Swager v. CCM Holdings, LLC

• Decision Date: 27 April 2023
• Docket Number: 38438-1-III
• Parties: TAMERA SWAGER AND MARTY S WAGER, husband and wife, Appellants, v. CCM HOLDINGS, L.L.C., a Washington Limited Liability Company; WILLIAM G. HANVEY AND KATHLEEN M. HANVEY, individually and in their marital community; VALUE VILLAGE STORES, INC., a Washington Profit Corporation; JOHN DOE I-X, Defendants INLAND LAWN INC., a Washington Profit Corporation Respondent.
• Court: Court of Appeals of Washington

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TAMERA SWAGER AND MARTY S WAGER, husband and wife, Appellants, v. CCM HOLDINGS, L.L.C., a Washington Limited Liability Company; WILLIAM G. HANVEY AND KATHLEEN M. HANVEY, individually and in their marital community; VALUE VILLAGE STORES, INC., a Washington Profit Corporation; JOHN DOE I-X, Defendants

INLAND LAWN INC., a Washington Profit Corporation Respondent.

No. 38438-1-III

Court of Appeals of Washington, Division 3

April 27, 2023

UNPUBLISHED OPINION

Fearing, C.J.

This appeal raises a variety of issues stemming from appellant Tamera Swager's (Swager's) slip on ice in Spokane's Value Village's parking lot. Her fall caused serious injuries to her ankle and leg. Swager gained partial success against Value Village and the store property's owner, but a jury ruled in favor of Inland Lawn, the contractor hired to remove snow and ice from the parking lot. Swager and her husband appeal rulings leading to the verdict vindicating the contractor. Swager assigns error to exclusion of postinjury correspondence between Value Village, the property manager, and Inland Lawn and to the preclusion of testimony from an expert on snow removal. She assigns instructional error and error in denying a motion to dismiss the affirmative defense of comparative fault. We conclude that the superior court committed prejudicial error when excluding testimony from Lisa Rose, a snow and ice removal expert.

FACTS

This lawsuit arises from Tamera Swager's slipping on inclement conditions in the parking lot of Spokane's uptown Value Village on January 4, 2017. In addition to suing Value Village, Swager and her husband sued the property owner, CCM Holdings, Inc., and the snow removal contractor, Inland Lawn. Inland Lawn is the only respondent on appeal. During the winter, Inland Lawn performs on contract, for numerous property owners, snowplowing, parking lot and sidewalk snow removal, sanding, and deicing.

By 2017, Value Village property's owner, CCM Holdings, Inc. had contracted for more than ten years with Inland Lawn to perform ice and snow removal on the store's premises. Under the one-page contract, Inland Lawn traveled to Value Village if snow reached two inches. Inland Lawn sprayed a liquid deicer to the parking lot with a tank truck, plowed the snow in the parking lot, and removed snow from the sidewalks along the premises. The sidewalk crew worked separate from the plowing and deicing crew. The contract also afforded Inland Lawn the opportunity to apply liquid deicer before or after a storm. Inland Lawn determined the amount of deicer to apply and it charged for the deicer by the pound. The contract also read that Inland Lawn would apply sand only if requested.

Inland Lawn does not offer customers the service of monitoring premises after snow removal. No one with Value Village or CCM Holdings spoke to Inland Lawn about monitoring the premises after performing instances of snow removal or application of deicer.

Deicing lowers the freezing temperature of the snow and ice so that the snowplow can remove the precipitation at a lower level on the pavement. Deicing also keeps the parking lot safer. A deicer lasts one to two days. Kelly Peterson, part owner and manager of Inland Lawn, testified at trial that he did not know what occurred after the deicer waned in effect.

Inland Lawn removed snow and ice from Value Village's parking lot on the morning of January 1, 2017. A snowplow plowed and a truck applied 35 gallons of liquid deicer. A separate crew removed snow from sidewalks and applied granular deicer to those walkways. Inland Lawn repeated the same tasks that evening because of a surprise second storm. Inland Lawn applied no sand, either in the morning or evening, because the property owner's manager never requested its use. The cost of applying sand would been in the range of $150 to $175 for the entire premises.

Kodi Bilbrey, now Inland Lawn's operations manager, testified at trial that he was one of the workers clearing the parking lot on January 1, 2017. Bilbrey avowed that he had performed snow removal on Value Village's parking lot at least fifty times before.

Inland Lawn did not return to the property until January 7, 2017 because no new snowfall exceeded two inches. Without this triggering frozen precipitation, the company would not receive payment for additional services.

At midday on January 4, 2017, Tamera Swager and her husband Marty, intended to shop at Value Village. They had just exited an adjoining building where they sought counsel from an attorney. They traversed a city sidewalk between the office building and the discount store.

Before leaving the sidewalk and entering Value Village's parking lot, Tamera Swager noticed "[c]ompact snow and ice" on the lot. Report of Proceedings (RP) at 1151. The parking lot appeared "dirty," such that both she and Marty Swager assumed traction material had been laid on the ice. Each judged the parking lot to be safe on which to walk.

Tamera and Marty Swager entered the parking lot and walked toward the Value Village entrance. During cross-examination, Swager declared:

Q. As you're walking, you know, 20 feet into that parking lot, did you ever look down and see traction material?

A. I didn't look down. . . . . Q. Okay. At any time between that zero to 20 feet, did you look down on what you were walking on?

A. When we first entered the property.

. . . .

Q. All right. And was that the only time you looked down when you were walking into that parking lot?

A. Well, I was looking straight. So, of course, I can see exactly where I'm going. I can see what was in front of me.

Q. All right. Did you see traction material as you were looking forward?

A. Like I said, it was dirty.

Q. Dirty with just dirt or material?

A. I have no clue. It was dirty. So it could have been traction material. I didn't know.

RP at 1183-84.

Within twenty feet of entering the parking lot, Tamera Swager slipped and tumbled to the iced pavement. Marty, who walked ahead of Swager, heard her say "I hurt myself." RP at 889.

An individual who observed Tamera Swager's fall called 911. Ronald Hunter, Value Village's store manager, learned of Swager's fall and left the store to gather information from the Swagers. An ambulance arrived on the premises and transported Swager to the hospital.

A family friend, Scott Mankin, arrived at the store to drive the couple home after they had completed shopping. Mankin testified at trial concerning the conditions in the parking lot that he encountered:

Q. So when you got out of your car-or, I guess, more generally, what were the conditions of the parking lot that you saw there?

A. Super icy and very slick and the closer I got to the ambulance, the slicker it got. And then as I looked toward the street, you could see where it was rutty, bumpy, where people, maybe, driven and droven [sic] through it, and then it froze and got pretty treacherous from the sidewalk in and then it smoothed out as it got closer to the drain and the hill. There's, kind of, a serious grade in that parking lot where it drains down.

Q. Yeah. But how much-can you describe how much of the parking lot was covered in that condition?

A. From the time I started walking, it was pretty much all ice. So I would say, you know, three quarters of that parking lot where I was. I can't attest to where the cars were parked, but, where I was walking down to where they were, it was all ice.

. . . .

Q. Okay. Okay. So could you-the part of the parking lot where Mr. Swager and the ambulance were, can you describe the-what you saw with respect to this ice in more detail?

A. It was-it was slick and smooth and super icy, super slick. And, like I said, I didn't-when I went and looked down at the other spot, you could see [that] the ice just seemed to get thicker and more uneven and more rutty as you went away towards the street which would be the south. Going south in that parking lot, it got more-way more icy and rutty and slick, uneven. Where the ambulance was [it] was pretty even, but it was ice, just all ice.

. . . .

Q. So did you see any traction material like sand or deicer on that part of the parking lot?

A. No.

. . . .

Q. And you yourself walked from your car down to the ambulance to speak to Mr. Swager?

A. Yes.

Q. Did you have any trouble walking yourself?

A. I was very careful, yeah. It was very slick.

RP at 468-74.

When asked at trial, if Value Village's parking lot should have been free from ice, Kelly Peterson, manager of Inland Lawn, responded that "[a]ttempts should be made to keep it clear." RP at 536. Peterson agreed that someone should monitor the parking lot for ice, although he denied that Inland Lawn should be the one to conduct the monitoring. Peterson would expect that, if the property owner or manger noticed slippery conditions in the parking lot after Inland Lawn's work, someone would contact Inland Lawn. If an employee of Inland Lawn was nearby, he or she might check on conditions. Peterson denied that Inland Lawn should have conducted discussions, in advance of January 1, 2017, with Value Village or CCM Holdings about who should perform monitoring.

When asked if sand or other bracing material should be placed on an icy parking lot, Kelly Peterson answered that Inland Lawn defers to the property owner or manager for deciding whether to apply sand. Some property owners do not desire the use of sand because the sand decomposes the asphalt and striping and requires clearing in the spring.

At trial, Tamera and Marty Swager sought to introduce a series of e-mails among representatives of Value Village, CCM Holdings, Inland Lawn, and an insurance agency. Swager's fall precipitated the e-mails. We do not correct the spelling or punctuation of the messages exchanged in the e-mails.

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