David And Robin Christman v. Eastgate Theatre ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DAVID CHRISTMAN and ROBIN
CHRISTMAN, individually and as husband No. 69623-8-1
and wife and the marital community
comprised thereof, DIVISION ONE
Appellants, UNPUBLISHED OPINION
EASTGATE THEATRE, INC. d/b/a REGAL
ENTERTAINMENT GROUP, a
Washington Corporation; SIERRA
CONSTRUCTION COMPANY, INC., a
Washington Corporation; WAL-MART
STORES, INC. (Number 2385), a
Washington Corporation,
Respondents,
HOME ELECTRIC, a Washington
Corporation,
Defendant. FILED: June 16, 2014
Appelwick, J. - Christman slipped and fell on wet grass when he took a
shortcut down a landscaped slope rather than use a nearby concrete stairway.
Because he failed to set forth material facts indicating that the slope constituted an
unreasonably dangerous condition or that the landowners should have foreseen he
would not protect himself against the obvious risks of a grassy slope, the trial court
properly dismissed his negligence claims on summary judgment. We affirm.
FACTS
In August 2008, Wal-Mart Stores Inc. contracted with Sierra Construction
Company to carry out improvements near its store at the Auburn Supermall. The
contract included construction of a new parking area, which Wal-Mart shared with
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Regal Cinemas Stadium 17, relocation of a portion of Supermall Drive, and the
creation of a drop-off lane and adjacent sidewalk for theater patrons. The City of
Auburn approved the completed construction work on April 2, 2009.
A preexisting concrete stairway with four steps leads from the new parking
area to the front entrance of the theater and connects with a concrete walkway that
circles the complex. Next to the stairway, a landscaped grass strip slopes down from
the concrete walkway to the lower sidewalk, drop-off lane, and parking lot.
Shortly after noon on April 3, 2009, David Christman drove to the Auburn
Supermall, intending to meet someone who was selling a bicycle. Christman parked
his car in the recently completed parking lot.
While waiting for the seller, Christman walked from the parking lot to use an
ATM (automatic teller machine) located outside of the theater near the ticket booth.
Christman could not recall whether he used the stairway to reach the ATM or whether
he walked up the slope.
After withdrawing cash from the ATM, Christman decided to take a shortcut
down the slope toward the parking lot. As he counted his money, Christman's foot
slipped out from under him and he fell on his back. Christman's clothing was wet and
muddy from the fall. Maria Robinett, a Regal assistant manager, was outside in the
parking lot and saw Christman slip and fall on the slope. Robinett rushed over and
helped Christman clean up.
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Christman said the slope looked "like any other hill" and did not seem
unreasonably steep. He did not step into any depressions, trip over a foreign object,
or see any pooling of water on the grass or the lower sidewalk. Christman believed
that he fell because the grassy slope was wet and "just slick." Although it had not
rained on the day he fell and the pavement was dry, Christman acknowledged that
rain is common in Washington and that he was not surprised that grass would be wet
at the beginning of April.
According to Robinett, the new parking lot changed the general flow of
pedestrians to the theater. Previously, the area in front of the theater was an unused
dirt field. Theater patrons parked in lots on the side or behind the theater and
approached the front entrance via the adjacent concrete walkways.
On April 2, 2009, the day before Christman's accident, Robinett assisted a
theater patron who had taken a shortcut after exiting the theater and fallen on the
slope in the same general area. On the same day, Robinett strung yellow caution
tape along the upper sidewalk to warn patrons about the slope. Christman denied
that there was caution tape in place before his accident.
After the new parking lot opened, Robinett saw theater patrons using the
grassy slope as a shortcut, but indicated that the usage became "an issue" only after
the accidents on April 2 and April 3. Robinett stated that a portion of the grassy
slope in the area where Christman fell had "turned to dirt" from the foot traffic and
stayed "pretty moist" because "the weather there is usually wet."
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On August 19, 2011, Christman filed a complaint for damages against Regal,
Wal-Mart, and Sierra, alleging negligence in maintenance of the grassy slope and the
failure to warn of a hazardous condition. Regal, Wal-Mart, and Sierra each moved
for summary judgment. As part of his response, Christman submitted the declaration
of Daniel Johnson, a certified professional ergonomist, who concluded that the
grassy slope constituted an unreasonably dangerous condition.
Following a hearing on Novembers, 2012 the trial court granted all three
motions for summary judgment, concluding that the landscaped grassy slope did not
constitute an unreasonably dangerous condition as a matter of law. The trial court
denied Christman's motion for reconsideration on November 21, 2012.
DISCUSSION
An appellate court reviews summary judgment orders de novo, undertaking
the same inquiry as the trial court. See Greenhalqh v. Dep't of Corr., 160 Wash. App.
706, 713-14, 248 P.3d 150 (2011). We consider the materials before the trial court
and construe the facts and inferences in the light most favorable to the nonmoving
party. Hubbard v. Spokane County. 146 Wash. 2d 699, 706-07, 50 P.3d 602 (2002).
Summary judgment is proper only if there is no genuine issue of material fact. CR
56(c); Hubbard, 146 Wash. 2d at 707. The party opposing summary judgment "may not
rely merely upon allegations or self-serving statements, but must set forth specific
facts showing that genuine issues of material fact exist." Newton Ins. Agency &
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Brokerage. Inc. v. Caledonian Ins. Grp.. Inc.. 114 Wash. App. 151, 157, 52 P.3d 30
(2002).
In order to prevail on his negligence claim, Christman must prove duty,
breach, causation, and injury. Tincani v. Inland Empire Zoological Soc. 124 Wash. 2d
121, 127-28, 875 P.2d 621 (1994). Whether the defendant owes a duty to the
plaintiff is generally a question of law. Hutchins v. 1001 Fourth Ave. Assocs., 116
Wash. 2d 217, 220, 802 P.2d 1360 (1991). In a premises liability action, the scope of
the duty of care depends on the entrant's common-law status as an invitee, licensee,
or trespasser. Tincani, 124 Wash. 2d at 128.
For purposes of summary judgment, Christman's status as a business invitee
is undisputed. A proprietor is liable to business invitees for physical harm caused by
a condition on land if he or she (1) knows of, or by the exercise of reasonable care
would discover, that the condition involves an unreasonable risk of harm; (2) should
expect that invitees would not discover the danger or would fail to protect themselves
from it; and (3) fails to exercise reasonable care to protect invitees against the
danger. Kamla v. Space Needle Corp.. 147 Wash. 2d 114, 125-26, 52 P.3d 472 (2002).
A proprietor is not liable to invitees for any condition on land "whose danger is known
or obvious to them, unless the possessor should anticipate the harm despite such
knowledge or obviousness." Iwai v. State. 129 Wash. 2d 84, 94, 915 P.2d 1089 (1996)
(emphasis added) (quoting Restatement (Second) of Torts § 343A, at 218).
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No. 69623-8-1/6
Christman contends there is a material factual dispute as to whether the
condition of the grassy slope was open and obvious or whether it constituted a
deceptively dangerous condition. He argues that the evidence supported an
inference that the slope was "deceptively dangerous because it was wet, water
logged and deceptively steep."
But, Christman submitted no evidence tending to show that the drainage of the
landscaped grassy slope was inadequate. Christman acknowledged in his
deposition that rain is common in Washington and that he was not surprised the
grass on the slope was wet.
Nor did Christman make any showing that the slope failed to comply with
applicable regulations or code requirements or that the design, construction, or
maintenance of the area was deficient. Contrary to Christman's suggestion, the mere
fact Regal was aware that some patrons used the slope as a shortcut to or from the
parking lot did not impose an independent duty to maintain the grassy slope as a
"walkway." See Hoffstatter v. City of Seattle. 105 Wash. App. 596, 600, 20 P.3d 1003
(2001) (although pedestrian use of landscaped parking strips must be anticipated,
"they are not sidewalks and cannot be expected to be maintained in the same
condition)."
The declaration of Daniel Johnson provides no evidentiary support for
Christman's arguments. Johnson, a "human factors and safety expert," asserts that
he "took measurements and photographs" of the area where Christman fell. As the
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No. 69623-8-1/7
trial court noted, however, the measurements and Johnson's analysis of those
measurements are not in the record. Rather, Johnson's declaration asserts only that
the slope was "too steep to be safely used as a walkway," the location of the grassy
slope "induce[d] people . . . to walk on that slope," the grassy slope was not
adequately designed to prevent business patrons from slipping on wet grass," and
"the slope constituted an unreasonably dangerous condition."
In order to preclude summary judgment, an expert's affidavit must include
more than mere speculation or conclusory statements. See Dunlap v. Wayne. 105
Wash. 2d 529, 536, 716 P.2d 842 (1986) (affidavits submitted in opposition to summary
judgment must set forth facts that would be admissible in evidence). Because
Johnson's declaration contains only conclusory allegations, unsupported by any
supporting facts or admissible evidence, it does not create the slightest inference that
the grassy slope constituted an unreasonably dangerous condition. See Guile v.
Ballard Cmtv. Hosp.. 70 Wash. App. 18, 25-26, 851 P.2d 689 (1993) (expert's affidavit,
including conclusion that complications were caused by defendant's "faulty
technique," was insufficient to defeat summary judgment motion).
Christman also asserts that Regal was aware that the grassy slope was
dangerous. But, Robinett's acknowledgment that the slope was an "issue" clearly
referred to the period after the accidents on April 2 and April 3. Christman
acknowledged that at the time of the accident, he could have used the concrete
walkway and stairway that Regal provided for its patrons, the slope looked "like any
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No. 69623-8-1/8
other hill," wet grass was a common and foreseeable condition, and the grass did not
conceal any depressions or foreign objects. Even viewed in the light most favorable
to Christman, the evidence failed to establish that the defendants should have
foreseen that pedestrians would fail to protect themselves against the obvious risks
of a wet, grassy slope. "[N]o published case in Washington or elsewhere has held
that wet grass is a dangerous condition that a landlord should expect an invitee to fail
to protect themselves against." McDonald v. Cove to Clover. Wn. App. , 321
P.3d 259, 261-62 (2014).
The trial court properly dismissed Christman's claims on summary judgment.
Affirmed.
WE CONCUR:
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