Opinion
No. 36805-6-II.
March 31, 2009.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-2-05927-7, Serjio Armijo and Kathryn J. Nelson, JJ., entered September 14, 2007.
Affirmed in part and remanded by unpublished opinion per Houghton, J., concurred in by Van Deren, C.J., and Bridgewater, J.
UNPUBLISHED OPINION
The Franciscan Health System-West appeals the trial court's order denying its motion for summary judgment with respect to premises liability claims raised by the estate of Helen Schweikart (Estate). Because factual questions preclude summary judgment here, we affirm the trial court's denial of summary judgment and remand for trial.
The trial court certified the interlocutory order for review under RAP 2.3(b)(4). We granted the motion for discretionary review.
FACTS
Shortly after noon on April 28, 2005, 83-year-old Helen Schweikart slipped and fell near an elevator while visiting St. Joseph Hospital. Matthew Dunne, a security guard, investigated Schweikart's fall. Dunne failed to obtain the name and phone number of a bystander witness who saw the fall. After emergency room treatment for a dislocated shoulder, Schweikart went home. The next day family members found her unresponsive. She died four days later of intracranial bleeding.
Franciscan Health System-West operates St. Joseph Hospital.
The Estate sued Franciscan under a premises liability theory for causing the fall. The Estate alleged that the floor was not slip resistant and became dangerous when wet. In his deposition, emergency room technician John Gastelum said that Schweikart's clothes and shoes were wet when he saw her. Dunne's deposition revealed that he had initially taken an eye witness statement but later deleted it at his supervisor's request.
From 2002 to 2007, the Department of Labor and Industries recorded 52 different fall reports originating from St. Joseph Hospital locations in Washington.
Franciscan moved for summary judgment, and the trial court dismissed the premises liability claim. The trial court determined that the Pimentel exception for self-service areas did not cover the hospital in this case and, therefore, Franciscan needed actual or constructive notice of a dangerous condition. Because the Estate failed to show a question of fact related to this issue, the trial court granted summary judgment.
Pimentel v. Roundup Co., 100 Wn.2d 39, 49, 666 P.2d 888 (1983) (exception for premises liability applies where the nature of the business and methods of operation create unsafe conditions in a continual or reasonably foreseeable manner).
In its motion to reconsider, the Estate re-argued its premises case, asserting that its claims fit within Iwai v. State, 129 Wn.2d 84, 103, 915 P.2d 1089 (1996) (summary judgment improper when material issues may exist that may in turn establish a duty of care) (Alexander, J., concurring). It also argued that spoliation of evidence occurred when Dunne (1) failed to record the eye witness's name and contact information, (2) omitted the eye witness statement from the report, and (3) destroyed the notes taken when he interviewed Schweikart in the emergency room and the notes he used in the creation of the accident report. The Estate asked for spoliation sanctions in the form of a favorable inference that the spoliated evidence would have met its burden of showing constructive notice, thus precluding summary judgment.
Spoliation is the intentional destruction of evidence. Black's Law Dictionary 1437 (8th ed. 2004).
In reconsidering its decision and instead denying Franciscan's motion for summary judgment, the trial court stated:
Iwai, as really pointed out by plaintiff, it's almost on point, right as to what the analysis is. And I took the time to read the case from Barney Foods [sic] from Wyoming, where the [Washington] Supreme Court takes the information from that case [ Iwai] to make its ruling on the foreseeability.
Buttrey Food Stores Div. v. Coulson, 620 P.2d 549, 552-53 (Wyo. 1980) (applying the reasonably foreseeable exception to the notice requirement for a case involving a floor, which had a tendency to become slippery when wet, even though the plaintiff did not prove defendant had knowledge of a specific puddle).
Buttrey Food Stores Div. v. Coulson, 620 P.2d 549, 552-53 (Wyo. 1980) (applying the reasonably foreseeable exception to the notice requirement for a case involving a floor, which had a tendency to become slippery when wet, even though the plaintiff did not prove defendant had knowledge of a specific puddle).
Taking everything into consideration, including the spoliation issue, I'm concerned that the information of the bystander was not taken. I'm very concerned about that. Whether he or she is a new cop or not a new cop, that's bad business.
I'm going to change my mind, and I'm going to deny the summary judgment.
Verbatim Report of Proceedings (Aug. 31, 2007) at 40-41. Franciscan appeals.
ANALYSIS
Franciscan contends the trial court erred in denying its motion for summary judgment. It argues that the Estate did not raise issues of material fact precluding summary judgment on its premises liability claim. We disagree.
We review summary judgment orders, engaging in the same inquiry as the trial court. Atherton Condo. Apartment-Owners Ass'n Bd. of Dir. v. Blume Dev. Co., 115 Wn.2d 506, 515-16, 799 P.2d 250 (1990). We may affirm the trial court's order on any basis that the record supports. LaMon v. Butler, 112 Wn.2d 193, 200-01, 770 P.2d 1027 (1989). We consider summary judgment proper where "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). We draw all reasonable inferences from the facts in the light most favorable to the nonmoving party. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 860, 93 P.3d 108 (2004). Because the trial court took into account the spoliation of evidence and Dunne's failure to take information from the bystander, we begin our analysis by discussing spoliation.
The Estate argues that Franciscan's spoliation of evidence should lead to an inference of constructive notice of the dangerous nature of the hospital's flooring at the time of the fall. Therefore, it asserts, the trial court properly denied summary judgment.
In deciding whether to apply a favorable inference or rebuttable presumption as a sanction in spoliation cases, the trial court considers the potential importance or relevance of the missing evidence and the culpability or fault of the adverse party. Henderson v. Tyrrell, 80 Wn. App. 592, 609, 910 P.2d 522 (1996). Culpability turns on whether the party acted in bad faith or whether there is an innocent explanation for the destruction. Henderson, 80 Wn. App. at 609. A party may be responsible for spoliation without acting in bad faith. Homeworks Const., Inc. v. Wells, 133 Wn. App. 892, 900, 138 P.3d 654 (2006) ("the party must do more than disregard the importance of the evidence; the party must also have a duty to preserve the evidence").
Where a party controls evidence and fails to preserve it without satisfactory explanation, the only inference the finder of fact may draw is that such evidence would be unfavorable to that party. Pier 67, Inc. v. King County, 89 Wn.2d 379, 385-86, 573 P.2d 2 (1977). Thus, we must determine if material questions of fact exist as to whether Franciscan had control over the evidence when Dunne worked as a security guard.
Franciscan argues that Dunne is an independent contractor, and the Estate counters that he is an employee. Traditionally, Washington distinguishes between independent contractors and employees by weighing the facts and circumstances surrounding the service agreement. Hollingbery v. Dunn, 68 Wn.2d 75, 80, 411 P.2d 431 (1966). The degree to which the principal controls the manner, method, and means of the agent's work remains the primary consideration in making this determination, although Washington courts rely on the Second Restatement of Agency for a list of other factors to weigh. Hollingbery, 68 Wn.2d at 80-81. Rather than list factors to weigh, the Third Restatement of Agency defines what an employee is and focuses on the degree of control the principal exercises over the agent. Restatement (Third) of Agency § 7.07 (2006).
Those factors include:
(a) the extent of control which, by the agreement, the master may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or business;
(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work:
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the employer;
(i) whether or not the parties believe they are creating the relation of master and servant; and
(j) whether the principal is or is not in business.
Hollingbery, 68 Wn.2d at 80-81 (quoting Restatement (Second) of Agency § 220(2) (1958)).
Here, considering the facts in a light most favorable to the Estate, material issues of fact exist as to Dunne's status. The contents of his service agreement, the degree to which the hospital controlled, and the weight of other factors remain to be determined. The fact finder may deem Dunne an employee and, therefore, it may find him responsible for spoliation of evidence. These factual determinations remain for trial.
We next turn to whether questions of fact preclude summary judgment on the Estate's premises liability claims. In the context of a premises liability case, a defendant who moves for summary judgment due to lack of notice must show that he had no actual or constructive notice. Ingersoll v. DeBartolo, Inc., 123 Wn.2d 649, 654, 869 P.2d 1014 (1994). A defendant can meet this burden by presenting evidence or by pointing out deficiencies in the plaintiff's case. Young v. Key Pharm, Inc., 112 Wn.2d 216, 225 n. 1, 770 P.2d 182 (1989). Under these facts, the burden would then shift to the Estate either to demonstrate a factual issue regarding notice or to show that the Pimentel exception applies. Ingersoll, 123 Wn.2d at 654.
In Iwai, our Supreme Court noted that summary judgment is improper where the possibility of material factual issues turn on the existence or non-existence of an undetermined duty of care. 129 Wn.2d at 101-02. Here, the fact finder may infer constructive notice if it determines that Dunne was an employee responsible for the spoliation of evidence. Thus, the facts in this case accord with those of Iwai, where Justice Alexander agreed with a plurality of the court and concluded that questions of fact surrounding the duty of care precluded summary judgment. 129 Wn.2d at 103 (Alexander, J., concurring).
For these reasons, the trial court properly denied Franciscan's motion for summary judgment.
Because we affirm, we do not address the Estate's collateral estoppel argument.
We affirm the trial court's denial of summary judgment and remand for trial.
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, J. and VAN DEREN, C.J., concur.