Opinion
No. 21896-1-III.
Filed: March 4, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Douglas County. Docket No: 02-2-00029-8. Judgment or order under review. Date filed: 03/14/2003. Judge signing: Hon. John Hotchkiss.
Counsel for Appellant(s), Scott Michael Kane, Attorney at Law, PO Box 7132, East Wenatchee, WA 98802-0132.
Counsel for Respondent(s), Robert F. II Sestero, Attorney at Law, 601 W Main Ave Ste 1102, Spokane, WA 99201-0613.
Carol and Brian Bonnicksen appeal the trial court's order on reconsideration, which affirmed its summary judgment dismissal of their personal injury action against Sears, Roebuck Co. They also contend the trial court erred when it refused to allow them to amend their original complaint to include disability discrimination and Americans with Disability Act (ADA) claims against Sears. Finding no abuse of the trial court's discretion, we affirm.
FACTS
Carol Bonnicksen was born with cerebral palsy and has been using a wheelchair for the past 10 years. On December 4, 2001, she was at the East Wenatchee Valley Mall doing some shopping. When she finished, she decided to use the restroom in Sears before catching her special assistance bus home. She chose the Sears restroom because it was the closest handicap accessible restroom to her bus stop. She had used the Sears restroom in the past and was familiar with its layout. She did not browse at or purchase items in Sears that day although she had shopped there many times in the past. As she positioned her wheelchair at the threshold of the handicap accessible stall in the women's restroom, she noticed there were several pieces of toilet paper and a brown paper bag on the floor. Believing she could avoid them, she did not alert a Sears employee or request assistance. As she began to lift herself with her arms from her wheelchair, her right foot slipped on the bag and she fell, with her legs pinned beneath the weight of her body. As a result, she suffered a fracture of her right leg. Mr. Bonnicksen was not at the mall at the time of the accident.
After being notified of the accident, a Sears employee completed an investigation of the situation and submitted a written report to management. A brown bag and seven pieces of toilet paper were found on the floor in the handicap accessible stall. Although the entire restroom had been cleaned that morning by a third party janitorial service, no further cleaning or maintenance had occurred in the restroom during the four hours preceding Ms. Bonnicksen's fall. At the time of the accident, Sears did not have a policy that the restrooms were to be checked on a regular basis for cleanliness. Instead, store personnel relied on associates, managers, and customers to warn them when the restroom needed maintenance or cleaning. The day after Ms. Bonnicksen's accident the store changed its policy and began to inspect the restrooms every two hours.
After the accident, Mr. and Ms. Bonnicksen filed a complaint for damages against Sears in the Douglas County Superior Court. Sears filed a motion for summary judgment dismissal claiming there were no genuine issues of material fact and it was entitled to judgment as a matter of law. The motion was ultimately granted because the trial court determined Sears did not receive actual or constructive notice there was a problem with the handicap accessible stall in the women's restroom on the date in question. Sears' counsel was asked to prepare a final order reflecting the court's oral decision. Before the final order was signed, the Bonnicksens filed a motion for reconsideration of the summary judgment dismissal. At the same time, they filed the declaration of Dr. Steven Nourse, which opined that Sears should have had a policy in place that would have ensured the handicap accessible restrooms were kept free and clear of litter at the time of Ms. Bonnicksen's accident. The Bonnicksens also filed a motion for leave to amend their original complaint to include disability discrimination and ADA claims. The court specifically stated it would not consider Dr. Nourse's declaration for purposes of the motion for reconsideration because it contained information that was outside the scope of the original summary judgment hearing. However, the court stated, if needed, it would consider the Nourse declaration for purposes of the arguments regarding the motion to amend the original complaint. The motion on reconsideration was argued prior to the order on summary judgment being entered. It was denied, making the motion for leave to amend moot. The order on summary judgment dismissal was then entered as was the order denying the motion for leave to amend. The Bonnicksens filed a timely notice of appeal regarding the trial court's decision on reconsideration.
ANALYSIS 1. Summary Judgment Dismissal
We are first asked to consider whether the trial court erred when it denied the Bonnicksens' motion for reconsideration of the summary judgment dismissal of their complaint for damages against Sears. When reviewing an order of summary judgment dismissal, the appellate court engages in the same inquiry as did the trial court, which makes the review de novo. Adams v. Able Bldg. Supply, 114 Wn. App. 291, 295, 57 P.3d 280 (2002). A motion for reconsideration is reviewed for abuse of discretion. Weems v. N. Franklin Sch. Dist., 109 Wn. App. 767, 777, 37 P.3d 354 (2002).
To establish an action for negligence, a plaintiff must present evidence that shows: (1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) resulting injury, and (4) a proximate cause between the breach and the injury. Iwai v. State, 129 Wn.2d 84, 96, 915 P.2d 1089 (1996). In premises liability cases, the scope of the legal duty owed by a business owner to a person entering the premises depends on whether that person falls under the common law category of a trespasser, licensee, or invitee. Degel v. Majestic Mobile Manor, Inc., 129 Wn.2d 43, 49, 914 P.2d 728 (1996). An invitee is a business visitor who enters on land for a purpose related to the business of the landowner. Zenkina v. Sisters of Providence in Wash., Inc., 83 Wn. App. 556, 560-61, 922 P.2d 171 (1996).
The facts of this case disclose that Ms. Bonnicksen entered the Sears store during regular working hours for the sole purpose of using the restroom. However, the parties agreed she was an invitee for the purpose of determining the type of duty Sears owed her. In order for a premises owner to become liable to an invitee for a condition not created by the owner or occupier of the land, the invitee is required to establish that: (1) the owner knew of, or in the exercise of reasonable care would have discovered, the condition; (2) the owner should realize the condition involves an unreasonable risk of harm to the invitee; and (3) the owner should expect invitees would not discover or realize the danger, or would fail to protect themselves against it. Restatement (Second) of Torts sec. 343 (1965); Iwai, 129 Wn.2d at 93-94. Under Washington law, in order to establish that a landowner has a duty to protect an invitee, the plaintiff is required to show that the landowner had actual or constructive notice of the unsafe condition. Ingersoll v. DeBartolo, Inc., 123 Wn.2d 649, 652, 869 P.2d 1014 (1994). In order to prove constructive notice, a plaintiff must present sufficient evidence that the unsafe condition existed for a long enough period of time to give the defendant sufficient opportunity, in the exercise of ordinary care, to have made a proper inspection of the premises and to have removed the danger. Pimentel v. Roundup Co., 100 Wn.2d 39, 44, 666 P.2d 888 (1983). The notice requirement guarantees that liability will only attach to a landowner once the landowner has become or should have become aware of a dangerous situation. Wiltse v. Albertson's Inc., 116 Wn.2d 452, 453-54, 805 P.2d 793 (1991).
There was no allegation or proof that anyone associated with the Sears store caused the condition on the restroom floor. Therefore, to defeat the summary judgment motion, the Bonnicksens had to present evidence that would satisfy the notice requirement. The trial court ultimately determined the Bonnicksens were unable to prove Sears had any knowledge of the presence of the toilet paper or the paper bag on the floor of the handicap accessible stall in the women's restroom on the date in question. However, this leaves unanswered the question of whether anyone associated with the Sears store, in the exercise of reasonable care, would have discovered the paper on the floor on the date Ms. Bonnicksen fell and was injured. The trial court failed to address this issue. Looking at the facts in the light most favorable to the Bonnicksens, we conclude a genuine issue of material fact may exist regarding the reasonableness of Sears' failure to discover the dangerous condition found in the women's handicap accessible restroom on the date in question. For this reason, summary judgment was inappropriately granted on the basis of lack of notice.
The next two elements of premises liability were not discussed by the trial court. As will be seen below, this error does not end our analysis as we may affirm the trial court on any alternative basis supported by the record and the pleadings even if not considered by the trial court. LaMon v. Butler, 112 Wn.2d 193, 200-01, 770 P.2d 1027 (1989). This record contains the pleadings and arguments considered by the trial court, which allows us to complete our analysis.
The second element the Bonnicksens must prove is that a premises owner is responsible for recognizing that certain conditions may involve an unreasonable risk of harm to the invitee. Because Sears moved for summary judgment, we look at the facts of this case in the light most favorable to the Bonnicksens. Sears presented evidence that, on the date in question, it had no plan in place to monitor the particular restroom in which Ms. Bonnicksen was injured. Instead, Sears relied on employees and customers to report problems in the restroom. It also hired a third party janitorial service to clean and maintain the restroom once per day, including during the busy holiday shopping season, which was when Ms. Bonnicksen was injured. Ms. Bonnicksen set forth the details of her accident as evidence the once a day cleaning and maintenance service was inadequate to ensure the safety of people with physical disabilities in a restroom that holds itself out as handicap accessible. Under the facts presented, we determine genuine issues of material fact exist regarding Sears' duty to check its restrooms more than once every 24 hours during the busy holiday shopping season for conditions in a handicap accessible restroom that may involve an unreasonable risk of harm toward handicapped invitees. Summary judgment was improperly granted based on the second element.
The third element requires evidence that Sears expected that invitees would not discover or realize the danger of paper on the floor, or that invitees would fail to protect themselves against it. This is where the Bonnicksens' argument against summary judgment fails. The only evidence presented on this issue shows that Ms. Bonnicksen was well aware of the paper products lying on the floor of the restroom and did take affirmative measures to avoid them. Because the Bonnicksens were unable to show that Sears should expect invitees to discover or realize the danger of paper lying on the floor of the handicap accessible stall, they could not prove that Sears breached the duty of care it owed Ms. Bonnicksen, as an invitee. As such, it does not matter that genuine issues of material fact exist in regard to the first two elements of the duty owed Ms. Bonnicksen. The trial court properly granted the summary judgment dismissal although on different grounds than was set forth in the summary judgment dismissal order.
2. Motion for Reconsideration
The Bonnicksens also claim the trial court abused its discretion when it denied their motion for reconsideration of the summary judgment dismissal. See Weems, 109 Wn. App. at 777 (CR 59 motion for reconsideration reviewed for abuse of discretion). In making its decision, the court considered the additional briefing supplied by the parties, including additional deposition testimony, briefing regarding a declaration by Dr. Steven Nourse, and the Bonnicksens' motion for leave to amend their original complaint. It determined the Nourse declaration was not timely filed and specifically refused to consider it. The court denied the motion for reconsideration of the summary judgment decision. This was not an abuse of the court's discretion because no new evidence was timely filed that would lead to a different result than was reached by the trial court. To be successful in convincing the trial court to grant their motion for reconsideration, as set forth above, the Bonnicksens were required to provide admissible evidence showing that business invitees would not discover or realize the unsafe condition in the women's restroom. The trial court properly denied the motion for reconsideration of the summary judgment dismissal.
3. Nourse Declaration
Next, we determine whether the trial court erred when it struck, as untimely, the declaration of Dr. Steven Nourse as it related to the Bonnicksens' motion for reconsideration. This type of decision is vested in the sole discretion of the trial court. King County Fire Prot. Dist. No. 16 v. Housing Auth. of King County, 123 Wn.2d 819, 826, 872 P.2d 516 (1994).
It was only after the court's summary judgment dismissal of their complaint for damages that the Bonnicksens raised the disability discrimination and ADA claims. In fact, in their motion for reconsideration, the Bonnicksens did not request the court reconsider their premises liability claims at all. The disputed declaration of Dr. Nourse sets forth information and personal opinions related solely to the issues of alleged disability discrimination and ADA claims. These issues were not raised in the Bonnicksens' original complaint, nor were they issues that were argued at any point prior to the court's oral decision on the summary judgment motion. Because the Nourse declaration did not contain any facts that were relevant to the reconsideration of the issues contained in the initial complaint for damages based on premises liability, it cannot be said the trial court abused its discretion when it struck the declaration as untimely filed.
4. Request to Amend Complaint
Finally, the Bonnicksens argue the trial court erred when it denied their request to amend their original complaint to include the disability discrimination and ADA claims. We disagree. A court's decision denying a motion for leave to amend a complaint will not be disturbed on appeal absent a manifest abuse of discretion. Wilson v. Horsley, 137 Wn.2d 500, 505, 974 P.2d 316 (1999).
CR 15(a) states a party must seek the court's permission to amend its pleadings after responsive pleadings have been filed, although permission to amend 'shall be freely given when justice so requires.' In general, CR 15(a) is liberally applied. Caruso v. Local Union No. 690, 100 Wn.2d 343, 349, 670 P.2d 240 (1983). The rule serves to: (1) assist in proper decision making based on the merits of the case; (2) provide parties with adequate notice of the basis for claims and defenses asserted against them; and (3) allow amendment of the pleadings except when amendment would result in prejudice to the opposing party. Id. at 349-50. Factors that may be considered in determining whether permitting amendment would cause prejudice include undue delay, unfair surprise, and jury confusion. Wilson, 137 Wn.2d at 505-06. The timing of the motion to amend is not important, as long as the nonmoving party is not prejudiced. See Tagliani v. Colwell, 10 Wn. App. 227, 234, 517 P.2d 207 (1973). In Tagliani, the plaintiff filed a motion for leave to amend the complaint to add new parties and new claims after the trial court had orally granted the defendants' motion on summary judgment, which had the effect of dismissing the plaintiff's claim against the original defendants. Id. at 228-29. The trial court denied the plaintiff's motion for leave to amend, reasoning the motion was untimely because it was filed after the case had been decided on the merits. Id. at 233-34. The appellate court reversed, noting there was no evidence of undue prejudice, dilatory practice, or undue delay. Id. at 234. Our Supreme Court has cited with approval the undue prejudice to the nonmoving party element. Wilson, 137 Wn.2d at 513-14.
Applying this rule to the case before us, it cannot be said the trial court abused its discretion. The discrimination and ADA claims could have and probably should have been included in the initial complaint. The claims also could have been raised prior to the hearing on summary judgment dismissal. In opposition to the motion to amend, Sears filed an affidavit that stated it had continually relied on the Bonnicksens' express assurances there would be no discrimination or ADA claims filed. It appears the trial court relied on the undue surprise factor as evidence of prejudice to Sears when it denied the motion for leave to amend. Even though we might decide the matter differently, it was not an abuse of the trial court's discretion, which is an extremely deferential standard, to determine Sears was prejudiced when the Bonnicksens filed their motion to amend several weeks after the decision on summary judgment had been delivered.
Affirmed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
BROWN, C.J. and KURTZ, JJ., Concur.