Cofer v. Pierce County

• Decision Date: 18 January 1973
• Docket Number: No. 625--II,625--II
• Citation: 505 P.2d 476,8 Wn.App. 258
• Parties: Margaret E. COFER, a single woman, Appellant, v. COUNTY OF PIERCE and City of Tacoma, a municipal corporation, Respondent.
• Court: Washington Court of Appeals

Page 258

8 Wn.App. 258

505 P.2d 476

Margaret E. COFER, a single woman, Appellant, v. COUNTY OF PIERCE and City of Tacoma, a municipal corporation, Respondent.

No. 625--II.

Court of Appeals of Washington, Division 2.

Jan. 18, 1973.

Neil J. Hoff of Hoff & Cross, Tacoma, for appellant.

Allan R. Billett and Arthur J. Emery, Jr., of Comfort, Dolack, Hansler & Billett, Tacoma, for respondent.

ARMSTRONG, Judge.

On August 27, 1968, Margaret Cofer, the plaintiff and appellant herein, slipped and fell on a wet floor of the County-City Building in the city of Tacoma. After three trial date continuances the cause was set for trial for February 14, 1972. Each continuance was requested by plaintiff and was granted for good cause shown. On August 30, 1971, the defendant noted the matter up for summary judgment and a hearing on the motion was set for September 13, 1971. The trial court continued this matter one week to September 20, 1971. Again the plaintiff asked for a continuance but this was denied and the summary judgment granted.

The sole issue presented by this appeal is: Did the trial court abuse its discretion in denying plaintiff's request for a continuance at the summary judgment hearing on September 20, 1971? We hold that the court did abuse its discretion under the unusual circumstances of this case.

The facts before the trial court at the first hearing on the motion were that the plaintiff entered the County-City Building on a rainy day. She slipped in a puddle of water and fell. These facts, without explanation therefor, do not create a cause of action based on negligence. Merrick v. Sears, Roebuck & Co., 67 Wash.2d 426, 407 P.2d 960 (1965). At this first hearing plaintiff's counsel orally alleged that he had a witness from whom he had not had sufficient time to secure an affidavit. This witness would testify that the floor was being maintained in a dangerous manner and contrary to the instructions given by the contractor who supplied the floor material. This evidence, if plaintiff was in fact able to produce it, would be sufficient to support a charge of negligence. Merrick v. Sears, Roebuck & Co., Supra; Brant v. Market Basket Stores, Inc., 72 Wash.2d 446, 433 P.2d 863 (1967), and cases cited therein. The trial court granted a continuance but stated that it was doing so only to allow plaintiff to file further authority, the court stating:

the Court (will) not consider any further affidavits, this matter having now been argued before the Court, it is now before the Court for argument, and I have heard Mr. Billett, and if you have any authorities or any memorandum that you desire to submit I will be happy to set it over for a week.

Two days later plaintiff's counsel filed his own affidavit stating he had contacted Charles Mrack, the witness referred to above, who could not help prepare the affidavit because he was being hospitalized. This affidavit asked for a continuance until the witness was out of the hospital and could help prepare an affidavit. ¹

At the second hearing on the motion for summary judgment on September 20, 1971 plaintiff's counsel, Mr. Neil Hoff, explained that he had just recently learned of the witness who could testify to the deficiencies in the flooring. He further stated that during the full week of the 6th of September, 1971, exclusive of Labor Day, he was in Portland, Oregon attending both the judges' and lawyers' annual meetings.

At the second hearing on the motion for summary judgment, the trial court stated that it had considered the affidavit of counsel, although reluctantly because the court still felt it could not consider any affidavits filed after the commencement of argument on the motion. The court denied plaintiff's request for a continuance and granted defendant's motion for summary judgment.

Before we reach the principal issue in this appeal, we must note that the court correctly considered the affidavit of counsel. Under normal circumstances it is not desirable to file affidavits after argument is heard on the motion, but it is a party's right to do so. Until a formal order granting or denying the motion for summary judgment is entered, a party may file affidavits to assist the court in determining the existence of an issue of material fact. Felsman v. Kessler, 2 Wash.App. 493, 468 P.2d 691 (1970); Nicacio v. Yakima Chief Ranches, Inc., 63 Wash.2d 945, 389 P.2d 888 (1964).

Plaintiff contends that the denial of her request for a continuance constitutes an abuse of the court's discretion and she asks us to reverse. Defendant would have us affirm the judgment of the trial court because the trial date had already been continued three times and plaintiff asked for a second continuance of the summary judgment. Defendant argues that there must be a limit to the extension of courtesy and consideration and when the trial court denied plaintiff's request for a second continuance of the summary judgment hearing after continuances of the trial date, it did not abuse its discretion.

We are not in sympathy with a series of delays in the trial of a lawsuit. We note, however, that the three trial date continuances secured by plaintiff were based upon good cause shown. The case had finally been set for trial for February 14, 1972. We cannot ignore the fact that plaintiff was under no obligation to secure any affidavits until August 30, 1971. Although we consider, as did the trial court, that the case had been at issue for a substantial period of time, our primary concern must be directed to the summary judgment proceeding itself.

A summary judgment is a valuable procedure for cutting through sham claims and defenses. It may not, however, encroach upon a litigant's right to place his evidence before a jury of his peers. Summary judgment is a procedure for testing the existence of a party's evidence. Only where it appears from the pleadings, depositions and affidavits on file that a party will not be able to present an issue of material fact before the trier of fact should a summary judgment be granted. Bartlett v. Northern Pac. Ry. Co., 74 Wash.2d 881, 447 P.2d 735 (1968); Leland v. Frogge, 71 Wash.2d 197, 427 P.2d 724 (1967).

Plaintiff could not use the affidavit of her counsel to create an issue of material fact because the attorney's affidavit was based upon hearsay and upon information and belief. If the attorney's affidavit had been based upon testimonial knowledge it would have been admissible to create an issue of material fact. CR 56(e). Meadows v. Grant's Auto...