Opinion Information Sheet

			

                                                                               FILED
                                                                           FEB 7, 2012
                                                                    In the Office of the Clerk of Court
                                                                 WA State Court of Appeals, Division III

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JACQUELINE SMITH,                                   No.  29804-3-III
                                                )
                      Appellant,                )
                                                )   Division Three
              v.                                )
                                                )
BRYAN STOCKDALE, JANE DOE                       )   PUBLISHED OPINION
STOCKDALE; STOCKDALE, INC.,                     )
D/B/A VANTAGE RIVERSTONE                        )
RESORTS; HAVILAH, INC., A/K/A                   )
STOCKDALE, INC., D/B/A                          )
VANTAGE RIVERSTONE RESORTS;                     )
XYZ CORPORATIONS 1-10; AND                      )
JOHN AND JANE DOES 1-10,                        )
                                                )
                      Respondents.              )
                                                )

       Kulik, C.J.  --  Jacqueline Smith jumped from a cliff on public property adjacent to 

recreation fee property owned and operated by Bryan Stockdale.  Ms. Smith sued Mr. 

Stockdale and his corporations (collectively Vantage), contending that Vantage violated 

the Consumer Protection Act (CPA), chapter 19.86 RCW, by deceptively charging Ms. 

Smith a fee to access the adjacent private property and that Vantage failed to protect Ms. 

Smith from the danger of cliff jumping.  The trial court granted summary judgment in  

No. 29804-3-III
Smith v. Stockdale

favor of Vantage.  The court concluded that Vantage's user fee was not deceptive and 

that Vantage did not have a duty to protect Ms. Smith from danger on the adjacent public 

property.  We agree with the trial court and affirm.

                                            FACTS

       The Property. Vantage owns property near Vantage, Washington.  Vantage owns 

and operates Vantage Riverstone Resort.  The waterfront operations are located on lot 23

and include a campground, restroom facilities with showers, and boat moorage. Lot 23 is 

an improved stretch of waterfront property on the Wanapum Reservoir of the Columbia 

River.  Vantage also owns lot 22, which is located immediately to the north of lot 23. 

       A strip of land lies between the lots and the river.  This strip of land is known as 

the "freeboard" area and is owned by the Grant County Public Utility District No. 2 

(PUD).  Clerk's Papers (CP) at 51.  The freeboard area encompasses the cliff and the 

shoreline.  Vantage has a permit to use the portion of the freeboard area adjacent to lot 

23.  The permit allows Vantage to make improvements to the shoreline.  The permit also 

requires Vantage to maintain the improvements and assume liability for injuries suffered 

by visitors on the permitted property.  

       Vantage does not have a permit to use the freeboard area located adjacent to lot 

22.  The freeboard area adjacent to lot 22 encompasses the cliff where Ms. Smith 

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sustained her injuries.  The cliff portion of the freeboard area appears to be undeveloped. 

       Use of the Shoreline.  The PUD granted permission to Vantage to charge a $5 day 

use fee for the permitted area located on lot 23.  The PUD also granted permission to 

Vantage to charge the fee because of the large number of individuals who utilize the 

improved shoreline and swimming area.  Individuals are required to pay the fee to the 

attendant at the front entrance.  Vantage distributes wristbands to those who have paid.  

As many as 10,000 people visited Vantage's fee area in the summer of 2006.  

       Under the agreement with the PUD, Vantage must permit public access to the 

unpermitted portion of the freeboard area and cannot charge the public to use this area, 

including the cliff.  The public can access the freeboard cliff without crossing Vantage's 

fee area by using a ramp north of Vantage's permitted area.  

       Vantage asked the PUD to help prevent people from jumping from the cliff but 

Vantage contends that the PUD did not take action.  Vantage then placed a wire fence 

running parallel to the river in order to restrict access to the cliff face.  The PUD required 

that Vantage remove the fence because it restricted access to the public shoreline.  

Vantage removed this fence.  Vantage erected a second fence that marked the boundary 

line between the camping area and the cliff.  Contrary to the PUD's suggestion, Vantage 

did not remove this fence.  

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       Ms. Smith's Use of the Vantage Property. On July 27, 2006, Ms. Smith was 

attending a music festival at the Gorge Amphitheatre with several members of her family.  

Ms. Smith and three of her siblings went to Vantage for a swim.  Although Ms. Smith 

went to Vantage for the purpose of swimming, once she arrived at Vantage, she decided 

she also wanted to jump off the cliffs because "that's where everybody was." CP at 140.

       Ms. Smith and her siblings parked their car in the parking lot next to the fee area.

Ms. Smith and her siblings walked through the grass toward the swimming area.  

Vantage's fee area encompasses the grassy area.  On their way to the swimming spot, a 

Vantage employee in a golf cart approached Ms. Smith and her siblings to collect the $5 

fee.  Two of Ms. Smith's siblings ran into the water to avoid paying the fee.  Ms. Smith 

and another sibling ran in a different direction. The two ran toward a small grassy hill in 

the campground, away from the Vantage employee coming toward them.  

       When the Vantage employee approached Ms. Smith and her sibling, they were 

putting their things down on the grassy hill.  The Vantage employee told Ms. Smith that 

there was "a $5 charge per person that swam."  CP at 140. Ms. Smith told the employee 

that she did not intend to just swim; she indicated she wanted to jump.  The employee 

told Ms. Smith that the cost was still $5 to swim, jump, and use the facility.  Ms. Smith 

and her sister paid the fee and each received a wrist band. 

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       Ms. Smith's Cliff Jump. After paying the fee, Ms. Smith left her personal items on 

the grassy hill on the Vantage campground and walked to the cliff.  A fence crossed the 

path that led to the cliff.  This section of fence was pushed to the ground.  Ms. Smith saw 

the bowed fence and believes she stepped on it as she walked across.  

       When Ms. Smith reached the cliff, there were 7 to 10 people in the cliff jumping 

area.  She watched at least three people jump before it was her turn.  When it was her 

turn, Ms. Smith jumped in the water, feet first, with her hands by her side.  She knew 

people typically jumped in this position and believed it was the safest way to enter the 

water.  She estimated the cliff to be 65 feet high.  She testified that she characterizes 

herself as a thrill seeker, and that she jumped off the cliff for the adrenaline rush.  Ms. 

Smith had jumped off cliffs in Oregon prior to her visit to Vantage.  

       After jumping, an unidentified local man helped Ms. Smith swim to shore.  Ms. 

Smith had a hard time getting out of the water.  Ms. Smith's siblings met her at the base 

of the cliff.  She told her siblings that she was hurt and wanted to leave.  They drove 

immediately to see their mother at the music festival.  Ms. Smith's mother drove Ms. 

Smith to the hospital in Quincy, Washington, where doctors diagnosed Ms. Smith with

back and other injuries.  

       Ms. Smith sued Vantage for a violation of the CPA and for premises liability.  

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Vantage moved for summary judgment.  The trial court granted summary judgment on all 

claims.  The court also reasoned that Ms. Smith's entry onto Vantage's fee area subjected 

her to the $5 fee so, as a matter of law, it was not deceptive or misleading under the CPA 

for Vantage to charge Ms. Smith for the use of the fee area.  The court also held that 

Vantage did not owe a duty of care to Ms. Smith because Vantage did not own or have a 

permit to use the freeboard area where Ms. Smith was injured.  

       Ms. Smith appeals.

                                         ANALYSIS

       We review de novo an order granting summary judgment.  Veit v. Burlington N. 

Santa Fe Corp., 171 Wn.2d 88, 98-99, 249 P.3d 607 (2011).  And we consider the same 

evidence presented to the trial court.  Lybbert v. Grant County, 141 Wn.2d 29, 34, 1 P.3d 

1124 (2000).  The facts, and all reasonable inferences drawn from them, are viewed in the 

light most favorable to the nonmoving party.  Id. 

       Summary judgment is appropriately granted where "the pleadings, depositions, 

answers to interrogatories, and admissions on file, together with the affidavits, if any, 

show that there is no genuine issue as to any material fact and that the moving party is 

entitled to a judgment as a matter of law." CR 56(c).  Because the reviewing court 

examines the case de novo, it reviews not only the decision of the trial court, but may 

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also determine whether the trial court's decision can be affirmed on alternate grounds.

See State v. Costitch, 152 Wn.2d 463, 477, 98 P.3d 795 (2004). 

       CPA.  The CPA provides that "[u]nfair methods of competition and unfair or 

deceptive acts or practices in the conduct of any trade or commerce are hereby declared 

unlawful." RCW 19.86.020.  The purposes of the CPA are "to protect the public and 

foster fair and honest competition." RCW 19.86.920. To accomplish these purposes, the 

CPA is to be liberally construed.  RCW 19.86.920.  In a citizen initiated CPA suit, five 

elements must be proven: "(1) unfair or deceptive act or practice; (2) occurring in trade or 

commerce; (3) public interest impact; (4) injury to plaintiff in his or her business or 

property; (5) causation." Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 

105 Wn.2d 778, 780, 719 P.2d 531 (1986).

       A person injured as a result of a violation of the CPA may seek to recover actual 

damages, attorney fees, and costs.  Ambach v. French, 167 Wn.2d 167, 171, 216 P.3d 405 

(2009).  A court may also award treble damages for a violation of the CPA.  Id. 

       The CPA does not define the terms "unfair and deceptive." "To show a party has 

engaged in an unfair or deceptive act or practice a 'plaintiff need not show that the act in 

question was intended to deceive, but that the alleged act had the capacity to deceive a 

substantial portion of the public.'" Sing v. John L. Scott, Inc., 134 Wn.2d 24, 30, 948 

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P.2d 816 (1997) (quoting Hangman Ridge, 105 Wn.2d at 785). "The purpose of the 

capacity-to-deceive test is to deter deceptive conduct before injury occurs." Id. A 

communication can be accurate and still be deceptive if the "net impression" it conveys is 

deceptive.  Panag v. Farmers Ins. Co., 166 Wn.2d 27, 50, 204 P.3d 885 (2009) (citing 

Fed. Trade Comm'n v. Cyberspace.Com LLC, 453 F.3d 1196, 1200 (9th Cir. 2006)).

       As an example of a deceptive act, the court in Panag ruled that notices based on 

insurance liability claims were deceptive and misleading because the notices were 

designed to look like debt collection notices.  Id. at 47.  The insurance notices represented 

nothing more than an unadjudicated claim for tort damages.  Id. The court reasoned that 

the insurance notices had the capacity to deceive a substantial portion of the public 

because the language could induce people to remand payment in the mistaken belief they 

had a legal obligation to do so.  Id. at 47-48.

       An injury under the fourth element of a CPA claim must be an injury to business 

or property.  Ambach, 167 Wn.2d at 171-72.  The injury does not need to be great or 

quantifiable.  Id. at 171 (quoting Hangman Ridge, 105 Wn.2d at 792). Personal injuries 

do not satisfy the injury requirement under the CPA and are not compensable.  Panag, 

166 Wn.2d at 57.  "If the deceptive act actually induces a person to remand payment that 

is not owed, that will, of course, constitute injury."  Id. at 64.

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       The first and fourth elements of Ms. Smith's CPA claim are at issue. 

       Injury. Ms. Smith clearly states that her recovery under the CPA does not arise 

from her personal injury, but instead from an injury to her property.  She contends that 

Vantage injured her when it deceptively charged her $5 to jump from the cliff. 

       Ms. Smith's injury does not have to be significant.  The $5 entry fee was part of 

Ms. Smith's property.  Because Ms. Smith's injury is limited to the entry fee, she meets 

the fourth element of her CPA claim.

       Deceptive Practice. The larger issue revolves around the first element of Ms. 

Smith's CPA claim.  Ms. Smith contends that it was deceptive for Vantage to charge $5 

to jump when it did not have permission to charge a fee to use the cliff.  Therefore, to 

create a question of fact, Ms. Smith must provide evidence to show that Vantage's actions 

could lead a substantial portion of the public to believe that the Vantage's charge was to 

cliff jump.

       Ms. Smith and two of her siblings admitted to entering the grassy or park area.  

Vantage's property includes the grassy area.  Once on the property, at least one of Ms. 

Smith's siblings ran into the water to avoid paying the fee.  Ms. Smith stated in her 

deposition that when the Vantage employee approached her about the fee, Ms. Smith was 

putting her things down on a grassy knoll.  The employee told Ms. Smith "that there's a 

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$5 charge per person that swam." CP at 140. Ms. Smith then said that she indicated to 

the employee that she wanted to jump and the employee said, "it still costs $5."  CP at 

140. Ms. Smith was standing on the grassy hill during this conversation.  According to 

this version of the conversation given by Ms. Smith, Vantage did not tell Ms. Smith that 

there was a fee to cliff jump, only for each person who swam.  Since Ms. Smith was 

already on the fee area, it was not misleading for the employee to tell Ms. Smith that she 

still had to pay the fee, regardless of whether she wanted to access the cliff or swim. 

       When compared to Panag, the nature of the $5 fee was not misleading. The 

Vantage employee correctly stated the fee was $5, regardless of whether Ms. Smith 

wanted to jump or swim.  The conversation is not evidence of a deceptive act.  If Ms. 

Smith utilized the fee area, even if she left to do other activities, Vantage could still 

charge the $5 fee.

       Later in the deposition, Ms. Smith expanded on the conversation, mentioning 

swimming in her plans.  In this testimony, Ms. Smith never expresses to the Vantage

employee that she wanted only to cliff jump or that her activities would be limited to the 

PUD property.

              Q. . . . So was it the male who spoke to you telling you it was $5 per 
       person to swim?
              A. I can't specifically recall what I do recall, I just told you.  So I 
       don't know who initially requested the $5.  I know I had indicated to him 
       and she took the cash, but -- 

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              Q. So you remember telling the male that you wanted to jump and 
       you remember the female taking the money from you; is that correct?
              A. Yes. 
              Q. Would both the male and female have been within earshot when 
       you were talking about jumping?
              A. Well, I indicated to him I was -- I didn't have intentions to just
       swim.  I had intentions to jump because that's where everybody was.  There 
       was nobody just swimming at that point. 

CP at 140 (emphasis added).

       Ms. Smith stated that she told the Vantage employee that she wanted to jump as 

well as swim.  She reiterated her intent to swim later in the deposition when she said, 

"We got out of the car with the sole purpose of swimming so we went directly in that 

direction." CP at 141. Ms. Smith did not make it clear that she wanted only to cliff 

jump.  Again, this conversation is not evidence that the fee paid by Ms. Smith was to cliff 

jump.

       In her declaration filed one year after her deposition, Ms. Smith gave a different 

version of events.  Ms. Smith stated in her declaration that when she arrived at Vantage, 

she started walking to the cliff jumping area.  The Vantage employee stopped her as she 

approached the cliff jumping area.  She stated that she pointed to the cliff area and asked 

the employee if she still needed to pay if she "just wanted to jump off of the cliff"

because she "did not intend to use any other facilities." CP at 119. She stated that the

employee answered that she "still had to pay the fee, even just to jump." CP at 120.

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       When a party gives clear answers to unambiguous deposition questions that negate 

the existence of any genuine issue of material fact, that party cannot then create an issue 

by affidavit that without explanation merely contradicts previously given clear testimony.

Marshall v. Bally's Pacwest, Inc., 94 Wn. App. 372, 379, 972 P.2d 475 (1999) (quoting 

Duckworth v. Langland, 95 Wn. App. 1, 7-8, 988 P.2d 967 (1998)).  

       Ms. Smith's declaration contradicts her deposition testimony.  She gives a 

different version of her use of Vantage property and her conversation with the Vantage 

employee.  Ms. Smith's declaration cannot override her previous deposition to create an 

issue of fact. 

       In summary, Ms. Smith used the fee area once she entered and placed her things 

on the grass.  Therefore, the Vantage employee correctly told Ms. Smith that she had to 

pay, whether she wanted to swim or jump.  Ms. Smith does not provide evidence that 

Vantage charged her only to cliff jump.  Ms. Smith fails to create a genuine issue of 

material fact as to her CPA claim.

       Negligence.  "A cause of action for negligence requires the plaintiff to establish 

(1) the existence of a duty owed, (2) breach of that duty, (3) a resulting injury, and 

(4) a proximate cause between the breach and the injury." Tincani v. Inland Empire 

Zoological Soc'y, 124 Wn.2d 121, 127-28, 875 P.2d 621 (1994).  

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       In Washington, the possessor of land has a duty of care to persons on their 

property based on the entrant's common law status as an invitee, licensee, or trespasser.  

Curtis v. Lein, 150 Wn. App. 96, 103, 206 P.3d 1264 (2009), rev'd on other grounds, 169

Wn.2d 844, 239 P.3d 1078 (2010).  A person is an invitee if he or she is a business visitor 

invited on the property to conduct business with the possessor of the land.  Younce v. 

Ferguson, 106 Wn.2d 658, 667, 724 P.2d 991 (1986) (quoting Restatement (Second) of 

Torts § 332 (1965)).  A customer is entitled to expect that the business owner will 

exercise reasonable care to make the premises safe for his or her entry.  Tincani, 124 

Wn.2d at 138-39 (quoting Restatement § 343 cmt. b).  This duty requires the business 

owner to inspect for dangerous conditions, followed by such repair, safeguards, or 

warnings as may reasonably be necessary for the customer's protection under the 

circumstances.  Id. at 139 (quoting Restatement § 343 cmt. b).  This duty extends 

throughout the area that the customer reasonably believes is open to him or her.  Id. at 

140.

       A person is a possessor of land if he or she is

              (a) a person who is in occupation of the land with intent to control it 
       or 
              (b) a person who has been in occupation of land with intent to 
       control it, if no other person has subsequently occupied it with intent to 
       control it, or 
              (c) a person who is entitled to immediate occupation of the land, if 
       no other person is in possession under Clauses (a) and (b).

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Ingersoll v. DeBartolo, Inc., 123 Wn.2d 649, 655, 869 P.2d 1014 (1994) (quoting 

Restatement § 328E).

       Significant here, a property owner does not have a duty to protect visitors from 

dangers on adjacent lands.  McMann v. Benton County, Angeles Park Comtys, Ltd., 88 

Wn. App. 737, 742, 946 P.2d 1183 (1997). 

       Ms. Smith relies on Albin v. National Bank of Commerce of Seattle, 60 Wn.2d 

745, 375 P.2d 487 (1962) to show that an owner or occupier of land has a duty to prevent 

harm on adjacent premises when the occupier has knowledge of a dangerous, natural 

condition on the adjacent premises.  In Albin, a tree that was standing on the landowner's 

property fell during a windstorm and struck a car driving on the adjacent county road.  Id. 

at 747.  The court held that the landowner had no liability to the persons on the adjacent 

property unless the landowner knew of the dangerous condition created on his land.  Id. 

at 752.

       In Tincani, a student visiting a zoo left the zoo's main trail to follow a nature trail. 

Tincani, 124 Wn.2d at 125-26.  While exploring the nature trail on zoo property, the 

student fell off a cliff.  Id. at 126.  The trial court stated that a duty to an invitee is limited 

to the area where the person is invited.  Id. at 140 (quoting Restatement § 332 cmt. 1).  

Therefore, "[i]f the Zoo were negligent in creating boundaries, the area of invitation 

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No. 29804-3-III
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would have extended to all places a zoo patron reasonably believed were held open to 

him or her."  Id.  The zoo's negligent marking of the main trail extended the area of 

invitation for visitors to include the cliff.  Id. at 141.  The court also found that the zoo 

should have anticipated the harm from the cliff because of the number of children visiting 

the zoo and because of the zoo's invitation to guests to "'walk in the wild.'"  Id. 

       While on Vantage's property, Ms. Smith was a business visitor.  Vantage owed

Ms. Smith a duty of care as an invitee while she was inside the fee area.  However, 

Vantage did not owe a duty of care to Ms. Smith to warn her of the dangers at the cliff.  

And Vantage did not have a duty to protect visitors from the dangers on the adjacent PUD 

property.  See McMann, 88 Wn. App. at 742.

       Ms. Smith mistakenly uses Albin as an attempt to expand Vantage's duty of care to

the adjacent property.  In Albin, the landowner's potential liability for the accident on the 

adjacent public road was derived from the tree that fell from the landowner's property.  

Albin, 60 Wn.2d at 751-52.  In contrast to Albin and Tincani, Vantage did not have 

ownership of the land where the cliff is located, nor did Vantage's property have any 

relation to the dangerous condition on the adjacent cliff property.  Vantage's liability 

does not extend to the adjacent cliff.

       Furthermore, Vantage did not have control over the cliff portion of the PUD 

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No. 29804-3-III
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property and, therefore, did not possess that land.  Contrary to Ms. Smith's contention, 

Vantage did not treat the cliff as Vantage property.  As determined previously, Vantage 

did not charge a fee to use the cliff.  Again contrary to Tincani, Vantage did not invite 

guests to use the cliff.  Instead, Vantage attempted to prohibit use of the cliff by erecting 

a fence to block access and by putting up no trespassing signs.  Vantage did not owe a 

duty of care to Ms. Smith to protect her from the dangers associated with the cliff.

       We affirm the decision of the trial court granting summary judgment in favor of 

Vantage.

                                                    _________________________________
                                                    Kulik, C.J.

WE CONCUR:

____________________________________
Korsmo, J.

____________________________________
Siddoway, J.

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