For Appellants: Glen K. Thorsted, Attorney At Law, Suite 300, 800 Bellevue Way Ne, Bellevue, WA 98004. Jack C. Helgesen, C/o G. Kent Thorsted, 800 Bellevue Way N. E., Suite 300, Bellevue, WA 98004.

For Defendants: John J. Soltys, Cozen and O'Connor, 5200 Washington Mutual Tw, 1201 Third Avenue, Seattle, WA 98101-3000.

For Respondents: John J. Soltys, Cozen and O'Connor, 5200 Washington Mutual Tw, 1201 Third Avenue, Seattle, WA 98101-3000. Kenneth S. McEwan, Betts Patterson & Mines, 800 Financial Ctr, 1215 Fourth Ave, Seattle, WA 98161. Martin T. Collier, Attorney At Law, 800 Financial Cntr, 1215 4th Ave, Seattle, WA 98161-1090.

Authored by Faye C. Kennedy. Concurring: C. Kenneth Grosse, Susan R. Agid.

KENNEDY, A.C.J.

Dr. Veronica Buffington and her husband John Ellis (collectively, Dr. Buffington) appeal the trial court's order on summary judgment dismissing their negligence claims against Harbor Properties, Inc., and others (collectively, Harbor Properties) and S-R, Inc., d/b/a Other Place Restaurant (the Restaurant), contending that there are material issues of fact as to the cause of Dr. Buffington's fall in Harbor Properties' South Arcade Mall, precluding summary judgment. Dr. Buffington also appeals the trial court's denial of her motion for a ruling that the affirmative duty doctrine survived the enactment of the Tort Reform Act.

Finally, she appeals the trial court's denial of her motion to compel production of a psychiatric report from a psychiatrist retained by the Restaurant, contending that Civil Rule 35 mandates the production of such a report upon the request of the party examined. We reinstate Dr. Buffington's claims against the respondents, and rule that the affirmative duty doctrine was not abrogated by the passage of the Tort Reform Act, but we affirm the trial court's ruling with respect to the psychiatric report.

On August 10, 1989, between 11 a.m. and noon, Dr. Buffington was walking down a sloped pedestrian ramp in the common area of the South Arcade Mall when she slipped and fell forward onto her head. When asked how she fell, Dr. Buffington testified: "As I walked past Merry Tales' store front and was looking in that direction, I stepped down on my right heel. My right heel slid out from underneath me." Dr. Buffington testified that she does not know what caused her to slip and fall. She alleged, however, that she suffered serious, permanent brain injury as a result of the fall.

Harbor Properties owns and maintains the common areas of the South Arcade Mall, including the pedestrian ramp on which Dr. Buffington fell.

The Restaurant was one of many tenants in the South Arcade Mall at the time of Dr. Buffington's fall. On August 10, 1992, 3 years after the date of the fall, Dr. Buffington brought an action for bodily injuries and negligence against Harbor Properties and the Restaurant. She alleged that Harbor Properties was negligent in its design and creation of the pedestrian ramp, and also in failing to maintain the ramp in a safe condition. Dr. Buffington further alleged that the Restaurant was negligent in the operation of its restaurant by causing a trail of grease to form on the pedestrian ramp between its back door and the door to the Mall's janitor closet. According to Dr. Buffington's theory of the case, the respondents' negligence was the direct and proximate cause of her fall and resulting bodily injuries.

In support of her negligence claims, Dr. Buffington presented the testimony of Dr. John Templer. Dr. Templer opined that the pedestrian ramp in the South Arcade Mall was the proximate cause of Dr. Buffington's fall because it was too steep and the coefficient of friction of the floor surface was inadequate. He further opined that the presence of grease on the floor would dramatically change the coefficient of friction, for the worse.

In addition to Dr. Templer's testimony, Dr. Buffington also presented the testimony of two employees of American Building Maintenance (ABM), with whom Harbor Properties had contracted to conduct periodic stripping, cleaning and re-waxing of the ramp floor. The ABM employees testified that a film of grease was present on the floor near the janitor's closet almost every time they worked at the Mall. One of the employees recalled that he had "almost slipped there about three or four times." Both ABM employees testified that they believed the condition resulted from Restaurant employees tracking grease from the Restaurant's kitchen while taking garbage to the janitor's closet. The ABM employees testified that the grease trail was not visible to the naked eye. They cleaned the ramp on July 24, 1989, 17 days before Dr. Buffington's fall, and the grease trail was there. They next cleaned the ramp on August 14, 1989, 4 days after Dr. Buffington's fall, and the grease trail was again present.

Finally, Dr. Buffington presented a memo from Harbor Properties to the Restaurant sometime before she fell, requesting, inter alia, that the Restaurant clean the area of the pedestrian ramp between its back door and the janitor's closet:

Please help us keep the Arcade looking clean by scrubbing the portion of the arcade floor between the arcade entry door and the janitor room. Cleaning on a daily basis will help remove the grease and dirt being tracked from the restaurant onto the arcade floor.

On August 9, 1995, the Restaurant brought a motion for summary judgment, contending that because Dr. Buffington failed to present evidence that grease or any other foreign substance was on the floor on the date of the fall, she was unable to establish the cause of her fall, and thus the dismissal of all of her claims against it was proper. Harbor Properties joined in the motion, and requested that if the court dismissed the Restaurant from the action, then Dr. Buffington should be precluded from presenting evidence at trial regarding the presence of a foreign substance on the floor which may have caused her fall.

In support of their motions, the respondents presented the testimony of several Restaurant employees who stated that they had never observed grease or any other foreign substance on the ramp floor where Dr. Buffington fell. Moreover, a number of witnesses speculated as to other potential conditions that could have caused Dr. Buffington's fall. These included: (1) the possibility that, as had happened in the past, water had overflowed from the sink in the janitor's closet onto the pedestrian ramp;

(2) the possibility that the cleaning of a nearby fountain resulted in water on the ramp; (3) an optical illusion; (4) Dr. Buffington's own carelessness; (5) Dr. Buffington's shoes, which she had re-soled shortly after the fall; and (6) the design of the ramp itself.

The respondents also focused on their rigorous maintenance practices, noting that in addition to the periodic services provided by ABM, Harbor Properties also contracted for daily cleaning of the Mall's common areas and conducted daily walk-through inspections to ensure there were no hazards present.

The respondents asserted that although Dr. Buffington relied on the testimony of the ABM employees regarding the presence of grease on the ramp, neither ABM employee was present at the South Arcade Mall on the day Dr. Buffington fell, the last cleaning having occurred approximately 2-1/2 weeks prior to that date. Similarly, the respondents relied on Dr. Buffington's admission that she failed to look at the floor following the fall, arguing that, as was the case with the rest of her witnesses, Dr. Buffington did not know what caused her to fall.

On October 16, 1995, the court granted the respondents' motions for summary judgment, concluding:

After six years, [Dr. Buffington] is unable to produce any evidence, direct or circumstantial, from which a reasonable inference could be taken that a foreign substance deposited or neglected by any of the [respondents] proximately caused her fall and alleged injuries.

This Court finds that the evidence produced by [Dr. Buffington] as to the fall being caused by a foreign substance is limited to testimony concerning the presence of such material on the ramp or sloped floor area and in that vicinity on other occasions and at other periods of time. [Dr. Buffington has] introduced evidence about grease trails at other periods, food disposal practices, cleaning practices and other events occurring close to or near the ramp at other periods of time.

This Court finds that under the facts presented in support of [Dr. Buffington's] motion, it would not be a reasonable inference that Dr. Buffington's fall was caused by a foreign substance and [her] claims against all [respondents] based on this theory must be dismissed.

Based on its summary judgment order, the court dismissed all of Dr. Buffington's claims against the Restaurant. The court preserved for trial, however, Dr. Buffington's claims against Harbor Properties based on its alleged negligence in the design and creation of the pedestrian ramp.

Although the court certified its summary judgment order as final under CR 54(b), this court rejected the certification and dismissed Dr. Buffington's first appeal. In an effort to create a final, appealable order, Dr. Buffington stipulated to a dismissal of her remaining claims without prejudice against Harbor Properties. The court entered a final order on April 16, 1996, and this timely appeal followed.

Dr. Buffington first contends that the trial court erred in dismissing her negligence claims on summary judgment, arguing that the evidence submitted below raised a genuine issue of material fact as to whether a trail of grease on the pedestrian ramp caused her fall. Harbor Properties and the Restaurant respond that because Dr. Buffington cannot establish the presence of grease or any other foreign substance on the ramp at the time of the fall, she is unable to carry the burden of establishing the cause of her fall, and thus the dismissal of her claims on summary judgment was proper.

When reviewing an order granting summary judgment, an appellate court engages in the same inquiry as the trial court. Failor's Pharmacy v. D.S.H.S., 125 Wash. 2d 488, 493, 886 P.2d 147 (1994); Fisher v. Aldi Tire, Inc., 78 Wash. App. 902, 906, 902 P.2d 166 (1995), review denied, 128 Wash. 2d 1025, 913 P.2d 816 (1996). All facts and reasonable inferences must be considered in the light most favorable to the nonmoving party. Mountain Park Homeowners Ass'n, Inc. v. Tydings, 125 Wash. 2d 337, 341, 883 P.2d 1383 (1994). This court will affirm an order granting summary judgment if there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. CR 56(c).

The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Whatcom Cy. v. City of Bellingham, 128 Wash. 2d 537, 549, 909 P.2d 1303 (1996); Young v. Key Pharmaceuticals, Inc., 112 Wash. 2d 216, 225, 770 P.2d 182 (1989). If the defendant is the moving party, it may meet its initial burden by pointing out to the court that there is an absence of evidence to support the nonmoving party's case. Howell v. Spokane & Inland Empire Blood Bank, 117 Wash. 2d 619, 624, 818 P.2d 1056 (1991) (citing Young, 112 Wash. 2d at 225 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). Once that burden is met, the burden shifts to the party with the burden of proof at trial, the plaintiff.

If, at this point, the plaintiff "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial", then the trial court should grant the motion.

Hiatt v. Walker Chevrolet Co., 120 Wash. 2d 57, 66, 837 P.2d 618 (1992) (citations omitted) (quoting Young, 112 Wash. 2d at 225) (quoting in turn Celotex, 477 U.S. at 322-23)).

To establish the elements of an action for negligence, a plaintiff must show: "'(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.'" Iwai v. State, 129 Wash. 2d 84, 96, 915 P.2d 1089 (1996) (quoting Tincani v. Inland Empire Zoological Soc'y, 124 Wash. 2d 121, 127-28, 875 P.2d 621 (1994)). In premises liability cases, the scope of the duty owed by an owner or occupier of land is determined by the status of the plaintiff. Tincani, 124 Wash. 2d at 128; Zenkina v. Sisters of Providence in Washington, Inc., 83 Wash. App. 556, 560, 922 P.2d 171 (1996), review denied, 131 Wash. 2d 1003, 932 P.2d 644 (1997). As an invitee of the South Arcade Mall, Dr. Buffington was owed a duty of ordinary care.¹  Zenkina, 83 Wash. App. at 561; Watters v. Aberdeen Recreation, Inc., 75 Wash. App. 710, 714, 879 P.2d 337 (1994).

Once a plaintiff has established a duty owed by the defendant, "the first step toward proving breach is to produce evidence from which it can be inferred that an unsafe condition existed." Watters, 75 Wash. App. at 714. Citing Watters, the respondents contend that Dr. Buffington has failed to produce such evidence. In Watters, the plaintiff sued Aberdeen Recreation after she fell and fractured her hip in its bowling alley. She alleged that Aberdeen Recreation was negligent in failing to properly inspect the premises and her rental shoes, in failing to maintain the premises in a safe condition, and in failing to discover and remove a dangerous condition. Although the plaintiff asserted that a foreign substance on the lane or on her shoes caused her foot to slip, she candidly admitted that she did not inspect the lane after she fell, and that she had "no idea" what the substance might have been. Watters, 75 Wash. App. 710, 879 P.2d 337.

She explained her belief that a foreign substance had caused her fall as follows: "From the feeling that I experienced when I lost control, I believe that my foot contacted a foreign substance on the lane approach or, perhaps, on the bottom of my rented bowling shoes." Watters, 75 Wash. App. at 713, 879 P.2d 337.

Aberdeen Recreation moved for summary judgment, arguing that the plaintiff failed to present evidence of an unsafe condition involving the floor or her shoes. In support of its motion, Aberdeen Recreation submitted the affidavits of three witnesses stating that they checked the floor immediately after the fall, but found no evidence of a slippery substance. Two of the witnesses similarly stated that they checked the plaintiff's shoes but again found nothing. In opposition to the motion for summary judgment, the plaintiff submitted the declaration of a physician who specialized in biokinetics, stating:

6. Given the angle of such impact, it is my opinion, based upon reasonable medical certainty, that the Plaintiff did not fall as a result of tripping or stumbling; rather, it is my opinion that [the plaintiff] fell as a result of a sudden loss of traction under one, or both, of her feet.

7. Based upon my inspection of the bowling lanes and approaches, it is my opinion that some foreign substance was on the approach used by [the plaintiff], which foreign substance would have caused sudden loss of traction experienced by [the plaintiff].

Watters, 75 Wash. App. at 713.

The trial court granted Aberdeen Recreation's motion for summary judgment and the appellate court affirmed. After dismissing the plaintiff's expert's testimony as lacking the requisite support under ER 702, the court concluded:

Here, [the plaintiff] has no personal knowledge that an unsafe condition existed at the time of her fall, either with respect to the floor or with respect to the bowling shoes she had rented. Three other witnesses are prepared to testify, based on personal knowledge, that no such condition existed. . . . In sum, [the plaintiff] lacks evidence from which a jury could reasonably infer that an unsafe condition existed, and the trial court did not err by granting summary judgment.

Watters, 75 Wash. App. at 714-15 (citations omitted).

The present case is different from Watters. Although Dr. Buffington had no personal knowledge of what caused her to fall,²  she presented evidence that the trail of grease was present almost every time the cleaners from ABM cleaned the ramp. The grease trail was present 17 days before the fall. It was present again 4 days after the fall. A rational jury could reasonably infer that the grease trail did not suddenly appear in the 4 days following the fall, and that it more likely than not had built up during the 17 days since the last cleaning and was present on the day of the fall. That neither Dr. Buffington nor the individual responsible for daily walk-through inspections of the Mall nor any of the Restaurant employees saw the grease trail is not dispositive; Dr. Buffington presented evidence that although the grease trail was almost always present at the time of the periodic cleanings, and was very slippery, it was not visible to the naked eye.

As for proximate cause, the respondents correctly point out:

A verdict cannot be founded on mere theory or speculation. If there is nothing more tangible to proceed upon than two or more equally reasonable inferences from a set of facts, and under only one of the inferences would the defendant be liable, a jury will not be allowed to resort to conjecture to determine the facts.

Schmidt v. Pioneer United Dairies, 60 Wash. 2d 271, 276, 373 P.2d 764 (1962) (citations omitted). See also Pepper v. J.J. Welcome Construction Co., 73 Wash. App. 523, 547-48, 871 P.2d 601 (1994). Moreover, "the mere existence of an accident is insufficient proof of an unreasonable risk". Las v. Yellow Front Stores, Inc., 66 Wash. App. 196, 199, 831 P.2d 744 (1992).

In Gardner v. Seymour, 27 Wash. 2d 802, 180 P.2d 564 (1947) our Supreme Court explained the difference between a reasonable inference from the evidence and conjecture. There, an employee fell down a freight elevator shaft; as a result of his injuries, he died. His widow sued the employer for wrongful death. The evidence showed that the employees in the 6-floor building could (and by reasonable inference did with some frequency) avoid using the stairs when the freight elevator was on another floor by slipping a knife blade or a piece of cardboard through the opening between the elevator doors, unlatching a safety device, and then manipulating the elevator cables to bring the platform of the freight elevator to the floor they were on. This meant that the elevator doors on the floor where the elevator had just been would be left standing open.

Nobody saw the employee fall. He could have fallen down the shaft through the open doors if another employee had manipulated the cables to move the platform to another floor; it was equally likely that he could have been manipulating the cables himself, lost his balance, and fallen into the empty shaft. The Supreme Court ruled that the widow had presented sufficient evidence to get to the jury on the question of whether the employer provided a safe place to work, given the ease with which the elevator's safety device could be disabled, but that she failed to provide sufficient evidence from which a jury could infer that the employer's negligence was the proximate fall of the accident.

In so ruling, the court explained that a reasonable inference is "that Conclusion to which the mind will inevitably return when it weighs the circumstances for either side, and will say, not arbitrarily, but as the result of due deliberation and a measuring of all the facts, that the proximate cause of the accident is to be found in the negligent conduct of the party charged." Gardner, 27 Wash. 2d at 808 (internal quotation marks and citation omitted). Moreover:

The test . . . is whether the jury could have determined that the [employer was] liable as a reasonable inference from the evidence, or whether the verdict rests on conjecture. . . .

The rule is well established that the existence of a fact or facts cannot rest in guess, speculation, or conjecture. It is also the rule that the one having the affirmative of an issue does not have to make proof to an absolute certainty. It is sufficient if [the] evidence affords room for [people] of reasonable minds to conclude that there is a greater probability that the thing in question . . . happened in such a way as to fix liability upon the person charged therewith than it is that it happened in a way for which a person charged would not be liable. In applying the circumstantial evidence submitted to prove a fact, the trier of fact must recognize the distinction between that which is mere conjecture and what is a reasonable inference.

The burden of proving proximate cause is not sustained unless the proof is sufficiently strong to remove that issue from the realm of speculation by establishing facts affording a logical basis for all inferences necessary to support it[.]

Gardner, 27 Wash. 2d at 808-09 (internal quotation marks and citations omitted).

The court went on to explain that "no legitimate inference can be drawn that an accident happened in a certain way by simply showing that it might have happened in that way, and without further showing that it could not reasonably have happened in any other way." Gardner, 27 Wash. 2d at 810 (internal quotation marks and citation omitted). Thus, although the employee might have fallen down the elevator shaft because some other employee manipulated the elevator cable, leaving the doors open over an empty shaft on the floor the employee was on, the widow could not show that the accident could not reasonably have happened because the employee himself manipulated the cables and, in the process, fell to his death.

Here, the respondents argue that Dr. Buffington can only show that she might have fallen because of the grease trail, but that she cannot show that she could not reasonably have fallen for some other reason: water may have overflowed from the sink in the janitor's closet; the cleaning of a nearby water fountain may have resulted in water on the ramp; Dr. Buffington may have been the victim of an optical illusion; Dr. Buffington may simply have been careless; the soles of Dr. Buffington's shoes may have been unreasonably slippery; another pedestrian may have dropped an ice cream cone or a gum wrapper onto the ramp; the design and construction of the ramp might be the sole cause of the accident, in that no foreign substance may have been present at all. Thus, respondents' argue, this is a case in which the jury would have to speculate as to the cause of the fall. We disagree.

Although people do fall down and hurt themselves for many reasons, in Gardner, substantial evidence was presented that the employee could as easily have fallen down the elevator shaft while manipulating the cables as by reason that another employee on another floor did so, leaving the doors open over an empty shaft. Here, there is no evidence to support any of the respondents' several theories except the last one: Dr. Buffington presented expert opinion that the ramp was unsafe even in the absence of any foreign substance, but all the more unsafe when any foreign substance was present.

Although a jury cannot be allowed to speculate between one or more equally likely causes, a defendant cannot escape trial by presenting speculation, as opposed to substantial evidence, that some other cause, besides its alleged negligence, could have been the cause of the injury.

Were this not so, few negligence cases would ever reach a jury. Indeed, virtually any accident could be explained, through speculation, as possibly having been caused by some other reason than that proffered by the plaintiff. For example, a defendant could escape trial despite substantial evidence that an automobile crash was caused by his or her failure to stop for a red light by speculating that the light might have been malfunctioning, despite the lack of any evidence in that regard, because traffic lights do, sometimes, malfunction and because the defendant sincerely believes he or she would have noticed if the light had been red.

Similarly, a defendant could escape trial despite substantial evidence that an automobile crash was caused by improper road design by speculating that a phantom driver may have forced the plaintiff off the road, despite the lack of evidence that a phantom driver did so in the case at bar because drivers do, sometimes, force other drivers off the road and then disappear into the night.

People do, sometimes, drop ice cream cones and gum wrappers in pedestrian malls; people do, sometimes, wear slippery-soled shoes; people are, sometimes, mislead by optical illusions; water does, sometimes, end up on pedestrian ramps for any number of reasons, varying from overflowing sinks in nearby janitor's closets to the repair of nearby fountains. But there is no evidence whatsoever in this case that any of these events occurred shortly before Dr. Buffington fell. There is substantial evidence from which a rational trier of fact could reasonably infer that grease being tracked from the Restaurant kitchen to the nearby janitor's closet not only had in the past built up between cleanings but also was likely to do so again, that being the common experience with grease build-up, and that the grease that was last thoroughly removed 17 days earlier, and found to be present again 4 days later, more likely than not was present on the day of the fall.

The adequacy of the housekeeping practices of the Restaurant and of Harbor Properties presents a jury question, in that a rational trier of fact could infer that despite daily mopping and daily walk-through inspections, more frequent stripping and thorough cleaning was required in view of the knowledge by the Restaurant and Harbor Properties that the grease trail had been a problem in the past. See Coleman v. Ernst Home Ctr., Inc., 70 Wash. App. 213, 223, 853 P.2d 473 (1993) (adequacy of housekeeping presents a jury question where rational trier of fact could infer from evidence that daily inspections not adequate in light of known frequency of dangerous condition).

In the proceedings below, Dr. Buffington sought to impose liability on Harbor Properties, Inc., for the acts of third persons, some of whom are named defendants and some not, based on the affirmative duty doctrine set forth in G. W. Blancher v. Bank of California, 47 Wash. 2d 1, 286 P.2d 92 (1955). For purposes of summary judgment, Dr. Buffington conceded that all these third parties were assumed to be independent contractors and not agents or employees performing within the scope of such agency or employment. The trial court denied Dr. Buffington's motion. She contends that this was error.

Harbor Properties contends on appeal, as it did below, that the affirmative duty doctrine did not survive Washington's Tort Reform Act, Ch. 4.22 RCW. Although Harbor Properties correctly points out that the record is not sufficiently developed for us to determine on appeal which of the various third parties may actually be independent contractors and which may not, and although it is unclear from the record what actions various of these parties may have taken or failed to take that might give rise to a theory of liability on the part of Harbor Properties, nevertheless, in a case of the complexity of this one, it is not inappropriate to seek summary judgment on a pure question of law that may affect the liability of a named party for acts or omissions of third parties who were engaged in the maintenance or repair of the ramp and of areas immediately adjacent to the ramp. Accordingly, we elect to address the question of law. Clearly, we are not in a position to address the individual capacities and activities of the various third parties, whether those activities give rise to a viable theory of negligence, or whether those activities may have proximately contributed to Dr. Buffington's injuries, and our opinion should not be read as a comment with respect to any of those matters. We address only the question of whether the affirmative duty doctrine survived the Tort Reform Act, and we hold that it did.

In Blancher, a bank entered into a written contract with a contractor to have the main banking area cleaned and redecorated. The contractor was required to furnish scaffolding, equipment and labor and to work during banking hours. With the consent of the bank, the contractor subcontracted for the necessary scaffolding. During normal banking hours, a customer came in. After finishing her business, she turned to leave and fell over a stepladder that was lying flat on the floor immediately behind her.

Evidence was presented that one of the subcontractor's employees placed the ladder on the floor, and that it was the responsibility of the contractor and the subcontractor to keep the lobby of the bank clear of all obstructions. A jury found the bank, the contractor and the subcontractor each to be liable to the customer for her injuries suffered in the fall.

In the ensuing appeal, the bank assigned error to the trial court's refusal to instruct the jury that it could not be held liable for the negligence of the two independent contractors. The Supreme Court affirmed, however, citing the following principle which is sometimes referred to as the affirmative duty doctrine: " storekeeper may not relieve himself of the duty to use reasonable care to keep his premises in a reasonably safe condition for the use of his invited customers and his prospective customers by contracting with others and relying upon them to take the necessary precautionary measures." Blancher, 47 Wash. 2d at 8 (internal quotation marks and citation omitted).

It was the law in Washington at the time of Blancher that tortfeasors were jointly and severally liable. Harbor Properties, Inc., argues that Blancher should be confined to its facts and that the affirmative duty doctrine must be reanalyzed in light of the Tort Reform Act, under which the trier of fact must apportion fault in most cases, and under which the liability of most defendants is several only. We pronounce the affirmative duty doctrine to be alive and well in Washington, however.

The liability of a landowner to an invitee and the breach of that duty is based on the negligence of the landowner in failing to protect the invitee from the consequences of the negligence of the independent contractor. Blancher, 47 Wash. 2d at 9 (citing Great Am. Indem. Co. v. Deatherage, 175 Okla. 28, 52 P.2d 827, 830 (Okla. 1935)). A business owner's duty to use ordinary care to avoid injury to its invitee is non-delagable. Blancher, 47 Wash. 2d at 8. If the landowner fails to use that care, it is vicariously liable for the negligent acts of the independent contractor when the contracted work may render the premises dangerous to invitees. Id.

The Tort Reform Act has not done away with vicarious liability. See RCW 4.22.070 (providing for joint and several liability where a person was acting as agent or servant of the other party). We find nothing in the Act that indicates the Legislature intended to abrogate the common law principles of vicarious liability for acts of independent contractors affecting the safety of business invitees.

On June 5, 1995, Dr. Buffington was examined by Dr. Philip Lindsay, a psychiatrist retained by the Restaurant. Following the examination, Dr. Buffington requested a copy of Dr. Lindsay's Independent Medical Examination (IME) report. When the Restaurant responded that Dr. Lindsay would not be called to testify at trial, and accordingly had not prepared a report, Dr. Buffington moved to compel production of the report under CR 35, offering to pay for the preparation of the report. On October 16, 1995, the court denied the motion to compel.

Dr. Buffington contends that the trial court erred in denying her motion to compel, arguing that CR 35 mandates the production of an IME report upon the request of the party examined. The Restaurant responds that because a report was never prepared by Dr. Lindsay, the trial court did not err in denying Dr. Buffington's motion to compel.

CR 35 provides in pertinent part:

(b) Report of Examining Physician or Psychologist.

(1) If requested by the party against whom an order is made under rule CR 35(a) or the person examined, the party causing the examination to be made shall deliver to the requesting party a copy of a detailed written report of the examining physician or psychologist setting out the examiner's findings, including results of all tests made, diagnosis and Conclusions, together with like reports of all earlier examinations of the same condition, regardless of whether the examining physician or psychologist will be called to testify at trial.

Although CR 35 speaks in the imperative by using the mandatory term "shall", the rule presupposes the preparation of a report by the examining physician or psychologist. Here, it is undisputed that Dr. Lindsay did not prepare a report following his examination of Dr. Buffington. Because the rule by its express terms compels the delivery of a report, rather than the preparation of one, and because Dr. Lindsay did not prepare a report in this case, the trial court acted within its discretion in denying Dr. Buffington's motion to compel.

We reverse the trial court's grant of summary judgment in favor of the Restaurant and Harbor Properties with respect to the question of whether grease on the ramp was a proximate cause of Dr. Buffington's fall and resulting injuries. We also reverse the trial court's ruling with respect to the continuing viability of Blancher following tort reform. We affirm the trial court's denial of Dr. Buffington's motion to compel. This case is remanded for such further proceedings as shall be consistent with this opinion.

WE CONCUR:

C. Kenneth Grosse
Susan R. Agid

Footnotes: