Opinion
No. 35960-0-II.
February 26, 2008.
Appeal from a judgment of the Superior Court for Mason County, No. 06-2-00442-0, James B. Sawyer II, J., entered January 22, 2007.
Reversed and remanded by unpublished opinion per Penoyar, J., concurred in by Bridgewater and Hunt, JJ.
Viki and Edward White brought a negligence claim against Safeway after Viki fell in a puddle of chicken grease near the roasted chicken cart at a Safeway store. The trial court granted summary judgment to Safeway, finding that the lack of a history of such accidents showed that they are not foreseeable; therefore, the Whites were required to show that Safeway had actual or constructive notice of the condition. We find that the facts presented at summary judgment, viewed in a light most favorable to the Whites, support a finding that this particular harm was forseeable Therefore, the Pimentel exception to the actual or constructive notice requirement should have been applied. We reverse and remand for trial.
Pimentel v. Roundup Co., 100 Wn.2d 39, 666 P.2d 888 (1983).
FACTS
While shopping at a Safeway store in September 2003, Viki slipped in a puddle of chicken grease, fell on her back and left shoulder, and broke her clavicle. According to her husband, Edward, Viki fell in a spot about six to eight feet away from the roasted chicken cart and about thirty to forty feet from the nearest checkstand. Neither Edward nor Viki had seen any spills or chicken grease on the floor before her fall, and neither knew how the chicken grease got on the floor or how long it had been there. Both Edward and Viki admitted that they had no evidence that anyone from Safeway knew the chicken grease was on the floor before Viki's fall.
Viki was offered medical assistance after her fall, but she declined to take it and instead went home. She later stated that the Group Health doctors told her she had broken her clavicle, and she wore a sling for two days.
Charles Patnode, the "person-in-charge" of the Safeway store at the time of Viki's fall, declared that Viki fell about four paces away from the roasted chicken cart. Clerk's Papers (CP) at 96. When Patnode inspected the area, he saw a small spot of chicken grease, with a few smaller, dime-size drops toward the checkstands. Patnode stated that Viki's accident was the first notice that Safeway had that there was any chicken grease on the floor; indeed, he had walked through the area approximately four to five times an hour for nearly six hours before the fall and did not notice any chicken grease or other foreign substances on the floor.
In May 2006, the Whites filed a complaint against Safeway, alleging negligence and loss of consortium, asking for damages and costs. Based on the Whites' depositions and Patnode's declaration, Safeway filed a motion for summary judgment in November 2006.
After a summary judgment hearing, the trial court granted Safeway's motion. Specifically, the court held that the Pimentel exception to the notice requirement (see below) did not apply, as the exception requires both a finding that there is a self-service area and that the accident was foreseeable; here, the trial court found that the lack of a history of chicken-grease-related accidents indicated that the accident was not foreseeable. The Whites' appeal followed.
ANALYSIS
I. The Pimentel Exception
When reviewing a summary judgment, we engage in the same inquiry as the trial court; we consider all evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Iwai v. State, 129 Wn.2d 84, 96, 915 P.2d 1089 (1996). To succeed on a summary judgment motion, the moving party must first show the absence of an issue of material fact. Iwai, 129 Wn.2d at 95. The burden then shifts to the non-moving party to set forth specific facts showing a genuine issue for trial. Iwai, 129 Wn.2d at 95-96 (citing CR 56(e)).
To establish a negligent failure to maintain business premises in a reasonably safe condition, a plaintiff must generally show (1) the unsafe condition was caused by the proprietor or its employees or (2) the proprietor had actual or constructive knowledge of the condition. Pimentel v. Roundup Co., 100 Wn.2d 39, 49, 666 P.2d 888 (1983). In Pimentel, the Washington 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).
That a business is a self-service operation is insufficient, standing alone, to bring a claim for negligence within the Pimentel exception. Arment, 79 Wn. App. at 698. Washington caselaw illustrates that Pimentel is meant to be a narrow exception. The exception does not apply to causes that are not directly related to the store's self-service mode of operation. See, e.g., Wiltse v. Albertson's, Inc., 116 Wn.2d 452, 456, 805 P.2d 793 (1991) (holding Pimentel instruction not warranted where parties agreed accident caused by liquid from leaking roof). Additionally, courts have noted that the Pimentel exception applies only to those areas where risk of injury is "`continuous or foreseeably inherent in the nature of the business or mode of operation.'" Ingersoll v. DeBartolo, Inc., 123 Wn.2d 649, 653-54, 869 P.2d 1014 (1994) (quoting Wiltse, 116 Wn.2d at 461). Thus, a plaintiff who slips and falls in a grocery store cannot survive summary judgment by merely raising the inference that the substance causing her fall came from within the store; rather, the plaintiff must show that such spills were foreseeable in the specific area where she fell. See Carlyle v. Safeway Stores, Inc., 78 Wn. App. 272, 896 P.2d 750 (1995); O'Donnell v. Zupan, Enters., Inc., 107 Wn. App. 854, 28 P.3d 799 (2001) (lettuce in self-checkout area).
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 performed, is a self-service area. Coleman v. Ernst Home Ctr., Inc., 70 Wn. App. 213, 219, 853 P.2d 473 (1993); Ciminski v. Finn Corp., 13 Wn. App. 815, 818-20, 537 P.2d 850 (1975). A roasted chicken cart meets this description: customers serve themselves, the chickens are stocked by the store, and customers handle them between the cart and their shopping cart or basket. Additionally, Washington law generally recognizes produce departments as self-service areas. See Wiltse, 116 Wn.2d at 461 (citing Pimentel, 100 Wn.2d at 39). The roasted chicken cart area is analogous to a produce department — in each area, customers select products and place them into their cart or basket on their own, without the aid of the store's employees.
That the accident took place in a self-service area is insufficient on its own for the Pimentel exception to apply. The Whites also must show that the risk of Viki's injury was foreseeable in the area where the accident occurred. Here, Viki slipped in chicken grease very near the roasted chicken cart. Viewing the facts in the light most favorable to her, we hold that there is a genuine issue of material fact about whether the risk of her injury was foreseeable, unlike other cases where Pimentel did not apply. See e.g., Wiltse, 116 Wn.2d at 453 (slipping on water from a leaking roof); Carlyle, 78 Wn. App. at 274 (slipping on shampoo spilled in a coffee aisle). This case is, in fact, highly analogous to the situation in Pimentel, where the plaintiff was injured by a falling can of paint while she was looking through books on home improvement and the can was one of three to four placed at the base of the books' shelving. Pimentel, 100 Wn.2d at 41.
Moreover, the record includes sufficient evidence to at least create a genuine issue of material fact regarding the foreseeability of the accident. The chickens were hot and inherently greasy, and they were packaged in a plastic tray with a snap-on top (not a sealed top). It is at least potentially foreseeable that an unsealed container containing liquid grease could easily leak when handled by customers (who might squeeze it, tip it on its side or upside down, or loosen the top by placing the container in a shopping cart or basket with other items). The mere fact that an accident had not occurred in the past does not outweigh this evidence so substantially that there is no longer a genuine issue of material fact.
Because a fact-finder could reasonably conclude that Viki's accident was foreseeably related to the self-service operation of the store, the Pimentel exception applies. Therefore, to defeat summary judgment, the Whites are not required to establish that Safeway had actual or constructive notice of the condition.
II. Reasonable Care
In their reply brief, the Whites introduce the issue of whether Safeway exercised reasonable care to prevent accidents near the roasted chicken cart. While the trial court did not rule on this issue below, we briefly address it here as it will likely arise on remand. Even where Pimentel applies, it does not create strict liability or require that Safeway disprove negligence. See Pimentel, 100 Wn.2d at 49; O'Donnell, 107 Wn. App. at 860. To survive summary judgment, the Whites must also establish that Safeway failed to exercise reasonable care to prevent her injury. See Pimentel, 100 Wn.2d at 49; O'Donnell, 107 Wn. App. at 860.
In exercising reasonable care, a store proprietor must inspect for dangerous conditions and provide such repair, safeguards, or warning as may be reasonably necessary to protect its customers under the circumstances. Iwai, 129 Wn.2d at 96; O'Donnell, 107 Wn. App. at 860. This standard of care applies regardless of the mode of operation; however, the type of precautions that are "reasonable" depends on "the nature and the circumstances surrounding the business conduct," including the mode of operation. O'Donnell, 107 Wn. App. at 860; (quoting Ciminski, 13 Wn. App. at 819).
The self-service mode of operation might require a proprietor to implement protections that are not necessary under other circumstances, such as installing special types of flooring or implementing inspection procedures that reduce the risk of harm and enable the proprietor to discover and remove hazardous conditions customers create. O'Donnell, 107 Wn. App. at 860; Ciminski, 13 Wn. App. at 820. The reasonableness of a proprietor's methods of protection is a question of fact. O'Donnell, 107 Wn. App. at 860; Ciminski, 13 Wn. App. at 820-21.
Here, the Whites have established a question of fact as to the reasonableness of Safeway's methods of protection. Patnode stated in his declaration that he inspected the area frequently, as did other employees, but there is nothing in the record regarding how frequently the floor was cleaned or the type of flooring surrounding the roasted chicken cart. Given that chicken grease forms a clear puddle, a trier of fact could find that mere inspections (rather than cleanings) may not be a reasonable method of protection. Because there is a question of fact as to the reasonableness of Safeway's actions, its motion for summary judgment should have been denied.
III. Attorney Fees
The Whites requested fees and costs for this appeal. However, the rule requires more than a bald request for attorney fees on appeal. Thweatt v. Hommel, 67 Wn. App. 135, 148, 834 P.2d 1058 (1992). Argument and citation to authority are required under the rule to advise us of the appropriate grounds for an award of attorney fees and costs. Wilson Court Ltd. P'ship v. Tony Maroni's, Inc., 134 Wn.2d 692, 710 n. 4, 952 P.2d 590 (1998). Though the Whites failed to fulfill these requirements, we grant their request because the only possible basis for the award is as a prevailing party under RAP 14.2, and this is relief they are clearly entitled.
We reverse 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.
We concur:
BRIDGEWATER, P.J.
HUNT, J.