Pimentel v. Roundup Co.

• Decision Date: 30 June 1983
• Docket Number: No. 49155-1,49155-1
• Citation: 100 Wn.2d 39,666 P.2d 888
• Parties: Patricia J. PIMENTEL, Respondent, v. ROUNDUP COMPANY, a Washington corporation, d/b/a Fred Meyer Store, Petitioner.
• Court: Washington Supreme Court

Page 39

100 Wn.2d 39

666 P.2d 888

Patricia J. PIMENTEL, Respondent, v. ROUNDUP COMPANY, a Washington corporation, d/b/a Fred Meyer Store, Petitioner.

No. 49155-1.

Supreme Court of Washington En Banc.

June 30, 1983.

Brooks & Larson, P.S., Terry A. Brooks, Philip A. Lamb, Yakima, for petitioner.

J. Michael Koch, Kevin Moran, Silverdale, for respondent.

Robert C. Keating, Seattle, amicus curiae, for petitioner.

Bryan P. Harnetiaux, Robert H. Whaley, Spokane, amicus curiae, for respondent.

PEARSON, Justice.

Defendant Roundup Company (d/b/a Fred Meyer Store) appeals a decision of the Court of Appeals reversing a defense verdict in an action for injuries caused when a paint can fell on plaintiff's foot.

The case presents two issues. The first issue is whether plaintiff, in order to establish liability, must show that the operator of a self-service style store had actual or constructive notice of the specific unsafe condition in the store which caused plaintiff's injury. We hold that where the operating procedures of any store are such that unreasonably dangerous conditions are continuous or reasonably foreseeable, there is no need to prove actual or constructive notice of such conditions in order to establish liability for injuries caused by them. The second issue is whether, under CR 26(b)(4) and CR 32(a)(3)(B), if a party chooses not to use one of his experts as a witness at trial, and the expert lives more than 20 miles from the location of the trial, the opposing party may use as evidence that expert's deposition taken prior to trial. We hold that CR 32(a)(3)(B) authorizes such use of an expert's deposition in this case.

The action before us arose out of injuries suffered by Patricia J. Pimentel in a Fred Meyer Store operated by defendant in Yakima. At approximately 4 p.m. on September 16, 1978, Mr. and Mrs. Pimentel stopped at the Yakima Fred Meyer Store. Inside the store they happened upon a magazine rack displaying books about home improvements. While standing in front of the rack perusing these books, Mrs. Pimentel was struck on the foot by a can of paint. The can had apparently fallen from a shelf beneath the magazine rack. Neither Mr. nor Mrs. Pimentel had noticed the can before the incident. The can was one of three or four 2-gallon cans of paint which had been placed on the base deck of the magazine rack by a store employee around noon on September 16.

In preparation for the trial, plaintiff retained two expert witnesses. The magazine racks, which had been rearranged after plaintiff's injury, were reconstructed by store employees in June 1980. This reconstruction was available for a month, but neither of plaintiff's experts inspected it.

Trial began in late June 1980. The critical issue, as far as this appeal is concerned, was the cause of the paint can's descent onto plaintiff's foot. This issue turned, in part, on the extent to which the can overhung the shelf. Defendant acknowledged that the can overhung the shelf. A store employee testified that, at approximately 3 p.m. on the day of the incident, he observed the can overhanging about 1 1/2 to 2 inches. Mr. Pimentel, on the other hand, testified that according to his measurements of the shelf after the incident, the can was overhanging 3 3/16 inches. Plaintiff attempted to establish the significance of the extent of the overhang by publishing the deposition of an expert, Mr. C.V. Smith. In moving for publication, counsel explained that Mr. Smith testified in his deposition that when the overhang reached 3 3/8 inches the can would be extremely unstable and the slightest vibration might overbalance it.

Mr. Smith had been retained by defendant as a possible expert witness and had inspected the reconstructed magazine rack and made still photographs and high speed films. Plaintiff deposed Mr. Smith in the week preceding the trial. Subsequently, defendant decided not to call him as a witness.

The trial court denied the motion to use Mr. Smith's deposition in evidence. The court relied on Crenna v. Ford Motor Co., 12 Wash.App. 824, 532 P.2d 290 (1975), in holding that CR 26(b)(4)(B) prohibited the use by plaintiff of defendant's expert testimony at trial in the absence of exceptional circumstances.

Other testimony relevant to defendant's liability in the record before this court indicates that defendant store had a policy of keeping all containers well back on shelves and avoiding overhangs greater than 1 inch. The store was officially inspected for unsafe conditions before opening every morning. Thereafter, during the day, no employee was specifically assigned to inspect the store, but all employees were instructed to be alert for dangerous conditions.

The trial court instructed the jury that it must find actual or constructive notice of a dangerous condition in order to impose liability on defendant. This instruction was based on the decision of this court in Morton v. Lee, 75 Wash.2d 393, 450 P.2d 957 (1969). The court refused plaintiff's proposed instruction 5, based on Ciminski v. Finn Corp., 13 Wash.App. 815, 537 P.2d 850 (1975), which would not require the jury to find actual or constructive notice of the specific hazard causing the injury.

The jury returned a verdict for defendant. Plaintiff appealed, challenging the rejection of proposed instruction 5, and the refusal to admit the deposition of C.V. Smith. The Court of Appeals held that the instruction requiring actual or constructive notice was error and that the rule in Ciminski applied to this case. Further, the Court of Appeals held that the trial court erred in excluding the deposition of C.V. Smith.

On appeal before this court, defendant first challenges the Court of Appeals' conclusion that the trial court's instruction 16 to the jury was improper. Instruction 16 stated:

The owner of a department store, such as the defendant in this case, owes to a person who has an express or implied invitation to come upon the premises in connection with that business, a duty to exercise ordinary care for that person's safety.

In order to support a finding of negligence, a temporary unsafe condition on the premises must either have been brought to the actual attention of the defendant or its employees, or it must have existed for a sufficient length of time and under such circumstances that the defendant or its employees should have discovered it in the exercise of ordinary care.

The Court of Appeals remanded for a new trial using plaintiff's proposed instruction 5 instead of instruction 16. Plaintiff's proposed instruction 5 states:

The owner or operator of a self-service establishment must exercise reasonable care in protecting his business invitees against foreseeable risks. The owner or operator of such a self-service establishment has actual notice that his self-service 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 for the Plaintiff to show actual or constructive notice of the specific hazard causing injury. It therefore is your task to determine whether the proprietor has taken all reasonable precautions necessary to protect his invitees from these foreseeable risks, and in making this determination you may consider the following factors:

(a) The nature of his business

(b) The nature of his customers

(c) The standards adopted to display his merchandise

(d) The housekeeping procedures which he has instituted to discover and remove conditions which may cause injuries

(e) Whether there is a system of regular inspection of display areas where merchandise might be unsafely stacked by his employees, or handled and unsafely placed by other patrons

(f) Such other facts and circumstances revealed by the evidence having a bearing on the question of reasonable protection.

Defendant argues that the Court of Appeals erred in concluding that it was not necessary for plaintiff to show that defendant had actual or constructive notice of the specific hazard that caused the injury.

It has long been settled in this state that for the possessor of land to be liable to invitees for the unsafe condition of his land, he must have actual or constructive notice of that unsafe condition.

[W]here the negligence of a storekeeper or restaurateur is predicated upon his failure to keep his premises in a reasonably safe condition, it must be shown that the condition has either been brought to his notice or has existed for such time as would have afforded him sufficient opportunity, in the exercise of ordinary care, to have made a proper inspection of the premises and to have removed the danger.

Smith v. Manning's, Inc., 13 Wash.2d 573, 580, 126 P.2d 44 (1942).

The most recent expression of the rule by this court is Morton v. Lee, 75 Wash.2d at 393, 450 P.2d 957. There this court approved an instruction identical to instruction 16, given in the present case. In Morton, the plaintiff slipped on an apricot which had fallen from a display case at the entrance to the defendant's grocery store. The plaintiff's husband had noticed the apricot on the walk 5 minutes before the fall. The principal issue before the court was whether there was sufficient evidence to establish that the defendant had constructive notice of the dangerous condition caused by the apricot. The defendant argued that 5 minutes as a matter of law was insufficient to constitute constructive notice. This court held that the length of time the apricot had been seen to be on the walk was not dispositive. The jury could infer from other facts, in particular the "housekeeping procedures and practices" of the defendant, that the required care had not been exercised. Morton, 75 Wash.2d at 397-98, 450 P.2d 957.

Although the jury was permitted to infer from circumstantial evidence that the defendant had constructive notice of the dangerous condition, Morton stands...