Ingersoll v. DeBartolo, Inc.

• Decision Date: 17 March 1994
• Docket Number: No. 60968-3,60968-3
• Parties: Marjorie INGERSOLL and Maurice Ingersoll, Appellants, v. DeBARTOLO, INC., d/b/a The Tacoma Mall; and American Building Maintenance Company--West, Inc., Respondents.
• Court: Washington Supreme Court

Page 649

123 Wn.2d 649

869 P.2d 1014

Marjorie INGERSOLL and Maurice Ingersoll, Appellants, v. DeBARTOLO, INC., d/b/a The Tacoma Mall; and American

Building Maintenance Company--West, Inc., Respondents.

No. 60968-3.

Supreme Court of Washington,

En Banc.

March 17, 1994.

Briggs & Briggs, Sam J. Fogerty, Tacoma, for appellants.

Lee, Smart, Cook, Martin & Patterson, Joel E. Wright, Steven G. Wraith, Robin E. Aronson, Seattle, for respondent DeBartolo.

Hawkins, Jeppesen, Hoff, P.S., Philip G. Hubbard, M. Shannon Underwood, Gregory S. Wright, Redmond, for respondent American Bldg. Maintenance Company--West, Inc.

BRACHTENBACH, Justice.

Plaintiff wife, Marjorie Ingersoll (plaintiff), slipped and fell while walking in the common area of The Tacoma Mall. The Mall is owned by defendant DeBartolo, Inc., d/b/a The Tacoma Mall. Defendant American Building Maintenance Company-West, Inc. (ABM) had contracted to perform janitorial services for The Tacoma Mall (Mall). Plaintiff and her husband, Maurice Ingersoll, who sued for loss of consortium, brought suit against the defendants, alleging their failure to maintain a safe common area. The trial court granted summary judgment to both defendants. We affirm.

Preliminarily, we note serious defects in appellant's record. There are five separate sets of clerk's papers. The pages therein are not numbered consecutively as required by RAP 9.6(b)(2). There is no general index to the clerk's papers as required by RAP 9.7(a). Both parties rely on excerpts from depositions which are not identified in the index to each separately bound set of clerk's papers, but are attached to trial briefs. Citations are to the pages of the depositions rather than to the numbered pages of the clerk's papers. Excerpts from a deposition of the plaintiff are not identified, and it is only by the content of the deposition that the speaker can be identified. Incredibly, the excerpt pages of one deposition are completely out of sequence so that no logical reading of the content of the deposition is possible. These defects cause substantial difficulty in trying to fathom the record. Failure to comply with the basic Rules of Appellate Procedure is inexcusable.

Plaintiff was walking past a shoe store when she slipped and fell. Prior to the fall, she did not notice anything on the floor. When she stood up, she observed a smear on the floor. Although plaintiff's brief asserts that the substance was melted ice cream, her testimony at deposition does not support that assertion. She could not identify the material except to say it was "something clear, maybe like an ice-cream cone or something". Clerk's Papers Per Request of Respondent to the Court of Appeals, at 3. Ultimately, she stated that she was not sure what the substance was. She saw no other debris on the floor.

While having lunch at a store in the Mall shortly after the incident, plaintiff told the waitress about the fall and the waitress notified Mall security. The security officer found nothing on the floor at the place of the fall. The record does not show the time of his inspection. Neither DeBartolo nor ABM has any record of a prior report of a spill or debris at that location.

As to the law, we start with the basic and well-established principle that for a possessor of land to be liable to a business invitee for an unsafe condition of the land, the possessor must have actual or constructive notice of the unsafe condition. Smith v. Manning's, Inc., 13 Wash.2d 573, 126 P.2d 44 (1942). Constructive notice arises where the condition "has existed for such time as would have afforded [the proprietor] sufficient opportunity, in the exercise of ordinary care, to have made a proper inspection of the premises and to have removed the danger." Smith, at 580, 126 P.2d 44. The plaintiff must establish that the defendant had, or should have had, knowledge of the dangerous condition in time to remedy the situation before the injury or to warn the plaintiff of the danger. Brant v. Market Basket Stores, Inc., 72 Wash.2d 446, 451-52, 433 P.2d 863 (1967). Plaintiff presented no evidence that either defendant had actual or constructive notice of any substance or debris on the floor.

However, there is an exception to the requirement of showing actual or constructive notice. This exception was first articulated in Ciminski v. Finn Corp., Inc., 13 Wash.App. 815, 537 P.2d 850, 85 A.L.R.3d 991, review denied, 86 Wash.2d 1002 (1975). The plaintiff there slipped and fell in a liquidlike substance near the counter of a cafeteria-type restaurant. The Court of Appeals held that in such a self-service situation, where certain risks are inherent to the mode of operation, the plaintiff need not prove notice. The court stated:

[A]n owner of a self-service establishment has actual notice that his mode of operation creates certain risks of harm to his customers. Since a self-service operation involves the reasonable probability that these risks will occur, these risks are foreseeable. Thus, it is not necessary to show actual or constructive notice of the specific hazard causing injury, and it becomes the task of the jury to determine whether the proprietor has taken all reasonable precautions necessary to protect his invitees from these foreseeable risks.

Ciminski, at 820-21, 537 P.2d 850, 85 A.L.R.3d 991.

This court adopted a similar rule, with one significant difference, in Pimentel v. Roundup Co., 100 Wash.2d 39, 666 P.2d 888 (1983) (involving a paint can falling from a store shelf onto the plaintiff's foot). The court there eliminated the need for constructive notice in certain instances by holding that "notice need not be shown ... when the nature of the proprietor's business and his methods of operation are such that the existence of unsafe conditions on the premises is reasonably foreseeable." Pimentel, at 49, 666 P.2d 888. The court noted the difference between its holding and the holding of the Court of Appeals in Ciminski:

The Ciminski decision contains language which suggests that the requirement of showing notice is eliminated as a matter of law for all self-service establishments. 13 Wn.App. at 820-21, 537 P.2d 850, 85 A.L.R.3d 991. This is not the conclusion we reach under the analysis adopted here; the requirement of showing notice will be eliminated only if the particular self-service operation of the defendant is shown to be such that the existence of unsafe conditions is reasonably foreseeable.

Pimentel, at 49-50, 666 P.2d 888.

In a recent case, the Court of Appeals' determination of whether the Pimentel notice exception applied turned on the fact that the plaintiff's injury did not occur in the self-service area of the store. Coleman v. Ernst Home Ctr., Inc., 70 Wash.App. 213, 853 P.2d 473 (1993). The court offered a definition of self-service area or department. "Self-service departments are areas of a store where customers service themselves. In such areas, where lots of goods are stocked and customers remove and replace items, 'hazards are apparent'." Coleman, at 218-19, 853 P.2d 473 (citing Wiltse v. Albertson's, Inc., 116 Wash.2d 452, 461, 805 P.2d 793 (1991)).

We note that even if the injury does occur in the self-service department of a store, this alone does not compel application of the Pimentel rule. Self-service has become the norm throughout many stores. However, the Pimentel rule does not apply to the entire area of the store in which customers serve themselves. Rather, it applies if the unsafe condition causing the injury is "continuous or foreseeably inherent in the nature of the business or mode of operation." Wiltse v. Albertson's Inc., supra at 461, 805 P.2d 793. There must be a relation between the hazardous condition and the self-service mode of operation of the business. See Wiltse, at 461, 805 P.2d 793.

When defendants moved for summary judgment it was their initial burden to show the absence of a genuine issue of material fact. Young v. Key Pharmaceuticals, Inc., 112...