Johnson v. Wash. Liquor & Cannabis Bd.

• Decision Date: 13 May 2021
• Docket Number: No. 98726-2,98726-2
• Citation: 486 P.3d 125,197 Wash.2d 605
• Court: Washington Supreme Court
• Parties: Darcy L. JOHNSON, a single woman, Petitioner, v. State of Washington LIQUOR AND CANNABIS BOARD, Respondent.

197 Wash.2d 605

486 P.3d 125

Darcy L. JOHNSON, a single woman, Petitioner,

v.State of Washington LIQUOR AND CANNABIS BOARD, Respondent.

No. 98726-2

Supreme Court of Washington.

Argued March 9, 2021

Filed May 13, 2021

Joseph M. Mano, Jr., Mano, Paroutaud, Groberg & Ricks, P.o. Box 1123, Chehalis, WA, 98532-0169, George M. Ahrend, David Christopher Whisenand, Ahrend Law Firm PLLC, 457 1st Ave. Nw, P.o. Box 816, Ephrata, WA, 98823-0816, for Petitioner.

Kimberly Jeane Cox, Michael Patrick Lynch, Office of the Attorney General, 7141 Cleanwater Dr Sw, P.o. Box 40126, Olympia, WA, 98504-0126, Michael Joseph Throgmorton, Law, Lyman, Daniel, Kamerrer & Bogdanovi, 2674 R W Johnson Blvd. Sw., Tumwater, WA, 98512-6111, Alan D. Copsey, Office of the Attorney General, P.o. Box 40100, 1125 Washington St. Se, Olympia, WA, 98504-0100, for Respondent.

Noah Jaffe, Nicoll Black & Feig PLLC, 1325 4th Ave. Ste. 1650, Seattle, WA, 98101-2506, Daniel L. Syhre, Betts, Patterson & Mines, P.S., 701 Pike St. Ste. 1400, Seattle, WA, 98101-3927, for Amicus Curiae on behalf of Washington State Association for Justice Foundation.

Daniel Edward Huntington, Richter-Wimberley PS, 422 W. Riverside Ave. Ste. 1300, Spokane, WA, 99201-0305, Valerie Davis McOmie, Attorney at Law, 4549 Nw Aspen St., Camas, WA, 98607-8302, for Amicus Curiae on behalf of Washington State Association for Justice Foundation.

WHITENER, J.

¶1 This case concerns the proper notice rule governing premises liability actions brought by business invitees. In 2011, Darcy Johnson, a business invitee at the defendant's state liquor store, slipped and fell in the entryway to that store, just after entering. It was wet and raining outside. The jury returned a verdict for Johnson. The Court of Appeals reversed, reasoning that the trial court should have granted the State's motion for a judgment as a matter of law because Johnson had not satisfied the notice requirement in a premises liability action.

¶2 We granted review to resolve whether the reasonable foreseeability exception to the notice requirement applies. We hold that it does. We therefore reverse and remand to the Court of Appeals.

FACTS AND PROCEDURAL HISTORY

¶3 Johnson fell in the entryway to a Washington State Liquor Control Board¹ store in June 2011. At trial, it was undisputed where Johnson fell and that it was wet outside. The entryway to the store had an electronic door with a mat inside, meaning that those entering would walk across about five to six feet of carpet to get in, in addition to the rubber mat on the outside. The floor was made of waxed linoleum. Johnson slipped and fell after stepping off the last mat and onto the floor inside the entryway.

¶4 The store clerk, Jay Smiley, testified that he was not aware of the presence of any water or any other hazardous condition on the floor of the entryway before Johnson fell. Nor did he see any water on the floor on the spot where Johnson fell after the fall. Johnson testified that she had not noticed any water on the mat or the floor before she fell. Nor did she see any "mud, sand, dirt, or anything like that" on the floor. 4 Verbatim Report of Proceedings (VRP) (Sept. 20, 2017) at 446. (Later, the attorney for the State referenced, in a different context, and in an attempt to disprove a different assertion, Johnson's falling "onto a wet spot on the floor," but Johnson did not confirm that entirely. Id. at 452.) Johnson did testify that "the outside of my pant leg where I was laying ... was wet" after the fall. Id. at 385. Her boyfriend at the time, Steve Pallas, had also slipped (but not fallen) after stepping off the mat in the entryway. He also testified that he did not see water on the floor, and indicated he did not see "other foreign material" on the floor, either. 3 VRP (Sept. 19, 2017) at 174.

¶5 Smiley testified about the nature of the entryway. He noted that one of his duties was to put out a "very visible yellow sign that says, ‘slippery when wet’ " when it rains. 2 VRP (Sept. 18, 2017) at 90. (The day of the incident, Smiley did not put the sign out until after Johnson fell.) He later clarified "that the practice at our store was to put [the sign] out whenever it was wet out, like when it rains," or if the floor had been recently mopped. Id. at 109. He also noted that "[r]ainy days always bring muddy footprints" into the entryway. Id. at 97. He also mentioned how, when it was wet outside, customers had the tendency to have "their feet get wet and it [the wetness] comes in[to] the store," perhaps due to the lack of an awning over the entryway. Id. at 108.

¶6 Smiley also indicated that he did not have "any knowledge that there was anything unusual about the floors in this particular store that made them especially slippery when wet." Id. at 98. Indeed, accordingly to Smiley, no one else had ever fallen in the entryway to the store. Id. at 106.²

¶7 After the close of Johnson's case, the State moved for a judgment as a matter of law under CR 50, arguing in part that Johnson had not presented evidence that the State had notice of an unreasonably dangerous condition in the store. The trial court denied this motion.

¶8 The jury ultimately returned a verdict for Johnson. The State moved for a judgment notwithstanding the verdict under CR 59, arguing in part that the court had erred in denying its judgment as a matter of law. The trial court denied this motion as well.

¶9 The State appealed, raising several assignments of error: that the trial court erred in denying the State's CR 50 motion because of the absence of evidence that the store had notice of water on the floor, that the trial court erred in denying the CR 50 motion because there was no evidence that the floor was dangerously slippery when wet, that the trial court erred in excluding evidence regarding what caused Johnson's damages, that the trial court erred in dismissing the State's comparative fault defense as a matter of law, that the trial court erred by failing to give certain jury instructions regarding apportionment of fault, that the trial court erred in denying the State's motion for remittitur, and that the trial court erred in awarding prejudgment interest.

¶10 The Court of Appeals decided only the first assignment of error. Johnson v. Liquor & Cannabis Bd. , No. 51414-1-II, slip op. at 7, 2019 WL 4187744 (Wash. Ct. App. Sept. 4, 2019) (unpublished), http://www.courts.wa.gov/opinions/pdf/D2%2051414-1II%20Unpublished%20opinion.pdf. The Court of Appeals recited the standard thus: "To establish the State's liability for her injury, Johnson was required to show that (1) an unreasonably dangerous condition existed in the liquor store, and (2) the liquor store had actual or constructive notice of the dangerous condition." Id. at 5. The Court of Appeals held that "[r]egardless of whether the floor was an unreasonably dangerous condition if it was wet, Johnson did not present any evidence that the store had actual or constructive notice of a dangerous condition." Id. at 5-6. The Court of Appeals also disagreed with Johnson's argument that the reasonable foreseeability exception to the notice requirement applied. Id. at 7. It reversed and remanded with instructions for the trial court to vacate the verdict and dismiss the case because without evidence of notice, "the State was entitled to judgment as a matter of law." Id. at 7-8.

¶11 Johnson petitioned this court for review of several issues. We granted review "only on the issue [of] whether the foreseeability exception to the notice requirement applies in the context of premises liability actions." Order, No. 98726-2, 196 Wash.2d 1024, 476 P.3d 566 (Wash. Dec. 2, 2020).³ The parties filed supplemental briefing on this issue. We also received amicus briefs from Washington Defense Trial Lawyers and the Washington State Association for Justice Foundation.

STANDARD OF REVIEW

¶12 We review a motion for a judgment as a matter of law in the same manner as the trial court. Delgado Guijosa v. Wal-Mart Stores, Inc. , 144 Wash.2d 907, 915, 32 P.3d 250 (2001). Granting the State's motion would be " ‘appropriate [if], viewing the evidence most favorable to the nonmoving party, the court can say, as a matter of law, there is no substantial evidence or reasonable inference to sustain a verdict for the nonmoving party.’ " Id. (quoting Sing v. John L. Scott, Inc. , 134 Wash.2d 24, 29, 948 P.2d 816 (1997) ). Thus, such a motion can be granted " ‘only when it can be said, as a matter of law, that there is no competent and substantial evidence upon which the verdict can rest.’ " Id. (quoting State v. Hall, 74 Wash.2d 726, 727, 446 P.2d 323 (1968) ). " ‘Substantial evidence is said to exist if it is sufficient to persuade a fair-minded, rational person of the truth of the declared premise.’ " Id. (quoting Brown v. Superior Underwriters , 30 Wash. App. 303, 306, 632 P.2d 887 (1980) ).

¶13 "We may affirm a trial court's disposition of a motion for summary judgment or judgment as a matter of law on any ground supported by the record." Washburn v. City of Federal Way , 178 Wash.2d 732, 753 n.9, 310 P.3d 1275 (2013).

ANALYSIS

¶14 "A cause of action for negligence requires the plaintiff to establish (1) the existence of a duty owed, (2) breach of that duty, (3) a resulting injury, and (4) a proximate cause between the breach and the injury." Tincani v. Inland Empire Zoological Soc'y , 124 Wash.2d 121, 127-28, 875 P.2d 621 (1994). "The plaintiff in a slip and fall case has traditionally had the burden of establishing that the proprietor's negligence was a cause in fact of his or her injury by showing that the proprietor had constructive notice of the specific dangerous condition." Wiltse v. Albertson's Inc. , 116 Wash.2d 452, 458, 805 P.2d 793 (1991). The plaintiff may also show actual notice to meet this burden. Id. at 458-59, 805 P.2d 793.

¶15 In the premises liability context with business invitees, we have often applied the standards above alongside Restatement (Second) of Torts §...