IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JOLENE LAUWERS, individually,
                                                 DIVISION ONE
                    Appellant,
                                                 No. 69539-8-1

                                                 UNPUBLISHED OPINION
REGAL CINEMAS, INC., a Washington
corporation and WAL-MART STORES,
INC. (Number 2385), a Washington
corporation,

                     Respondents.                FILED: April 21, 2014


       Dwyer, J. —While returning to the parking lot after a movie, Jolene

Lauwers slipped and fell on wet grass after she left the provided concrete

walkway and took a shortcut down a landscaped slope. She then sued Regal

Cinemas, Inc. and Wal-Mart Stores, Inc. for negligence. But Lauwers failed to

raise a genuine factual issue as to whether either the landscaped area was

unreasonably dangerous or Regal Cinemas and Wal-Mart should have

anticipated she would fail to protect herself from the obvious risks of a grassy

slope. Accordingly, we affirm the trial court's dismissal of Lauwers' claims on

summary judgment.
No. 69539-8-1/2




         On April 2, 2009, Jolene Lauwers and her 13-year-old son went to the

Auburn Supermall to see a movie at the Regal Cinemas Stadium 17. After

parking her car, Lauwers and her son walked across the parking lot and up a

short concrete stairway to the entrance of the theater. Lauwers purchased

tickets and entered the theater.

         When the movie concluded at about 2:00 p.m., Lauwers went out a side

exit directly from the screening room onto the concrete walkway that surrounds

the theater complex. But instead of returning to the main entrance and stairway

via the walkway, Lauwers and her son followed five or six other patrons who

stepped off the concrete and proceeded down a landscaped grassy slope toward

the sidewalk adjoining the parking lot. Near the bottom of the slope, Lauwers'

feet suddenly slipped out in front of her, and she fell backward, breaking her

ankle.

         In her deposition, Lauwers acknowledged that she could have returned to

the theater entrance about 50 feet away via the concrete walkway and taken the

stairway down to the parking lot. She explained that she went down the grassy

slope because other patrons went that way, it looked "very well-travelled," and it

was the most direct way back to the parking lot.

         On September 2, 2010, Lauwers filed a complaint for damages against

Regal Cinemas, alleging negligence in the design and maintenance of the grassy
No. 69539-8-1/3



slope. She later added Wal-Mart Stores, Inc., which had recently performed

construction work near the slope, as a defendant.

      Regal and Wal-Mart moved for summary judgment. They maintained that

Lauwers had failed to set forth facts demonstrating that the grassy slope

presented an unreasonable risk of harm or that they should have anticipated

invitees would fail to protect themselves from the obvious risks of taking a

shortcut down the slope.

       In response, Lauwers submitted the declaration of Daniel Johnson, a

certified ergonomist. Johnson measured the angle of the slope near where

Lauwers fell as 15-19 degrees and noted that the grass was wet at the time of

the accident. Because theater patrons had used the grassy slope as an exit

"ramp," Johnson relied on the provisions of the Uniform Building Code in effect at

the time of the theater's construction. He concluded that the angle of the slope,

its lack of a slip-resistant surface, and the absence of handrails failed to comply

with the Uniform Building Code and other regulations governing "pedestrian

ramps."

       The trial court granted summary judgment, and Lauwers appeals.

                                          II


       We review a trial court's order granting summary judgment de novo.

Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998). Summary

judgment is appropriate only if the supporting materials, viewed in the light most
favorable to the nonmoving party, demonstrate "that there is no genuine issue as
No. 69539-8-1/4



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 Wn.2d 768, 774, 698 P.2d 77

(1985). A material fact "is one upon which the outcome of the litigation depends."

Rafel Law Grp. PLLC v. Defoor, 176 Wn. App. 210, 218, 308 P.3d 767 (2013),

review denied, 179Wn.2d 1011 (2014). 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 Wn.2d 216, 225, 770 P.2d

182 (1989) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct.

2548,91 LEd.2d 265 (1986)).

                                           Ill


       To establish negligence, a plaintiff must prove (1) the existence of a duty,

(2) breach of that duty, (3) resulting injury, and (4) proximate cause. Degel v.

Majestic Mobile Manor, Inc., 129 Wn.2d 43, 48, 914 P.2d 728 (1996). The

existence of a duty is a question of law. Degel. 129 Wn.2d at 48.

       Lauwers' status as an invitee is undisputed. In Washington, sections 343

and 343A of the Restatement (Second) of Torts define a landowner's duty to

invitees. Kamla v. Space Needle Corp., 147 Wn.2d 114, 125, 52 P.3d 472

(2002). Section 343 provides:

       "A possessor of land is subject to liability for physical harm caused
       to his invitees by a condition on the land if, but only if, he
              (a) knows or by the exercise of reasonable care would
       discover the condition, and should realize that it involves an
       unreasonable risk of harm to such invitees, and



                                          -4-
No. 69539-8-1/5



             (b) should expect that they will not discover or realize the
       danger, or will fail to protect themselves against it, and
              (c) fails to exercise reasonable care to protect them against
       the danger."

Kamla, 147 Wn.2d at 125-26 (quoting Restatement (Second) of Torts § 343, at

215-16 (1965)). Section 343(A) of the Restatement (Second) of Torts provides in

pertinent part:

       "'A possessor of land is not liable to his [or her] invitees for physical
       harm caused to them by any activity or condition on the land whose
       danger is known or obvious to them, unless the possessor should
       anticipate the harm despite such knowledge or obviousness.'"

Kamla, 147 Wn.2d at 126 (alteration in original) (quoting Iwai v. State, 129 Wn.2d

84, 94, 915 P.2d 1089 (1996)) (quoting Restatement (Second) of Torts §

343A,at218).

       Lauwers contends there is a genuine factual issue as to whether "the

entire area in question creates an unreasonable hazard that should have been

recognized and remedied by the defendants." She also maintains that the
reasonableness of her decision to walk down the slope and the potential

apportionment of fault presented questions for the trier of fact.
       Lauwers' assertion that the landscaped grassy slope was unreasonably

dangerous rests solely on the declaration of Donald Johnson. But Johnson's
analysis assumes that the slope was a "pedestrian ramp" subject to the

standards of the Uniform Building Code. Lauwers cites no authority supporting

such an assumption. Johnson's conclusion that the grassy slope was dangerous

because it lacked hand rails or a non-slip surface was therefore irrelevant.
                                          -5-
No. 69539-8-1/6



      Lauwers made no showing that the landscaped slope failed to comply with

any applicable regulation or was otherwise defective. Although a pedestrian's

use of landscaped grassy areas may be anticipated, such areas "are not

sidewalks and cannot be expected to be maintained in the same condition."

Hoffstatter v. City of Seattle, 105 Wn. App. 596, 600, 20 P.3d 1003 (2001)

(uneven surface of bricks on a parking strip was not unreasonably dangerous as

a matter of law). Lauwers failed to demonstrate that Regal or Wal-Mart breached

any duty in the design, construction, or maintenance of the landscaped slope.

       Moreover, even if a condition on land poses a known or obvious risk, the

owner is not liable for an invitee's injuries unless the owner should anticipate the

harm despite the obviousness or should expect that invitees will fail to protect

themselves. See Restatement (Second) of Torts §343A(1), § 343(b); see also

Iwai, 129Wn.2dat94.

       Lauwers raised no factual issue suggesting that the condition of the

landscaped, grassy slope was anything otherthan open and obvious. She exited
the theater onto the concrete walkway that led directly back to the front of the

theater. The boundary between the walkway and the grass was clearly

delineated, and Lauwers acknowledged that she could have followed the

provided walkway and gone down the steps to the parking lot. The light at the
time of the fall was "adequate," and Lauwers did not allege that the grass

concealed depressions or other hidden dangers. Wet grass in western

Washington is a common and well known condition.
No. 69539-8-1/7



         Under the circumstances, it was foreseeable that someone might step off

the provided concrete walkway and take a shortcut across a landscaped area.

See Hoffstatter. 105 Wn. App. at 600. But Lauwers failed to demonstrate that

Regal and Wal-Mart should foresee that patrons would fail to protect themselves

against the obvious risks posed by a wet, grassy slope. As this court recently

observed, "no 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, No. 69916-4-1, 2014

WL 1202949, at *3 (Wash. App. Jan. 13, 2014) (landlord had no reason to

foresee that festival attendees would fail to protect themselves from the obvious

risks posed by wet grass on slope).

         Because Lauwers failed to raise a genuine factual issue as to whether

Regal or Wal-Mart breached a duty of care, the trial court properly dismissed her

claims on summary judgment.                                                  r-o
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         Affirmed.
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