Cheryl N. McPherson, et vir v. Wal-Mart Stores, Inc. ( 2017 )

FILED
DECEMBER 14, 2017
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
CHERYL N. McPHERSON and JACKIE ) No. 34696-0-111
E. McPHERSON, wife and husband, )
)
Appellants, )
)
v. ) UNPUBLISHED OPINION
)
WAL-MART STORES, INC., a Delaware )
corporation, )
)
Respondent. )
PENNELL, J. -The McPhersons appeal a summary judgment order, dismissing
their negligence claims arising from a slip and fall at W almart. We affirm.
No. 34696-0-III
McPherson v. Wal-Mart Stores, Inc.
FACTS
Cheryl McPherson was injured after she slipped and fell in the shampoo aisle of a
Walmart store in Sunnyside, Washington. The fall took place just after 5:00 p.m. After
the incident, a store manager noted a shampoo bottle that had been knocked over on one
of the shelves, resulting in some clear shampoo spilling down onto the floor. The spilled
shampoo was deemed to be the cause of Mrs. McPherson's fall.
The store manager reviewed video surveillance of the aisle where Mrs. McPherson
fell. According to a declaration from the manager, the video showed a Walmart associate
had checked the condition of the shampoo aisle between 4:04 p.m. to 4:06 p.m. Later, at
4:53 p.m., the manager observed two women handling bottles of shampoo in the area
where Mrs. McPherson's fall occurred. One of these women placed a shampoo bottle on
the shelf in the same spot where the manager later discovered the shampoo bottle that
spilled onto the floor. The manager declared that no one had notified Walmart of any
spills in the shampoo aisle prior to Mrs. McPherson's fall.
After the McPhersons sued for negligence, Walmart successfully moved for
summary judgment. The trial court agreed with Walmart that the McPhersons lacked
evidence the store had actual or constructive notice of the shampoo spill. Thus, the
McPhersons were unable to support their claim that Walmart failed to maintain a safe
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business premises. The McPhersons appeal.
ANALYSIS
This court reviews an order granting summary judgment de novo. Lyons v. US.
Bank Nat'! Ass 'n, 181 Wash. 2d 775, 783, 336 P.3d 1142 (2014). We engage in the same
inquiry as the trial court, viewing the facts and all reasonable inferences in the light most
favorable to the nonmoving party. Id. Summary judgment is appropriate if the record
demonstrates there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. Id.
In order to meet its burden on summary judgment, a moving party must show there
are no genuine issues of material fact. Elcon Constr., Inc. v. E. Wash. Univ., 174 Wash. 2d
157, 169,273 P.3d 965 (2012). Alternatively, the moving party can meet its summary
judgment burden by challenging the sufficiency of the evidence supporting an essential
element of the plaintiffs claim. Carlyle v. Safeway Stores, Inc., 78 Wash. App. 272, 275,
896 P.2d 750 (1995); see also Arment v. Kmart Corp., 79 Wash. App. 694, 696, 902 P.2d
1254 (1995). If the moving party can successfully meet one of these standards, the
burden shifts to the nonmoving party to "set forth specific facts rebutting the moving
party's contentions." Elcon Constr., 174 Wash. 2d at 169. If the nonmoving party fails to
meet this burden, then summary judgment is appropriate. Id. at 170; Atherton Condo.
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McPherson v. Wal-Mart Stores, Inc.
Apartment-Owners Ass 'n Bd. v. Blume Dev. Corp., 115 Wash. 2d 506, 516, 799 P .2d 250
(1990). A nonmoving party cannot meet its burden through "speculative and
argumentative assertions." Adams v. King County, 164 Wash. 2d 640, 647, 192 P.3d 891
(2008).
Constructive notice
In order to be liable to a business invitee 1 for an unsafe property condition, an
owner must have actual or constructive notice of the unsafe condition. See Ingersoll v.
DeBartolo, Inc., 123 Wash. 2d 649, 652, 869 P.2d 1014 (1994). The McPhersons do not
assert Walmart had actual notice of the shampoo spill; all of their arguments are limited to
constructive notice. "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."' Id. (alteration in original) (quoting Smith v. Manning's, Inc., 13 Wash. 2d 573,
580, 126 P.2d 44 (1942)).
In its motion for summary judgment, Walmart argued there were no facts showing
the shampoo spill had been on the floor long enough to provide constructive notice.
Walmart submitted the declaration of its store manager, who averred the shampoo aisle
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The parties do not dispute that Mrs. McPherson was a business invitee.
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had been checked less than an hour before Mrs. McPherson's fall and that the shampoo
spill must have occurred approximately eight minutes before the slip and fall, when two
women were observed handling what appeared to have been the leaky shampoo bottle.
Walmart also produced an excerpt of its surveillance video that showed the Walmart
employee checking the shampoo aisle approximately one hour before Mrs. McPherson's
fall through the time from when the two women handled the bottle and the fall.
According to Walmart, eight minutes is not sufficient time to provide constructive notice
of a shampoo spill.
The McPhersons do not challenge Walmart's assertion that eight minutes is
insufficient for constructive notice. Indeed, our case law indicates a much longer period
of time would be required for constructive notice of a shampoo spill. Carlyle, 78 Wn.
App. at 278. Rather than arguing over the adequacy of eight minutes, the McPhersons
argue the record is unclear as to whether the spill actually happened eight minutes prior to
the fall, when the two women handled the suspect bottle. The McPhersons claim the
location of the bottle was not consistent with that of the slip and fall. Accordingly, the
McPhersons assert there are issues of material fact as to whether the spill was in the aisle
for enough time to provide constructive notice.
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We are unpersuaded. It is the McPhersons' burden to establish the spill was on the
floor for sufficient time to constitute constructive notice. Wiltse v. Albertsons Inc., 116
Wn.2d 452,458, 805 P.2d 793 (1991) ("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."). Merely pointing out that the spill could have been on
the floor for longer than eight minutes is not enough to carry this burden. Because the
McPhersons have failed to present evidence the shampoo was, in fact, on the floor for a
period long enough to make out a colorable claim of constructive notice, Walmart was
entitled to summary judgment. Id. at 458-59; Ingersoll, 123 Wash. 2d at 654 (summary
judgment appropriate when plaintiff fails to rebut the defendant's showing of an absence
·of actual or constructive notice).
Self-service exception
The McPhersons also argue they should be excused from proving constructive
notice under the self-service exception, as recognized by our Supreme Court in Pimentel
v. Roundup Co., 100 Wash. 2d 39, 49, 666 P.2d 888 (1983). The Pimentel court held that in
a premises liability action, a plaintiff need not prove actual or constructive notice "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." Id.
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Despite its name, Pimentel's self-service exception has not been applied to all self-
service areas where customers retrieve items from store shelves. Ingersoll, 123 Wash. 2d at
653. Most stores operate under a self-service model. Id. Yet not all store areas present
the types of readily apparent hazards discussed in Pimentel. A plaintiff who has sustained
injuries in a self-service section of a store is not automatically excused from proving
actual or constructive notice. Arment, 79 Wash. App. at 698. Instead, to avoid proving
notice, the plaintiff must establish the defendant's particular self-service operation makes
the existence of unsafe conditions reasonably foreseeable. Pimentel, 100 Wash. 2d at 49-50.
To meet Pimentel's self-service exception, a plaintiff must show the unsafe
condition giving rise to injury was "' continuous or foreseeably inherent in the nature of
the business or mode of operation."' Ingersoll, 123 Wash. 2d at 653 (quoting Wiltse,
116 Wash. 2d at 461 ). Specific to this case, the McPhersons needed to provide evidence
such as: (1) the frequency of shampoo spills at the Sunnyside Walmart, (2) the number
of store associates assigned to clean such spills, (3) the frequency of checks for spills by
store associates, (4) the number of injuries caused by slip and fall incidents involving
shampoo spills, and (5) whether Walmart encourages patrons to report spills, etc. See
Ingersoll, 123 Wash. 2d at 654-55. No such evidence is in the record. The McPhersons
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therefore have not established facts sufficient to trigger application of Pimentel's self-
service exception.
CONCLUSION
The trial court's order of summary judgment in favor ofWalmart is affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Pennell, J.
I CONCUR:
Fearing~
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LAWRENCE-BERREY, J. (concurring)- I write separately to express my
disagreement with the last paragraph prior to the conclusion of the majority
opinion. The majority errs by interpreting Ingersoll v. DeBartolo, Inc., 123 Wash. 2d
649, 869 P.2d 1014 (1994) as requiring a plaintiff to provide evidence of five
factors in all cases where the plaintiff seeks to come within the exception found in
Pimentel v. Roundup Co., 100 Wash. 2d 39, 49, 666 P.2d 888 (1983). Evidence of
these factors is not required in cases where, as here, the plaintiff was injured in an
area of the self-service store where hazards are apparent. A place where slippery
products are constantly handled constitutes such an area.
In Ingersoll, the question was whether the self-service exception to notice
applied to the area where the plaintiff slipped and fell. Marjorie Ingersoll slipped
and fell in the common area of the Tacoma Mall. 123 Wash. 2d at 650-51. She
testified that she slipped on something clear, perhaps melted ice cream. Id. The
Ingersoll court refused to apply the Pimentel self-service store exception because
Ingersoll failed to "produce any evidence ... that the nature of the business and
methods of operation of the Mall are such that unsafe conditions are reasonably
foreseeable in the area in which she fell." Id. at 654 (emphasis added). The court
then explained that the record was silent as to the existence of five factors, factors
which might shed. light on the nature of the Mall's business and methods of
operation. The Ingersoll court did not hold that a plaintiff must produce evidence
No. 34696-0-III (concurring)
McPherson v. Wal-Mart Stores, Inc.
of these five factors in every case to come within the Pimentel exception. These
factors have never been required in cases where the slip and fall occurred in an
area of a self-service store where hazards were apparent.
The Pimentel self-service store exception to notice has been applied in
Washington "only when the slip-and-fall happens in an area where there is
constant handling of slippery products." Schmidt v. Coogan, 135 Wash. App. 605,
610, 145 P.3d 1216 (2006), rev'd on other grounds, 162 Wash. 2d 488, 173 P.3d 273
(2007) accord Morton v. Lee, 75 Wash. 2d 393, 397-98, 450 P.2d 957 (1969)
(outdoor produce display); O'Donnell v. Zupan Enters., Inc., 107 Wash. App. 854,
856, 28 P.3d 799 (2001) (grocery store check-out aisle); Ciminski v. Finn Corp.,
13 Wash. App. 815, 823-24, 537 P.2d 850 (1975) (cafeteria buffet line); see also
Wiltse v. Albertson's Inc., 116 Wn.2d 452,461, 805 P.2d 793 (1991) ("Pimentel
realized that certain departments of a store, such as the produce department, were
areas where hazards were apparent and therefore the owner was placed on notice
by the activity.").
In State v. Schmidt, Teresa Schmidt slipped and fell on shampoo spilled in
the shampoo aisle. 135 Wash. App. at 608. Surprisingly, the Schmidt court refused
to apply the Pimentel exception because it determined that the constant handling
of shampoo in the shampoo aisle did not constitute the constant handling of
slippery products. Id. at 611-12. I agree with Schmidt's statement of the law, but
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McPherson v. Wal-Mart Stores, Inc.
disagree with its application of the law to its facts. I would hold that the constant
handling of shampoo in the shampoo aisle constitutes the constant handling of
slippery products. 1
Here, Cheryl McPherson slipped and injured herself in the shampoo aisle.
The shampoo aisle is an area of the store where slippery products are constantly
being handled and, therefore, is an area where hazards are apparent. For this
reason, I would hold that the Pimentel exception applies. See Wiltse, 116 Wash. 2d
at 461.
Although I would apply the Pimentel exception here, I would affirm the
trial court's summary judgment dismissal of the McPhersons' claim. Even when
the Pimentel exception applies, the plaintiff must still "establish liability by
showing that the operator of the premises had failed to conduct periodic
inspections with the frequency required by the foreseeability of risk." Id. ( citing
r
Pimentel, 100 Wash. 2d at 49). The McPhersons failed to establish this, given the
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unrefuted evidence that Walmart inspects the shampoo aisle at least once per hour.
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Lawrence-Berrey, J. \
Most areas of self-service stores do not contain areas where hazards{re
1
apparent. For example, hazards are not apparent in the following areas: greeting
cards, clothing, entertainment, sports, electrical, plumbing, linens, cereal, and
ground coffee. However, hazards are apparent in areas where items are wet, or
where slippery substances in containers can be spilled, either by being dropped
and broken or by being opened and spilled. Examples of these latter areas include:
milk, creamer, shampoo, and liquid hand soaps and detergents.
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