Opinion
No. 34552-8-II.
August 14, 2007.
Appeal from a judgment of the Superior Court for Kitsap County, No. 04-2-01954-2, Theodore F. Spearman, J., entered February 15, 2006.
Affirmed by unpublished opinion per Penoyar, J., concurred in by Houghton, C.J., and Quinn-Brintnall, J.
Susan Sanders fell and broke her arm while walking in stocking feet on a tile floor at her brother, Joel Anderson's home. Sanders, Joel Anderson, and his wife Carol each testified in depositions that the tile floor was slippery. Based on this testimony, Sanders moved for summary judgment, which the trial court denied. The Andersons then hired an expert to test their floors; he determined that the floor was actually slip-resistant. The court granted the Andersons' subsequent motion for summary judgment. Sanders appeals, arguing that the trial court erred by denying her request for summary judgment and granting the Andersons' request for summary judgment. The Andersons disagree, responding that the trial court's rulings were correct. Additionally, the Andersons claim that lay testimony regarding the slippery state of the floors was inadmissible under ER 701. There was a genuine issue of material fact when Sanders requested summary judgment, but the expert's affidavit resolved that issue before the Andersons requested summary judgment. Therefore, we affirm both the denial of Sanders's motion for summary judgment and the grant of summary judgment to the Andersons.
FACTS
This case arises from Sanders's fall in the Andersons' home on August 29, 2001. Sanders was staying with her brother and his family in order to attend her niece's wedding. This was her first visit to the Andersons' Bainbridge Island home.
The Andersons have lived in the home since October 1984. The flooring consists of carpet and tile, and the tile has remained the same since they acquired the house. Shortly after moving in, Carol Anderson placed rectangular throw rugs over portions of the tile floor in the bedroom hallway so people could wipe their feet. Within a year of moving into the home, Carol Anderson had removed the throw rugs to clean them, and Joel Anderson (wearing socks) lost his footing on the tile (but did not fall). This slip was not in the same location as Sanders's fall, seventeen years later. Joel Anderson's slip is the only record of anyone having problems with footing on the tile.
Approximately a week before Sanders's arrival, the Andersons replaced a door leading to the garage. Because the new door had sufficient bottom clearance, Carol Anderson placed a new throw rug in front of this door for people to wipe their feet. The new garage door and throw rug were immediately adjacent to the guest bathroom which Sanders used a few times every day during her stay.
On the morning of August 29, 2001, Carol Anderson moved the area rug temporarily to sweep the floor. Sanders, wearing nylon stockings, attempted to pass by her and fell. Sanders stated that she was carefully monitoring the floor while maneuvering around Carol Anderson. Sanders walked around her as she was sweeping and slipped and fell on the tile floor, breaking her upper arm.
Sanders filed this lawsuit on August 10, 2004, contending that the Andersons were negligent in failing to warn her that the floor under the area rug was unusually slippery. She brought a motion for summary judgment on the issue of liability on August 26, 2005. The court denied the motion.
Thereafter the Andersons hired Alan Topinka, a mechanical engineer with extensive experience in slip and fall investigations, to test the portion of the floor where Sanders fell. Topinka found that the floor was made of standard tile. He tested the slip-resistance index of the tile in two locations within the area where Sanders fell and determined that the average slip resistance index was 0.67, well above the acceptable threshold of 0.5. The flooring where Sanders slipped and fell had not been altered or changed in any way since the fall; even the area rug remained in the same location.
Each location was tested in four different directions. No individual measurement was less than 0.62.
On December 15, 2005, based on this evidence, the Andersons brought a motion for summary judgment on the issue of liability, and the trial court granted it. The court subsequently denied Sanders's motion for reconsideration, and this appeal followed.
ANALYSIS
I. Summary Judgment
Sanders argues that the trial court erred by (1) denying her motion for summary judgment and (2) granting the Andersons' motion for summary judgment. She contends that there was no genuine issue of material fact before Topinka tested the floor and that his results, rather than settling the matter, created a genuine issue of material fact.
The Andersons respond that the court ruled correctly: when Sanders requested summary judgment, there was a genuine issue of material fact as to whether the slippery floor created an unreasonably dangerous condition. After Topinka's objective testing, the Andersons argue, this issue was resolved. 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). A material fact is one on which the outcome of the litigation depends, in whole or in part. Barrie v. Hosts of Am., Inc., 94 Wn.2d 640, 642, 618 P.2d 96 (1980). In conducting this inquiry, the court considers 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) (citing Atherton Condo. Apartment-Owners Ass'n Bd. of Dirs. v. Blume Dev. Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990)).
A cause of action for negligence requires the plaintiff to establish (1) the existence of a duty owed, (2) breach of that duty, (3) a resulting injury, and (4) a proximate cause between the breach and the injury. Pedroza v. Bryant, 101 Wn.2d 226, 228, 677 P.2d 166 (1984).
In premises liability actions, a person's status as invitee, licensee, or trespasser determines the scope of the duty of care owed by the possessor/occupier of the property. Tincani v. Inland Empire Zoological Soc'y, 124 Wn.2d 121, 128, 875 P.2d 621 (1994). Both sides agree that Sanders was a licensee at the time of the incident. Under this standard, the Andersons had a duty to warn of unreasonably dangerous conditions that they would not expect Sanders to discover or recognize as dangerous. Memel v. Reimer, 85 Wn.2d. 685, 689, 538 P.2d 517 (1975).
Under this standard, the trial court properly denied Sanders's motion for summary judgment. Viewing the evidence in the light most favorable to the Andersons, the testimony only indicated that the floor was slippery, not that it created an unreasonably dangerous condition that the Andersons would not expect Sanders to recognize as dangerous or that they would be required to warn her about. The testimony that the floor was slippery is a mere expression of a personal opinion and did not provide facts by which a jury could determine whether the floor was unreasonably dangerous. See Hanson v. Lincoln First Fed. Sav. LoanAssoc., 45 Wn.2d 577, 578, 277 P.2d 344 (1954); Knopp v. Kemp Hebert, 193 Wash. 160, 163, 74 P.2d 924 (1938). Therefore, a genuine issue of material fact remained as to whether the Andersons breached a duty to Sanders by failing to warn her about the tile.
Following an expert's determination that the floor was slip-resistant, the trial court properly granted summary judgment to the Andersons. While lay testimony (from Sanders's and the Andersons' depositions) indicated that the tile was slippery, these descriptions were both imprecise and conclusory. Description of the floor as "slick", "more slippery [under the rug]", or even "extremely slippery" is not evidence that would support a finding that the floor was unreasonably dangerous. CP at 58, 50, and 31. Sanders asserted that the Andersons' floor was "perfectly normal tile," and opined that some chemical reaction between the rug and the tile must have caused the tile under the rug to be more slippery. CP at 31. This was not a determination she was qualified to make. Where witnesses have no special skill, experience, or education concerning the subject matter of their testimony, they "must state facts, and not draw conclusions or give opinions." State v. Jamison, 93 Wn.2d 794, 798, 613 P.2d 776 (1980) (quoting Randanite Co. v. Smith, 172 Wash. 390, 395, 20 P.2d 33 (1933)). Topinka's tests showed that the floor was adequately slip-resistant. The lay opinions that it was slippery were not sufficient to permit a jury to determine that it was unreasonably dangerous.
No one had fallen on the tile since the Andersons purchased the home. Moreover, the Andersons had every reason to expect that Sanders would recognize that walking on tile wearing stockings could be dangerous. Viewing the evidence in the light most favorable to Sanders, there is no evidence to support a finding that the tile floor constituted an unreasonably dangerous condition that the Andersons would not expect Sanders to recognize as dangerous.
We are not precluding the possibility that lay testimony could support a finding of an unreasonably dangerous condition. See, e.g., Miller v. Payless Drug Stores of Wash., Inc., 61 Wn.2d 651, 657, 379 P.2d 932 (1963) (where an invitee fell in a store, her lay testimony regarding dangerous condition of unwaxed floor was sufficient to warrant a trial).
Moreover, landowners only have a duty to warn of unreasonably dangerous conditions that are not readily apparent; they have no duty to warn of readily apparent dangers. Tincani, 124 Wn.2d at 133-34. Walking on a tile floor in stockings creates a readily apparent danger, requiring no warning from the landowner.
There is no genuine issue of material fact as to the Andersons' liability for Sanders's fall. We affirm the trial court's grant of summary judgment to the Andersons. II. Admissibility of Testimony under ER 701
The Andersons respond to Sanders's claim that a genuine issue of material fact remained (based on contradictory evidence from the Andersons' expert, Sanders's, Joel Anderson's, and Carol Anderson's testimony) by arguing that Sanders's and the Andersons' opinions constituted inadmissible lay testimony under ER 701. They argue that testimony regarding the slipperiness of the floor calls for a legal conclusion, and therefore Sanders and the Andersons were unqualified to testify on this matter.
ER 701 provides that non-expert witness testimony is limited to "those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of rule 702." ER 701. In this case, Sanders's and the Andersons' testimony that the floors were slippery was rationally based on their perceptions and helpful to determine the fact in issue. Additionally, their general opinion that the floors were slippery was not based on specialized knowledge. Therefore, it was proper for the trial court to consider this testimony — whether a floor is considered slippery or not does not call for a legal conclusion
However, whether a floor constitutes an unreasonably dangerous condition requiring warning is a legal conclusion. Therefore, it was entirely proper for the court to consider expert testimony on this issue.
In comparison, it is well settled in Washington that a lay witness may express an opinion regarding the level of intoxication of another. State v. Lewellyn, 78 Wn. App. 788, 794, 895 P.2d 418 (1995). However, specific issues that arise in a driving under the influence trial are appropriately reserved for expert opinion, including the number and types of drinks, given the weight of a person, required to reach a given blood alcohol level. Lewellyn, 78 Wn. App. at 796. Similarly, here, lay testimony was acceptable to establish that the floor was slippery, but, under these facts, the question of whether it created an unreasonably dangerous condition was properly reserved for expert testimony.
No genuine issue of material fact remained after the Andersons provided Topinka's affidavit to the court — the floor was not unreasonably dangerous. The trial court's award of summary judgment to the Andersons was proper, and we affirm. III. Attorney Fees
Sanders requests costs and fees for this appeal under RAP 18.1. Because she is not the prevailing party, this request is denied.
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.
HOUGHTON, C.J., QUINN-BRINTNALL, J. concur