  IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JOHN JONES,
                                                                                     f-O           \j~) o
                                                No. 70412-5-1                        GO            ~»c:

                      Appellant,                                                     sr
                                                                                                   5S
                                                                                     t_             r;* ,_
                                                                                     cr
                                                DIVISION ONE                         •^T"1"         O t;
                                                                                      """I-*        "H.
                                                                                                             i_> —
                v.
                                                                                       CT«           S^-qf
                                                                                                     -.'•-, —Q |
                                                                                                     (,."n-i.
                                                                                                      .;. „ ;^ i.
                                                UNPUBLISHED OPINION                    :E
MCDONALD'S RESTAURANTS OF                                                               •*-&»         ^7^ *•""•
                                                                                               —      •"-—    .   *«


WASHINGTON, INC., Store #4957,                                                          o             '3----
                                                                                         ro            "r•' ~3
                                                                                           C"
                      Respondent.               FILED: June 16, 2014


       BECKER, J. — John Jones was injured when he slipped on spilled soda and

ice while exiting the restroom of a fast-food restaurant. He contends that the self-

service exception to the notice requirement applies because restaurant customers

filled their own beverages from a dispenser located next to the order counter. But

because Jones failed to identify specific facts suggesting that the risk of injury in the

area where he fell was a reasonably foreseeable consequence of the self-service

component of the restaurant's method of operations, the trial court properly

dismissed his negligence claims on summary judgment. We affirm.

       The material facts are undisputed. At around noon on September 25, 2008,

Jones entered a Marysville McDonald's Restaurant and stood in line before placing a

food order at the counter. A man wearing a backpack stood in front of Jones and
No. 70412-5-1/2




ordered a drink. After receiving a cup, the man continued several steps to the self-

service beverage dispenser, which was located next to the order counter.

       While Jones placed his food order, the second man filled his cup from the

dispenser. Carrying his drink, the man then walked around the corner and

proceeded through an unoccupied dining area and into a short hallway, where he left

the restaurant through a rear door. Jones followed a few steps behind the man,

intending to use the restroom while waiting for his order. The restroom doors were

located in the hallway, opposite the rear exit door.

       Jones entered the restroom at about the same time as the second man went

out through the exit door. As he was leaving, the second man spilled or dropped his

drink onto the hallway floor. Less than a minute before the man left the restaurant, a

store employee swept the rear dining area and inspected the hallway. Jones

concedes that the floor was clean and dry when he entered the restroom.

       Jones estimated that he was in the restroom about two to five minutes. As he

came out of the restroom, Jones stepped into the spill and "bam, I fell just like that."1

After falling, Jones limped to the front counter and informed the manager of the

accident. Surveillance cameras recorded the accident.

       Jones filed this action for personal injuries on September 21, 2011, alleging

that McDonald's was negligent in failing to maintain the hallway and in failing to warn

customers of an unsafe condition. McDonald's moved for summary judgment. Both



       1 Clerk's Papers at 98.


                                             -2-
No. 70412-5-1/3




parties submitted video recordings from the restaurant's surveillance cameras. The

trial court granted McDonald's motion on April 12, 2013. The court denied Jones's

motion for reconsideration on April 25, 2013.

Standard of Review

      An appellate court reviews summary judgment orders de novo, "standing] in

the same position as the trial court." Greenhalqh v. Dep't of Corr., 160 Wn. 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 Wn.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 Wn.2d at 707.

Self-Service Exception

       Generally, the possessor of land is not liable to a business invitee for an

unsafe condition caused by another unless the possessor had actual or constructive
notice of the unsafe condition. Inqersoll v. DeBartolo. Inc.. 123 Wn.2d 649, 652, 869

P.2d 1014 (1994). Jones does not allege that McDonald's had actual or constructive

notice of the spill outside the restroom door. Rather, he contends that he was

relieved of the obligation to prove notice because the circumstances here fall within

the "self-service" exception to the notice requirement.

       Under the self-service exception, a plaintiff need not demonstrate actual or

constructive notice if he or she can point to specific facts showing that "the nature of
No. 70412-5-1/4




the proprietor's business and his methods of operation are such that the existence of

unsafe conditions on the premises is reasonably foreseeable." Pimentel v. Roundup

Co.. 100 Wn.2d 39, 49, 666 P.2d 888 (1983). Notice of specific hazards is

unnecessary in such circumstances because the proprietor's "mode of operation"

creates certain foreseeable risks of harm to the customers. Ciminski v. Finn Corp..

Inc.. 13 Wn. App. 815, 820, 537 P.2d 850. review denied. 86 Wn.2d 1002 (1975).

       Contrary to Jones's apparent assumption, however, the self-service exception

"does not apply to the entire area of the store in which customers serve themselves."
Inqersoll. 123 Wn.2d at 653. The exception is a narrow one, "limited to specific

unsafe conditions in specific areas that are inherent in the nature of self-service

operations." Arment v. Kmart Corp.. 79 Wn. App. 694, 698, 902 P.2d 1254 (1995).
The exception applies only to those areas where the risk of injury is "continuous or
foreseeably inherent in the nature of the business or mode of operation." Wiltse v.
Albertson's. Inc.. 116 Wn.2d 452, 461, 805 P.2d 793 (1991). "There must be a

relation between the hazardous condition and the self-service mode of operation of

the business." Inqersoll. 123 Wn.2d at 654.

       Consequently, in order to defeat summary judgment, Jones needed to identify
specific facts supporting an inference that McDonald's methods of operation were
such that unsafe conditions were reasonably foreseeable in the area where he fell.

This he failed to do.
No. 70412-5-1/5




       McDonald's self-service drink dispenser was located next to the order counter.

The possibility of spills in this general area as customers help themselves to ice and

beverages is reasonably foreseeable. But the accident occurred around the corner

from the drink dispenser, past the dining area, and in the hallway between the

restrooms and a rear exit door. Jones submitted no evidence describing the flow of

patrons who use the beverage dispenser, the pattern of substances on the floor, or

the historical experience of slip and fall accidents in the area. See Inqersoll. 123

Wn.2d at 654-55. Under the circumstances, he failed to demonstrate that any risk of

injury in the rear hallway was continuous or foreseeably inherent in McDonald's

methods of operation.

       Because the self-service exception does not apply, and Jones does not allege

that McDonald's had actual or constructive notice of the condition, the trial court

properly dismissed his claims on summary judgment. See Tavai v. Walmart Stores,
Inc.. 176 Wn. App. 122, 132, 307 P.3d 811 (2013) (self-service exception did not

apply to wet floor 15 feet from check-out counter); Inqersoll. 123 Wn.2d at 653-55
(exception did not apply to unknown substance in common area of a shopping mall);
Carlvle v. Safeway Stores. Inc.. 78 Wn. App. 272, 896 P.2d 750 (exception did not

apply to shampoo on the floor in the coffee section of a supermarket), review denied.
128 Wn.2d 1004 (1995); Arment. 79 Wn. App. at 698 (exception did not apply to

drink spilled in menswear department).
No. 70412-5-1/6




       Moreover, even if the self-service exception applied, it would not result in strict

liability. O'Donnell v. Zupan Enters.. Inc.. 107 Wn. App. 854, 860, 28 P.3d 799, 801-

02 (2001), review denied. 145 Wn.2d 1027 (2002). Jones still bore the burden of

establishing that McDonald's failed to exercise reasonable care. O'Donnell. 107 Wn.

App. at 860. What is reasonable under the circumstances depends on "the nature

and the circumstances surrounding the business conduct[ ]," including the mode of

operation. Ciminski, 13 Wn. App. at 819. "The mere presence of a slick or slippery

substance on a floor is a condition that may arise temporarily in any public place of

business." Carlvle. 78 Wn. App. at 277. There is no dispute that the unsafe

condition here arose during the brief period that Jones was in the restroom when

another patron spilled or dropped his drink while walking out of the restaurant. Jones

failed to identify any evidence supporting an inference that McDonald's failed to

exercise reasonable care under the circumstances.2

Surveillance Videos

       Jones appears to contend that the trial court erred in considering the

surveillance videos when ruling on the summary judgment motion. Both parties

submitted a DVD containing video recordings from the restaurant security cameras

on the day of the accident. The recordings included continuous footage from the

camera near the front order counter and the camera in the rear area. McDonald's




       2Jones's citation to an unpublished Court of Appeals decision is improper. See GR
14(1)(a) (party may not cite as authority an unpublished decision of the Court of Appeals).

                                              -6-
No. 70412-5-1/7




also prepared a two-minute edited video that combined footage from both cameras

and depicted only the events directly surrounding the accident. When McDonald's

used the edited video during Jones's deposition, he identified himself as the person

depicted in the video and confirmed that the events related to his accident.

       During oral argument, counsel for Jones expressed "concerns" about the

videos, but she did not challenge their admissibility and relied on the videos during

her argument on the summary judgment motion. On appeal, Jones asserts that the

DVD "is totally unreliable, ... not authentic[,].. . misinterprets time, place and how

the accident occurred,"3 and constitutes inadmissible hearsay. But he provides no

meaningful legal argument to support these conclusory allegations.

       Under ER 901(a), "[t]he requirement of authentication or identification as a

condition precedent to admissibility is satisfied by evidence sufficient to support a

finding that the matter in question is what its proponent claims." State v. Bradford.

175 Wn. App. 912, 928, 308 P.3d 736 (2013). review denied, 179 Wn.2d 1010

(2014). The trial court is not bound by the rules of evidence when making a

determination as to authenticity. State v. Williams, 136 Wn. App. 486, 500, 150 P.3d

111 (2007).

       As indicated, Jones acknowledged during his deposition that the video

depicted him standing at the order counter on the day of the accident and certain

subsequent events leading up to his fall. McDonald's also submitted declarations



        Br. of Appellant at 21.
No. 70412-5-1/8




from Lindsay Hitchcock and Benjamin Hampton describing how they processed the

original two digital files from the security cameras. Hitchcock converted the original

raw files to Windows Media format and then slowed down the original file speed so

that the recordings depicted events more closely to real time. Hampton described in

detail how he converted the original files to Windows Media format and then

combined footage from the two cameras to depict the events directly surrounding the

accident.

       Jones asserts that because both Hitchcock and Hampton used the term

"edited" to describe their processing of the videos, they necessarily distorted or

omitted relevant information. But Hitchcock confirmed that she only slowed the

original recordings and "did not cut, delete nor tamper with any of the original

surveillance footage when producing the edited versions."4 Hampton explained that

in combining the footage from the two cameras, he did not delete any of the original

video from the point that Jones walked behind the second man to the restroom until

he limped back to the front counter after the accident. Jones does not identify any

evidence to the contrary. Any challenge to the authenticity of the videos is without

merit, and the trial court properly considered them in ruling on the summary judgment

motion.

      Affirmed.




          Clerk's Papers at 84.
No. 70412-5-1/9




                    "&c^feK,>
WE CONCUR:




  J /% c/^Q\f | J
