Opinion
No. 56466-8-I.
July 3, 2006.
Appeal from judgments of the Superior Court for King County, No. 04-2-00250-8, Steven C. Gonzalez, J., entered May 27 and June 17, 2005.
Counsel for Appellant(s), Charles A. Kimbrough, Attorney at Law, 11033 NE 24th St Ste 200, Bellevue, WA 98004-2941.
Anne Elizabeth Melley, Talmadge Law Group PLLC, 18010 Southcenter Pkwy, Tukwila, WA 98188-4630.
Philip Albert Talmadge, Talmadge Law Group PLLC, 18010 Southcenter Pkwy, Tukwila, WA 98188-4630.
Counsel for Respondent(s), Kirsten Ann Schultz, Lee Smart Cook Patterson, 701 Pike St Ste 1800, Seattle, WA 98101-3929.
Joel Evans Wright, Lee Smart Cook et al, 701 Pike St Ste 1800, Seattle, WA 98101-3929
Affirmed by unpublished opinion per Cox, J., concurred in by Grosse and Dwyer, JJ.
A landowner's duty to a business invitee attaches, if the owner knows, or by the exercise of reasonable care, would discover a condition on the land and should realize that it involves an unreasonable risk. This notice requirement does not exist where (1) the dangerous condition is 'foreseeably inherent in the nature of the business or mode of operation,' the 'self-service' exception, or (2) the landowner caused the hazardous condition. In ruling on a motion for summary judgment, a court is bound to consider only admissible evidence. Because in our de novo review of the record it is clear that Joann and Larry Sherrick failed in their burden to show that there is any genuine issue of material fact for trial, we affirm.
Iwai v. State, 129 Wn.2d 84, 96, 915 P.2d 1089 (1996).
Id. at 98, 101-02.
In 2001, Joann Sherrick entered the Northgate Mall and was walking through the food court when she tripped and fell. Ms. Sherrick injured her left arm and was taken to Virginia Mason Medical Center for treatment. A security officer responded to the scene, spoke with Ms. Sherrick, and filled out an incident report.
The Sherricks commenced this negligence action in 2004 against Simon Property Group, Inc. and Varsity Contractors, Inc. Simon is a partner of Northgate Mall Partnership, the partnership that owns and operates the mall. Varsity is an independent contractor that provides janitorial and other services to the mall.
Simon and Varsity moved for summary judgment. They also moved to strike several declarations submitted in opposition to the motion on evidentiary and other grounds. The Sherricks moved to strike material supporting the motion, including the letter written by Teddy Moon, a former Varsity employee, and the accident report completed by a security officer who responded to the scene. The Sherricks asserted that these documents contained hearsay and were not properly authenticated. The trial court struck the declarations submitted by the Sherricks and admitted Teddy Moon's letter and the accident report. The court entered the order on summary judgment on May 27, 2005.
The Sherricks transmitted by facsimile their motion for reconsideration to the court on June 6, 2005. They attempted to serve Simon and Varsity by facsimile on that same date. However, they were unsuccessful in doing so by the relevant deadline. The trial court ordered the motion stricken because it was untimely and it contained evidence not before the court on summary judgment that was previously available to the Sherricks. The Sherricks appeal.
SUMMARY JUDGMENT
The Sherricks argue that the trial court erred in granting summary judgment to Simon and Varsity because there is a genuine issue of material fact for the jury. We disagree.
A motion for summary judgment may be granted when there is 'no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.' A summary judgment motion must be supported by affidavits and set forth facts that would be admissible in evidence. The moving party bears the initial burden of showing the absence of an issue of material fact. If the moving party is a defendant who meets the initial burden, then the inquiry shifts to the party with the burden of proof at trial. If that party 'fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial,' then the court should grant the motion.
Right-Price Recreation, L.L.C. v. Connells Prairie Community Council, 146 Wn.2d 370, 381-82, 46 P.3d 789 (2002).
Id.
Id. (quoting Young v. Key Pharms., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989).
We review a summary judgment order de novo, viewing the facts and reasonable inferences in the light most favorable to the nonmoving party. We review de novo a trial court's evidentiary rulings made in conjunction with a summary judgment motion.
Khung Thi Lam v. Global Med. Sys., 127 Wn. App. 657, 661 n. 4, 111 P.3d 1258 (2005).
Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998).
Motion to Strike
The Sherricks argue that the trial court erred in striking the declarations of Dr. Albert Drui and Renee Maurice. Assuming without deciding that the exclusion was error, it was nevertheless harmless. CR 34 provides that 'Any party may serve on any other party a request to permit entry upon designated land . . . for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property. . . .'
Here, it is undisputed that Dr. Drui and Maurice went to the Northgate Mall on a busy Saturday afternoon, in order to inspect the tile floor. Maurice spilled coffee on the floor in the food court. After the coffee dried, Dr. Drui performed his tests. Dr. Drui concluded that when sugared coffee dries on the tile floor, it creates an increase of the coefficient of static friction, thus creating a sticky condition.
The trial court ordered the declarations of Dr. Drui and Maurice stricken in substantial part because the Sherricks did not give Northgate Mall any notice of their inspection. The only evidence the trial court considered from Dr. Drui were the photographs taken of the food court, showing the type of tile floor.
The Sherricks assert that CR 34 does not require the plaintiff to serve a formal request to enter upon land open to the general public. Even if the trial court admitted this evidence, there is no genuine issue of material fact because the Sherricks have not shown that there was a condition on the floor at the time of the fall that involved an unreasonable risk of harm. The declarations the trial court excluded showed that when sugared coffee is spilled and left to dry, it creates a sticky condition. The declarations also included Ms. Sherrick's medical records in which she indicated that she fell because her left foot stuck. Neither the tests nor the other parts of the record show that the conditions at the time of the test were those that existed at the time of the accident. Ms. Sherrick fails to establish a condition that is attributable to the mall, leaving a jury to speculate. Thus, exclusion of the declarations was harmless.
Authentication
The Sherricks argue that the trial court erred in considering Teddy Moon's letter and the accident report because they were not properly authenticated and the accident report is hearsay. We disagree.
The requirement of authentication, ER 901(a), 'is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.'
Lockwood v. A C S, Inc., 109 Wn.2d 235, 250-51, 744 P.2d 605 (1987).
Here, Kirsten Schultz, the attorney for Simon and Varsity, declared that the 'Moon letter' was a statement by Teddy Moon, a former Varsity employee, who was the janitorial supervisor working on the day of Ms. Sherrick's accident. Shultz met with Moon at the Northgate Mall in February 2005, and he provided her with a written statement, the 'Moon letter.' This is sufficient evidence to show that the letter is Moon's statement.
The Moon letter contains some hearsay, but the court will not consider inadmissible evidence when ruling on a motion for summary judgment. We can presume the court disregarded the inadmissible evidence.
King County Fire Protection Dist. No. 16 v. Housing Authority, 123 Wn.2d 819, 826, 872 P.2d 516 (1994).
See State v. Melton, 63 Wn. App. 63, 68, 817 P.2d 413 (1991) ('A trial judge is presumed to be able to disregard inadmissible evidence. . . .').
Sam Stalin, the general manager of the Northgate Mall, declared that Simon contracts with IPC International for security services at the mall. Stalin stated that IPC responds to the scene of any accident in the mall, fills out an incident report, which is given to him, and he keeps a file of the incident reports in his office. This is sufficient evidence to show that the accident report is IPC's report of Ms. Sherrick's fall.
Therefore, the accident report and the Moon letter were properly authenticated.
Hearsay
Hearsay 'is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.' Hearsay evidence is generally inadmissible, unless an exception applies. 'Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule. . . .'
ER 801(c). "A 'statement' is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion." ER 801(a).
ER 802.
ER 805. Statements that are 'not hearsay' under Rule 801 are treated as falling within an exception to the hearsay rule for purposes of Rule 805. ER 805, comment (4).
The Uniform Business Records Act (UBRA) provides an exception for business records. For a business record to be admissible it must: '(1) be in record form, (2) be of an act, condition or event, (3) be made in the regular course of business, (4) be made at or near the time of the act, condition or event, and (5) the court must be satisfied that the sources of information, method, and time of preparation justify the admittance of the evidence.' A business record may be admitted by the custodian and identified by one who has supervised its creation.
RCW 5.45.020; State v. DeVries, 149 Wn.2d 842, 847, 72 P.3d 748 (2003).
State v. Ziegler, 114 Wn.2d 533, 538, 789 P.2d 79 (1990).
State v. Smith, 16 Wn. App. 425, 433, 558 P.2d 265 (1976).
Ms. Sherrick fell at the Northgate Mall on Thursday, January 18, 2001. The IPC security officer responded to take Ms. Sherrick's report of the accident. The security officer filled out the incident report on the same day of the accident according to IPC's regular course of business. Stalin maintains the incident reports and testified to its creation. Therefore, the incident report is admissible as a business record.
The incident report contains Ms. Sherrick's statement to the security officer that she tripped over her own feet. A statement is not hearsay if it is offered against a party and is the party's own statement. Thus, Ms. Sherrick's statement to the security officer is admissible because it is 'not hearsay.'
ER 801(d)(2).
Finally, the Sherricks contend that because there are discrepancies in the incident report regarding the time of the accident and the time of the report, and the report's author is unclear, the report is inadmissible.
The report states S. Dickerson was the reporting officer. But the Sherricks fail to show how the report is inadmissible because of discrepancies. In any event, both the time of the accident and the time of the report state 12:00.
The trial court properly considered the evidence.
Negligence
A negligence action requires the plaintiff to prove: (1) the existence of a duty, (2) breach of that duty, (3) proximate cause, and (4) a resulting injury. Washington adopts the Restatement (Second) of Torts sec. 343 in determining a landowner's duty to invitees:
Mucsi v. Graoch Assocs. Ltd. Partnership No. 12, 144 Wn.2d 847, 854, 31 P.3d 684 (2001).
A possessor of land is subject to liability for physical harm caused to his [or her] invitees by a condition on the land if, but only if, he [or she]
(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.
Iwai, 129 Wn.2d at 93-94.
'[A] landowner's duty attaches only if the landowner 'knows or by the exercise of reasonable care would discover the condition and should realize that it involves an unreasonable risk. . . ." Reasonable care requires the landowner to inspect the dangerous condition and repair or warn invitees of the condition. 'Knowledge' requires the plaintiff to show actual or constructive notice of the dangerous condition.
Id. at 96 (quoting RESTATEMENT (SECOND) OF TORTS sec. 343(a)).
Tincani v. Inland Empire Zoological Society, 124 Wn.2d 121, 139, 875 P.2d 621 (1994).
Iwai, 129 Wn.2d at 96.
There are two exceptions to the 'notice' requirement: (1) the dangerous condition is 'foreseeably inherent in the nature of the business or mode of operation,' also known as the self-service exception or (2) the landowner caused the hazardous condition.
Id. at 98, 101-02.
The Sherricks contend that Ms. Sherrick's foot stuck to the floor, on a sticky substance, and she fell forward. But the Sherricks presented no evidence that there was a condition on the floor that caused her foot to stick. Rather, Ms. Sherrick's own testimony at deposition establishes that she does not know how or why she fell. Subsequent statements by her to the contrary are simply not persuasive. Moreover, Simon and Varsity presented other evidence that Ms. Sherrick fell because she tripped over her own feet.
State Farm Mut. Auto. Ins. v. Treciak, 117 Wn. App. 402, 407, 71 P.3d 703 (2003), review denied, 151 Wn.2d 1006 (2004) ("'When a party has given clear answers to unambiguous [deposition] questions which 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.'" Marshall v. A C S, Inc., 56 Wn. App. 181, 185, 782 P.2d 1107 (1989) (quoting Van T. Junkins Assocs. v. U.S. Indus., Inc., 736 F.2d 656, 657 (11th Cir. 1984)).
In Ms. Sherrick's deposition, she said 'I tripped and I fell . . . I fell forward.' When asked to explain how she fell, Ms. Sherrick responded 'It happened so fast, I really — it's hard to — I can't explain it because all — I tripped and I fell, fell forward, and I was on the ground.' Ms. Sherrick further testified that she did not know how she tripped. The incident report stated that Ms. Sherrick told the security officer that 'she was on the floor because she had tripped over her own feet.' The report further stated that '[t]here were no spills or obstructions in the area where she fell.'
Simon and Varsity met their initial burden by showing they did not breach their duty of care. But the Sherricks failed to present sufficient evidence to establish Simon and Varsity breached their duty. We hold that the trial court did not err in granting summary judgment.
RECONSIDERATION
The Sherricks argue that the trial court abused its discretion in denying their motion for reconsideration. We disagree.
CR 59(b) requires a motion for reconsideration to be served and filed no later than 10 days after the entry of the judgment. A trial court may not extend this time period. We review a motion for reconsideration for an abuse of discretion.
Schaefco, Inc. v. Columbia River Gorge Commission, 121 Wn.2d 366, 367, 849 P.2d 1225 (1993).
Rivers v. Wash. State Conf. of Mason Contractors, 145 Wn.2d 674, 685, 41 P.3d 1175 (2002).
Here, the summary judgment order was entered on May 27, 2005 and the 10-day deadline to file a motion for reconsideration expired on June 6, 2005. The Sherricks' opening brief states that the summary judgment order was entered on May 28, 2005, and thus the deadline was June 7, 2005. They corrected this mistake in their reply brief.
The trial court struck the motion as untimely as well as for other reasons. We need only reach the first reason in this case.
The Sherricks contend that they transmitted by facsimile their motion for reconsideration and attendant pleadings to the trial court on the afternoon of June 6, 2005, and also sent by facsimile the motion pleadings to counsel for Simon and Varsity that same day. The Sherricks acknowledge that the pleadings sent by facsimile to Simon and Varsity did not go through and they transmitted them by facsimile again on the evening of June 6, 2005. This correct admission is dispositive.
CR 5(b)(7) permits service by facsimile or electronic means, when consented to in writing by the person served. Service by facsimile or electronic means must be complete prior to 5:00 p.m. on a judicial day. Service under CR 5(b)(7) 'is not effective if the party making service learns that the attempted service did not reach the person to be served.' Here, Simon and Varsity never entered into a written stipulation consenting to facsimile service. The Sherricks assert that the parties had a practice of serving each other by facsimile prior to their motion for reconsideration, and therefore Simon and Varsity have waived any objection to service by facsimile. However, the Sherricks sent their pleadings via facsimile, but served copies via legal messenger. This undercuts their argument that Simon waived the requirement that a written stipulation for service by facsimile is required before such service is valid.
The Sherricks acknowledged that their pleadings were not served on Simon and Varsity until after the deadline. Therefore, the motion for reconsideration was untimely. The trial court properly denied the motion on this basis.
We hold that the trial court did not abuse its discretion in ordering the motion for reconsideration stricken as untimely. We need not address further arguments.
Because of our resolution of this matter, we need not address Simon's additional argument that it is merely a partner in the partnership that owns the mall. Moreover, since there is no separate argument respecting the liability of Varsity and it is not a possessor of land subject to potential liability under the Restatement (Second) of Torts sec. 343(a), we need not address whether the summary judgment order properly dismissed that entity.
We affirm the summary judgment order and the order striking the motion for reconsideration.
DWYER and GROSSE, JJ., concur.