On September 12, the NAM filed an amicus brief urging the Supreme Court of Washington to reverse a lower court’s refusal to instruct the jury on a key limitation on premises liability: landowners should not be held liable for injuries to an invitee where the invitee was aware of the dangerous condition. The plaintiff in this case, Wright v. ExxonMobil Oil Corp., proceeded on a negligence claim against the defendant refinery owner predicated on the decedent’s death from mesothelioma after working at the refinery, a site that the decedent knew contained asbestos. In fact, understanding the significant danger involved, the decedent—foreman for an independent contractor hired to remove insulation at the refinery—took every precaution to protect himself from asbestos exposure. The lower court erroneously refused to charge the jury on Restatement (Second) of Torts § 343A, which limits the duty of a possessor of land toward a hypothetical invitee if the actual invitee knows of a dangerous condition on the land. The Washington Court of Appeals affirmed, construing the error as harmless.
As explained in the NAM’s brief, the Court of Appeals’ decision is inconsistent with how Washington law allocates responsibility in premises-liability cases, where a trial court must charge on the elements of § 343A when evidence supports its application. Treating the charge as unnecessary would open manufacturers, who routinely invite employees of contractors and other third parties to their premises, to negligence actions even though the invited third parties or their employers are better positioned to protect against harm.
Unfortunately, on August 3, 2023, the Supreme Court of Washington affirmed the Court of Appeals' decision.