Opinion
No. 53617-6-I
Filed: April 18, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Whatcom County. Docket No. 02-2-01817-0. Judgment or order under review. Date filed: 12/19/2003. Judge signing: Hon. Steven J. Mura.
Counsel for Appellant(s), William Randolph Coats, Brett Daugert PLLC, 300 N Commercial, PO Box 5008, Bellingham, WA 98227-5008.
Counsel for Respondent(s), Levi Lewis III Bendele, Reed McClure, Two Union Square, 601 Union St Ste 1500, Seattle, WA 98101-1363.
William Robert Hickman, Reed McClure, Two Union Square, 601 Union St Ste 1500, Seattle, WA 98101-1363.
Matthew Turetsky, Schwabe Williamson Wyatt, 1420 5th Ave Ste 3010, Seattle, WA 98101-2339.
In this personal injury action, Haley Rose-Marie Francis must prove four basic elements: (1) the existence of a duty, (2) breach of that duty, (3) resulting injury, and (4) proximate cause. The threshold question here is whether Wal-Mart and The Amusement Factory owed a duty to her when she fell and injured her head on a video game in Wal-Mart's Bellingham store. We hold that there was such a duty. But whether there was an unreasonable risk of harm created by the placement of the video game and whether defendants should have anticipated the harm despite Francis' knowledge or the obvious nature of the harm are jury questions that remain for trial. We reverse and remand for further proceedings.
; Tincani v. Inland Empire Zoological Soc'y, 124 Wn.2d 121, 127-28, 875 P.2d 621 (1994).
Degel, 129 Wn.2d at 54.
Francis, a two-year old, tripped and fell in a Bellingham, Washington Wal-Mart. When she fell, she allegedly struck her head on a motorcycle video game and was injured. Her parents sued Wal-Mart and the game's owner, The Amusement Factory, who placed the video game in the store's foyer. Wal-Mart and The Amusement Factory jointly moved for summary judgment, and the trial court dismissed Francis' premises liability and products liability claims against both defendants.
Francis appeals. PREMISES LIABILITY
Due to Wal-Mart's tender of defense, counsel for The Amusement Factory represents both of these defendants.
Francis argues that summary judgment was inappropriate because, when viewing the facts in a light most favorable to her, a reasonable jury could find that the placement of the video game created an unreasonable risk of harm. Moreover, Francis contends that whether the defendants should have anticipated the harm despite the open and obvious nature of the allegedly dangerous condition is a jury question. We agree.
On summary judgment a moving defendant may satisfy the initial burden by showing that there is an absence of evidence to support the nonmoving party's case. The moving defendant need not submit affidavits but may instead support the motion by merely challenging the sufficiency of the plaintiff's evidence as to any material issue.
Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 225 n. 1, 770 P.2d 182 (1989).
Young, 112 Wn.2d at 226.
In response, the nonmoving party may not rely on the allegations in the pleadings but must set forth specific facts by affidavit or otherwise that show a genuine issue exists. "At that point, the evidence and all reasonable inferences therefrom is considered in the light most favorable to the plaintiff." Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law.
Las v. Yellow Front Stores, Inc., 66 Wn. App. 196, 198, 831 P.2d 744 (1992).
Young, 112 Wn.2d at 226.
Kruse v. Hemp, 121 Wn.2d 715, 722, 853 P.2d 1373 (1993); CR 56(c).
For negligence claims based on premises liability, Washington has adopted the Restatement (Second) of Torts, sections 343 and 343A to determine a landowner's liability to invitees. Section 343 provides that a landowner is liable for an invitee's physical harm caused by a condition on the land only if he:
Iwai v. State, 129 Wn.2d 84, 93, 915 P.2d 1089 (1996).
.
(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.
Where the danger to the invitee is known or obvious, liability is limited by Restatement (Second) of Torts section 343A(1):
A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.
Degel, 129 Wn.2d at 50 (citing Tincani, 124 Wn.2d at 139).
These two provisions define the relevant duty of care here. Wal-Mart and The Amusement Factory correctly concede, for purposes of summary judgment, that Francis was an invitee. This status determines the scope of the landowner's duty to its visitor.
Tincani, 124 Wn.2d at 128.
Here, there is no contention that the condition of the floor or anything on it created an unreasonable risk of harm. Rather, Francis asserts that the placement of the video game and its "sharp" tailpipe was the unreasonable risk of harm to her when she tripped and fell on her own. Other than a citation to her complaint and a photograph of the video game, there is nothing in the record to support her contention that the tailpipe on the video game was "sharp." The former is not admissible evidence for purposes of CR 56(e). The latter is inconclusive to show that the tailpipe was sharp. And there is nothing in the deposition of Francis' mother describing the tailpipe as "sharp."
However, Francis did suffer a laceration when her head struck the pipe, which required five stitches to close. Moreover, the conflicting deposition testimony of her mother describing what happened could support the inference that Francis struck her head on the tailpipe of the video game. Francis is entitled to the reasonable inference that she received the injury because her head struck the tailpipe. It is for a jury to determine whether her head struck a "sharp" tailpipe on the video game for purposes of establishing that either the game or its placement created an unreasonable risk of harm.
Assuming without deciding that the video game's tailpipe created an unreasonably dangerous condition that was known to the defendants, it was nonetheless an open and obvious condition. A landlord has a duty to protect invitees from known or obvious dangers only when he should anticipate the harm despite such knowledge. This anticipation exception applies when the landowner "has reason to expect that the invitee's attention will be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it."
Restatement (Second) of Torts § 343A.
Restatement (Second) of Torts § 343A, comment f (1965).
Here, whether Wal-Mart and The Amusement Factory should have anticipated that Francis, a small child, would be distracted and unable to protect herself from a dangerous condition is a fact question for the jury. While the defendants are certainly free to argue that the record fails to show that Francis was distracted by the video game, that is not the point. Rather, the question is whether the defendants under the circumstances of this case should have anticipated that Francis would be distracted in any way and thus unable to protect herself from an open and allegedly dangerous condition. This too is a jury question.
Degel, 129 Wn.2d at 54 (citing Tincani, 124 Wn.2d at 141); see also Mucsi v. Graoch Assocs. Ltd. Partnership, 144 Wn.2d 847, 859-60, 31 P/3d 684 (2001).
To summarize, we hold that the possessors of land here owed Francis a duty of care to protect her from an unreasonably dangerous condition. Whether either the game or its placement is such a condition, whether the possessors of land should have anticipated that Francis would be unable to protect herself against the open and allegedly dangerous condition(s), and whether the other factual matters associated with the controlling law are present should be determined at trial.
We reverse the summary judgment order and remand for further proceedings.
GROSSE, and BECKER, JJ., Concur.