Opinion
No. 50409-6-I.
Filed: February 23, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 00-2-20655-1. Judgment or order under review. Date filed: 04/30/2002. Judge signing: Hon. Bruce Hilyer.
Counsel for Appellant(s), Harry L. Jr Perfater, Attorney at Law, 18516 101st Ave NE Ste 4, Bothell, WA 98011-3874.
Counsel for Respondent(s), Thomas Bradley Nedderman, Floyd Pflueger, 2505 3rd Ave Ste 300, Seattle, WA 98121-1445.
Kim Carter Pflueger, Floyd Pflueger, 2505 3rd Ave Ste 300, Seattle, WA 98121-1445.
A possessor of land is not liable to invitees for an unsafe condition on the land unless the possessor has actual or constructive notice of that unsafe condition and certain other elements exist. Here, there is no genuine issue of material fact that Thrifty Pay Less, Inc. ('Thrifty') did not have either actual or constructive knowledge of the unsafe condition on the floor of the store where Kay Ellen Kettel slipped and fell. Accordingly, summary judgment of dismissal was proper. Because Kettel also fails to establish that the trial court abused its discretion in any of the rulings she challenges on appeal, we affirm.
Pimentel v. Roundup Co., 100 Wn.2d 39, 44, 666 P.2d 888 (1983).
On September 15, 1997, Kettel fell inside the Thrifty Payless Drug Store in Woodinville after slipping on an unknown substance. Another shopper in the store, Mary Van Alstine, witnessed the fall. Store employee Randa Rich assisted Kettel after the fall and completed two incident reports. Shortly before Kettel's fall, the store was purchased by the Rite Aid Corporation but had not yet been remodeled and converted to the Rite Aid format.
In August 2000, Kettel commenced this action for negligence against Thrifty for injuries sustained during the fall. Kettel moved to compel discovery in February 2001 when detailed responses were not forthcoming. Kettel withdrew the motion when Thrifty responded, but later filed a second motion to compel. In March 2001, the trial court ordered Thrifty to respond to Kettel's first interrogatories and requests for production, and sanctioned Thrifty under CR 37 and CR 11 for failing to comply with discovery rules.
Discovery continued and in May 2001, Kettel filed a motion for contempt that requested the court award further sanctions for Thrifty's continued failure to respond to discovery requests. The trial court denied this motion, and imposed sanctions against Kettel for failing to comply with the CR 26(i) conferencing requirement before filing the motion for contempt.
In response to additional interrogatories and requests for production by Kettel, Thrifty moved for a protective order in August 2001. This motion was granted in part. Kettel's motion for reconsideration was denied.
In August 2001, Kettel moved for discretionary review before this court, arguing that Thrifty failed to respond to interrogatories requesting the identity of employees working at the Woodinville store on the day of the incident, among other things. We denied discretionary review and the motion to modify that followed.
In March 2002, the trial court granted Thrifty's motion for summary judgment. Kettel's motion for reconsideration was denied.
Kettel appealed.
Following the appeal, Kettel filed a CR 60 motion with the trial court to add pages from a deposition transcript to the record that had been inadvertently omitted. The trial court initially denied the motion. Kettel re-noted the motion in February 2003 and the motion was granted. In March 2003, we granted Kettel's motion to file an amended opening brief 'with references to the supplemental record.' After Kettel filed the amended brief with this court, Thrifty moved to strike the brief, arguing that it substantially expanded arguments and issues raised, rather than merely inserting references to the CR 60 supplemental record. Thrifty also requested RAP 18.9 sanctions. A commissioner denied the motion to strike and also denied Thrifty's request for attorney fees under RAP 18.9, without prejudice to Thrifty renewing the request for sanctions before this panel.
DISCOVERY
Kettel challenges the trial court's rulings on matters related to discovery. First, Kettel argues that the trial court abused its discretion when it denied her motion for contempt and refused to impose sanctions against Thrifty, thus failing to enforce the court's own order compelling discovery. Second, Kettel argues that the trial court abused its discretion when it granted in part Thrifty's motion for a protective order. Finally, Kettel argues that the trial court failed to rule on two requests to strike evidence submitted in Thrifty's response to the motion for contempt and Thrifty's memorandum in support of summary judgment. We conclude that the trial court did not abuse its discretion in these highly discretionary matters.
Discovery rulings are reviewed for abuse of discretion. A trial court abuses its discretion only when its decision is manifestly unreasonable or based on untenable grounds. We will not disturb a trial court's ruling on a discovery matter absent a showing of prejudice to a party. The violation of a discovery order without a reasonable excuse is a willful violation of the discovery rules.
Doe v. Puget Sound Blood Ctr., 117 Wn.2d 772, 777, 819 P.2d 370 (1991).
State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Doe, 117 Wn.2d at 777.
Gammon v. Clark Equipment Co., 38 Wn. App. 274, 280, 686 P.2d 1102 (1984).
Motion for Contempt
Kettel argues that the trial court abused its discretion when it denied her motion for contempt and declined to impose sanctions against Thrifty, thus failing to compel compliance with a prior discovery order. We conclude that Kettel fails to show prejudice and this argument is not persuasive.A trial court has broad discretion as to the sanction to impose for the violation of a discovery order or discovery rules. This court reviews the trial court's decision to grant or deny sanctions for an abuse of discretion.
Burnet v. Spokane Ambulance, 131 Wn.2d 484, 494, 933 P.2d 1036 (1997); Wash. State Physicians Ins. Exch. Ass'n v. Fisons Corp., 122 Wn.2d 299, 355, 858 P.2d 1054 (1993).
Fisons, 122 Wn.2d at 338.
Kettel contends that the trial court erred because Thrifty willfully violated the discovery rules and the prior order to compel. The trial court determined that Thrifty did not willfully violate the civil rules and that, on the merits, it was ruling 50 percent for Kettel and 50 percent for Thrifty. Kettel contends that the lack of memos, training materials, and employee records provided by Thrifty evidences willful conduct. The trial court was in a much better position to determine whether Thrifty willfully violated its discovery order. There is nothing in this record to suggest that Thrifty's inability to find documents, or the loss of these documents, after three years and a transition to a different store format was willful within the meaning of the governing civil rules. In short, Kettel fails to demonstrate that the trial court's order was an abuse of discretion or that she was prejudiced in any way.
The trial court did not deem it necessary to sanction Thrifty with a contempt order and did, contrary to Kettel's assertion, rule that Thrifty must provide additional responses to specific interrogatories. The trial court ordered Thrifty to provide a sworn verification for all unverified answers, concluded that Thrifty had satisfactorily answered Kettel's first five sets of interrogatories, ordered Thrifty to provide responsive answers to interrogatory 47, concerning employees working at the Woodinville store, and interrogatory 58, concerning pending lawsuits. The trial court also imposed sanctions against Kettel for failing to confer before bringing the motion. The trial court did not fail to compel discovery.
Kettel also contends the trial court erred when it declined to impose CR 26, CR 11, and CR 37 sanctions against Thrifty. Again, Kettel argues that Thrifty was trying to gain a 'tactical advantage' by failing to name employees working at the Woodinville store on the day of the incident. The trial court did not act in an unreasonable manner when it refused to impose sanctions against Thrifty. The court found compliance on some discovery requests and ordered further responses to others within 10 days of the order, including additional information about employees working at the store.
Kettel contends that Thrifty had electronic records of the employees who worked the day of the accident. For this proposition, Kettel relies on the testimony of corporate designee Daniel Mahoney. Kettel misconstrues the record. Mahoney did not testify that electronic records were actually available. Mahoney testified that at the time of the accident Thrifty used an electronic cash register log-in system, that Thrifty had gone through two other payroll systems since the accident, and that he did not know whether the electronic records were retained for only two or three years. Mahoney never testified that pertinent electronic records were available or existed anymore. There was no abuse of discretion.
Finally, Kettel argues that sanctions imposed against her were unjustified. But Kettel provides no briefing, citation to the record, or citation to authority to support this assertion. Accordingly, we need not consider this argument.
Protective Order
Kettel contends that the trial court abused its discretion when it granted in part Thrifty's motion for a protective order. Kettel argues that the trial court did not have authority to grant the protective order because Thrifty failed to comply with the CR 26(i) conferencing requirement. Kettel raised this argument below only in her motion for reconsideration after the protective order was granted. Furthermore, the order denying Kettel's motion for reconsideration of the protective order is not one of the orders being appealed and it is not in the record before this court. Accordingly, we decline to consider this argument.
Requests to Strike
Finally, Kettel contends that the trial court erred when it failed to rule on two motions to strike. While there was no formal motion to strike, we read a footnote in Kettel's response to Thrifty's motion for summary judgment regarding the inadmissibility of prior fall evidence that Kettel is describing as the first motion to strike as an evidentiary objection. Likewise, we view as an evidentiary objection what Kettel describes as her second motion to strike argument in her motion for contempt that Thrifty's inclusion of her medical records regarding pre-existing back and neck injuries was improper.
Clerk's Papers at 155, n. 3 ('Defendant cites several incidents where plaintiff acknowledges falling in the last ten years: once on stairs at her home, once on ice in a driveway, and once at a QFC. Def. Mem. p. 2. This is irrelevant to the instant case, and inadmissible under ER 404(b). This evidence should be struck.').
But neither objection has anything to do with the summary disposition of this case against Kettel. Specifically, as to the summary judgment ruling, neither objection creates a genuine issue of material fact. For reasons that we explain later in the opinion, we conclude there was no prejudicial error by the court in this respect.
NOTICE
Kettel contends that the trial court erred when it granted Thrifty's motion for summary judgment because genuine issues of material fact exist concerning Thrifty's breach of its duty of care in this negligence action. We conclude that there is no genuine issue of material fact and that summary judgment was proper.
We may affirm an order granting summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. All facts and reasonable inferences must be considered in the light most favorable to the nonmoving party. The non-moving party may not rely on speculation or argumentative assertions that unresolved factual issues remain but must set forth specific facts sufficiently rebutting the moving party's contentions and disclosing the existence of a material issue of fact. We review questions of law de novo.
Mountain Park Homeowners Ass'n v. Tydings, 125 Wn.2d 337, 341, 883 P.2d 1383 (1994).
Seven Gables Corp. v. MGM/UA Entertainment Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986).
Mains Farm Homeowners Ass'n v. Worthington, 121 Wn.2d 810, 813, 854 P.2d 1072 (1993).
Negligence exists when there is a duty owed, that duty is breached and there is an injury proximately caused by the breach. Thrifty does not deny that it owed a duty of care to Kettel as a business invitee. Accordingly, the key issue is whether a breach of that duty occurred here.
Mucsi v. Graoch Associates Ltd. Partnership No. 12, 144 Wn.2d 847, 854, 31 P.3d 684 (2001).
See O'Donnell v. Zupan Enterprises, Inc., 107 Wn. App. 854, 858, 28 P.3d 799 (2001), review denied, 145 Wn.2d 1027 (2002).
For a possessor of land to be liable to invitees for an unsafe condition on the land, the possessor must have actual or constructive notice of that unsafe condition. There is a narrow exception to this notice requirement '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.' In such cases, the defendant is deemed to be on notice that hazards will occur in the normal course of business, and a plaintiff can show negligence by demonstrating that the defendant failed to engage in periodic inspections with the frequency required by the foreseeability of the risk.
Pimentel, 100 Wn.2d at 44.
Pimentel, 100 Wn.2d at 49.
Wiltse v. Albertson's Inc., 116 Wn.2d 452, 461, 805 P.2d 793 (1991) (citing Pimentel, 100 Wn.2d at 49).
Courts have declined to extend the notice exception to causes not directly related to a store's self-service mode of operation. Further, the exception does not necessarily apply to all areas of a self-service business, but only to those areas where risk of injury is 'continuous or foreseeably inherent in the nature of the business or mode of operation.' Thus, a plaintiff who slips and falls in a store cannot survive summary judgment by merely raising the inference that the substance causing her fall came from within the store; rather, the plaintiff must show that such spills were foreseeable in the specific area where she fell. Because the notice exception is a narrow one, the burden is on the plaintiff to establish that her case falls within the exception. Kettel fails to meet this burden. Although the parties agree Thrifty is a self-service establishment, that alone is not enough to fall within the exception. Kettel presented no evidence as to what the liquid was, how long it had been there, particular characteristics of the area of the store in which the liquid was found that would make the hazardous condition foreseeable, or how the hazard might be foreseeable given the store's specific self-service mode of operation. 'The mere presence of a slick or slippery substance on a floor is a condition that may arise temporarily in any public place of business.' And the fact that Thrifty stocks many containers of liquids in the store is not enough to invoke the exception. Something more is needed and Kettel fails to provide it.
See, e.g., Wiltse, 116 Wn.2d at 456 (holding the Pimentel exception not warranted where parties agreed accident caused by liquid from leaking roof in a self-service business).
Ingersoll v. DeBartolo, Inc., 123 Wn.2d 649, 653, 869 P.2d 1014 (1994) (quoting Wiltse, 116 Wn.2d at 461).
See Carlyle v. Safeway Stores, Inc., 78 Wn. App. 272, 277, 896 P.2d 750, review denied, 128 Wn.2d 1004 (1995).
Carlyle, 78 Wn. App. at 277.
Because the exception does not apply, Kettel must present a genuine issue of material fact concerning notice in order to survive summary judgment. Because Kettel does not contend, and there is no evidence, that Thrifty had actual notice, she must show Thrifty had constructive notice of the dangerous condition. Constructive notice is measured by whether the landowner had '. . . sufficient opportunity, in the exercise of ordinary care, to have made a proper inspection of the premises and to have removed the danger.' Ordinarily the length of time the dangerous condition persisted is central to the constructive notice inquiry.
Pimentel, 100 Wn.2d at 44.
See, e.g., Carlyle, 78 Wn. App. at 275.
This case is similar to Carlyle. In Carlyle, a woman slipped and fell on a small spot of spilled shampoo in the coffee section, some 5 aisles away from where the shampoo was stocked. The court quickly noted that there was simply no evidence that the spill had been on the floor for a long enough time to afford Safeway sufficient opportunity to discover and clean up the spill and that Carlyle was therefore unable to prove constructive notice. The court went on to analyze whether the notice exception applied and concluded that it did not. The same lack of evidence exists in this case.
Carlyle, 78 Wn. App. at 274, 278.
Carlyle, 78 Wn. App. at 275.
Carlyle, 78 Wn. App. at 277-78.
Kettel contends that Rich's description of the spot in the Confidential Customer Incident Report as 'not completely cleaned up' presents a genuine issue of material fact that Thrifty had notice of the hazard. But there is simply no evidence in the record that an employee of Thrifty negligently cleaned the spot or even knew of its existence. Kettel's assertion to the contrary is nothing more than speculation. Kettel essentially concedes this point, and next suggests that if it was a customer who attempted to clean up after spilling something, the location of the spill, toward the front of the store near the checkout area, would have put employees on notice of its existence. Again, this is nothing but speculation without support in the record.
Kettel would also like this court to infer that because Van Alstine described the spot as 'dirty' in appearance it must have been there long enough to put Thrifty on notice of the hazard it posed to customers. This inference is not reasonable, but speculation with no basis in the record. Kettel 'must prove that the defective condition existed long enough so that by the use of reasonable care it should have been discovered' That the substance may have been dirty in appearance does not satisfy this standard. In Presnell v. Safeway Stores, Inc., our supreme court noted that an inference arising from the dark color of a banana peel alone would not be sufficient proof of constructive notice. Furthermore, without knowing what the substance was, it is impossible to say that it is reasonable to infer that it must have been there a long time merely because it was dirty in appearance.
Morton v. Lee, 75 Wn.2d 393, 397, 450 P.2d 957 (1969).
60 Wn.2d 671, 374 P.2d 939 (1962).
Presnell, 60 Wn.2d at 673.
Kettel also argues that the store practice of only one formal morning inspection supports the conclusion that constructive notice exists. Kettel insists that Thrifty could have known of the hazardous condition if more regular inspections were made. But other than Kettel's own opinion that more inspections would be a good business practice, there is nothing in the record to support her contention that more frequent inspections were needed due to the nature of the business. Kettel provides no evidence of the store inspection practices of other drug stores. And both Rich and store manager Benjamin Thomas stated in their declarations that employees were trained to look for hazards in the store and clean them up throughout the day. The mere existence of containers with liquids in the store does not make Thrifty's practice of one formal and many informal inspections a day unreasonable or contrary to its duty of reasonable care to invitees. Kettel cites Morton for the proposition that a 'store's inspection practices are just as important as notice.' This assertion misconstrues the holding in Morton and incorrectly states the applicable law. Inspection evidence is not a substitute for a showing of notice, absent the applicability of the Pimental exception. The court in Morton held that the period of time during which a hazardous condition existed could be proved by circumstantial evidence. Morton did not stand for the proposition that the existence of a hazard for five minutes was, as a matter of law, sufficient constructive notice in all cases, as Kettel implies. Kettel makes much of the disagreement over the fact that the spot was described as slippery by witness Van Alstine and sticky by employee Rich. Kettel fails to explain how this disagreement is at all material. Conflicting testimony about the nature of the spot does not, by itself, warrant a trial. Similarly, the disagreement over the size of the spot, while disputed, is not material.
Morton, 75 Wn.2d at 397.
Kettel also appears to be arguing that the existence of 664 lawsuits pending against Thrifty somehow creates a genuine issue of material fact. Kettel provides no information other than the number of lawsuits. There is no indication that any of these are slip and fall suits, or that these unrelated lawsuits somehow constitute constructive notice in this case. This fact is simply not material.
Kettel renews her contention that Thrifty's failure to identify the employees working on the day of the incident creates a genuine issue of material fact because some unidentified employee could have information about her accident. Kettel's argument is that she could prove the existence of genuine issues of material fact concerning notice if Thrifty had properly responded to her discovery requests. But the existence of an unnamed employee with material knowledge about this incident is pure speculation on Kettel's part. And, the trial court did not abuse its discretion in ruling as it did on the discovery matters in this case. Kettel relies in part on Iwai v. State and Ingersoll to support her argument that constructive notice existed. But Iwai was decided on the applicability of the exception to the notice requirement and was not a constructive notice case. Similarly, Ingersoll was decided on the inapplicability of the exception, and did not discuss constructive notice, which was not argued by the appellant in that case.
129 Wn.2d 84, 98, 915 P.2d 1089 (1996).
Iwai, 129 Wn.2d at 98. Iwai purports to expand the exception beyond self-service businesses to apply to any situation where '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.' Iwai, 129 Wn.2d at 100 (quoting Pimental, 100 Wn.2d at 49). But broadening of the exception was only approved by four justices.
Ingersoll, 123 Wn.2d at 654-55.
In conclusion, even taking as true Kettel's version of the disputed facts and all reasonable inferences arising from them, we conclude that the self-service exception does not apply and that Kettel has failed to raise a genuine issue of material fact that Thrifty had constructive notice of the hazardous condition. Summary judgment in favor of Thrifty was appropriate.
ATTORNEY FEES AND SANCTIONS ON APPEAL
Kettel requests attorney fees and sanctions on appeal under RAP 18.1 and 18.9 for the first time in her reply brief. We need not address an issue first raised in a reply brief, and decline to do so here.
Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) ('An issue raised and argued for the first time in a reply brief is too late to warrant consideration.').
Thrifty also requests sanctions under RAP 18.9, arguing that certain assignments of error raised by Kettel are entirely frivolous and that the effort required to respond to Kettel's amended opening brief justifies sanctions. We conclude that sanctions are appropriate on the second of the two bases.
RAP 18.9 states that this court may impose sanctions upon a party 'who uses these rules for the purpose of delay, files a frivolous appeal, or fails to comply with these rules' Under RAP 18.9(a), '[a]n appeal is frivolous if there are no debatable issues upon which reasonable minds might differ and it is so totally devoid of merit that there [is] no reasonable possibility of reversal.'
State v. Chapman, 140 Wn.2d 436, 454, 998 P.2d 282, cert. denied, 531 U.S. 984 (2000) (quoting State ex rel. Quick-Ruben v. Verharen, 136 Wn.2d 888, 905, 969 P.2d 64 (1998)).
Kettel's claims as a whole are not so devoid of merit as to constitute a frivolous appeal. Accordingly, sanctions under this prong of RAP 18.9 are not appropriate.
Thrifty next argues that sanctions are appropriate to defray the costs incurred in responding to both Kettel's original brief and her amended brief, which went beyond the original in scope and cited authority. We agree in part.
A commissioner of this court concluded that the amended brief had been 'substantially re-written.' It is also clear that the rewritten brief went well beyond the authority granted to amend the original brief 'with references to the supplemental record.'
Thrifty's motion to strike Kettel's amended brief outlines how Kettel substantially departed from the original brief. Based on that information and the record before us, it appears that sanctions are warranted. Among the matters to be included in the sanctions are the reasonable attorney fees of Thrifty incurred in bringing its motion to strike and fees incurred in preparing its response to the re-written brief. A commissioner of this court shall determine the amount of the sanctions upon Thrifty's compliance with the provisions of RAP 18.1 and 18.9.
We affirm all orders on appeal and impose sanctions on Kettel, as described above. The amount of the sanctions shall be determined by a commissioner of this court upon Thrifty's further compliance with the provisions of RAP 18.1 and 18.9.
SCHINDLER and APPELWICK, JJ., concur.