Opinion
No. 26840-3-III.
December 2, 2008.
Appeal from a judgment of the Superior Court for Douglas County, No. 05-2-00144-2, John Hotchkiss, J., entered February 1, 2008.
Affirmed by unpublished opinion per Korsmo, J., concurred in by Schultheis, C.J., and Kulik, J.
DONald Miller seeks review of the superior court order granting summary judgment dismissal of his negligence claim against Costco Wholesale Corporation (Costco) for injuries he suffered after stepping on a rock and falling in the parking lot. The trial court concluded that Costco behaved properly and that Mr. Miller was aware of the rocks in the parking lot and should have taken measures for his own safety. The trial court relied to some extent on an unpublished opinion. We affirm the ruling below.
FACTS
Mr. Miller was injured when he stepped on a rock and fell in the Costco parking lot on February 7, 2005. The rock had migrated from the landscaped planters onto the parking surface. Mr. Miller was familiar with the parking lot and aware that the rocks from the planters often scattered onto the parking lot. He had complained to friends about the rocks, but never to Costco. His view was not obstructed. The rocks were constantly being moved or kicked into the parking lot by foot traffic, skateboarders and shopping carts. Costco had a contract with North Country Sweeping to maintain the parking grounds. Costco employees were instructed to watch for hazards in the parking lot and routinely picked up stray rocks and redeposited them back into the planters.
Costco sought summary judgment on the basis that there were no genuine issues of material fact to support Mr. Miller's claim of negligence. The trial court granted the motion, ruling that Costco acted reasonably under the circumstances and that Mr. Miller was very much aware of the danger and did not watch out for his own safety. The court expressly discussed two published opinions it considered in issuing the decision. In what appeared to be an afterthought, the court also noted that it had relied, to some extent, on the unpublished opinion of Bonnicksen v. Sears, Roebuck Co.
Noted at 120 Wn. App. 1037 (2004).
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. Miller 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 (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.
We review the summary judgment proceeding with these factors in mind. In order to meet the first Restatement factor for landowner liability to an invitee for an unsafe condition on the premises, a plaintiff must initially 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. Manning's, 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).
The evidence showed that the rocks scattering on the parking lot were a constant nuisance; Costco arguably had constructive notice. The next question is whether the rocks constituted an unreasonably dangerous condition which Costco should have taken measures to protect against.
Mere presence of water on a floor where the plaintiff slipped has been determined to be insufficient 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). The evidence in this case showed there had been no previous injuries caused by the rocks in the parking lot. Thus, there was no evidence before the trial court that the rocks alone on the parking surface constituted a dangerous condition. It is hard to distinguish rocks in a parking lot from water on the floor. It appears that the first Restatement factor does support the grant of summary judgment for Costco.
The second Restatement element that Mr. Miller must show is that Costco should expect that he would fail to discover the danger and would fail to take measures to protect himself. This is the element the trial court found as the primary basis to grant summary judgment. Mr. Miller's evidence clearly shows that he was well aware of the constant presence of rocks in the parking lot and that he did not take affirmative steps to avoid them. Mr. Miller did not show that Costco should expect invitees to not discover the rocks scattered about the parking lot or that Costco should expect he would not take measures to protect himself, such as walk around the rocks. The evidence showed that this had been the first time in 11 years that an incident or injury occurred due to a rock in the parking lot. There are no genuine issues of material fact with regard to the second element. This factor easily supports the summary judgment ruling.
The third and final element Mr. Miller must show is that Costco failed to exercise reasonable care to protect against the danger. Costco had a maintenance contract with North Country Sweeping to maintain the grounds and sweep the parking lot three times per week. Costco employees testified that they routinely picked up stray rocks and threw them back into the planters; it was part of the job of a cart pusher. There is no evidence that these measures were not reasonable, or that daily sweeping would decrease the problem. Reasonable minds could only conclude that Costco took reasonable steps to ensure the safety of its parking lot.
Even viewing the facts most favorably to Mr. Miller, it is doubtful that the first Restatement factor presents a jury issue. He most certainly has not shown that a material question of fact exists as to the second and third Restatement factors. Accordingly, summary judgment was properly granted.
Mr. Miller also contends that the trial court erred in considering an unpublished opinion. Generally a party may not cite as authority an unpublished opinion of the Court of Appeals. See RAP 10.4(h); GR 14.1. The trial court rendered its opinion based upon published case authority. Almost as an afterthought, the court added that it had relied — to some extent — upon the unpublished opinion of Bonnicksen. The court indicated that it found the analysis instructive.
The court, on its own volition, discovered this unpublished opinion. The case was not cited as authority by either party for hearing or on appeal. The fact the trial court considered the authorities contained therein and found the analysis instructive is not error. See Oltman v. Holland Am. Line USA, Inc., 163 Wn.2d 236, 248-249, 178 P.3d 981, cert. dismissed, 129 S. Ct. 24 (2008) (Insofar as the analysis in another trial judge's decision might be helpful, there is no rule or precedent that bars its consideration by another trial judge). Even if it was error, we do not believe Mr. Miller was harmed in the least. The reasoning in Bonnicksen was based on well-established precedent that was properly considered.
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 KULIK, J., concur.