Opinion
No. 37917-1-II.
January 26, 2010.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-2-10189-3, Susan Serko, J., entered May 30, 2008.
Reversed and remanded by unpublished opinion per Quinn-Brintnall, J., concurred in by Bridgewater and Hunt, JJ.
Terry Tilton appeals the superior court's grant of summary judgment in favor of Quality Food Centers (QFC). Tilton sued QFC for negligence after she slipped and fell in what she claimed was a pool of water in the floral department of a QFC store in Lakewood, Washington. QFC moved for summary judgment, arguing that Tilton had failed to present any evidence that she slipped in a pool of water or that any water on the floor of the floral department constituted an unsafe condition. The trial court agreed with QFC and granted summary judgment in its favor. Because Tilton presented sufficient evidence that the condition which caused her to slip and fall was water and because, in applying our de novo standard of review, we find no other grounds on which the superior court may have properly granted summary judgment in favor of QFC, we reverse for trial on the merits.
FACTS
Factual Background
On April 9, 2005, Tilton was shopping at a QFC in Lakewood, Washington. After she completed her grocery shopping, she decided to look at fresh-cut flowers in the floral department's flower cooler. In front of the flower cooler was a three-tiered merchandizing shelf displaying large plastic vases containing fresh-cut flowers. The plastic vases contained water and, when shoppers picked up bouquets of flowers, water would occasionally drip onto the smooth tile floor.
As Tilton approached the floral cooler, her left foot slipped out from under her, and she fell to the floor. The floral department manager, Magan Robinson, helped Tilton stand up after the fall; Tilton did not report the incident at this time and left the store without assistance. Three days later, Tilton returned to the store and filled out an incident report, stating that she slipped and fell in the floral department and that she "took out a pot of flowers water on [her] way down." Clerk's Papers (CP) at 7. Tilton also stated that Robinson "picked up the flowers" after she fell and that Robinson suggested that someone "might have spilled water from [the] containers earlier." CP at 7.
At a later deposition, Tilton described the fall, testifying that, as she fell, her left cheekbone impacted a black plastic flower pot near the cooler and that she grabbed onto it with both hands as she fell before she landed on her left buttock and back. Tilton further testified that as she "laid on the ground, there wasn't anything turned over around [her], but there was water all over," the "whole left side of [her] body and back was wet," and her clothes were "soaking wet." CP at 49, 50, 54. Tilton also acknowledged that she did not see any water on the floor before she fell because she was looking at the flowers, not at the floor, when she fell.
According to Tilton, the flower pot was freestanding, stacked on top of another flower pot that had been turned upside down.
Tilton also clarified her previous statement in the QFC incident report, testifying that when she reported that she "took out" a pot of flowers and water, she meant that she had "hit them" as she fell and that any suggestion she had physically knocked them over was incorrect. CP at 54. Tilton testified that she "[did not] believe [the pot] was overturned" when she landed because it was "upright" after she fell and "[t]here was still water in it." CP at 52. Tilton also testified that even if some water had splashed out of the flower pot as she fell, based on the amount of water still in the container and the amount of water on the floor, the container was not large enough to have held the amount of water that surrounded her. Contrary to her previous statement to QFC, she testified that she "remember[ed] very vividly looking at those flowers . . . and putting them back." CP at 50.
Procedural History
On August 4, 2006, Tilton sued QFC for negligence, arguing that QFC failed to exercise due care in the operation and maintenance of its Lakewood store because it had failed to maintain the floor of the floral department "in a safe and proper condition." CP at 2. Tilton also alleged that QFC should have taken further steps to prevent the accumulation of water on the floor in the floral department and should have reasonably foreseen its accumulation and this potential hazard to customers, who could not be reasonably expected to see such a condition. Tilton claimed that, as a result of QFC's negligence, she suffered "serious personal injuries, incur[red] medical bills, [lost] wages, and endure[d] great pain and suffering, loss of enjoyment of life and emotional distress." CP at 3.
On April 29, 2008, QFC moved for summary judgment, asking the trial court to dismiss Tilton's claims because Tilton was unable to offer any evidence that she fell as a result of a pool of water on the floor nor could she demonstrate that any water on the floor constituted an unsafe or dangerous condition. The trial court granted QFC's motion, reasoning that Tilton had failed to present any evidence other than her own speculation that she slipped on water or that an accumulation of water caused her to slip and fall. The trial court stated that while "[s]he surmises that it was water based on the fact that she ends up on the floor and there's all this water around her[,] she can't say that there was a condition that was dangerous that she slipped in." Report of Proceedings (RP) at 11.
Tilton timely appeals.
ANALYSIS
Standard of Review
We review an order on summary judgment de novo. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 860, 93 P.3d 108 (2004). Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56(c). The moving party bears the burden of demonstrating that there is no genuine issue of material fact. Atherton Condo. Apartment-Owners Ass'n Bd. of Dirs. v. Blume Dev. Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990). We view all facts in the light most favorable to the nonmoving party. Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005). Summary judgment is appropriate only if reasonable persons could reach but one conclusion from all the evidence. Vallandigham, 154 Wn.2d at 26.
At oral argument, Tilton acknowledged that our standard of review on an appeal from a summary judgment order is de novo but contended that, in reviewing the summary judgment order entered against her, we are restricted to examining only elements challenged at the trial court. In other words, Tilton contends that if we find a genuine issue of material fact exists on the element of an unsafe condition, we must reverse the summary judgment order even if there are no genuine issues of material fact supporting the remaining elements of her negligence claim. Tilton cited RAP 9.12 to support her contention. RAP 9.12 states, "On review of an order granting or denying a motion for summary judgment the appellate court will consider only evidence and issues called to the attention of the trial court." Contrary to Tilton's contention, nothing in RAP 9.12 prohibits us from affirming the trial court's summary judgment order on any correct ground even if not considered by the trial court. See Nast v. Michels, 107 Wn.2d 300, 308, 730 P.2d 54 (1986) ("an appellate court may sustain a trial court on any correct ground, even though that ground was not considered by the trial court"). Further, our Supreme Court has held that reviewing courts may consider issues not raised below "'when the question raised affects the right to maintain the action.'" Bennett v. Hardy, 113 Wn.2d 912, 918, 784 P.2d 1258 (1990) (quoting Maynard Inv. Co. v. McCann, 77 Wn.2d 616, 621, 465 P.2d 657 (1970)). Thus, as part of our de novo review of a summary judgment, we must look to evidence supporting each necessary element of plaintiff's claim.
The nonmoving party must make a showing sufficient to establish each element on which that party will bear the burden of proof at trial. Miller v. Likins, 109 Wn. App. 140, 145, 34 P.3d 835 (2001) (quoting Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989)). If the nonmoving party fails to make a showing sufficient to establish the existence of an essential element, summary judgment is appropriate because there can be "'"no genuine issue [of] material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.'" Young, 112 Wn.2d at 225 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)); see Miller, 109 Wn. App. at 145. But the nonmoving party may not rely on speculation, argumentative assertions that unresolved factual issues remain, or having its affidavits considered at face value. Seattle Police Officers Guild v. City of Seattle, 151 Wn.2d 823, 848, 92 P.3d 243 (2004) (quoting Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986)). "If the moving party satisfies its burden, the nonmoving party must present evidence that demonstrates that material facts are in dispute." Atherton, 115 Wn.2d at 516. If the nonmoving party fails to do so, then the summary judgment is proper. Vallandigham, 154 Wn.2d at 26 (citing Atherton, 115 Wn.2d at 516).
Negligent Failure to Maintain Business Premises
Tilton contends that the trial court erred when it granted summary judgment in favor of QFC because she presented evidence sufficient to establish that she slipped in a pool of water. QFC responds by summarily dismissing Tilton's evidence, arguing that Tilton has no evidence other than her own self-serving statements and speculation that she slipped on water. We agree with Tilton.
Proof of any negligence claim requires that the defendant owe a duty to the plaintiff, that the defendant breach that duty, and that the breach is the proximate cause of injuries to the plaintiff. Joyce v. Dep't of Corr., 116 Wn. App. 569, 586, 75 P.3d 548 (2003) (citing Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999)), aff'd in part, rev'd in part on other grounds, 155 Wn.2d 306, 119 P.3d 825 (2005). The legal duty a landowner owes to a person entering the premises depends on whether the entrant is within a common law category of a trespasser, a licensee, or an invitee. Iwai v. State, 129 Wn.2d 84, 90-91, 915 P.2d 1089 (1996) (citing Younce v. Ferguson, 106 Wn.2d 658, 662, 724 P.2d 991 (1986)). Here, neither party has disputed, and the record supports, Tilton's status as an invitee on QFC's premises.
To establish a negligent failure to maintain business premises in a reasonably safe condition, an invitee plaintiff must generally show (1) the proprietor or its employees caused an unsafe condition or (2) the proprietor had actual or constructive knowledge of the unsafe condition and failed to timely remedy it. Pimentel v. Roundup Co., 100 Wn.2d 39, 49, 666 P.2d 888 (1983). But in Pimentel, our Supreme Court recognized an exception to this requirement, known as the mode of operation rule. 100 Wn.2d at 40.
Under the Pimentel exception, if the business where an injury occurs is a self-service operation, the plaintiff is relieved of her burden of establishing a proprietor's actual or constructive knowledge of an unsafe condition if she can show that the business' operating procedures are such that unreasonably dangerous conditions are continuous or reasonably foreseeable. Arment v. Kmart Corp., 79 Wn. App. 694, 696, 902 P.2d 1254 (1995) (citing Pimentel, 100 Wn.2d at 40). Under such circumstances, the plaintiff can establish liability by "'showing that the operator of the premises had failed to conduct periodic inspections with the frequency required by the foreseeability of risk.'" Iwai, 129 Wn.2d at 99 (quoting Wiltse v. Albertson's, Inc., 116 Wn.2d 452, 461, 805 P.2d 793 (1991)). The Pimentel exception relieves a plaintiff of the burden to establish that the business owner had actual or constructive knowledge of any hazard, but it does not create strict liability or require the owner to disprove negligence. 100 Wn.2d at 40, 49. Here, both QFC and Tilton agree that the floral department in which Tilton slipped and fell is a self-service area of the store.
A "self-service area" of a grocery store is "[a] location where customers serve themselves, goods are stocked, and customers handle the grocery items, or where customers otherwise perform duties that the proprietor's employees customarily perform[]." O'Donnell v. Zupan Enters., Inc., 107 Wn. App. 854, 859, 28 P.3d 799 (2001) (citing Coleman v. Ernst Home Ctr., Inc., 70 Wn. App. 213, 219, 853 P.2d 473 (1993)), review denied, 145 Wn.2d 1027 (2002).
A. Type of Condition
Tilton contends that she presented sufficient evidence to survive summary judgment because the condition that caused her to slip and fall was a pool of water that had accumulated on the tile floor. Although Tilton acknowledges that she did not see any water on the floor prior to her fall, she points out that after the fall she was surrounded by a large quantity of water and that she was soaking wet. This evidence, she asserts, is sufficient to survive summary judgment. QFC argues that because Tilton did not see any water on the floor prior to her fall, and because Tilton "took out" a pot of flowers and water with her when she fell, there is no evidence beyond mere speculation that Tilton actually slipped in a pool of water. But because the record does not support QFC's argument, we agree with Tilton that a genuine issue of material fact exists as to whether Tilton slipped in a pool of water.
Tilton relies on Messina v. Rhodes Co., 67 Wn.2d 19, 406 P.2d 312 (1965), to support her argument that she presented sufficient evidence that the condition which caused her to slip was water. In Messina, our Supreme Court held that dismissal was improper where the plaintiff slipped and fell on a mixture of dirt, sand, and water that other customers had tracked into the defendant's department store on a rainy day. 67 Wn.2d at 21. The plaintiff testified that, before her fall, she had noticed puddles of muddy water near the entrance. Messina, 67 Wn.2d at 21-22. As she walked toward the entrance of the department store, the plaintiff decided to turn around to go back into the store; as she turned around, she stepped into one of the puddles, slipped, and fell. Messina, 67 Wn.2d at 21-22. In addition, the defendant's maintenance employee testified that he had to watch the floor because water on the asphalt-tile floors caused them to be slippery, but he was unable to recall how frequently he had checked the floors on the day the plaintiff fell. Messina, 67 Wn.2d at 23-24. The plaintiff's sole argument was that the defendant negligently allowed the floors to be covered with an "unusual amount of dirt, sand, and water, thereby making the surface of the floor . . . highly slippery." Messina, 67 Wn.2d at 25. The Messina court determined that, viewing the evidence in the light most favorable to the plaintiff, there was sufficient evidence to submit to the jury to determine whether the defendant was negligent in maintaining the floor under those conditions. 67 Wn.2d at 27.
QFC correctly argues that Messina is not directly on point because, unlike the plaintiff in Messina, neither Tilton nor Robinson saw water on the floor prior to Tilton's fall. But QFC fails to acknowledge that Tilton is not required to keep her eyes "riveted" to the floor as she shops. See Smith v. BI Sales Co., 74 Wn.2d 151, 153, 443 P.2d 819 (1968). Moreover, Tilton is not required to provide direct evidence to demonstrate that she slipped and fell due to a pool of water; circumstantial evidence and direct evidence are equally reliable. Rogers Potato Serv., LLC v. Countrywide Potato, LLC, 152 Wn.2d 387, 391, 97 P.3d 745 (2004) (citing State v. Gosby, 85 Wn.2d 758, 766-67, 539 P.2d 680 (1975)).
More important, Tilton's statement to QFC three days after the accident demonstrates that both she and Robinson suspected that she slipped on water; Tilton explained that when she fell, her "left foot went completely out from under [her] in a fast[,] full kick step," that she "took out a pot of flowers water on [her] way down." CP at 7. The record shows that, after the fall, Robinson (QFC's floral department manager) explained to Tilton that she may have slipped because a previous customer spilled water on the floor. Tilton's testimony at her deposition further suggests that she may have slipped in a pool of water. Tilton also stated that she had not physically knocked over the flower pot filled with water and that, as she fell, she did not "remember water pouring over [her]" and, when she landed, she caught the pot upright. CP at 50. In addition, Tilton testified that, based on the amount of water still in the container and the amount of water on the floor, the flower pot was not large enough to hold the amount of water that was all over the floor after she fell. She further testified that the part of her body that impacted the ground first was soaking wet.
Tilton also points to the manner in which she fell as evidence that she slipped on water. Although the way Tilton fell suggests she did not trip over her own two feet, the manner in which she slipped does not help identify the substance that caused her to slip. See Allen v. Matson Navigation Co., 255 F.2d 273, 280 (9th Cir. 1958) (where a plaintiff fell suddenly and quickly, and her legs flew up in front of her, causing her to fall backwards, is evidence that the plaintiff slipped on a slippery surface and did not trip over her own feet).
Here, not weighing the evidence but taking the facts in the light most favorable to Tilton, a question of material fact exists as to whether Tilton slipped in a pool of water that had accumulated on the floor. That is a question for a jury to decide. Arguably, her statement to QFC shortly after the incident, coupled with the floral manager's assumption that she had slipped on water dripped onto the floor before Tilton reached the floral department, could be sufficient for a jury to find that Tilton slipped in a pool of water that had accumulated on the floor.
B. Unsafe Condition
The next question then is whether Tilton presented sufficient evidence that any water on the tile floor in the flower department constituted an unreasonably dangerous condition against which QFC should have taken measures to protect its customers. Tilton contends that there was sufficient evidence that the water Tilton slipped on rendered the floor unsafe because (1) Tilton slipped in the water, demonstrating that the water caused the floor to be dangerously slippery; (2) QFC admitted that water on its tile floor presents as a safety hazard; and (3) there was a large quantity of water on the floor. QFC argues that Tilton failed to present any evidence that water on the floor rendered the floor unreasonably dangerous. We hold that a genuine question of fact exists as to whether any water on the floral department's floor constituted an unsafe condition.
Tilton argues that we should not consider whether, if there was in fact water on the floor, that water constituted an unsafe condition. Specifically, Tilton argues that this issue was not before the trial court because it stated that it "disagree[d] with [Tilton] on whether there's an issue of fact created by whether or not that [accumulated water] condition caused her fall and that's the only area where there does not appear to be an issue of fact." RP at 11. But as stated above, we review summary judgment de novo and may affirm the trial court's order on any basis the record supports. LaMon v. Butler, 112 Wn.2d 193, 200-01, 770 P.2d 1027, cert. denied, 493 U.S. 814 (1989).
QFC also appears to argue that Tilton failed to present evidence that QFC failed to properly maintain the floor in the floral department. At oral argument, Tilton asserted that we could not address whether QFC failed to maintain the floral department floor and, thus, breached its duty to exercise reasonable care because QFC did not raise the issue in its motion for summary judgment. See Degel v. Majestic Mobile Manor, Inc., 129 Wn.2d 43, 49, 914 P.2d 728 (1996) (Landowners owe invitees an affirmative duty to use ordinary care to keep premises in a reasonably safe condition.). But because our review of summary judgment orders is de novo, we may address whether Tilton can demonstrate all the elements necessary to survive summary judgment on her negligence claim. LaMon, 112 Wn.2d at 200-01. Here, Tilton presented evidence that, despite QFC's knowledge that water accumulated on the floral department's floor, it failed to place safety mats in the floral area and failed to implement a policy requiring employees to regularly inspect the floor for water. This is evidence sufficient to survive summary judgment on the breach of duty element of Tilton's negligence claim.
Mere presence of water on a floor where a plaintiff slips is not enough, in and of itself, to prove negligence on the part of the owner. See Brant v. Mkt. 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, material questions of fact arise as to the existence of an unsafe condition known to the owner. See, e.g., Messina, 67 Wn.2d at 28 (reversing summary judgment of negligence claim when the evidence showed that there was an unusual amount of foreign substance — dirt, sand, and water — brought in by shoppers on a very rainy day). Evidence that water on that type of floor renders that floor slippery is also sufficient to raise a question of fact as to whether an unsafe condition existed. Brant, 72 Wn.2d at 448.
Here, despite Tilton's argument to the contrary, evidence that she slipped and fell in a puddle of water is not enough to demonstrate that an unsafe condition existed. But QFC's floral department manager acknowledged that water on the floor in her department can be a safety issue for customers; QFC has not "conceded" that water on the floor would have been an unsafe condition but it does raise an issue of material fact. In order for Tilton to prove that water on the floor constituted an unsafe condition, she must prove that the floor is dangerously slippery when wet, that water accumulating on the floor was a continuous and reasonably foreseeable condition in the floral department, and that water in a quantity sufficient to make the floor slippery was on the floor at the time she slipped.
Considering the facts in the light most favorable to Tilton, we hold that material issues of fact exist as to whether any water on the floor of the floral department constituted an unsafe condition. Here, Tilton's testimony that she was "soaking wet" after the fall and was lying in a large quantity of water, coupled with Robinson's acknowledgement that water on the tile floor in the floral department can be unsafe for customers, and her immediate assumption that Tilton had slipped in a puddle of water, suggests that any water on the floor may have constituted an unsafe condition. Thus, Tilton presented sufficient evidence to raise a material issue of fact for the jury as to how much water, if any, was on the floor before her fall and whether that water on the type of tile surface in the floral department constituted an unsafe condition. Accordingly, we reverse the trial court's summary judgment order and remand for trial on the merits.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, P.J. and HUNT, J., concur.