Opinion
No. 26707-5-III.
December 16, 2008.
Appeal from a judgment of the Superior Court for Yakima County, No. 06-2-01083-2, Robert N. Hackett, Jr., J., entered November 28, 2007.
Affirmed by unpublished opinion per Korsmo, J., concurred in by Schultheis, C.J., and Brown, J.
Rodney Francis seeks review of the superior court order granting summary judgment dismissal of his negligence claim against Chandler Enterprises, Inc., (Chandler) for injuries he suffered when he slipped and fell in the men's restroom at Chandler's Conoco gas station. The trial court granted summary judgment and dismissed Mr. Francis's premises liability claim. We agree and affirm.
FACTS
In April 2003, Mr. Francis used the urinal in the men's restroom. He stood on the floor mat located in front of the urinal. When he finished, he stepped onto the tile floor, slipped and fell onto his back; he struck his head on the urinal and was knocked out. When he awoke, his back was wet. The floor mat was damp and had rendered the bottom of his boots wet. Mr. Francis did not notice any liquid on the floor or any leaking from any of the fixtures in the men's restroom. He did not recall if the handle of the urinal had been leaking water. Mr. Francis exited the restroom, told the cashier he fell in the men's restroom and left the store. None of Chandler's employees specifically recall the incident. Chandler received no notice of Mr. Francis's injuries until three years later when this action was filed.
Evidence before the trial court showed a photograph taken the evening of Mr. Francis's fall which depicted drops of water leaking from around the handle of the urinal. It is unknown how long the water had been leaking.
The men's restroom was well lit and any water on the floor would be obvious upon entry. There were mats throughout the store to keep the floors clean and dry in areas that might become wet or soiled. The men's restroom mat often smelled and was urine-soaked. Clean mats were delivered and placed each week. Chandler employees regularly checked to make sure the bathrooms were clean and sanitary. Chandler employees were trained to look for hazards, such as wet floors, and clean up any problems throughout the day. Closing responsibilities included sweeping and mopping all floors as well as vacuuming the floor mats each night. "Wet floor" signs were used when the floors were wet because the floors were known to be slippery when wet. Any unsafe or potentially hazardous conditions were immediately reported to the general manager, who ensured its repair. In the eight years Chandler had been open, there was only one occasion, sometime between 2002 and 2004, where water leaked from a damaged urinal. It was immediately repaired. Mr. Chandler personally visits and inspects each store, including the restrooms, at least two to three times per week.
Restroom cleaning and inspections were performed by each cashier at least one time per shift.
The evidence showed that during the month of April, on average there were 60 customers per hour; many were male agricultural workers. The store was staffed to accommodate 60 customers per hour. There was no evidence as to the usage of the men's restroom during busy times, in relation to the number of customers or whether anyone was waiting to use the restroom on April 10, 2003.
Chandler sought summary judgment on the basis that Mr. Francis failed to offer any evidence to show that Chandler had notice of the specific dangerous condition and that there were no genuine issues of material fact to support Mr. Francis's claim of negligence against Chandler. The court granted summary judgment and dismissed Mr. Francis's claim against Chandler.
The parties did not provide this court with a transcript of the summary judgment hearing; the trial judge did not enter findings outlining the basis for granting summary judgment and dismissal.
ANALYSIS
This court reviews a summary judgment de novo, performing the same inquiry as the trial court. Lybbert v. Grant County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000). The facts, and all reasonable inferences to be drawn from them, are viewed in the light most favorable to the nonmoving party. Id. If there is no genuine issue of material fact, summary judgment will be granted if the moving party is entitled to judgment as a matter of law. Id.
"In order to maintain an action for negligence, a plaintiff must show that (a) the defendant owed a duty of care to the plaintiff, (b) the defendant breached that duty, (c) injury to the plaintiff resulted, and (d) the defendant's breach was the proximate cause of the injury." Seiber v. Poulsbo Marine Ctr., Inc., 136 Wn. App. 731, 738, 150 P.3d 633 (2007). In premises liability cases, the scope of the legal duty owed 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). It is undisputed that Mr. Francis was an "invitee" at the time of his injury.
"A possessor of land owes a duty of reasonable care to invitees with respect to dangerous conditions on the land." Ford v. Red Lion Inns, 67 Wn. App. 766, 770, 840 P.2d 198 (1992), review denied, 120 Wn.2d 1029 (1993). Washington has adopted the Restatement (Second) of Torts § 343 as the test for determining landowner liability to invitees. Id. Restatement (Second) of Torts § 343 at 215-16 (1965) provides:
Dangerous Conditions Known to or Discoverable by Possessor A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
Ford, 67 Wn. App. at 770; see also Wiltse v. Albertson's Inc., 116 Wn.2d 452, 457, 805 P.2d 793 (1991).
To establish landowner liability to an invitee for an unsafe condition on the premises, a plaintiff first is required to show the landowner had actual or constructive notice of the unsafe condition. Fredrickson v. Bertolino's Tacoma, Inc., 131 Wn. App. 183, 189, 127 P.3d 5 (2005), review denied, 157 Wn.2d 1026 (2006). "Constructive notice arises where the condition `has existed for such time as would have afforded [the proprietor] sufficient opportunity, in the exercise of ordinary care, to have made a proper inspection of the premises and to have removed the danger.'" Ingersoll v. DeBartolo, Inc., 123 Wn.2d 649, 652, 869 P.2d 1014 (1994) (quoting Smith v. Mannings, Inc., 13 Wn.2d 573, 580, 126 P.2d 44 (1942)). The plaintiff must establish that the defendant had, or should have had, knowledge of the dangerous condition in time to remedy the situation before the injury or to warn the plaintiff of the danger. Fredrickson, 131 Wn. App. at 189 (citing Ingersoll, 123 Wn.2d at 652).
Since Mr. Francis did not report his fall and injury, other than to tell a cashier that the bathroom "nearly killed him," there is no accident report and no employee specifically recalls the morning of April 10, 2003. The evidence detailed previously showed Chandler's policies, training and daily practice all indicated that employees regularly checked and maintained the restroom, and that the restroom and mats were regularly wet. Accordingly, Chandler arguably had constructive notice of an unsafe condition. The next question then is whether the wet restroom floor constituted an unreasonably dangerous condition which Chandler should have taken measures to protect against.
Mere presence of water on a floor where the plaintiff slipped is not enough to prove negligence on the part of the owner. See Brant v. Market Basket Stores, Inc., 72 Wn.2d 446, 450, 433 P.2d 863 (1967); Merrick v. Sears, Roebuck Co., 67 Wn.2d 426, 429, 407 P.2d 960 (1965) (explaining "[n]egligence cannot be inferred from the fall alone, nor from mere dampness or wetness where it is to be expected in some degree"). Where there is evidence of more than mere water on the floor, then material questions of fact arise as to the existence of an unsafe condition known to the owner. See, e.g., Messina v. Rhodes Co., 67 Wn.2d 19, 28, 406 P.2d 312 (1965) (reversing summary judgment of negligence claim when the evidence showed there was an unusual amount of foreign substance — dirt, sand, and water — brought in by shoppers on a very rainy day). It has also been determined that the existence of a rug inside a door alone is not enough to establish that an owner or occupier knows the floor might be dangerous. See Kalinowski v. Young Women's Christian Ass'n, 17 Wn.2d 380, 394-395, 135 P.2d 852 (1943).
In order to address the fact that a wet floor alone is insufficient to impose liability, Mr. Francis contends Chandler worsened the situation and created an unreasonably dangerous condition by placing a mat in front of the urinal. The evidence before the court showed the mat was placed in front of the urinal to keep the floors clean and dry in an area that might become wet or soiled due to men dripping urine on the floor. When a mat became wet, on at least one occasion, it was removed. It is reasonable to expect that water or urine would be present on the floor of a public men's restroom. The evidence did show there had been no previous injuries caused by either the wet floor or the mat in the men's restroom.
Here, looking at the facts in the light most favorable to Mr. Francis, there may exist a question of fact for the jury as to whether the mat exacerbated the wet floor problem condition. Arguably, combining a wet area with a mat that absorbs moisture might create an unsafe condition. Thus, there may exist a question of fact for the jury as to whether Chandler had constructive notice of the wet floor in the men's restroom. This element does not support the granting of summary judgment.
Mr. Francis alternatively argues that he need not show notice where the injury is "inherent in the nature of the business." Wiltse, 116 Wn.2d at 461. We question whether a restroom is part of a self-service operation, the only establishments to which this exception has ever been applied. However, we need not reach this issue in light of our view that an arguable question of notice was presented by the evidence.
The second element that Mr. Francis must show is that Chandler should expect that Mr. Francis would fail to discover the danger and would fail to take measures to protect himself. Chandler's evidence showed the men's restroom was well lit, and if there had been water on the floor, it would have been obvious. Mr. Francis's testimony was that he did not see water on the floor and did not recall if the urinal was leaking, even though he flushed it with his hand. A reasonable inference of the evidence is that if the urinal was leaking as depicted in the photos, or if there was a puddle on the floor, he would have taken note of it after he stood up and before he exited the restroom. It is reasonable that Mr. Francis would discover the water on the floor and take measures to protect himself.
Mr. Francis contends the mat in front of the urinal hid the danger and, thus, Chandler created an unreasonably dangerous condition. The evidence showed the mat was placed in front of the urinal to keep the floors clean and dry in an area that might become wet or soiled due to men dripping urine on the floor. The mat was removed when it was wet. Mr. Francis did not notice until after he fell that the mat was wet; he stepped off the mat and his feet slid out from underneath him. Reviewing the facts in the light most favorable to Mr. Francis, there may exist a question of fact as to whether the mat concealed moisture and whether Mr. Francis would fail to discover it. This element, too, does not support granting summary judgment.
The third and final element Mr. Francis must show is that Chandler failed to exercise reasonable care to protect against the danger. "It is well established . . . that something more than a slip and a fall is required to establish either the existence of a dangerous condition, or the knowledge that a dangerous condition exists on the part of the owner or the person in control of the floor." Brant, 72 Wn.2d at 448 (citing Hooser v. Loyal Order of Moose, Inc., 69 Wn.2d 1, 416 P.2d 462 (1966); Hanson v. Lincoln First Fed. Sav. Loan Ass'n, 45 Wn.2d 577, 277 P.2d 344 (1954)). See Pement v. F. W. Woolworth Co., 53 Wn.2d 768, 337 P.2d 30 (1959) (and cases cited).
The evidence previously detailed showed that Chandler had policies and procedures to routinely check and clean the men's restroom and Chandler had no notice of any problems with the men's restroom. There was no evidence of any previous injuries caused by the wet floor or any complaints about the flooring in the men's restroom. There was no evidence that the regular inspection and cleaning measures were not reasonable. Chandler took reasonable steps to maintain the restroom and ensure the safety of its men's restroom. There is no genuine issue of material fact with regard to the third element. Plaintiff did not establish that Chandler failed to act reasonably. Thus, the third element supports the decision to grant summary judgment.
We conclude, as the trial court did, that summary judgment was proper.
We affirm the order granting summary judgment and dismissal.
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.
SCHULTHEIS, C.J. and BROWN, J., concur.