For Appellant: Jonathan F. Stubbs, H. Frank Stubbs Inc. Ps, 950 Pacific Avenue, Suite 1000, Tacoma, WA 98402.
For Respondent: Charles E. Peery, Peery Hiscock Pierson & Ryder, 505 Madison St., Ste 300, Seattle, WA 98104-1138. Laura P. Knechtel, 505 Madison St Ste 300, Seattle, WA 98104.
Authored by H. Joseph Coleman. Concurring: Mary K. Becker, Ann L. Ellington.
Pamela Boyer appeals the summary judgment dismissal of her store-owner negligence claim against Circle K Corporation. Boyer raises three theories of liability by asserting that a Circle K employee created the dangerous condition which caused her to fall, that the employee had constructive notice of the dangerous condition, and that the store's self-service nature results in liability without notice of the danger. We find, that when viewed in the light most favorable to the nonmoving party, genuine issues of fact exist concerning whether a Circle K employee created the condition that caused Boyer to trip and whether the employee had constructive notice of a dangerous condition.
We present the facts in the light most favorable to Boyer. On July 4, 1993, Pamela Boyer tripped and fell after purchasing a bottle of wine at the Auburn, Circle K convenience store. Boyer fell after feeling something catch in her sandal. Kay Nishiyori, one of two Circle K clerks on duty, first became aware of Boyer's fall when she heard a bottle break. After asking Boyer if she was okay, Nishiyori found a bracket/hanger on the floor near Boyer, picked it up, and took it to the back room. Due to store remodeling, the hanger has not been located.
Boyer states that Nishiyori admitted that she had been putting up shelves, that she must have forgotten to pick up the bracket, and that it was her fault that Boyer fell. Nishiyori states that at least one hour before Boyer's accident, she had observed a family with six children come into the store. The children had the run of the store and removed candy from the candy aisle and left it elsewhere in the store. Nishiyori inspected the store before the start of her shift, but because business was steady on the Fourth of July, no inspection occurred after the children left. Upon finding the hanger on the floor, Nishiyori assumed that the children had pulled the hanger out of the wall and left it on the floor.
Neither Boyer nor Nishiyori saw the hanger prior to Boyer's fall. Nishiyori has never seen or heard of any other falls in the Auburn Circle K or in other area stores.
Standard of Review:
When reviewing an order of summary judgment, this court engages in the same inquiry as the lower court. RAP 9.12; Marincovich v. Tarabochia, 114 Wash. 2d 271, 274, 787 P.2d 562 (1990). Summary judgment is appropriate "if 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); Carlyle v. Safeway Stores, Inc., 78 Wash. App. 272, 275, 896 P.2d 750, review denied 128 Wash. 2d 1004, 907 P.2d 297 (1995). A defendant may meet her initial burden of showing the absence of genuine factual issues by challenging the sufficiency of the evidence supporting an essential element of the plaintiff's claim. Carlyle, 78 Wash. App. at 275 citing Young v. Key Pharmaceuticals, Inc., 112 Wash. 2d 216, 225, 770 P.2d 182 (1989).
A material fact is one on which the outcome of litigation depends. Clements v. Travelers Indem. Co., 121 Wash. 2d 243, 249, 850 P.2d 1298 (1993). The court must consider the facts submitted and all reasonable inferences from those facts in the light most favorable to the nonmoving party. Clements, 121 Wash. 2d at 249. The motion should be granted only if, from all the evidence, reasonable persons could reach but one Conclusion. Clements, 121 Wash. 2d at 249.
To prevail on her negligence claim, Boyer has the burden of establishing that: (1) Circle K owed a duty of care to Boyer; (2) Circle K breached that duty of care; (3) the breach resulted in injury; and (4) the breach was the proximate cause of the injury. See Tincani v. Inland Empire Zoological Soc'y, 124 Wash. 2d 121, 127-28, 875 P.2d 621 (1994). In this case, Boyer, a business invitee, claims that Circle K was negligent in the maintenance and operation of its self-service convenience store.
A landowner's duty to licensees attaches when the landowner "'knows or by the exercise of reasonable care would discover the condition and should realize that it involves an unreasonable risk[.]'"; Iwai v. State, 129 Wash. 2d 84, 96, 915 P.2d 1089 (1996) (quoting Restatement (Second) of Torts sec. 343). To show knowledge, plaintiffs have the burden of establishing that the landowner had actual or constructive notice of the unsafe condition. Iwai, 129 Wash. 2d at 96; see Ingersoll v. DeBartolo, Inc., 123 Wash. 2d 649, 652, 869 P.2d 1014 (1994). Reasonable care requires that the landowner inspect for dangerous conditions. Tincani, 124 Wash. 2d at 139 (quoting Restatement (Second) of Torts sec. 343 cmt. b).
Two exceptions to the notice requirement exist. First, notice is not required if the plaintiff proves that the defendant created the dangerous condition. Iwai, 129 Wash. 2d at 102; Carlyle, 78 Wash. App. at 275. Second, notice is waived for foreseeably inherent unsafe conditions occurring in self-service businesses. Iwai, 129 Wash. 2d at 98; Pimentel v. Roundup Co., 100 Wash. 2d 39, 666 P.2d 888 (1983).
Circle K claims that summary judgment was proper because Boyer failed to establish that a dangerous condition caused her fall and that Circle K breached its duty to Boyer. We address each in turn.
Contrary to Circle K's assertion, Boyer has produced evidence of causation. Division Two of this court has stated that the plaintiff must produce first hand knowledge that an unsafe condition existed at the time of her fall. See Watters v. Aberdeen Recreation, Inc., 75 Wash. App. 710, 714, 879 P.2d 337 (1994). In Watters, summary judgment was affirmed because Watters did not personally observe an unsafe condition at the time of her fall and three witnesses were prepared to testify that based upon personal knowledge, no unsafe condition existed. Watters, 75 Wash. App. at 714. This case is distinguishable from Watters because both Boyer and Nishiyori have personal knowledge that a hanger/bracket was found on the floor near where Boyer fell. Thus, unlike Watters, if a jury believes Boyer's statement that she felt something catch her foot, it can infer that the recovered object caused Boyer's fall.
Breach of Duty:
We next turn to Boyer's alternative theories of breach of duty. First, we find Boyer's deposition and affidavit sufficient to create a genuine issue of material fact that an employee of Circle K created the dangerous condition. Through these documents, Boyer states that Nishiyori admitted that she was putting up shelves, that she must have forgotten the bracket, that she should not have left the bracket on the floor, that she should have picked it up, that the bracket must have been the cause of Boyer's fall, and that it was her fault that Boyer fell.
Boyer, in accord with CR 56(c) and (e), supported her claims with affidavits and depositions of specific facts based on personal knowledge. Whether a jury will choose to believe Boyer or Nishiyori is not our concern. A court is not to weigh evidence when ruling on a motion for summary judgment. No Ka Oi Corp. v. National 60 Minute Tune, Inc., 71 Wash. App. 844, 854 n.11, 863 P.2d 79 (1993), review denied 124 Wash. 2d 1002, 877 P.2d 1287 (1994).
Nevertheless, a narrow exception exists for deciding factual questions on summary judgment where reasonable minds could reach but one Conclusion from the evidence presented. Van Dinter v. City of Kennewick, 121 Wash. 2d 38, 47, 846 P.2d 522 (1993). Circle K contends that this is such a case because Boyer's claims that Nishiyori admitted to working on shelving and leaving a bracket on the floor are factually impossible. To support this argument, Circle K offers Nishiyori's statements that she was not working on shelving and that all shelf brackets were welded onto shelves creating integrated units. Apart from the questionable significance of characterizing the object as a hanger versus a bracket, in order to find in favor of Circle K, we would need to consider Nishiyori's statements more credible than Boyer's. As previously stated, credibility is an issue for the trier of fact. Moreover, Nishiyori, in her deposition, uses both terms to describe the recovered object. Therefore, we find that given the evidence, reasonable minds could reach more than one Conclusion.
Next, we turn to the question of whether a genuine issue exists concerning Circle K's constructive knowledge of the presence of a dangerous condition. In order for Boyer to show constructive notice, she must produce evidence that a reasonably prudent shopkeeper with adequate housekeeping procedures would have found the hanger or that there was an unreasonable risk that a hanger would be on the floor. See Coleman v. Ernst Home Center, Inc., 70 Wash. App. 213, 224, 853 P.2d 473 (1993). In Coleman, the plaintiff was injured when she tripped on a hole in an entrance way tire-mat carpet. Coleman, 70 Wash. App. at 215. The court stated:
The adequacy of housekeeping procedures is a jury question.
However, there must first be some evidence, in this case, from which a rational trier of fact could infer that to inspect only once a day, just before 9 a.m., was not adequate because the known frequency of loosened tire strips required greater vigilance.
Coleman, 70 Wash. App. at 223.
In this case, Boyer has failed to present evidence that Nishiyori's safety inspection prior to coming on duty at 2 p.m. is generally inadequate given Nishiyori's statement that she has never seen or heard of other falls in the Auburn Circle K or in other nearby stores. However, the fact that Nishiyori observed children removing candy from the candy aisle at least one hour before Boyer's fall and her quick assumption that they must have removed the hanger distinguishes this case from Coleman. These facts create a jury question regarding whether a reasonably prudent shopkeeper would have inspected the premises shortly after the children left the store.
Finally, we address whether the Pimentel exception applies in this case. The Pimentel exception eliminates the notice prong in negligence claims against self-service businesses that operate in a manner creating a continuous and foreseeably dangerous condition. See Pimentel v. Roundup Co., 100 Wash. 2d 39, 666 P.2d 888 (1983). Boyer oversimplifies the law by alleging that self-service grocery stores and self-service cafeterias are the type where the requirement for notice is eliminated because the existence of unsafe conditions is reasonably foreseeable. The self-service exception to notice has been continually narrowed to the point where "'self-service' is not the key to the exception." Iwai v. State, 129 Wash. 2d 84, 100, 915 P.2d 1089 (1996). Rather, the focus is on whether the nature of the business and mode of operation create a reasonably foreseeable dangerous condition. Iwai, 129 Wash. 2d at 100.
As applied to self-service businesses, the exemption from the notice requirement is restricted in the following three ways. First, a fact-specific inquiry into the particular self-service operation must show that the existence of unsafe conditions is reasonably foreseeable. Pimentel, 100 Wash. 2d at 49. Second, the plaintiff's injury must occur in the self-service area of the store. Coleman, 70 Wash. App. at 219. Third, the exception applies only to the section of the self-service area where the unsafe condition that caused the injury is "'continuous or foreseeably inherent in the nature of the business or mode of operation.'" Ingersoll v. DeBartolo, Inc., 123 Wash. 2d 649, 653, 869 P.2d 1014 (1994); Wiltse v. Albertson's, Inc., 116 Wash. 2d 452, 461, 805 P.2d 793 (1991).
Thus, in order to prevail on this claim, Boyer must show (1) that the routine operation of the Circle K store results in unsafe conditions, (2) that she was injured in a self-service area of the store, and (3) that it is inherent in the operation of the Circle K that a food hanger from some other aisle will end up on the floor in front of the cash register and trip someone.
Boyer failed to produce any evidence from which the trier of fact could reasonably infer that the nature and operation of the Circle K presented a reasonably foreseeable risk that food hangers would be on the floor next to the checkout counter where there were no displays with hangers. Nishiyori stated only that it was foreseeable that children would come into the store and remove and relocate candy. There is no evidence on the ease of removing hangers or the frequency that food hangers are removed and found on the floor. Thus, we find as a matter of law that there is insufficient evidence to find that the self-service exception to actual or constructive notice applies in this case.
Because genuine factual issues exist concerning whether a Circle K employee either created or had constructive notice of the dangerous condition, we reverse the lower court's grant of summary judgment and remand for proceedings consistent with this opinion.
Mary K. Becker
Ann L. Ellington