Opinion
No. 57811-1-I.
March 19, 2007.
Appeal from judgments of the Superior Court for Snohomish County, No. 05-2-05898-4, Thomas J. Wynne and Michael T. Downes, JJ., entered November 16, 2005, and January 27 and February 23, 2006.
Counsel for Appellant(s): Steven C. Smith, Attorney at Law, Monroe, WA, 98272-9778.Counsel for Respondent(s): Jeffrey Paul Downer, Lee Smart Cook Martin Patterson PS, Seattle, WA, 98101-3929.
Derek M Johnson, Attorney at Law, Frederick, MD, 21701-5888.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Dwyer, J., concurred in by Appelwick, C.J., and Schindler, J.
Cheryl McVicker appeals from orders of the Snohomish County Superior Court entered in her personal injury lawsuit against Costco. The superior court granted Costco's motion to strike portions of McVicker's evidentiary submissions and granted Costco's motion for summary judgment. McVicker also appeals from orders that denied her motion for reconsideration, her motion for a continuance, her request for judicial notice of facts, and her motion to admit documents pursuant to ER 904. We affirm the trial court's rulings granting, in part, Costco's motion to strike, and denying McVicker's motion to admit documents prior to the commencement of trial. However, we find that McVicker's evidentiary showing in opposition to the motion for summary judgment was sufficient to raise genuine issues of material fact. Accordingly, we reverse the trial court's summary dismissal of McVicker's claim and remand the matter to the trial court.
FACTS
Stated in the light most favorable to McVicker, the facts of this case are as follows. On August 8, 2004, McVicker was injured while shopping at Costco with her son. McVicker was pushing a shopping cart in an aisle of the store when she came upon a showerhead display that interested her. The display consisted of a showerhead attached to a wire mesh stand comprised of two panels joined by a hinge. The display was not affixed to the store shelf. The shelf was at approximately the level of McVicker's head. McVicker reached out and barely touched the display, causing the two panels to pivot on the hinge. The display fell off of the shelf toward McVicker. McVicker moved backward in an attempt to avoid being hit by the falling display. However, her foot caught beneath her shopping cart and she violently twisted her ankle as she fell, suffering serious injuries.
McVicker interacted with store employees after her fall. A store supervisor, Ian Mackay, was alerted to the incident by customers. He went to the aisle where McVicker had fallen to assist her. McVicker completed a Costco incident report form before she left the premises. She subsequently sought medical attention.
When McVicker returned to the store to photograph the display some days later, she discovered that the store had changed the display by adding plastic ties that held the sides of the display at a fixed angle.
On January 19, 2005, McVicker commenced this action against Costco, alleging that it negligently failed to maintain its business premises in a safe condition. Several months before trial was to commence, McVicker filed several notices pursuant to ER 904, listing medical records that McVicker intended to offer as exhibits. Costco objected to many of the documents McVicker sought to admit. McVicker brought a motion seeking an order deeming the records "admitted." On November 16, 2005, the superior court denied McVicker's motion.
On December 21, 2005, Costco moved for summary judgment, seeking dismissal of McVicker's claim on the ground that McVicker lacked evidence adequate as a matter of law to show that: (1) an unreasonably dangerous condition existed on its premises; (2) Costco should have expected that McVicker would not discover such danger or protect herself against it; and (3) Costco failed to exercise reasonable care. McVicker's brief in opposition to this motion was accompanied by sworn statements from McVicker and her attorney. Costco moved to strike portions of McVicker's declaration, arguing that McVicker offered both inadmissible legal conclusions and inadmissible evidence of a subsequent remedial measure.
On January 27, 2006, after hearing argument, the trial court made two evidentiary rulings. First, the trial court struck portions of McVicker's sworn statement. Next, the trial court struck portions of the declaration testimony of Kamela Heywood, a Costco employee whose testimony Costco offered in support of its motion for summary judgment. The trial court then granted Costco's motion for summary judgment.
McVicker appeals.
DISCUSSION I.
McVicker first contends that the trial court erred by striking portions of her declaration. The stricken portions of McVicker's declaration included remarks that the display was "too close to the edge of the shelf," "should have been secured to the shelf" by "the plastic ties which were put on by Costco after my accident;" and that it was "made even more dangerous because these dangers were not apparent to a customer." The trial court also struck McVicker's statement that she "used normal and reasonable caution at all times and did nothing to create a dangerous condition."
An appellate court engages in de novo review of a trial court's evidentiary rulings made in conjunction with a summary judgment motion. Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998). Statements in an affidavit in response to a motion for summary judgment must be admissible as evidence. Grimwood v. Univ. of Puget Sound, 110 Wn.2d 355, 359, 753 P.2d 517 (1988). A lay witness may state facts and reasonable inferences flowing therefrom, which are based upon personal observations and rational perceptions. ER 701; State v. Lass, 55 Wn. App. 300, 777 P.2d 539 (1989). However, a witness' opinion on a question of law is generally inadmissible. Everett v. Diamond, 30 Wn. App. 787, 791-92, 638 P.2d 605 (1981) (citation omitted). Evidence of a subsequent remedial measure offered to prove negligence is likewise inadmissible. ER 407.
"If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of rule 702." ER 701 (Opinion Testimony by Lay Witnesses).
"When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event." ER 407 (Subsequent Remedial Measures).
McVicker's statement that she "used normal and reasonable caution at all times and did nothing to create a dangerous condition" amounts to a legal conclusion and was, thus, properly excluded. Diamond, 30 Wn. App. at 791-92 (a witness may not offer opinions of law). McVicker's statement that the display should have been secured by "the plastic ties which were put on by Costco after my accident" was evidence of a subsequent remedial measure, offered to demonstrate Costco's negligence. This statement was properly stricken. ER 407. The other stricken portions of McVicker's declaration went beyond reasonable inferences from observable facts; they were McVicker's opinions concerning variables of product display construction and safety. While opinion testimony from an expert witness might be helpful to a trier of fact, ER 702, the opinions McVicker offered were simply conclusions based on considerations that went beyond her perceptions, without demonstrating any basis in her training or experience for such technical or specialized knowledge that would make such opinions admissible. Accordingly, the opinions were properly stricken.
"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." ER 702 (Testimony by Experts).
There was no error.
II.
McVicker next contends that she presented sufficient evidence regarding Costco's negligence to survive summary judgment. We agree.
Appellate courts engage in de novo review of an order of summary judgment, performing the same inquiry as the trial court. Aba Sheikh v. Choe, 156 Wn.2d 441, 447, 128 P.3d 574 (2006). The party moving for summary judgment bears the burden of demonstrating the absence of genuine issues of material fact. Folsom, 135 Wn.2d at 663. We consider all facts submitted and all reasonable inferences from them in the light most favorable to the nonmoving party. Wagg v. Estate of Dunham, 146 Wn.2d 63, 67, 42 P.3d 968 (2002). "Negligence is generally a question of fact for the jury, and should be decided as a matter of law only `in the clearest of cases and when reasonable minds could not have differed in their interpretation' of the facts." Bodin v. City of Stanwood, 130 Wn.2d 726, 741, 927 P.2d 240 (1996) (quoting Young v. Caravan Corp., 99 Wn.2d 655, 661, 663 P.2d 834 (1983)).
There is no dispute that McVicker was a business invitee to Costco's premises when she was injured. For a possessor of land to be liable to a business invitee for injuries suffered from an unsafe condition upon the land,
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. . . . The plaintiff must . . . prove that defendant failed to take reasonable care to prevent the injury.
Pimentel v. Roundup Co., 100 Wn.2d 39, 49, 666 P.2d 888 (1983).
Before both the trial court and this court, McVicker's counsel misstated the summary judgment standard, insisting that Costco could only meet its burden by producing factual evidence proving that Costco was not negligent. McVicker's counsel misapprehends the law on this point.
A party may move for summary judgment by setting out its own version of the facts or by alleging that the nonmoving party failed to present sufficient evidence to support its case. Guile v. Ballard Cmty. Hosp., 70 Wn. App. 18, 21, 851 P.2d 689 (1993). If a moving party defendant chooses the latter alternative, the requirement of setting forth specific facts does not apply. Guile, 70 Wn. App. at 23. Rather, it "must identify those portions of the record, together with the affidavits, if any, which . . . demonstrate the absence of a genuine issue of material fact." Guile, 70 Wn. App. at 22. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Guile, 70 Wn. App. at 23 (quoting Celotex Corp. v. Catrett, 477 U.S. 817, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).
Once the moving party has met its burden, the burden shifts to the nonmoving party to present admissible evidence demonstrating the existence of a genuine issue of material fact. Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 27, 109 P.3d 805 (2005). If the nonmoving party cannot meet that burden, summary judgment is appropriate. Vallandigham, 154 Wn.2d at 26.
Costco's motion for summary judgment properly set forth the legal requirement that the moving party show the absence of any genuine issue of material fact in order to shift the burden to the non-moving party to set forth specific facts showing a genuine issue for trial. Young v. Key Pharms., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). Costco asserted that McVicker's evidence failed to raise a factual issue and was inadequate as a matter of law to show that "an unreasonably dangerous condition existed on [Costco's] premises," that Costco "negligently constructed or maintained the display," or that Costco failed to exercise reasonable care.
Costco's motion for summary judgment alleged the absence of a genuine issue of material fact, thus shifting the burden to McVicker to set forth specific facts showing a genuine issue for trial. To meet her burden of production in opposing Costco's motion, McVicker was required to demonstrate the existence of a genuine issue of material fact concerning whether: (1) Costco caused or had notice of an unsafe condition; (2) Costco failed to exercise reasonable care to protect customers from the danger, and (3) the danger was open and obvious to McVicker.
In the portions of her declaration that were not stricken, McVicker stated:
(4) The display did not appear dangerous at first glance. . . . I barely touched it when it fell toward me. . . .
(5) I consider the showerhead to have been unreasonably dangerous
. . . .
. . .
(e) I did nothing to cause the accident except behave as a normal shopper would have done. I . . . didn't do anything to cause it to fall towards me except to barely touch it, which should not have caused the display to fall over towards me.
Additionally, McVicker's counsel's declaration was accompanied by a portion of McVicker's deposition testimony, in which she stated that "the display wasn't secure," that the showerhead "was obviously too heavy for the display," and that the display "wasn't secured down properly to keep from falling over." All of this evidence was before the trial court after it made its evidentiary rulings.
The evidence submitted by McVicker, viewed in the light most favorable to her, raises genuine issues of fact as to whether Costco caused an unsafe condition, whether Costco exercised reasonable care, and whether the danger was open and obvious. First, it is not disputed that Costco constructed the merchandise display, and that the display was in an area of the store accessible to customers. This evidence, at a minimum, raises a factual inference that Costco caused the condition that led to McVicker's injury.
Puzzlingly, the parties expended substantial effort in arguing that either the analytical approach utilized in Las v. Yellow Front Stores, Inc., 66 Wn. App. 196, 831 P.2d 744 (1992), or that used in Pimentel, 100 Wn.2d 39, applies in this case. Those cases concern application of the "self-service" exception to the actual or constructive knowledge inquiry. However, this is not a case where a third party's intervention caused the dangerous condition, such as a slip-and-fall in an area where there is constant handling of slippery products. See, e.g., Morton v. Lee, 75 Wn.2d 393, 397-98, 450 P.2d 957 (1969) (outdoor produce display); O'Donnell v. Zupan Enters., Inc., 107 Wn. App. 854, 856, 28 P.3d 799 (2001) (grocery store check-out aisle); Ciminski v. Finn Corp., 13 Wn. App. 815, 823-24, 537 P.2d 850 (1975) (cafeteria buffet line). Instead, the allegedly dangerous condition in the instant case was a store display created by Costco. For a possessor of land to be liable to a business invitee for an unsafe 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, 100 Wn.2d at 49.
The evidence submitted by McVicker also gives rise to an inference that the display posed a danger. Her testimony described the display as top-heavy, and noted that the display was at approximately her eye level. She described how the display fell upon being "barely" touched by her. Evidence that Costco constructed a top-heavy display and left it in an unsecured state such that it would fall over onto customers upon being barely touched is sufficient evidence to raise a genuine issue of material fact for the jury as to whether Costco created an unsafe condition.
The evidence submitted by McVicker also gives rise to an inference that Costco failed to exercise reasonable care. A business proprietor owes a duty to invitees that includes a duty to inspect for and warn of dangerous conditions, and to maintain its premises in a reasonably safe condition. Egede-Nissen v. Crystal Mountain, Inc., 93 Wn.2d 127, 132, 606 P.2d 1214 (1980). What constitutes reasonable care is generally a question of fact. Travis v. Bohannon, 128 Wn. App. 231, 240, 115 P.3d 342 (2005). McVicker's description of the display gives rise to the inference that the display was constructed in such a manner that it became unbalanced and fell upon her. In addition, McVicker stated that Costco failed to warn her of the danger. This evidence raises a genuine issue of material fact for jury resolution.
Finally, the evidence submitted by McVicker also gives rise to an inference that the danger was not open and obvious. Whether an invitee should have known a dangerous condition existed, or was negligent in failing to see a dangerous condition, is also generally a question of fact. Smith v. Manning's Inc., 13 Wn.2d 573, 577, 126 P.2d 44 (1942). McVicker stated: "The display did not appear dangerous at first glance . . . I barely touched it when it fell toward me," and "I . . . didn't do anything to cause it to fall towards me except to barely touch it." This evidence is sufficient to raise a genuine issue of material fact concerning this question.
Accordingly, we are constrained to reverse the order granting summary judgment and remand the matter to the trial court.
III.
McVicker also sought to admit medical records pursuant to ER 904. In response, Costco identified each document to which it objected, as well as the basis or bases for the objection. Costco objected on the basis of relevance, or on the bases of both relevance and hearsay, or on the bases of relevance, hearsay, and pursuant to ER 701 and ER 702. McVicker argues that Costco's objections were made in bad faith, and that the trial court should have ruled on the admissibility of the documents prior to trial. We disagree.
(a) Certain Documents Admissible. In a civil case, any of the following documents proposed as exhibits in accordance with section (b) of this rule shall be deemed admissible unless objection is made under section (c) of this rule:
(1) A bill, report made for the purpose of treatment, chart, record of a hospital, doctor. . . .
. . . .
(b) Notice. Any party intending to offer a document under this rule must serve on all parties a notice, no less than 30 days before trial, stating that the documents are being offered under Evidence Rule 904 and shall be deemed authentic and admissible without testimony or further identification, unless objection is served within 14 days of the date of notice, pursuant to ER 904(c). . . .
(c) Objection to Authenticity or Admissibility. Within 14 days of notice, any other party may serve on all parties serve a written objection to any document offered under section (b), identifying each document to which objection is made by number and brief description.
. . .
(2) If an objection is made to a document on the basis of admissibility, the grounds for the objection shall be specifically set forth, except objection on the grounds of relevancy need not be made until trial. If the court finds that the objection was made without reasonable basis and the document is admitted as an exhibit at trial, the court may award the offering party any expenses incurred and reasonable attorney fees.
ER 904 (Admissibility of Documents).
McVicker requested a ruling on the admissibility of every document she submitted several months before trial. The trial court's refusal to accede to that request was not erroneous. ER 904 is designed to function at the time of trial, not months in advance of trial. ER 904, in practice, primarily facilitates the admission of documents as trial exhibits, and precludes the needless delay and expense that would be required to separately authenticate each and every document at trial. Furthermore, under ER 904(c)(2), an objection to a document on the grounds of relevancy need not even be made until after trial commences.
McVicker's argument that she is entitled to an admissibility ruling months before trial is contrary to the provisions of ER 904. ER 904(c)(2) expressly provides:
If the court finds that the objection was made without reasonable basis and the document is admitted as an exhibit at trial, the court may award the offering party any expenses incurred and reasonable attorney fees.
Under this rule, accordingly, the remedy for bad faith objections can only be applied after trial has commenced and an exhibit has been admitted during the trial. McVicker's pre-trial request for relief based on ER 904 is without merit. The trial court did not err in its handling of the issues relating to McVicker's ER 904 submissions.
Affirmed in part, reversed in part, and remanded to the superior court.
We deny Costco's request for sanctions pursuant to RAP 18.9(a). McVicker is entitled to an award of costs on appeal, subject to compliance with RAP 14, in an amount to be determined by our commissioner.