Opinion
No. 37994-5-II.
December 29, 2009.
The opinion in the above captioned case will not be published in the Washington Appellate Reports pursuant to an order of the Court of Appeals dated January 6, 2010 withdrawing the opinion.
Cynthia Phelps was injured when she fell in the parking lot of the clinic where she worked. Phelps and her husband sued the clinic owner, property manager, and her employer for the injuries she sustained in her fall, alleging that she slipped on ice that defendants had negligently permitted to accumulate in the lot. We hold that because Phelps submitted evidence sufficient to permit a jury to reasonably infer that icy, slick conditions in the parking lot caused her fall, the trial court erred in granting defendants' summary judgment motion. We also hold that the trial court erred in excluding the opinion of Phelps's accident reconstruction expert. We reverse and remand for trial.
FACTS
In the fall of 2005, Phelps worked as a physician's assistant with Family Physician's Group at a clinic in Vancouver, Washington. On the morning of November 28, 2005, Phelps started her commute to work a few minutes early because her husband had told her that the roads were a little slippery. Temperatures in the Vancouver area had dipped below freezing during the night and Phelps's husband testified at deposition that during his commute (beginning around 6:00 am), he noticed freezing fog and some icy spots on side roads leading to the freeway. Phelps testified at deposition that when she started her commute at 7:00 am the roads were fine. When she got to the freeway, a vehicle accident had traffic blocked, so she called her office to say she would be late to work. When Phelps finally drove her car into the parking lot at around 8:15 am, she did not see any ice in the lot.
Temperature data in the record shows that the air temperature in the Vancouver area went below freezing at around 2:00 am on November 28, and rose above freezing sometime between 8:00 am and 9:00 am. At 7:53 am the temperature was 30.9 degrees F, but by 8:53 am it was 39.0 degrees F, and continued to rise throughout the morning.
Phelps testified that she pulled her car into a parking stall, got out of her car, took at least one step, and fell to the ground. The next thing she remembered was waking up at home with blood on her pillow later the same day. Phelps has no other recollection of the fall and no recollection of the medical treatment she received following her fall; no one witnessed the fall.
Clinic personnel testified at deposition that Phelps walked into the building and said that she had fallen. Phelps seemed confused; she also had blood on her face, a laceration over her right eye that required suturing, she had a concussion, bruising around her right eye and cheekbone, pain in her right hip (diagnosed as a likely contusion); and she received a CT scan before her husband took her home.
After Phelps received medical aid for injuries received in her fall, clinic personnel went out to her car to try to locate what she had struck her head on. Janna Moose testified that she inspected the area around Phelps's car looking for blood, but found none. Moose could not recall whether there was a puddle, or ice, or anything else, in the lot close to Phelps's car. Darrin Cook, the other employee who allegedly inspected the scene just after the incident, filled out an incident report that stated Phelps slipped in the parking lot on the way to the building, but the report did not identify a cause for the fall.
Whether Cook was at the scene is contested. Two employees testified that he was at work that day. Cook testified that he was not at work on the day of the incident.
Coworker Cheryl Gauker testified at deposition that the morning of November 28 was "overcast" and "cold." CP 148, 154. She said, "I think I had to scrape my windows before I left home. I just know it was cold." CP at 148. When she arrived for work at about 7:30 am, she slipped as she got out of her van and had to hold onto her car to steady herself as she made her way to the building. When she got to the sidewalk, she walked across the ground cover to the building's door because the sidewalk "looked a little slick." CP at 149. When she got into the building, she said to coworkers, "boy, I just about fell." CP at 153.
Phelps's husband and a friend returned for Phelps's car at 3:00 pm that same day; and both noticed a small pool of water about 14 inches in diameter in a depression near the back left wheel of Phelps's car. Phelps's husband returned some two weeks later and took pictures of Phelps's car parked in the same stall and the depression with standing water in it. CP at 137-44,
Phelps and her husband (hereafter Phelps) filed a personal injury action against the clinic's owner, Southwest Washington Medical Center; property manager, Southwest Washington Management Group, Inc.; and premises lessee, Family Physicians Group. Phelps alleged that the defendants were negligent in failing to clear the parking lot of ice, upon which she slipped and fell sustaining injuries. The property owner and manager filed a joint motion seeking summary judgment arguing that Phelps had failed to show causation.
The original defendants also included an additional alleged property manager, Elliott Associates, Inc., but claims against Elliott were purportedly dismissed.
Family Physicians Group did not join in the property owner's and manager's combined summary judgment motion. Further proceedings in the trial court as to the remaining defendant have been stayed, with the trial court acknowledging that resolution of the appeal on the granting of summary judgment on causation will apply to all parties.
Phelps retained Wayne Slagle, an accident reconstruction expert, to inspect the scene and opine on the cause of the fall. Slagle also reviewed the statements of witnesses as noted above, photographs of the scene, photographs of Phelps's injuries, Phelps's medical records, and weather records. Slagle opined that it was "highly likely" that water accumulated forming a puddle in the low spot behind the stall where Phelps parked. CP at 209. Slagle opined that the freezing temperatures from the night before caused the water in the puddle to freeze, creating an extremely slick and dangerous condition. Slagle opined that it was "consistent with her injuries" for Phelps to have slipped and fallen "on the ice to her right side" impacting the asphalt or the curb where the low spot in the pavement was located. CP at 210. Slagle concluded that it is "more likely that not" that Phelps fell at the low spot in the lot, "which was at that point extremely slippery or icy," and that "it is more probable than not that Ms. Phelps['s] fall was caused by the icy and dangerous condition of the parking lot," and the failure of the property owners to take appropriate precautions to make the lot safe for pedestrians.
The trial court acknowledged that Phelps presented evidence that area temperatures were below freezing during the prior night and when she arrived for work, a coworker had slipped in the parking lot on the same morning, and a puddle in the parking stall between Phelps's car and the curb was frozen over when she exited her car. But the court ruled that Slagle's opinion was inadmissible and granted Southwest's summary judgment motion. Phelps's appeal followed.
ANALYSIS I. Propriety of Summary Judgment.
Phelps contends that the trial court erred in granting Southwest's summary judgment motion. We agree.
A. Standard of Review
When reviewing an order of summary judgment, we engage in the same inquiry as the trial court. Crowe v. Gaston, 134 Wn.2d 509, 514, 951 P.2d 1118 (1998); Attwood v. Albertson's Food Ctrs., Inc., 92 Wn. App. 326, 330, 966 P.2d 351 (1998). We affirm summary judgment when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Crowe, 134 Wn.2d at 514; Attwood, 92 Wn. App. at 330. We consider all facts, and all reasonable inferences from those facts, in the light most favorable to the nonmoving party. Crowe, 134 Wn.2d at 514; Attwood, 92 Wn. App. at 330. Summary judgment should be affirmed only if we determine that reasonable persons could reach but one conclusion from all the evidence. Attwood, 92 Wn. App. at 330.
The moving party bears the burden of showing the absence of an issue of material fact. Bruns v. PACCAR, Inc., 77 Wn. App. 201, 208, 890 P.2d 469, review denied, 126 Wn.2d 1025 (1995). A fact is material if it affects the outcome of the litigation. Ruff v. County of King, 125 Wn.2d 697, 703, 887 P.2d 886 (1995). When the moving party is a defendant, it may meet this burden by pointing out to the court that there is a lack of evidence to support the nonmoving party's case. Howell v. Spokane Inland Empire Blood Bank, 117 Wn.2d 619, 624, 818 P.2d 1056 (1991).
If the defendant meets this initial burden, the burden shifts to the plaintiff to make a prima facie showing of all essential elements. Bruns, 77 Wn. App. at 208. A plaintiff establishes a prima facie case when she produces evidence that supports a reasonable inference of the existence of each element. Bruns, 77 Wn. App. at 208.
On a summary judgment motion, the nonmoving party has a burden of production, not proof. See Marshall v. Bally's Pacwest, Inc., 94 Wn. App. 372, 380, 972 P.2d 475 (1999) (holding that because the plaintiff did not produce evidence of proximate cause, she failed to produce evidence sufficient to withstand summary judgment). The burden of production need only be met by substantial evidence. Colonial Imps., Inc. v. Carlton Nw, Inc., 121 Wn.2d 726, 734, 853 P.2d 913 (1993).
In a negligence claim, the plaintiff has the burden of establishing facts showing that the defendant had a duty to the plaintiff, the defendant breached that duty, and the breach was the cause in fact and proximate cause of the plaintiff's injury. Ruff, 125 Wn.2d at 703-04; Watters v. Aberdeen Recreation, Inc., 75 Wn. App. 710, 714, 879 P.2d 337 (1994).
B. Duty and Breach
Here, the landowner and its property manager (hereafter collectively referred to as Southwest) had a duty to Phelps as the employee of a tenant to exercise reasonable care to keep the parking lot free of hazards. "[A] landowner must exercise reasonable care in keeping all common areas reasonably safe from hazards likely to cause injury, including snow and ice." Mucsi v. Graoch Assocs. Ltd. P'ship No. 12, 144 Wn.2d 847, 858, 31 P.3d 684 (2001). Such duty does not make the landowner a guarantor of the tenant's safety, however. To establish breach of duty, a plaintiff must prove (1) the landowner had actual or constructive notice of the danger, and (2) the landowner failed within a reasonable time to exercise sensible care in alleviating the situation. Musci, 144 Wn.2d at 859. To prove constructive notice, the plaintiff must prove the specific unsafe condition had existed for such time as would have afforded the landowner sufficient opportunity, in the exercise of ordinary care, to have made a proper inspection of the premises and to have removed the danger. Musci, 144 Wn.2d at 859. Liability attaches once the landowner has become or should have become aware of a dangerous situation. Musci, 144 Wn.2d at 859. Alternatively, where the plaintiff is unable to establish actual or constructive notice, she may present evidence to establish that the unsafe condition "was reasonably foreseeable." Musci, 144 Wn.2d at 859.
The latter circumstance is applicable here. Phelps provided the deposition of Mark Magistrale, the executive director of the clinic where Phelps was injured. At deposition, Magistrale admitted that on the morning in question he had been in touch with building maintenance from his home to assure that "de-icing and that sort of thing was occurring" at clinic properties in response to the weather conditions. CP at 159. Accordingly, Phelps presented evidence that Southwest was at least constructively aware of the frosty and unsafe conditions at the clinic parking lot, or that slick and icy conditions were foreseeable due to the cold weather conditions. This evidence is sufficient to take the question of whether Southwest breached its duty to Phelps to a jury.
Magistrale also admitted that he was aware that Phelps had slipped on ice in the clinic parking lot.
C. Injury and Causation.
As to injury, there is no dispute that Phelps sustained injuries resulting from her fall in the clinic parking lot. This appeal turns, however, on the final element of negligence — causation. Generally, the issue of proximate cause is a question of fact for the jury and not subject to determination at summary judgment as a matter of law. Ruff, 125 Wn.2d at 703-04; Attwood, 92 Wn. App. at 330. A proximate cause is a cause that is natural and continuous, unbroken by an independent cause, and one that produces the plaintiff's injury. Attwood, 92 Wn. App. at 330. The cause must be one without which the injury would not have occurred (also known as cause-in-fact). Attwood, 92 Wn. App. at 330; see also Hartley v. State, 103 Wn.2d 768, 778, 698 P.2d 77 (1985). Causation may only be determined as a matter of law on summary judgment if the appellate court determines that reasonable minds could reach only one conclusion because the facts, and inferences from them, are plain and not subject to reasonable doubt or a difference of opinion. Ruff, 125 Wn.2d at 704; Attwood, 92 Wn. App. at 330.
To meet this burden in the present case, Phelps needed to produce evidence sufficient to allow a jury reasonably to infer causation from the preponderance of the evidence. See Hiatt v. Walker Chevrolet Co., 120 Wn.2d 57, 66, 837 P.2d 618 (1992) (to overcome defendant's summary judgment motion plaintiff must answer with specific and material facts to support each element of her prima facie case). Southwest argues correctly that Phelps cannot meet her burden of production based only on speculation. Although reasonable inferences cannot rest on conjecture, the party who has the burden of production does not have to provide proof to an absolute certainty. 134 v. Seymour, 27 Wn.2d 802, 808, 180 P.2d 564 (1947). The party with the burden of production meets that burden by submitting evidence that provides a logical basis for making the inferences necessary to support causation. Gardner, 27 Wn.2d at 808-09.
Here, Phelps produced facts from which a reasonable inference can be drawn that the slick and icy conditions in the parking lot injured her. Although Phelps has substantial memory loss due to her fall, she testified at deposition that she remembered getting out of her car, taking a step, and then the ground coming at her. She submitted medical records showing injuries consistent with a slip and fall, including lacerations on her face, a concussion, and contusions on her face and side. She submitted the deposition testimony of coworker Cheryl Gauker, who also slipped in the same clinic parking lot just minutes before Phelps's fall. A reasonable person could infer from Gauker's testimony describing her precarious journey from her car to the clinic building that conditions on the hard surfaces outside the clinic (parking lot and sidewalk) were frosty and dangerously slippery. As the trial court acknowledged, Phelps presented evidence that temperatures in the area had remained below freezing the night before and until Phelps's arrival around 8:00 am, inferring that the puddle of water later found beside her car in the stall where she parked was frozen over when she arrived. The weather records, the testimony regarding conditions in the parking lot, the frozen-over puddle in the stall where Phelps parked, Magistrale's and Southwest's awareness of foreseeable hazards on that morning, and Phelps's terse description of the suddenness with which she fell after taking a single step from her car, together yield a reasonable inference that the foreseeable, frosty, and slippery conditions of the parking lot at Phelps's car caused Phelps to slip and fall resulting in her injuries. Accordingly, we hold that Phelps presented a sufficient prima facie case to avoid summary judgment and proceed to trial.
Relying on Marshall v. Bally's, Southwest contends that when a plaintiff has no memory of how an accident occurred and there are no witnesses to the accident, her case must be dismissed on summary judgment for lack of causation. But Marshall v. Bally's is distinguishable from Phelps's case. There the plaintiff suffered head injuries when she fell off a treadmill at a Bally's fitness club. She suffered a complete loss of memory regarding the accident but later speculated that the treadmill must have malfunctioned and suddenly restarted at a faster speed than she had set it for when it stopped and restarted during her workout. Marshall v. Bally's, 94 Wn. App. at 378. She admitted, however, that she had no memory of anything that occurred after she reset the machine. Moreover, she offered no evidence that she was thrown from the machine, what caused her to be thrown from the machine, or how she was injured. Marshall v. Bally's, 94 Wn. App. at 379. We held that given the plaintiff's failure to produce evidence explaining how the accident occurred, proximate cause could not be established and summary judgment to the fitness club was proper. Marshall v. Bally's, 94 Wn. App. at 379-80.
Key to our determination in Marshall v. Bally's was the fact that the plaintiff could not articulate specific facts about how the accident occurred, she offered "no evidence" as to how she fell or what caused her to fall, and in response to the summary judgment motion, she tried to create a genuine issue of fact by contradicting her earlier deposition testimony. Marshall v. Bally's, 94 Wn. App. at 381. As to this latter point, we applied the rule from Marshall v. AC S, Inc., 56 Wn. App. 181, 185, 782 P.2d 1107 (1989), which held that when a party has given clear answers to unambiguous deposition questions that negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony. See Marshall v. Bally's, 94 Wn. App. at 379; Marshall v. AC S, 56 Wn. App. at 185. Moreover, the plaintiff in Marshall v. Bally's had signed a waiver and release, thereby agreeing to assume all risk of injury that might result from her use of equipment at the fitness club. Marshall v. Bally's, 94 Wn. App. at 376 n. 1.
We stress that Marshall v. Bally's turned on the plaintiff's failure to produce any cognizable evidence regarding causation. That case is limited to its facts and in no way altered the customary summary judgment standard.
By contrast, Phelps did not offer her own lone contradictory affidavit in response to summary judgment, nor did she sign any waiver and release, or agree to assume any risk. Moreover, Phelps's testimony indicates a sudden slip consistent with falling on ice, and she offered other evidence indicating the frosty, slippery conditions in the parking lot. As noted, the trial court found that Phelps's evidence provided an inference that when Phelps arrived in the parking lot a puddle in the stall where she parked was frozen over. These facts distinguish this case from Marshall v. Bally's because a rational person could reasonably infer that the conditions in the clinic parking lot were slick and unsafe, that such conditions caused Phelps to fall resulting in her injuries, and that such injuries were foreseeable given the weather conditions.
Nevertheless, relying on Gardener v. Seymour, Southwest contends that because a jury could infer other causes of Phelps's injury, summary judgment was proper. It is just as likely, Southwest contends, that Phelps tripped over the curb or her own feet causing her to fall.
It is true that Gardner directs that a jury cannot be allowed to speculate between several equally likely causes. The Gardner court held 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 Wn.2d at 810 (citation omitted). But Gardner addressed a challenge to the trial court's denial of a motion for judgment notwithstanding the verdict. Gardner, 27 Wn.2d at 815. Thus, the Gardner court was addressing whether the plaintiff had met her burden of persuasion at trial. The issue here is whether Phelps met her burden of production sufficient to avoid summary judgment. Thus, Gardner does not control the present inquiry.
As noted, we must construe all facts submitted and all reasonable inferences from the facts in the light most favorable to Phelps as the nonmoving party. Attwood, 92 Wn. App. at 330. So viewed, Phelps submitted substantial evidence supporting her theory of causation thereby creating a genuine issue of fact regarding that element. Whether she can meet her burden of persuasion at trial remains to be seen, but for purposes of avoiding summary judgment Phelps has met her burden of production. Accordingly, we hold that the trial court erred in granting summary judgment to Southwest.
II. Exclusion of Expert Testimony
Phelps also contends that the trial court erred in excluding the testimony of her accident reconstruction expert. We agree.
Expert testimony is admissible when the witness qualifies as an expert, the opinion is based on an explanatory theory generally recognized in the scientific community, and the testimony would help the trier of fact. State v. Phillips, 123 Wn. App. 761, 765, 98 P.3d 838 (2004), review denied, 154 Wn.2d 1014 (2005). ER 702 also permits admission of qualified expert testimony when scientific, technical, or other specialized knowledge will help the trier of fact understand the evidence or determine a fact in issue. Phillips, 123 Wn. App. at 765. A witness without personal knowledge who fails to satisfy the requirements of ER 702 is merely speculating. Such a witness has no relevant admissible evidence and must be excluded. Phillips, 123 Wn. App. at 765. Although we review a trial court's decision to admit or exclude expert testimony for an abuse of discretion, a court that admits expert testimony unsupported by an adequate foundation abuses its discretion. Phillips, 123 Wn. App. at 765; Safeco Ins. Co. v. McGrath, 63 Wn. App. 170, 177, 817 P.2d 861 (1991), review denied, 118 Wn.2d 1010 (1992) (conclusory or speculative expert opinions lacking an adequate foundation will not be admitted).
Whether to admit or exclude expert testimony is discretionary with the trial court. Stevens v. Gordon, 118 Wn. App. 43, 51, 74 P.3d 653 (2003). We will not disturb that decision unless it was exercised on untenable grounds or for untenable reasons. State v. Burke, 163 Wn.2d 204, 210, 181 P.3d 1 (2008). In other words, we will not find abuse of discretion unless no reasonable person would take the position adopted by the trial court. Stevens, 118 Wn. App. at 51; Miller v. Likins, 109 Wn. App. 140, 147, 34 P.3d 835 (2001) (reviewing court will not disturb the trial court's ruling if the reasons for admitting or excluding the expert's opinion evidence are both fairly debatable).
Here, the trial court ruled:
Having been told that Plaintiff slipped on ice, Mr. Slagle concludes that she probably slipped on the puddle of ice near her vehicle.
M[r]. Slagle's opinion in that regard is inadmissible, as it is based upon a fact not proven, that Plaintiff slipped on ice. Although ER 703 permits an opinion to be based upon facts or data not admissible in evidence, the facts or data must be of the kind generally relied upon by experts in his field. Nowhere in the record does Mr. Slagle state that experts in the witness's field customarily rely upon unsubstantiated speculation, supposition, or hearsay, unsupported by any evidence in the record.
CP at 332. The trial court's view — that Slagle's opinion was mere speculation because no evidence supported it — is belied by the record.
Slagle concluded that it is "more likely that not" that Phelps fell at the low spot in the lot, "which was at that point extremely slippery or icy," and that "it is more probable than not that Ms. Phelps['s] fall was caused by the icy and dangerous condition of the parking lot," and the failure of the property owners to take appropriate precautions to make the lot safe for pedestrians. CP at 210. Slagle's declaration does not rely on mere hearsay, but instead it discusses the evidence that he considered in forming his opinion, including his inspection of the scene, witness statements, photographs of the scene, photographs of Phelps's injuries, Phelps's medical records, and weather records. Slagle's declaration explained how he used weather records to conclude that the low spot in the parking lot at the stall where Phelps parked was icy and slippery. As noted, the trial court acknowledged that the evidence inferred there was indeed a frozen puddle at the stall where Phelps parked when she got out of her car. Moreover, Gauker's testimony provides direct evidence that the hard surfaces outside the clinic were slick and dangerous.Phelps's testimony — indicating that she took at least one step and suddenly the ground was coming at her face — reasonably places her fall at the location of the frozen puddle, and the purported suddenness of her fall reasonably suggests that she slipped on the frozen puddle. Based on this evidence, Slagle reasonably concluded that the location and cause of Phelps's fall was "more likely than not" the frozen puddle beside her car. CP at 210.
Although Gauker never used the word icy in her deposition, that is the only term that reasonably accounts for all of the circumstances she described (i.e., it was cold, she had to scrape her windshield before driving to work, she slipped getting out of her car, the clinic parking lot was slippery necessitating that she hold onto her car to make her way toward the building, and the sidewalk looked slick as well, prompting her to walk on the ground cover to the clinic's door).
Although we employ a highly deferential standard when reviewing the trial court's decision on admissibility of expert opinion testimony, in this case, the trial court's determination that no evidence supports that opinion is untenable. As discussed, Slagle's opinion draws reasonable inferences and conclusions from the evidence in the record. While there is room to challenge Slagle's conclusions, that is a proper subject for cross-examination, and such challenges go to weight rather than admissibility of the expert opinion. For these reasons, we hold that the trial court erred in excluding Slagle's testimony.
CONCLUSION
Cynthia Phelps submitted substantial evidence supporting her allegation that icy, slick conditions in the clinic parking lot where she worked caused her to fall and sustain injuries. Moreover, her expert's opinion regarding the cause and location of her fall was based on reasonable inferences and conclusions drawn from evidence in the record. Accordingly, we hold that the trial court erred in excluding the expert's opinion, and erred in dismissing Phelps's negligence claim. We reverse the trial court's exclusion of Wayne Slagle's expert opinion testimony, reverse the trial court's grant of summary judgment to Southwest, and remand for trial.
HOUGHTON, J. and VAN DEREN, C.J., concur.