Anthony Dadvar v. Applebee's Service ( 2014 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ANTHONY DADVAR,
DIVISION ONE
Appellant,
No. 70552-1-1
v.
UNPUBLISHED OPINION
APPLEBEE'S SERVICES, INC.,
APPLE AMERICAN GROUP, LLC,
Respondents. FILED: June 9, 2014
Dwyer, J. -Anthony Dadvar sued Apple American Group, LLC (Applebee's)
for negligence after he slipped and injured his ankle while entering a Lynnwood
Applebee's Restaurant. Dadvar failed, however, to demonstrate a genuine factual
issue as to whether Applebee's had actual or constructive notice of the alleged
dangerous condition that caused his injury. Nor has he shown that the trial court
abused its discretion in denying a continuance under CR 56(f). We therefore affirm
the trial court's dismissal of Dadvar's claim on summary judgment.
I
On November 29, 2008, Anthony Dadvar drove to the Lynnwood Applebee's
Restaurant for lunch. Patrons enter the restaurant through outer doors that lead
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initially into a foyer or vestibule area. A second set of doors opens from the foyer into
the restaurant.
Dadvar entered the foyer along with two women, who were also going into the
restaurant. He then hurried toward the inner doors, intending to open them for the
women. As he approached the doors, Dadvar's right foot "slipped violently" on the
tile floor. Dadvar did not fall to the ground, but the twisting motion injured his ankle.
Dadvar limped to the restaurant bar, where he sat on a stool and asked for
some ice for his ankle. After he told a manager about the accident, he saw Applebee
employees mop the foyer floor.
While sitting in the bar, Dadvar noticed "some greasy, oily, slippery stuff' on
the bottom of his right shoe. He claimed that on the day of the accident, his shoes
were "well-maintained, dry and did not have any grease or slippery substances on
them" and that he cleaned his garage floor regularly to keep it free of oil and grease.
Dadvar did not see any foreign substance on the floor, but noticed that the floor mats
in the foyer did not cover that portion of the floor that many patrons used to enter the
restaurant.
Applebee's stated that it employed a host to open the interior doors for
patrons. In the process, the employee "would look at the vestibule floor frequently"
and clean up any standing water on the floor. Dadvar recalled that a restaurant
employee had opened the inner doors on his previous visits, but he did not see
anyone performing that function at the time of his accident.
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On November 18, 2011, Dadvar filed a complaint for damages, alleging that
Applebee's had negligently maintained the foyer area. He initially alleged that he had
slipped on a foyer tile that was wet from the rain. He later claimed that there had
been an oily or greasy substance on the floor.
On April 15, 2013, Applebee's moved for summary judgment, arguing that
Dadvar had failed to submit any evidence establishing the existence of a dangerous
condition on the foyer floor or that Applebee's had notice of the condition. At the
summary judgment hearing on May 29, 2013, Dadvar moved for a continuance under
CR 56(f) to conduct additional discovery. The trial court denied the motion for a
continuance and entered summary judgment in favor of Applebee's. The court
denied Dadvar's motion for reconsideration on July 21, 2013.
II
An appellate court reviews the grant of summary judgment de novo,
undertaking the same inquiry as the trial court. Jones v. Allstate Ins. Co., 146Wn.2d
291, 300, 45 P.3d 1068 (2002). Summary judgment is appropriate only ifthe
supporting materials, viewed in the light most favorable to the nonmoving party,
demonstrate "that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law." CR 56(c); Hartley v. State,
103 Wash. 2d 768, 774, 698 P.2d 77 (1985). A '"complete failure of proof concerning an
essential element of the nonmoving party's case necessarily renders all other facts
immaterial.'" Young v. Key Pharm.. Inc.. 112 Wash. 2d 216, 225, 770 P.2d 182 (1989)
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(quoting Celotex Corp. v. Catrett. 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed.
2d 265 (1986)).
In order to prevail on a negligence claim, Dadvar must prove duty, breach,
causation, and injury. Tincani v. Inland Empire Zoological Soc'v, 124 Wash. 2d 121,
127-28, 875 P.2d 621 (1994). Whether the defendant owed 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 premises liability actions, the possessor's duty of care
depended on the entrant's common law status as an invitee, licensee, or trespasser.
Tincani, 124 Wash. 2d at 128.
Dadvar's status as a business invitee is undisputed. Applebee's therefore
owed him a duty to exercise "reasonable care" and "inspect for dangerous conditions,
'followed by such repair, safeguards, or warning as may be reasonably necessary for
[the invitee's] protection under the circumstances.'" Tincani, 124 Wash. 2d at 139
(alteration in the original) (quoting Restatement (Second) of Torts § 343, cmt. b).
Applebee's contends that Dadvar failed to make any showing that a
dangerous condition existed in the foyer. It argues that the trial court properly
disregarded Dadvar's declaration in response to the summary judgment motion
because it contains self-serving opinions and speculation. Applebee's further asserts
that the declaration contradicted both Dadvar's original claim that he slipped on a tile
that was wet from the rain and his deposition testimony that he never saw the "greasy
substance" on the floor at the time he slipped. See Marshall v. AC&S, Inc., 56 Wn.
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App. 181, 185, 782 P.2d 1107 (1989) (party cannot create genuine factual issue
merely by contradicting, without explanation, previously given clear testimony).
For purposes of this appeal, however, we need not decide whether Dadvar's
affidavit contradicted his deposition testimony or whether there was a slippery
substance on the foyer floor. Even if we assume that the evidence presented raised
a factual issue as to the existence of a dangerous condition, Dadvar failed to make
any showing that Applebee's had notice of the condition.
For a possessor of land to be liable to a business invitee for an unsafe
condition, "the possessor must have actual or constructive notice of the unsafe
condition." Inqersoll v. DeBartolo. Inc.. 123 Wash. 2d 649, 652, 869 P.2d 1014 (1994).
Dadvar does not allege that Applebee's had actual notice of the alleged condition.
Constructive notice arises where the condition "'has existed for such time as would
have afforded [the proprietor] sufficient opportunity, in the exercise of ordinary care,
to have made a proper inspection of the premises and to have removed the danger.'"
Ingersoll, 123 Wash. 2d at 652 (alteration in original) (quoting Smith v. Manning's, Inc.,
13Wn.2d573, 580, 126 P.2d 44 (1942)): see also Wiltse v. Albertson's Inc., 116
Wash. 2d 452, 459, 805 P.2d 793 (1991) (constructive notice will be inferred ifthe
condition exists long enough for a person exercising ordinary care to discover it).
To establish constructive notice, Dadvar relies on the evidence that
Applebee's employed a host whose duties included inspecting the foyer floor and
cleaning up any hazards. He asserts that the host's duties of inspecting for
dangerous conditions, coupled with the apparent absence of a host at the time of the
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accident, supports a reasonable inference that Applebee's should have known of the
dangerous condition. We disagree.
Dadvar submitted no evidence of the host's work schedule or any other
evidence suggesting how long the host might have been away from the area at the
time of the incident. Consequently, he made no showing that the condition had been
on the floor for enough time to afford Applebee's "a sufficient opportunity, in the
exercise of ordinary care, to have made a proper inspection and to have removed the
hazard." Carlvle v. Safeway Stores. Inc.. 78 Wash. App. 272, 275, 896 P.2d 750
(1995). Under the circumstances, Dadvar failed to raise a genuine issue regarding
constructive notice. The trial court properly granted summary judgment.
Citing Iwai v. State. 129Wn.2d 84, 915 P.2d 1089(1996), Dadvar argues that
the circumstances here fall within an exception to the notice requirement for a
specific unsafe condition that is "'foreseeably inherent in the nature of the business or
mode of operation.'" Jwai, 129 Wash. 2d at 98 (quoting WHtse, 116 Wash. 2d at 461). But
in Washington, courts have applied this exception only to self-service areas. See
Pimentelv. Roundup Co.. 100 Wash. 2d 39, 666 P.2d 888 (1983). Four justices in Jwai
favored extending the exception. "But in the absence of a majority, the Jwai lead
opinion is not binding precedent and, so far, no Washington court has extended
Pimentel beyond the self-service setting." Fredrickson v. Bertolino's Tacoma. Inc.,
131 Wash. App. 183, 192, 127 P.3d 5 (2005). Dadvar makes no showing that the foyer
of the restaurant was a self-service area.
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No. 70552-1-1/7
Dadvar contends that the trial court erred in denying his CR 56(f) motion for a
continuance. Under CR 56(f), if the nonmoving party demonstrates, by affidavit, why
he or she cannot present evidence opposing summary judgment, the trial court "may
order a continuance to permit affidavits to be obtained or depositions to be taken or
discovery to be had or may make such other order as is just." The court may deny
the motion for a continuance when
(1) the requesting party does not offer a good reason for the delay in
obtaining the desired evidence; (2) the requesting party does not state
what evidence would be established through the additional discovery;
or (3) the desired evidence will not raise a genuine issue of material
fact.
Turner v. Kohler. 54 Wash. App. 688, 693, 775 P.2d 474 (1989). We review the trial
court's denial of a CR 56(f) motion for an abuse of discretion. Coggle v. Snow, 56
Wash. App. 499, 504, 784 P.2d 554 (1990).
Dadvar's counsel moved for a CR 56(f) continuance at the summary judgment
hearing on May 29, 2013. The record on appeal does not contain an affidavit in
support of the motion, and the hearing was not reported. Counsel apparently sought
to conduct additional discovery and investigation because he had first appeared in
the case on February 26, 2013, six weeks before Applebee's filed its summary
judgment motion. Counsel explained that he had initially focused on reviewing
Dadvar's medical records. Dadvar's previous counsel withdrew in September 2012.
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By the time of the May 29, 2013 hearing, however, counsel had represented
Dadvar for more than three months and had been present at Dadvar's deposition on
February 28, 2013. Nothing in the record indicates the specific nature of the
additional investigation or discovery that counsel intended to undertake or the
potential resulting evidence. Under the circumstances, counsel's conclusory
allegations of insufficient time to prepare did not justify a delay. On the record before
us, Dadvar has failed to demonstrate any abuse of discretion in the trial court's denial
of the request for a CR 56(f) continuance.
Affirmed.
We concur:
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