Ciminski v. Finn Corp., Inc.

• Decision Date: 02 July 1975
• Docket Number: No. 1287--II,1287--II
• Parties: , 85 A.L.R.3d 991 Helen B. CIMINSKI, a single person, Appellant, v. FINN CORPORATION, INC., a Washington Corporation, d/b/a Brad's Family Restaurant, Respondent.
• Court: Washington Court of Appeals

Page 815

13 Wn.App. 815

537 P.2d 850, 85 A.L.R.3d 991

Helen B. CIMINSKI, a single person, Appellant, v. FINN CORPORATION, INC., a Washington Corporation, d/b/a Brad's Family Restaurant, Respondent.

No. 1287--II.

Court of Appeals of Washington, Division 2.

July 2, 1975.

Review Denied Oct. 21, 1975.

Peter L. Sterbick, Terry E. Lumsden, Sterbick & Sterbick, Tacoma, for appellant.

Frederick M. Meyers, Karr, Tuttle, Koch, Campbell, Mawer & Morrow, Seattle, for respondent.

ARMSTRONG, Chief Judge.

Helen Ciminski appeals from a summary judgment of dismissal in her action for damages resulting from injuries sustained while she was a business invitee of Finn Corporation, Inc., d/b/a Brad's Family Restaurant. She contends that Finn was not entitled to judgment as a matter of law, but rather that she had presented genuine issues of material fact as to whether Finn exercised reasonable care in keeping its premises safe for its customers. We agree and therefore reverse.

A summary judgment is properly granted if the pleadings, affidavits, depositions and admissions before the trial court show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. For summary judgment purposes, we are required, as was the trial court, to view the evidence and all reasonable inferences therefrom in a light most favorable to the nonmoving party and most strongly against the movant. The motion may be granted only if reasonable men could reach but one conclusion from this evidence. Meissner v. Simpson Timber Co.,69 Wash.2d 949, 421 P.2d 674 (1966); Wardhaugh v. Weisfield's, Inc., 43 Wash.2d 865, 264 P.2d 870 (1953).

With these principles in mind, we set forth the facts as presented upon summary judgment. The injury occurred on April 25, 1971, while Mrs. Ciminski, who was 73 years of age, and a companion, Norman Erpelding, were business invitees in Brad's Family Restaurant, a self-service cafeteria style establishment. In Brad's, the cafeteria counter started near the door and after several feet made a 90-degree turn to the left, where it continued for several more feet. Each side of the counter contained a ledge on which customers pushed their trays. Available on the first leg of the counter and halfway down the second leg were trays, salads, potatoes, vegetables, bread, and butter patties. Toward the end of the cafeteria line were pieces of meat on carving tables, beyond which was the cashier. There were no employees serving food on the line, except the meat carvers who stood at the end of the counter with their backs to the cashier and sliced meat requested by the customers. Near the right side of the counter in the area of the meat was a door to the kitchen.

Mrs. Ciminski and Mr. Erpelding had attended a baseball game and decided to eat dinner at Brad's, arriving at approximately 7:15 p.m. Upon entering the restaurant, Mrs. Ciminski decided to go to the restroom. With Mr. Erpelding following a few feet behind her, Mrs. Ciminski walked along the right side of the counter toward the restrooms which were located in the back of the restaurant. A few feet before the meat carvers, and near the kitchen door, she fell. She asserted that there was a liquid-like substance on the floor which caused her to slip and fall. Mr. Erpelding stated that he saw her foot slide through a liquid of some kind and saw her fall to the floor. None of the three or four employees who were in the area at the time of the fall and for approximately one-half hour afterward saw any substance on the floor. Neither Mrs. Ciminski nor Mr. Erpelding could state how long the liquid had been on the floor. Over her protests, Mrs. Ciminski was helped up and put in a chair where she remained until an ambulance arrived approximately one-half hour later. As a result of the fall, she suffered severe injuries to her hip, requiring extensive medical care, including hospitalization, operations and other treatment. Her mobility is much more limited than before the accident.

Depositions and statements of restaurant employees presented at the time of summary judgment indicated that in the area between the kitchen door and the cafeteria line, especially near the meat, there tended to be spills and the area was greasy at times. Pieces of lettuce and butter patties were sometimes dropped on the floor by customers. Since of the food items were placed on the counter in crushed ice. The meat pans, which were set in racks over hot water to keep them warm, were replaced several times each day, which involved removing pans which had become sloppy or unattractive, taking them to the kitchen through the door and bringing new ones out. When other foods needed replenishing they, too, were brought through this door to the counter. The restaurant had no written policies concerning maintenance of the area. A janitor cleaned the area each evening. New employees were told and old employees frequently reminded that they were to keep a lookout for matter on the floor, which when found was to be immediately cleaned up. No one employee was responsible for policing the area.

A prerequisite to recovery from a property owner for injuries sustained on his premises is the showing that the owner had actual or constructive notice of the condition causing the injury. See Morton v. Lee,75 Wash.2d 393, 450 P.2d 957 (1969). The basic touchstone is the requirement that a property owner or occupier exercise reasonable care in protecting his invitees from injury.

It is common knowledge that the modern merchandising method of self-service poses a considerably different situation than the older method of individual clerk assistance. It is much more likely that items for sale and other foreign substances will fall to the floor. Clerks replenish supplies by carrying them through the area the customer is required to traverse when selecting items. Customers are naturally not as careful in handling the merchandise as clerks would be. They may pick up and put back several items before ultimately selecting one. Not unreasonably they are concentrating on the items displayed, which are usually arranged specifically to attract their attention. Cf. Wardhaugh v. Weisfield's, Inc., supra. Such conditions are equally typical of self-service restaurants and the most common self-service operation, the modern supermarket.

An owner of a self-service operation has actual notice of these problems. In choosing a self-service method of providing items, he is charged with the knowledge of the foreseeable risks inherent in such a mode of operation. The logic of this rule is obvious if it is remembered that if a clerk or other employee has been negligent, the employer is charged with the responsibility of creating a dangerous condition. Falconer v. Safeway Stores, Inc., 49 Wash.2d 478, 303 P.2d 294 (1956). In a self-service operation, an owner has for his pecuniary benefit required customers to perform the tasks previously carried out by employees. Thus, the risk of items being dangerously located on the floor, which previously was created by the employees, is now created by other customers. But it is the very same risk and the risk has been created by the owner by his choice of mode of operation. He is charged with the creation of this condition just as he would be charged with the responsibility for negligent acts of his employees. A pattern of conduct, such as self-service, is as permanent and the risks from such pattern as foreseeable, as a deceptive condition. An owner is required to take reasonable precautions against such deceptive conditions on his premises to prevent injury to patrons. See Wardhaugh v. Weisfield's, Inc., supra.

This rule does not create a higher standard of care for self-service operations. It is axiomatic that a property owner or occupier is required to use reasonable care toward his business invitees. What is reasonable depends upon the nature and the circumstances surrounding the business conducted. Wardhaugh v. Weisfield's Inc., supra. One of the circumstances to be considered is the method of operation. The realities of a self-service operation cannot be ignored, and what is reasonable for the Ma and Pa grocery store where Pa retrieves each item from behind the counter for the customer may not be reasonable where the customers have access to every item for sale and are subject to the whims of all other customers in handling that merchandise.

Another example is the cafeteria style restaurant. In a conventional service restaurant, the customers remain seated and the food is brought to them by those who serve food for a living, and who are thus more experienced and probably more adept at...