    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CINDY and MATTHEW HOLTTUM,
husband and wife, and the marital                       No. 69409-0-1
community composed thereof,
                                                        DIVISION ONE
                    Appellants,
                                                        UNPUBLISHED OPINION ^            c,"
                                                                                         •>-'yj
                                                                                    CD


ROSS STORES, INC., a foreign                                                         I
corporation licensed to do business in the
State of Washington; and ROSS DRESS
FOR LESS, INC., a Washington
                                                                                    VD           01
corporation,                                                                                     o
                                                                                    03    <"-•
                                                                                    CD    '•'-
                     Respondents.                       FILED: December 9, 2013


        Appelwick, J. — The Holttums appeal from summary judgment dismissing their

personal injury claims arising from a slip and fall. They argue the trial court erred in

striking their expert's testimony and in failing to deny summary judgment as a spoliation

sanction for the failure of Ross to preserve a video of the incident. We affirm.

                                         FACTS

        Cindy Holttum was shopping at a Ross Stores, Inc. store in Lynwood on March

23, 2011. At checkout, Holttum slipped on a grape and fell to the ground, injuring her

shoulder. She and her husband brought a negligence suit against Ross on April 29,

2011.


        Ross moved for summary judgment, arguing that the Holttums failed to establish

that Ross owed or breached any duty of care to Ms. Holttum. The Holttums countered

that Ross committed spoliation when it allowed a video of the fall to auto-delete after 17

days. They urged that Ross's failure to preserve this evidence precluded summary

judgment.
No. 69409-0-1/2


          The Holttums also provided a declaration from an expert witness, Joellen Gill.

Gill, a human factors engineer, testified about the slipping hazards created by small

fruits.   Ross moved to strike her declaration as conclusory and speculative. The trial

court granted both the motion to strike and the motion for summary judgment.

          The Holttums appealed, arguing that Gill's testimony was admissible; Ross's

negligence was a material fact precluding summary judgment; and denial of summary

judgment was the minimum sanction warranted by Ross's failure to produce the video.


                                       DISCUSSION


    I.    Expert Testimony

          The Holttums contend that the court erred in excluding the testimony of expert

witness Gill. They assert that Gill provided several conclusions helpful to the trier of

fact.

          We review de novo a trial court ruling on a motion to strike evidence made in

conjunction with a summary judgment motion. See Momah v. Bharti, 144 Wn. App.

731, 749, 182 P.3d 455 (2008). When the court rules on a motion for summary

judgment, it may only consider admissible evidence. CR 56(e); King County Fire Prot.

Dist. No. 16 v. Hous. Auth. of King County. 123 Wn.2d 819, 826, 872 P.2d 516 (1994).

          Expert testimony is admissible when (1) the witness qualifies as an expert, (2)
the opinion is based upon an explanatory theory generally recognized in the scientific
community, and (3) if it will be helpful to the trier of fact. ER 702; In re Per. Restraint of
Morris, 176 Wn.2d 157, 168-69, 288 P.3d 1140 (2012). Expert testimony is helpful if it

concerns matters beyond the average layperson's common knowledge and is not

misleading. State v. Groth, 163 Wn. App. 548, 564, 261 P.3d 183 (2011), review
No. 69409-0-1/3


denied. 173 Wn.2d 1026, 272 P.3d 852 (2012). An expert must rely on facts and data,

not mere speculation. Queen City Farms. Inc. v. Cent. Nat'l Ins. Co. of Omaha, 126

Wn.2d 50, 103, 882 P.2d 703 (1994). Conclusory opinions lacking adequate foundation

will be excluded. Miller v. Likins. 109 Wn. App. 140, 148, 34 P.3d 835 (2001).

      Gill bases her opinions in this case on the Holttums' complaint and her

independent research in her field. Relying on that information alone, she suggests that

Ross's floor was extraordinarily dangerous and that she is familiar with the risk

management practices of stores like Ross.          Moreover, she concludes that "the

measures taken by Ross were inadequate."          Without reviewing Ross's policies or

visiting the store, these statements lack adequate foundation and are speculative.

       In the remainder of her declaration, Gill essentially concludes that falling is

dangerous and that small fruits create a slipping hazard on smooth floors. The issue

here is not whether there was a risk from a grape on the particular type of floor, but

whether Ross knew about the grape and should have prevented the fall as a result of

that knowledge. Her testimony was not relevant to this issue.

      The trial court properly granted Ross's motion to strike Ms. Gill's testimony.

   II. Summary Judgment

      This court reviews summary judgment orders de novo. Hadlev v. Maxwell, 144

Wn.2d 306, 310-11, 27 P.3d 600 (2001). Summary judgment is appropriate only where

there are no genuine issues of material fact and the moving party is entitled to judgment

as a matter of law. CR 56(c); Peterson v. Groves. 111 Wn. App. 306, 310, 44 P.3d 894

(2002). When considering the evidence, the court draws reasonable inferences in the
No. 69409-0-1/4


light most favorable to the nonmoving party. Schaafv. Hiqhfield. 127 Wn.2d 17, 21, 896

P.2d 665 (1995).

       The Holttums assert that the trial court improperly granted Ross's motion,

because Ross's negligence is a materialfact precluding summary judgment.              To

establish a cause of action for negligence, a plaintiff must demonstrate that (1) the

defendant owed the plaintiff a duty, (2) the defendant breached that duty, (3) damages

resulted, and (4) the defendant's breach proximately caused the damages. Tincani v.

Inland Empire Zoological Soc'v. 124 Wn.2d 121, 127-28, 875 P.2d 621 (1994). Only

duty is at issue here.

       In premises liability, the scope of the duty of care depends on the entrant's

status: invitee, licensee, or trespasser. Id. at 28. The parties agree that Holttum was a

business invitee. A proprietor is liable for harm to business invitees if he or she (1)

knows of, or by the exercise of reasonable care would discover, a condition presenting

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. Iwai v. State, 129 Wn.2d 84, 93-94, 915

P.2d 1089 (1996). To demonstrate knowledge of an unsafe condition, an invitee plaintiff

must show that a proprietor caused the condition or had actual or constructive notice of

it. Coleman v. Ernst Home Ctr.. Inc.. 70 Wn. App. 213, 217, 853 P.2d 473 (1993).

Constructive notice will be inferred if the condition exists long enough for a person

exercising ordinary care to discover it. Wiltse v. Albertson's. Inc.. 116 Wn.2d 452, 459,

805 P.2d 793 (1991).
No. 69409-0-1/5


      The evidence did not show Ross had actual knowledge of the presence of the

grape upon which Holttum slipped. The dispute at summary judgment was whether

Ross had constructive notice of an unsafe condition.

      Two of the Ross employees present when Holttum fell were Sarah Gartland, the

manager on duty, and Matthew Kubeck, the store protection specialist. Kubeck spends

about 90 percent of his time at the front greeting customers and making sure they

dispose of food and beverages before they enter.       Each hour, he and Gartland walk

through the store to make sure there were no dangerous conditions present.

       On the day of the incident, Kubeck and Gartland both performed their regular

walkthroughs. Kubeck testified that, a short time before the fall, he inspected the floor

and observed no hazards. His inspection included the checkout area where the incident

occurred. Gartland also inspected the area "just minutes prior to Holttum's fall." She

was "surprised" by the discovery of the grape after the fall, because of her recent check.

       Employees later learned that, before Holttum fell, a child had wandered alone

between registers. Store cameras captured the incident. Kubeck and Gartland testified

about the sequence of events based on their review of the video footage:

       [W]e realized that a small child of the age of probably like two, two and a half,
       had wandered up just moments before, probably munching, looked like she is
       chewing on something, she was there for probably 30, 35 second[s], [and]
      wandered back out of camera view.

      You can see a child come through between registers five and I guess the next
      one is three, so you see a child between those registers. Then you see
      something on the floor. And then you see the child leave between two other
       different registers.
No. 69409-0-1/6




       The testimony does not indicate that anyone saw the child when she was

unaccompanied.1 Gartland said that "there was no one up at the register at this time.
Then a customer comes up to the register. [A cashier] rang them up."2 Gartland also

testified that, based on the video, "[t]he child was not tall enough to be able to see from

the register. . . . [T]he child would not be able to see, and you could not see the child

from the counter because of how short [she was]."

       Kubeck came back to the front of the store after his walkthrough, and after the

child wandered off, and put some carts away. He may have gone briefly back to the

sales floor, but shortly took his post across from the registers.       "[M]oments later,"

Holttum came up to the register. She was either the first or the second customer to

approach the counter afterthe child dropped the grape.3

       After unloading her items, Holttum returned her cart to the cart area. On her way

back to the counter, she stepped on the grape and fell. From his position near register

three, Kubeck witnessed the fall "[f]rom start to finish."

       There is no evidence that Ross had actual knowledge of the grape's presence.

None of the deposed employees saw the child wander unsupervised past the checkout

area. None saw the child drop the grape. None observed the grape on the floor. Nor is

there sufficient evidence for us to impute constructive knowledge.




       1 Kubeck had seen the child enter the store earlier that evening. At that point,
she was with her parents, who had put her in a cart. Kubeck did not know until he
reviewed the video that the child was the one who dropped the grape.
       2 The record contains no testimony from that cashier, nor any further evidence
about his position or observations that day.
       3 The exact timeline here is unclear. This sequence of events is based on
Gartland's and Kubeck's depositions.
No. 69409-0-1/7




       The record shows that after the small child left the checkout area it was a very

short period of time before Holttum's fall. The employees made their regular inspection

walkthroughs, but the record does not establish the precise location of the grape relative

to the walkways, registers, or paths the employees walked during their check to

demonstrate it must have been observable to the employees.           Nothing in the record

suggests that the floor tile contrasted with the grape so that any employee in the vicinity

should have seen it within the brief time frame.

      We cannot conclude that the grape should have been discovered within this time

frame on this record. Therefore, the Holttums cannot establish a prima facie case that

Ross breached its duty to Holttum. The trial court properly granted summary judgment.

   III. Spoliation

       The Holttums argue that, by failing to preserve the video evidence, Ross

committed spoliation. An appellate court generally reviews the trial court's decision on

spoliation for abuse of discretion. Henderson v. Tyrrell. 80 Wn. App. 592, 604, 910 P.2d

522 (1996).     However, where the spoliation issue was decided through summary

judgment, the court's review is de novo. Tavai v. Walmart Stores, Inc..          Wn. App.

      307 P.3d 811, 817 (2013).

      According to the Holttums, but for the spoliation, they would have had a prima

facie case to survive summary judgment.        They suggested that the court draw an

adverse inference from Ross's failure to produce the video. They further asserted that

an "appropriate sanction" in this case would be to deny Ross's motion. The trial court

granted summary judgment without comment on the spoliation issue.           From this, we

may interpret that it rejected the Holttums' spoliation arguments.


                                                   7
No. 69409-0-1/8



       The court may draw an adverse inference from a party's failure to produce
evidence:


      [W]here relevant evidence which would properly be a part of a case is within the
      control of a party whose interests it would naturally be to produce it and he fails
      to do so, without satisfactory explanation, the only inference which the finder of
      fact may draw is that such evidence would be unfavorable to him.

Pier 67. Inc. v. King County. 89 Wn.2d 379, 385-86, 573 P.2d 2 (1977).           But, an

inference may not serve substantive proof of any fact essential to a plaintiff's case.

Walker v. Herke. 20 Wn.2d 239, 249, 147 P.2d 255 (1944).              An inference is a

persuasive—not probative—element considered in weighing the effect of other

evidence.   Id. Where the Holttums cannot independently demonstrate a prima facie

case, an inference will not protect them against summary judgment. The trial court did

not err by granting summary judgment in the absence of a prima facie case.

       Nor did the court abuse its discretion by granting Ross's motions over the

Holttums' allegations of spoliation.    In determining whether evidence destruction

constitutes spoliation, this court looks at two general factors: (1) the potential

importance or relevance of the missing evidence and (2) the culpability of the adverse

party. Henderson. 80 Wn. App. at 607.

       Here, the video was important and useful for determining the sequence of

events. As for culpability, the evidence does not establish that Ross acted in bad faith.

Even so, a party may be responsible for spoliation if it had a duty to preserve the

evidence. See Henderson. 80 Wn. App. at 610. A potential litigant does not have a

strict duty to preserve evidence. See Homeworks Constr., Inc. v. Wells, 133 Wn. App.

892, 901, 138 P.3d 654 (2006). Instead, Washington courts have looked to other case-



                                               8
No. 69409-0-1/9




by-case factors. See, e.g.. id. (control over the evidence or knowledge of its impending

destruction); Henderson. 80 Wn. App. at 611 (passage of time); Hampson v. Ramer. 47

Wn. App. 806, 812, 737 P.2d 298 (1987) (opposing party's request for retention or

inspection of the evidence); Pier 67. 89 Wn.2d at 385 (sufficient notice of a pending

lawsuit).

       At least one Ross employee witnessed Holttum slip and fall to the ground. The

fall was serious enough that Gartland informed both the Ross corporate office and her

superior, Dan Brevig, about it the next day. At that point, Holttum had already contacted

Brevig directly. Ms. Holttum also made a call to Ross's insurer wherein she informed

them she was going to see a doctor. Though Ross did not receive actual notice of the

suit until after the video was deleted, Ms. Holttum's actions prior to that point provided

some indication that she would likely pursue a claim.

       Ross also violated its own company policy by failing to preserve the video.

Internal directives and policies may provide evidence of negligence. See, e.g., Joyce v.

Dep't of Corr., 155 Wn.2d 306, 324, 119 P.3d 825 (2005).             Under Ross's policy,

employees are required to preserve and label any evidence involved with a customer's

injury. Ross preserved no video evidence regarding Ms. Holttum's accident, despite the

fact that it could have saved the video without trouble.4

       Ross had notice that Holttum might pursue a claim, had control of the evidence,

and it negligently failed to preserve that evidence.        This is sufficient to constitute

spoliation. But, the relevant information to show that Ross should have known about


       4 Brevig testified that it would not have been difficult to save the video to a
compact disk and that the video remained stored for more than two weeks.
No. 69409-0-1/10




the grape was otherwise available. The employee testimony provided key information

about the contents of the video, including how, when, and where the grape was

dropped. Employees were available to testify as to where they were before and after

the grape was dropped. Holttum could testify as to the location of the grape when she

stepped on it and fell. The color of the floor and the grape were available. Where the

destruction was merely negligent and the relevant information was otherwise available,

the failure to preserve the evidence here is not so egregious as to mandate sanctions.

We decline to exercise our discretion to impose sanctions on these facts.

   IV. Loss of Consortium Claim


         Ross asserts that Mr. Holttum surrendered his loss of consortium claim by not

briefing it on appeal. The Holttums counter that the claim was effectively challenged,

because the notice of appeal sought review of "'all adverse orders.'"

         An appellant's brief must contain a statement of each separate error the

appellant contends that the trial court made. RAP 10.3(a)(4). Washington law treats a

loss of consortium claim as separate from—not derivative of—an injured spouse's

claim.    Pitman v. Holland Am. Line USA. Inc.. 163 Wn. 2d 236, 250, 178 P.3d 981

(2008).    An injured spouse's inability to bring a claim will not alone bar a loss of

consortium claim. JcL

         The Holttums' opening brief makes no mention of Holttum's consortium claim.

And, their reply brief mistakenly argues that Holttum's claims need not be addressed

because they are derivative of his wife's.      Holttum did not properly brief loss of

consortium on appeal. He has surrendered the claim.

         We affirm.



                                               10
No. 69409-0-1/11




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WE CONCUR:




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