to know of the condition, realize the unreasonable risk, and expect that the licensee will not discover it, and must then fail to make it safe or to warn. The licensee, for the duty to arise, must not already know the condition and the risk. There is no duty to make the place safe in advance or to search for hidden dangers. Knowledge of the risk by the licensee ends liability for that condition. Tincani agreed there is no duty to warn a licensee of an open and apparent natural danger, and held that whether the danger is open and apparent — whether the licensee knew the full extent of the risk — is a fact question, not a conclusion of law.

A trespasser has neither consent nor an invitation. The general duty is to refrain from willfully or wantonly causing injury. Tincani rejected a reasonable-care duty to children regardless of age or status. Narrower rules, including attractive nuisance for some artificial conditions, did not reach a nearly fifteen-year-old hurt on a natural cliff.

Actual Notice, Constructive Notice, and Foreseeable Hazards

When an invitee is hurt by a condition on the property, the traditional rule requires actual or constructive notice of that specific condition. Actual notice means the possessor knew it was there. Constructive notice means it lasted long enough that ordinary care would have found it on inspection and removed it.

Pimentel v. Roundup Co. stated the general rule and an exception. The unsafe condition must have been caused by the proprietor or an employee, or the proprietor must have had actual or constructive notice. Specific notice need not be shown when the nature of the business and its methods of operation make unsafe conditions reasonably foreseeable. Pimentel adopted that exception for the self-service operation in that case, a paint can overhanging a shelf, and limited it to the particular self-service operation that makes unsafe conditions foreseeable. The exception drops only the notice showing. The plaintiff must still prove a failure of reasonable care.

Wiltse v. Albertson's Inc. held that water from a hole in the roof is not inherent in a store's operation, so the exception did not apply. Iwai v. State, a plurality about ice in a state parking lot, would have dropped the self-service limit. A plurality is not a majority holding.

Johnson v. Liquor & Cannabis Board (2021) supplies that holding. The exception applies outside a self-service area when the business and its methods make the unsafe condition reasonably foreseeable, and an invitee may prove notice that way. Johnson slipped in a state liquor-store entry on a rainy day. Practice was to set out a slippery-when-wet sign when it rained, and the clerk described muddy footprints and water tracked in. Customers coming in out of the rain were treated as part of how a store operates. A leaky roof was not.

Foreseeability is not proof that a dangerous condition existed. The plaintiff must still prove an unreasonably dangerous condition and a failure of reasonable care. A slip, without more, is not enough, and water on a floor does not by itself prove negligence. A wet floor can be a foreseeable risk and still be unproven as unreasonably dangerous that day. If the proprietor or an employee created the condition, Pimentel does not require a separate notice showing. The court in Johnson assumed a dangerous condition only for the notice question and returned the rest of the case.

Open and Obvious Hazards

A hazard someone can see is not the same issue as notice. For invitees, Tincani adopted Restatement (Second) of Torts section 343A. The possessor is not liable for harm from a danger the invitee knows or that is obvious, unless the possessor should anticipate the harm despite that knowledge or obviousness. That expectation can arise if the invitee is likely to be distracted, to forget the danger, or to fail to guard against it, or if a reasonable person in that position would proceed because the advantage outweighs the apparent risk.

In Wright v. 3M Co. (2023), the Washington Supreme Court held that a judge may instruct on section 343A and need not do so in every invitee case. The condition must be known to exist, recognized as dangerous, and appreciated for the probability and gravity of the harm. Knowing asbestos was present did not, by itself, require the instruction. Where the danger is known or obvious and the possessor had no reason to anticipate the harm, section 343A can bar recovery. A condition that is merely visible does not. For a licensee, by contrast, knowledge of the condition and the risk ends the duty to warn under section 342.

Comparative Fault After a Fall

A fall is an action based on fault, so RCW 4.22.005 applies. Contributory fault chargeable to the claimant diminishes, in proportion, the compensatory damages for the injury attributable to that fault. It does not bar recovery. A phone, a passed warning, or a visibly poor route can be offered as the injured person's fault. Any share found reduces the damages and, under this statute, does not end the claim.

How shares are divided, and who pays when more than one party is at fault, is covered in Washington's pure comparative fault rule. Section 343A is about the possessor's duty. Comparative fault is about reducing damages. One fall can raise both.

Recreational-Use Immunity

RCW 4.24.210 is a separate limit. Public or private landowners, and others in lawful possession, who let the public use their land or water for outdoor recreation without charging a fee of any kind are not liable for unintentional injuries to those users. The statute's list, which includes hiking, bicycling, camping, and picnicking, is illustrative. The section also covers certain cooperative fish-and-wildlife projects and volunteer litter cleanup.

The exception is injury from a known dangerous artificial latent condition for which warning signs have not been conspicuously posted. Van Dinter v. City of Kennewick holds that each of those four words modifies "condition." "Latent" means not readily apparent to the user, and it describes the condition rather than the danger. Playground equipment set beside grass was obvious, so the city was immune even though the injured person had not realized he could strike it. "Known" is the landowner's knowledge. The court's illustration was a covered well the owner knows about, not one never discovered.

Subsection (5) lists charges that are not a fee, including certain state park and fish-and-wildlife licenses, passes under RCW 79A.80.020 through 79A.80.040, and a daily off-road-vehicle charge of not more than twenty dollars per person. The section does not limit or expand attractive nuisance, and it separately addresses climbing anchors placed by someone other than the landowner and certain hydroelectric releases.

Store customers are outside this statute. Their claims follow the invitee rules unless a different immunity applies.

Falls on State or Local Government Property

A fall on government property adds a written claim that must come before any lawsuit.

RCW 4.92.100 requires a tort claim against the state, or against a state officer, employee, or volunteer acting in that capacity, to be presented to the office of risk management. Delivery may be in person, by regular, registered, or certified mail with a return receipt, as an email attachment, or by fax. Claims after July 26, 2009, use the standard tort claim form posted on the Department of Enterprise Services website. The statute lists the minimum contents, including what happened, the injury, the time and place, the people involved, a damages figure, and the claimant's residence. The claimant signs, or an attorney-in-fact under a written power of attorney, a Washington lawyer, or a court-approved guardian or guardian ad litem signs. The damages figure is not admissible at trial, and substantial compliance is enough.

Under RCW 4.92.110, the lawsuit waits until sixty calendar days after presentment. Limitations are tolled for those sixty days. An action commenced within five court days after that period is, for limitations purposes, deemed presented on the first day after the period elapsed.

RCW 4.96.020 is the local rule, for the entity and its officers, employees, and volunteers acting in that capacity. The entity's agent, whose name and business-hours address are recorded with the county auditor, must receive the claim within the limitations period. Presentment is in person or by regular, registered, or certified mail with a return receipt. That sentence does not list email or fax. If the entity fails to comply with the section, it cannot raise a chapter 4.96 RCW defense. After July 26, 2009, the standard form is used unless the entity offers its own. A local form may ask for more, but the claim cannot be denied for omitting the extra, and a Social Security number cannot be required. A form that leaves out statutory information, or names the wrong agent, waives defenses tied to that error. The sixty-day wait, the tolling, the five-court-day sentence, and substantial compliance match the state statute. The form is not the lawsuit, and recreational-use immunity is a separate defense where it fits.

Evidence Worth Keeping

These steps are practical, not a statutory duty. They are harder to reconstruct once the scene changes.

Photograph the hazard, the surrounding surface, any warning or the lack of one, and the shoes and clothing worn in the fall. Record names and contact information for people who saw the fall or the condition. Ask for a copy of any incident report. Get medical care and keep those records. Note the weather and what you were doing. Both can matter to an obvious-hazard argument and to comparative fault.

A written request that the owner keep any video or maintenance record is a practical step. Whether those records exist, and how long a private owner keeps them, depends on that owner. On a government claim, the form already asks for the time, place, what happened, and who was involved, and the damages figure on it is not admissible at trial.

When the Lawsuit Must Be Filed

An action for injury to the person must be commenced within three years. RCW 4.16.080(2). Commenced means the lawsuit is filed, not the day of the fall, a demand, or presentation of a government claim form.

RCW 4.16.190 leaves out time when, at accrual, the person entitled to sue is under eighteen, is incompetent or disabled to the point of being unable to understand the proceedings, as determined under chapter 11.130 RCW, or is imprisoned on a criminal charge before sentencing. This article states no discovery rule and picks no filing date for any reader.

The sixty-day government wait tolls limitations while it runs. A local claim must still reach the agent inside the limitations period.

Status, notice, and who the defendant is usually set the next step. Our personal injury practice page describes that work. To talk about a particular fall, contact us. Nelson Allen Walk & Scott, PLLC is at 1103 Shaw Road, Puyallup, WA 98372, and the phone is (253) 845-8895.

Written by Nathan D. Sukhia, Of Counsel.