Wiltse v. Albertson's Inc.

• Decision Date: 28 February 1991
• Docket Number: No. 55727-6,55727-6
• Citation: 805 P.2d 793,116 Wn.2d 452
• Court: Washington Supreme Court
• Parties: Steven R. WILTSE & Carol A. Wiltse, husband & wife, Petitioners, v. ALBERTSON'S INCORPORATED, an Idaho corporation. En Banc

Page 452

116 Wn.2d 452

805 P.2d 793

Steven R. WILTSE & Carol A. Wiltse, husband & wife, Petitioners, v. ALBERTSON'S INCORPORATED, an Idaho corporation.

No. 55727-6.

Supreme Court of Washington,

En Banc.

Feb. 28, 1991.

Lewis M. Schrawyer, Henderson & Nichols, P.S., Robert B. Henderson, Spokane, for respondent.

Timothy J. Whitters, Tacoma, amicus curiae for petitioners on Behalf of Washington Defense Trial Lawyers Ass'n.

Robert H. Whaley, Bryan P. Harnetiaux, Spokane, amicus curiae for respondent on Behalf of Washington State Trial Lawyers Ass'n.

CALLOW, Justice Pro Tem.

The plaintiff, Steven Wiltse, slipped and fell in water that came from a hole in the roof of the defendant's, Albertson's Incorporated, self-service grocery store. At trial, the court instructed the jury that the plaintiff had the burden of proving that this condition had "existed for a sufficient length of time" and under such circumstances that defendant or defendant's employees should have discovered it in the exercise of ordinary care.

The issue is whether the trial court erred in instructing the jury that the plaintiff had the burden of proving actual or constructive notice of the water existing at defendant's grocery store, based on Pimentel v. Roundup Co., 100 Wash.2d 39, 666 P.2d 888 (1983).

In Pimentel, the plaintiff was injured when a can of paint struck her foot while she was looking through a magazine rack which contained books on home improvements. Pimentel, 100 Wash.2d at 41, 666 P.2d 888. There, the court held that the owner's actual or constructive knowledge of the hazard was not necessary if the existence of the hazard was reasonably foreseeable. Pimentel, 100 Wash.2d at 39, 666 P.2d 888. The new rule adopted in Pimentel was taken from a Colorado case, Jasko v. F.W. Woolworth Co., 177 Colo. 418, 494 P.2d 839 (1972). The Jasko court reasoned:

The basic notice requirement springs from the thought that a dangerous condition, when it occurs, is somewhat out of the ordinary.... In such a situation the storekeeper is allowed a reasonable time, under the circumstances, to discover and correct the condition, unless it is the direct result of his (or his employees') acts. However, when the operating methods of a proprietor are such that dangerous conditions are continuous or easily foreseeable, the logical basis for the notice requirement dissolves. Then, actual or constructive notice of the specific condition need not be proved.

(Italics ours.) Jasko, 177 Colo. at 420-21, 494 P.2d 839. The court in Pimentel also stated that "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, 100 Wash.2d at 50, 666 P.2d 888. That is not the case in the facts presented to us here.

There was no evidence that the leak in the roof was a result of Albertson's negligence nor that it came from the self-service operation of Albertson's. We will not abandon principles of negligence and make "self service" stores liable whether they were aware or should have been aware of a dangerous condition.

Pimentel held 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 notice of such conditions to establish liability for injuries caused by them. Pimentel, 100 Wash.2d at 40, 666 P.2d 888. The Pimentel holding went on to say:

This does not change the general rule governing liability for failure to maintain premises in a reasonably safe condition: the unsafe condition must either be caused by the proprietor or his employees, or the proprietor must have actual or constructive notice of the unsafe condition.

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

Here, none of the conditions expressed in Pimentel are present. That is, the conditions which led up to the plaintiff's accident were neither continuous, reasonably foreseeable, nor was the accident associated with the store's self-service mode of operation. The record bears this out.

First, there is no indication that the store manager or any employee was aware of the water on the floor previous to Mr. Wiltse's accident. The record indicates that the accident happened shortly after 7 p.m. on November 28, 1982. The store manager testified that he had been past the location of the plaintiff's fall minutes before the accident happened and did not notice, or have any previous notice, of any foreign substance on the floor. ¹ There was further testimony from an employee that she did not notice any water on the floor at the time she walked by the area to punch out. ² Thus, the record indicates that the store manager had no notice that an unsafe condition existed in the store until after the time of Mr. Wiltse's accident.

The water came to rest on the floor because of a previously unnoticed leak in the building's roof, not from the dairy case or any other means associated with the store's self-service operation. At trial, the plaintiff testified that:

Q: Now, you indicated a few moments ago that you slipped in some water but yet you didn't see the water. How is it you knew that it was water that you had slipped in?

A: Well, naturally I was laying in it. It was hitting me from a hole or the grate or whatever in the ceiling. It was hitting me in the chest. I assumed it was water. I couldn't imagine what else could be up there.

Thus, the hazard came from a leaking roof which could give way suddenly, unforeseen and without notice. This is not the same as a continuing danger resulting from the store's self-service mode of operation.

The Pimentel rule does not apply to all self-service operations, but only if the particular self-service operation of the defendant is such that it is reasonably foreseeable that unsafe conditions in the self-service area might be created. The trial judge understood the difference between the facts of the case at bar and the rule established in Pimentel when he denied the proposed Pimentel instruction of the plaintiff. He stated:

With respect to the first exception with regard to whether or not the Court should utilize the las [sic] as set forth in Pimentel, simply because the defendant admittedly is a self-service grocery store, I feel the law, which in substance in Pimentel eliminates the need to show notice of a dangerous condition, should be applied to those cases in which the condition arises out of the actual operation of such a self-service enterprise, and if it does, then such an instruction is appropriate.

But here we have admittedly a condition which really doesn't result from the self-service operation as such, but something entirely different, namely, a leaky roof, and the essence of the subject of liability is whether or not the defendant had notice of this condition or should have had notice, and I feel that we are therefore back to the basic law with respect to that duty as set forth in the Court's Instruction 13, based on Defendant's Proposed Instruction 19, and that it is necessary to give this in order to permit the defendant to argue its theory with respect to lack of notice.

(Italics ours.) Partial Report of Proceedings, Vol. II, p. 53-54.

The common law allows a property owner to be put on notice of an unsafe condition prior to attaching liability. He must be negligent. Restatement (Second) of Torts, § 343 (1965) reads as follows:

Dangerous Conditions Known to or Discoverable by Possessor

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect against the danger. ³

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:

[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 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), quoted in Pimentel, 100 Wash.2d at 44, 666 P.2d 888. See also Presnell v. Safeway Stores, Inc., 60 Wash.2d 671, 675, 374 P.2d 939 (1962); Restatement (Second) of Torts § 343 (1965).

The constructive notice rule requires the plaintiff to establish how long the specific dangerous condition existed in order to show that the proprietor should have noticed it. Under the traditional rule, the lack of such evidence precludes recovery. Brant v. Market Basket Stores, 72 Wash.2d 446, 451-52, 433 P.2d 863 (1967); Merrick v. Sears, Roebuck & Co., 67 Wash.2d 426, 429, 407 P.2d 960 (1965).

In Brant, a business invitee slipped and fell in the grocery store almost immediately upon entering because of an accumulation of water on the floor from weather conditions outside. The court, in affirming the trial court's dismissal, held that: The plaintiff in this case has proven no more than that she slipped and fell on a wet floor and sustained certain injuries in consequence thereof. Our cases indicate that something more must be proved to establish that the defendant had permitted a situation dangerous to its invitees to exist.

Brant, 72 Wash.2d at 451, 433 P.2d 863.

The facts in Brant are more analogous to the present case than...