Opinion
No. 29573-7-III.
Filed: September 27, 2011. UNPUBLISHED OPINION.
Appeal from a judgment of the Superior Court for Spokane County, No. 09-2-05098-2, Jerome J. Leveque, J., entered November 17, 2010.
Affirmed by unpublished opinion per Brown, ?J., concurred in by Korsmo, A.C.J., and Siddoway, J.
Elizabeth Donohue appeals the summary dismissal of her personal injury suit against Best Buy Stores, LP, and the shopping cart's manufacturer, Technibilt, Ltd., along with its parent company, Cari-All, Inc. (collectively "Best Buy") based on negligent design, breach of the warranty of fitness for a particular purpose, and failure to warn. While waiting in line to check out at Best Buy, a shopper following Ms. Donohue allegedly pushed her shopping cart into her heel, causing her to fall down. Ms. Donohue appeals, contending genuine issues of material fact exist regarding whether the cart's design proximately caused her injuries. We affirm.
FACTS
Eighty-one-year-old Ms. Donohue and her daughter were in Best Buy waiting to check out. A woman behind Ms. Donohue allegedly pushed a shopping cart into Ms. Donohue's heel, causing her to fall. Ms. Donohue thought the lower part of the cart is what made contact with her heel. Ms. Donohue did not talk to the woman with the shopping cart and it is unclear whether the woman knew she hit Ms. Donohue. Ms. Donohue reported the incident to a Best Buy employee, who obtained a wheel chair and rolled her to her daughter's car. Ms. Donohue suffered injuries to her lower back, right hip, and lower leg. She later went to the hospital for a hematoma to her right leg.
Ms. Donohue sued Best Buy for premises liability/negligence and product liability, alleging the carts were designed dangerously because the lower base is longer than the upper basket impairing the average shopper's view of the base, thereby creating a potential trip/knock down hazard. She claims the cart's negligent design was a proximate cause of the incident because the upper basket impaired the following customer's view of the lower base of the cart. She alleged Best Buy failed to maintain a reasonably safe store by allowing customers to use the dangerously designed carts.
Ms. Donohue retained Richard T. Gill, Ph.D., a human factors expert. He opined, "the design of the cart is such that it contributes to this type of accident; it's foreseeable that this type of accident is going to happen." Clerk's Papers at 191. He did not state, however, that on a more probable than not basis the design of the cart was the proximate cause of the accident.
Best Buy successfully requested summary judgment dismissal based on lack of evidence that the alleged incident was proximately caused by a defect in the cart; it argued nothing showed the customer's view of the front end of the base was impaired, but even if so, that did not, in and of itself, make the cart unreasonably dangerous, and no industry standards exist for shopping cart design. Ms. Donohue appeals.
ANALYSIS
The issue is whether the trial court erred in summarily dismissing Ms. Donohue's claims. Ms. Donohue contends genuine issues of material fact remain regarding whether the cart's design proximately caused her injuries.
We review summary judgment de novo, engaging in the same inquiry as the trial court and viewing the facts and reasonable inferences from those facts in the light most favorable to the nonmoving party. City of Spokane v. County of Spokane, 158 Wn.2d 661, 671, 146 P.3d 893 (2006) (citing Berrocal v. Fernandez, 155 Wn.2d 585, 590, 121 P.3d 82 (2005)). Summary judgment is proper if no genuine issue of material fact remains and the moving party is entitled to judgment as a matter of law. CR 56(c).
Ms. Donohue argues the court solely granted summary judgment relating to one claim (i.e., whether the design of the lower portion, not the upper portion of the cart proximately caused her injuries). She argues the court did not dismiss her claim that the cart's upper basket blocked the pusher's view. But Ms. Donohue's complaint specified several factors when combined create a single potential hazard. Ms. Donohue's argument would result in disfavored interlocutory piecemeal appeals. Maybury v. City of Seattle, 53 Wn.2d 716, 721, 336 P.2d 878 (1959). Accordingly, the trial court correctly viewed Ms. Donohue's claims in their entirety and dismissed the claims in their entirety as requested in Best Buy's motion.
The plaintiff in a product liability or negligence action bears the burden to establish a causal connection between the injury, the product, and the manufacturer of that product. Lockwood v. AC S, Inc., 109 Wn.2d 235, 245, 744 P.2d 605 (1987). Proximate cause consists of two elements: cause in fact and legal causation. Versuslaw, Inc. v. Stoel Rives, LLP, 127 Wn. App. 309, 328, 111 P.3d 866 (2005). Cause in fact refers to the "but for" consequences of an act; that is, the immediate connection between an act and an injury. The "but for" test requires a party to establish that the act or omission complained of probably caused the subsequent injury. Legal causation rests on considerations of policy determining how far a party's responsibility should extend. It involves the question of whether liability should attach as a matter of law, even if the proof establishes cause in fact. "Ultimately, the sufficiency of the evidence of causation will depend on the unique circumstances of each case." Lockwood, 109 Wn.2d at 249.
Ms. Donohue argues Dr. Gill's opinion creates a genuine issue of material fact. But his comments as to what he believes caused the incident do not rise to the level of admissible expert opinion. Testimony by experts under ER 702 is admissible "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." Dr. Gill's statements do not rise to that level. He concedes no shopping cart industry design standards exist. And he did not state on a more probable than not basis that the customer ran into Ms. Donohue because of the alleged design defect, that the basket impaired the customer's view of the front of the base. Because her alleged design defect claim entails the design of the basket in relation to the customer's ability or inability to view the front of the base of the cart, Ms. Donohue cannot prove on a more probable than not basis that the alleged design defect was a proximate cause of the incident.
Ms. Donohue speculatively argues the evidence supports a reasonable inference the cart operator could not see the front base of the cart. No evidence exists regarding the position of the woman with the cart at the time of the accident, what may have been in the wire-meshed upper cart that may have obstructed the woman's view, or whether the following customer may have been standing to the side of the cart and had a direct view of the base of the cart or in any other position. If nothing was placed in the upper basket, she would have a clear view of the base by merely looking down through the open slats of the metal basket. The speculative assertions offered by Ms. Donohue are not sufficient to establish proximate cause.
Without proximate cause her claims fail as a matter of law. See Versuslaw, Inc., 127 Wn. App. at 328 (proximate cause may be determined as a matter of law when reasonable minds could reach but one conclusion). Accordingly, the trial court properly dismissed her claims in summary judgment.
Affirm.
A majority of the panel has determined 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.
KORSMO, A.C.J. and SIDDOWAY, J., concur.