                                                                                      ILED
                                                                             COURT OF APPEALS
                                                                                   DIVISION II

                                                                            2G15 AUG I I   AM 9: 09
    IN THE COURT OF APPEALS OF THE STATE q# ftA§ Mf0gN

                                                                            BY -
                                            DIVISION II
                                                                                    DE4UY--
BESSIE WILLIAMS,
                                                                            No. 45504 -8 -II


                                 Appellant,


        V.



JOHN DOE, FIRST TRANSIT, INC.;                                       UNPUBLISHED OPINION
 CITY OF TACOMA; and CENTRAL BIBLE
EVANGELICAL CHURCH,


                                 Respondents.




       SUTTON, J. —      Bessie Williams appeals the superior court' s summary judgment orders

dismissing her negligence claims against First Transit, Inc. and Central Bible Evangelical Church.
Williams argues that the    superior court (   1)   abused its discretion in refusing to grant a second

continuance of the summary judgment motions filed by First Transit and Central Bible, (2) abused

its discretion in striking filings by her formerly admitted pro hac vice counsel, and ( 3) erred in

granting summary judgment in favor of First Transit and Central Bible.

       We hold that the superior court did not abuse its discretion in refusing. to grant a second

continuance of the summary judgment motions and that it properly struck the unauthorized filings

by Williams' s formerly admitted pro hac vice counsel. Because Williams failed to raise a genuine
issue of material fact, we affirm the superior court' s summary judgment orders dismissing

Williams'    s negligence claims against   First Transit   and   Central Bible.
No. 455048- I1



                                                     FACTS


                                            I. BACKGROUND FACTS


       On or about October 26, 2008, a shuttle van operated by First Transit drove Williams to

Central Bible. The driver of the shuttle van and employee of First Transit, Philip Halsten, pulled

into the Central Bible parking lot, unloaded Williams from the van, and, at her request, assisted

her into the   church.     Halsten pushed Williams in her wheelchair uphill along the paved public

sidewalk   to the   main   entrance   of   the   church.   As Halsten was pushing the wheelchair up the

sidewalk, the wheel of the wheelchair hit a raised crack in the pavement, abruptly stopping the

wheelchair, and causing Williams to fall forward out of the wheelchair

       Williams filed a complaint for negligence against First Transit, Central Bible, the City of

Tacoma,    and "   John Doe"'   for personal injuries she suffered after falling from her wheelchair on a

public sidewalk adjacent to property owned by Central' Bible. Williams alleged that First Transit

breached its duty of care to her. Williams also alleged that Central Bible and the City of Tacoma

negligently failed to maintain the public sidewalk abutting Central Bible' s property in a safe

condition and failed to warn and protect her from unreasonably dangerous conditions.

                                           11. WILLIAMS' S COUNSEL


        After Williams filed her lawsuit pro se, David Britton, a Washington licensed attorney,

moved for limited pro hac vice admission of Katrina Coleman, a Michigan licensed attorney under




1 The " John Doe" here is Philip Halsten, driver of the First Transit shuttle van. Halsten and First
Transit, represented by the same counsel, joined in their answer to the complaint and in their
summary judgment motion. Clerk'            s   Papers ( CP)    at   5.   We refer collectively to Halsten and First
Transit as First Transit.




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No. 455048 -II



                                               2
Admission to Practice Rule ( APR) 8( b).           The   superior court granted        the   motion.   Britton and


Coleman filed    a   joint   notice   of appearance   on     Williams'   s   behalf.   After the court awarded


discovery sanctions against Williams for failing to provide discovery responses, Britton withdrew.

Michael Ewetuga, a Washington licensed attorney, then filed a notice of appearance. on Williams' s

behalf. But Ewetuga did not file a motion for pro hac vice re -admission of Coleman, Williams' s

Michigan counsel. Ewetuga later withdrew from representing Williams.

            III. FIRST TRANSIT' S AND CENTRAL BIBLE' S SUMMARY JUDGMENT MOTIONS


       On August 2, 2013, First Transit and Central Bible filed separate motions for summary

judgment.    The court set a hearing for both summary judgment motions on August 30, 2013.

Williams failed to file an opposition to the motions by that date and, when First Transit and Central

Bible appeared to argue the unopposed motions, Ewetuga orally moved to continue the hearing.

The court granted the continuance, set a new hearing date for September 20, and ordered that, by

September 9, Williams must respond or give notice that she will not oppose the summary judgment

motions.




       Neither First Transit nor Central Bible received a response to their summary judgment

motions by the September 9 deadline; they asked the superior court to grant their unopposed




2 APR 8( b) provides, in pertinent part:
        A member in good standing of, and permitted to practice law in, the Bar of any
        other state ...   may appear as a lawyer in any action or proceeding only (i) with the
        permission of the court or tribunal in which the action or proceeding is pending,
        and ( ii) in association with an active member of the Washington State Bar

        Association, who shall be the lawyer of record therein, responsible for the conduct
        thereof, and present at proceedings unless excused by the court or tribunal.



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No. 455048 -II



motions and     to   award   fees for   having   to   appear on   August 30.   Two days later, after the court' s


deadline to file opposition materials, First Transit and Central Bible received Williams' s two


untimely responsive briefs and three supporting declarations. But these filings were submitted by

Williams' s formerly -admitted pro hac vice counsel in Michigan, not by Ewetuga, her new

Washington counsel.


         First Transit and Central Bible moved to strike Williams' s opposition materials as


untimely; and strike the briefs because they were signed by Williams' s formerly -admitted pro

hac vice counsel, Coleman. They argued that Coleman was no longer authorized to participate in

the   case   because Britton, the attorney       with whom she       had   associated with under   APR 8( b), had


withdrawn. At the hearing on the motion to strike, Williams' s new Washington counsel, Ewetuga,

informally requested a second continuance, and indicated that Coleman had a conflict and could

not appear at the hearing, but the superior court denied the request for a second continuance.

         The superior court ruled that Williams' s two opposition briefs and three declarations were

untimely and failed to comply with the court rules. The superior court also concluded that Britton' s
withdrawal from the case canceled Coleman' s pro hac vice admission to practice in Washington.

Because Williams failed to timely file her opposition materials under CR 56, the superior court




                                                            L!
No. 455048 -II




considered only First Transit' s and Central Bible' s submissions and ruled that their summary

judgment motions were unopposed. The superior court granted First Transit' s and Central Bible' s




3 The order granting summary judgment in favor of First Transit shows that the superior court
considered the following materials:
       1.   Defendants First Transit, Inc.' s and Phil Halsten' s Motion for Summary
       Judgment;

       2. Declaration of Kelly A. Croll in Support of the Motion for Summary Judgment,
       with exhibits;
       3.     Declaration of Philip Halsten in Support of the Motion for Summary Judgment;
       4.     Defendants First Transit, Inc.' s and Phil Halsten' s Reply Motion for Summary
       Judgment;
       5.Defendants First Transit, Inc.' s and Phil Halsten' s Second Reply in Support of
       Motion for Summary Judgment;

        12.Defendants First Transit, Inc.' s and Phil Halsten' s Third Reply in Support of
       Motion for Summary Judgment; and
       13. Declaration of Laura E. Kruse in Support of the Third Reply of Defendants'
       Motion for Summary Judgment, with exhibits.
CP at 694- 96.


        The order granting summary judgment in favor of Central Bible shows that the superior
court considered:

        1. Defendant Central Bible Evangelical Church' s Motion for Summary Judgment;
        2. Declaration of Stephen Skinner in support of the Motion for Summary
        Judgment;
        3.    Declaration of Louis Diana in support of the Motion for Summary Judgment;
        4.    Defendant Central Bible Evangelical Church' s Reply on Motion for Summary
        Judgment;
        5.     Defendant Central Bible Evangelical Church' s Second Reply in Support of
        Motion for Summary Judgment;

        11. Defendant Central Bible Evangelical Church' s Third Reply in Support of
        Motion for Summary Judgment.
CP at 691- 93.


        In both of its orders granting summary judgment to First Transit and Central Bible, the
superior court crossed out Williams' s submissions because it previously struck them from the
record as noncompliant with the rules.




                                                   5
No. 455048 -II




summary judgment       motions.    The superior court also granted First Transit' s and Central Bible' s


requests    for attorney fees, awarding Central Bible $       500 in fees and costs, and awarding First

Transit $4, 200 in fees and costs. Williams moved for reconsideration, but the superior courtdenied

that motion. On October 21, 2013, Williams filed a pro se notice of appeal.

                                                ANALYSIS


         Williams argues that the superior court ( 1) abused its discretion in not granting her a second

continuance and in striking the opposition materials filed and signed by her formerly -admitted pro

hac vice counsel and ( 2) erred in granting summary judgment in favor of First Transit and Central

Bible.


         First Transit and Central Bible respond that the superior court did not abuse its discretion

in denying the second continuance under CR 56( f) and in striking the unauthorized opposition

materials signed by Coleman. They also argued that they owed no duty to Williams, did not breach

any duty to her, and that their actions were not a proximate cause of injury or damages to Williams.
We agree with First Transit and Central Bible.


                            I. CONTINUANCE OF SUMMARY JUDGMENT MOTIONS


           CR 56( c) requires that a party opposing a summary judgment motion file a response no

later than 11 days before the      motion   hearing. If the party opposing a summary judgment motion

submits an affidavit stating that she is unable to present facts essential to her opposition, then the

court may order a continuance " if the nonmoving party shows a need for additional time to obtain

additional    affidavits,   take depositions, or   conduct   discovery."   Bldg.   Indus.   4ss' n of Wash. v.

McCarthy,     152 Wn.   App.    720, 742, 218 P. 3d 196 ( 2009); CR 56( f). We review a superior court' s




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No. 455048 -II




decision to deny a motion for a continuance for a manifest abuse of discretion. Doyle v. Lee, 166

Wn. App. 397, 403- 04, 272 P. 3d 256 ( 2012).

          A superior court does not abuse its discretion if it denies a motion for a continuance because

   1) the requesting parry 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."'

Old    City    Hall LLC       v.   Pierce   County   AIDS Found., 181 Wn.          App.   1,   16, 329 P. 3d 83 ( 2014)


 quoting Turner      v.   Kohler, 54 Wn.       App. 688,     693, 775 P. 2d 474 ( 1989)). "` A trial court abuses its


discretion if its decision is manifestly unreasonable or based upon untenable grounds or reasons."'

State   v..   Garcia, 179 Wn.2d 828, 846, 318 P. 3d 266 ( 2014) (                 quoting State v. Lamb, 175 Wn.2d

121, 127, 285 P. 3d 27 ( 2012)).


          Williams argues that neither party suffered any prejudice from her late filed opposition

materials.      Williams failed to timely oppose the summary judgment motions by the first deadline

of August 30th or the second extended deadline of September 9th, and the responses she did file

on September 11 were untimely and signed by her formerly admitted pro hac vice counsel, who

no longer had authority to appear in Washington because local counsel had withdrawn.

          We hold that under CR 56( f), the superior court did not abuse its discretion in refusing to

grant a request for a second continuance because Williams fails to demonstrate ( 1) ' a good reason

for her requested delay and ( 2) what evidence would be established through another continuance

that    would     raise   a    genuine      issue   of   material   fact.   Old   City   Hall, 181   Wn.   App.   at   16.




                                                                7
No. 455048 -II




                                       II. PRO HAC VICE COUNSEL


           Williams also argues that the superior court abused its discretion in ruling that her formerly

admitted pro hac vice counsel lost her ability to represent Williams when Williams' s associated

local counsel withdrew, and in striking her opposition materials, including her two briefs and three

declarations.    Williams argues that there is nothing in APR 8( b) that requires a court to terminate

counsel' s pro hac vice status once associated local counsel withdraws from the case. First Transit

and Central Bible respond that APR 8( b) allows pro hac vice counsel to appear only in association

with local counsel and that, once local counsel withdrew, pro hac vice counsel lost her association

and her ability to appear in Washington. We agree with First Transit and Central Bible.

           We review de novo the interpretation of APR 8( b) to determine whether pro hac vice

counsel' s    representation   terminates   when   associated   local   counsel     withdraws.     See State v.


McEnroe, 174 Wn.2d 795, 800, 279 P. 3d 861 ( 2012) (              we    interpret   court rules   de   novo).   In


Washington, an out- of-state lawyer:


            M] ay appear as a lawyer in any action or proceeding only ( i) with the permission
           of the court or tribunal in which the action or proceeding is pending, and ( ii) in
           association with an active member of the Washington State Bar Association, who
           shall be the lawyer of record therein, responsible for the conduct thereof, and
           present at proceedings unless excused by the court or tribunal.

APR 8( b).     APR 8( b) permits an attorney to appear in an action or proceeding only with the court' s

permission and in association with local counsel; failure to meet either requirement precludes out-

of-state counsel' s representation. The purpose of the rule is to reasonably assure the court that the

out-of-state attorney is competent, will follow the local rules of practice and procedure, and will

act   in   an ethical and respectful manner.   Hahn. v.    Boeing   Co., 95 Wn.2d 28, 34, 621 P. 2d 1263


 1980).




                                                       3
No. 455048 -II




          On June 1. 8, 2013, Williams' s local counsel, Britton, filed a notice of intent to withdraw

and   terminate Williams' s   representation.        Up to that point, every appearance or filing performed

by Coleman was done in association with Britton; once Britton withdrew, Coleman was no longer

in   association with an active member of           the Washington State Bar,   as required   by   APR 8( b),   and




thus Coleman could no longer appear pro hac vice. The superior court ruled,

          W]hen Mr. Britton withdrew, it left Ms. Coleman' s actual participation in this ,case
            I don' t know   what else   to say --   it canceled it. He had sponsored the pro hac vice
          application, which the Court granted because of his assurances to the Court the
          compliance with the rules, the Washington State Bar Association and the required
          Rules of Professional Conduct for, in essence, an unlicensed lawyer in Washington,
          which is what Ms. Coleman is, although she has a license in another state.

Verbatim Transcript of Proceedings ( VRP) at 17.


          APR 8( b) permits pro hac vice counsel to appear only in association with local counsel;

there is no requirement for a court to affirmatively terminate out-of-state counsel' s pro hac vice

status.    Under APR 8( b),     Coleman automatically lost her pro hac vice association with local

counsel when Williams' s local counsel withdrew, the superior court properly precluded Coleman' s

representation and properly struck Williams' s opposition materials signed and submitted by
Coleman.4

          Williams argues that the superior court erred in striking all five of her filings and in refusing

to consider them at summary judgment.                The superior court struck these filings as untimely and




4 In her Clerk' s Papers, Williams designated five filings struck by the superior court: Williams' s
Response to First Transit' s Motion for Summary Judgment; Williams' s Response to Central
Bible' s Motion for Summary Judgment; and the declarations of Carol Williams, Alkenneth Gurley,
and Katrina Coleman.




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No. 455048 -II




submitted by out- of-state counsel, who was not admitted to practice in Washington, and thus the

court could not accept the documents. The superior court did not abuse its discretion.

                                        III. SUMMARY JUDGMENT MOTIONS


           We review a summary judgment ruling de novo, engaging in the same inquiry as the

superior court.       Ruvalcaba   v.   Kwang Ho   Baek, 175 Wn.2d 1, 6, 282 P. 3d 1083 ( 2012).           Summary

judgment is warranted only when there is no genuine issue as to any material fact and the moving

party is   entitled   to judgment      as a matter of   law. CR 56( c); Wilkinson v. Chiwawa Cmtys. Ass' n,


180 Wn.2d 241,          249, ' 327 P. 3d 614 ( 2014).                  The party seeking summary judgment must

demonstrate the absence of a genuine issue of material fact, Ruvalcaba, 175 Wn.2d at 6, and the

moving party is entitled to summary judgment only when there is a " complete failure of proof

concerning an essential element of the nonmoving party' s. case [ which] necessarily renders all

other   facts immaterial."    Cho v. City ofSeattle; 185 Wn. App. 10, 15, 341 P. 3d 309 ( 2014) review

denied, 183 Wn.2d. 1007 ( 2015) ( quoting           Young          v.   Key   Pharms., Inc., 112 Wn.2d 216, 225, 770


P. 2d 182 ( 1989)).


           We take the facts and make reasonable inferences in the light most favorable to the


nonmoving party. Ruvalcaba, 175 Wn.2d                   at   6.   But under CR 56( e), 5 a party opposing summary

judgment cannot simply rely upon the mere allegations of its pleadings to. overcome summary



5 CR 56( e) provides, in part:
           When a motion for summary judgment is made and supported as provided in this
           rule, an adverse party may not rest upon the mere allegations or denials of a
           pleading, but a response, by affidavits or as otherwise provided in this rule, must
           set forth specific facts showing that there is a genuine issue for trial. If the adverse
           party does not so respond, summary judgment, if appropriate, shall be entered
           against the adverse party.



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No. 455048 -II




judgment; rather, the party opposing summary judgment must present declarations, affidavits or

other evidence as provided in CR 56 to set forth specific facts showing that there is a genuine issue

of material fact for trial. CR 56( e); Keck v. Collins, 181 Wn. App. 67, 91 n.9, 325 P. 3d 306 ( 2014),

review granted,              181 Wn.2d 1007 ( 2014).        If reasonable minds can reach only one conclusion,

summary judgment is              appropriate.      Old City Hall, 181 Wn. App. at 10.

           In Williams' s negligence actions against First Transit and Central Bible, she has the burden

of    proving "`( 1) the        existence of a
                                                  duty   owed   to the complaining party, ( 2)      a breach of that duty,

 3)    a resulting injury, and ( 4) that the claimed breach was a proximate cause of the injury."'

Jackson     v.   City   of Seattle, 158 Wn.       App. 647,     651, 244 P. 3d 425 ( 2010) ( quoting       Burg v. Shannon

      Wilson, Inc., 110 Wn.            App.   798, 804, 43 P. 3d 526 ( 2002)).      We review de novo whether a duty

exists.    Arnold       v.   Saberhagen Holdings, Inc.,         157 Wn. App. 649, 661, 240 P. 3d 162 ( 2010).

                                 A. WILLIAMS' S CLAIMS RELATED To FIRST TRANSIT

           Williams          alleged   in her   complaint   that First Transit failed in its       duty " to properly and

adequately train and supervise" Halsten, whose negligence caused her injuries, and consequently

whose " negligence [ was]                imputed to First Transit."        Clerk'    s   Papers ( CP)   at   3.   But in her


deposition; Williams did not know how fast Halsten was pushing her; she only recalled that he

was running. Instead, Williams relies upon her daughter Carol Williams' s declaration to speculate

about the speed that Halsten was running and the speed at which Williams could have been

traveling when the accident occurred. But a non-moving party may not rely upon speculation and

argumentative assertions.               Grant    County Port Dist. No.    9   v.   Wash. Tire   Corp., _      Wn. App.

 349 P. 3d 889, 893 ( 2015).              And in order to be admissible under ER 701, a lay person' s opinion

must     be " rationally based."          State v. Fallentine, 149 Wn. App. 614, 624, 215 P. 3d 945 ( 2009).



                                                                  11
No. 455048 -II



         Carol Williams was not present at the time of the accident, her statements lack foundation,


are speculative, are not rationally based under ER 701, and are not admissible. We agree that the

superior..court   properly     struck   her declaration     as   untimely.   But even if the superior court had


considered her declaration on summary judgment, this court can only consider evidence that is

admissible   under      CR 56.    See    Sisley   v.   Seattle School Dist. No. 1,       171 Wn. App. 227, 233,

286 P. 3d 974 ( 2012).     Williams did not offer any other evidence that would create a genuine issue

of material fact as to duty, breach, or causation by First Transit. Thus, the superior court did not

err in granting summary judgment dismissal in favor of First Transit.

                           B. WILLIAMS' S CLAIMS RELATED To CENTRAL BIBLE

         Williams also argues that the superior court erred in granting summary judgment in favor

of   Central Bible.     She alleges that Central Bible " failed in its duty to maintain the sidewalk in a

safe condition,"   thereby proximately causing her injuries. CP               at   3.   Central Bible argued that it


did not owe a duty to Williams because ( 1) it was an adjacent property owner, (2) it did not use its

sidewalks for any " special purpose" or insert an artificial condition on the land, and ( 3) the crack

was an open and obvious          danger   of which      Central Bible had    no prior    knowledge.   Br. of Resp' t

 Central Bible)    at    15.   We hold that Williams failed to raise a genuine issue of material fact

demonstrating a duty, breach, or causation by Central Bible. Thus, the superior court did not err

in granting summary judgment dismissal in favor of Central Bible.




                                                            12
No. 455048 -II




1.   No duty of care: no special use of the sidewalk

            Whether a duty exists is a question' of law that we review de novo. Arnold, 157 Wn. App.

at   661.   Generally, an owner or occupant of land abutting a public sidewalk is not an insurer of the

safety of pedestrians using the sidewalk, and maintenance of public sidewalks is the city' s

responsibility. Rosengren         v.   City   of Seattle, 149 Wn.   App.   565, 575, 205 P. 3d 909 ( 2009). But a


duty can arise when an abutting property owner makes special use of a public sidewalk; the

property owner must then exercise reasonable care so that the owner' s special use does not create

unsafe conditions for pedestrians using the sidewalk. Rosengren, 149 Wn. App. at 571; Groves v.

City   of Tacoma, 55 Wn.        App.   330, 332, 777 P. 2d 566 ( 1989).      A duty can also arise ifthe property

owner " causes or contributes to the condition" on the public sidewalk. Rivett v. City of Tacoma,

123 Wn.2d 573, 579, 870 P. 2d 299 ( 1994).                 The plaintiff has the burden of establishing the

existence of a duty. Jackson, 158 Wn. App. at 651.

            Williams does not argue or present evidence that Central Bible made special use of the


sidewalk; rather, she argues that the tree on Central Bible' s property caused the defect to the public

sidewalk.      Williams relies on the declaration from Alkenneth Gurley, a church attendee present

that day. Gurley stated,

            There is a tree planted 8- 10 feet from the raised cracks in the sidewalk where the
            incident took place.


              I have   a   background in horticulture.  I can state that based on my experience, it
            is possible that the roots of a tree in such close proximity to the raised cracks in the
            sidewalk could have caused damage to the sidewalk.


 CP at 618.




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No. 455048 -II




        But the superior court properly struck Gurley' s declaration as untimely, speculative,

inadmissible lay testimony under ER 701, and submitted by an attorney who was no longer

authorized to practice before the court; and even if the court had considered his declaration on


summary judgment, Gurley' s statements were inadmissible under CR 56. Grant County Port Dist.,

349 P. 3d at 893; Fallentine, 149 Wn. App. at 624; Sisley, 171 Wn. App. at 233. Nor did Williams

provide    adequate           foundation        to   admit       Gurley' s        declaration         as     expert    opinion   under




ER 702- 704. Johnston -Forbes              v.   Matsunaga, 181 Wn.2d 346, 357, 333 P. 3d 388 ( 2014) ( expert


opinions    lacking     proper      foundation       should       be    excluded).         And Williams presented no other


evidence   that the    tree caused the crack in the sidewalk or that Central Bible' s use of the sidewalk

created an artificial condition.



2. No   duty     of care: "    known or obvious" condition


          Central Bible also argues that it owed no duty to Williams because the crack in the sidewalk

was a " known or obvious" condition and that, even if Williams were an invitee, Central Bible

would not       be liable for her injuries. Br.            of   Resp' t ( Central       Bible)   at   21.    Central Bible presented


unrebutted evidence that Williams could see the crack as she approached, based on her own

admissions       in her deposition.. When             she       was    asked     if, "on   the day of the incident, did [ she]

observe[   d]                  on   the   sidewalk     that       caused [       her]    concern      prior    to"    the incident, she
                 anything


responded, "[ w] ell,     I   remember        seeing ...    I   saw a --    it   was a   hole   or crack."      CP at 505. We agree


with Central Bible that Williams presented no evidence to demonstrate a genuine issue of material

fact on this issue.


          A landowner' s liability to invitees " is limited by the RESTATEMENT ( SECOND) OF TORTS

  343A( 1),      which provides: "        A   possessor of        land is    not    liable to ...          invitees for physical harm




                                                                       14
No. 455048 -II




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."      Degel


v.   Majestic Mobile Manor, Inc., 129 Wn.2d 43, 50, 914 P. 2d 728 ( 1996) (                     quoting Tincani,

124 Wn.2d       at   139; RESTATEMENT ( SECOND)         OF   TORTS § 343A( 1) (   1965)).   Even if the condition


was open and obvious, in limited circumstances, a possessor of land may be liable if he or she

 should anticipate       the harm despite    such     knowledge    or obviousness."   RESTATEMENT ( SECOND)


OF   TORTS § 343A( 1) (       1965). "   Distraction, forgetfulness, or foreseeable, reasonable advantages


from encountering the danger are factors which trigger the landowner' s responsibility to warn of,

or make safe, a       known   or obvious   danger."     Tincani, 124 Wn.2d at 140.


         Williams did not argue that the crack was concealed, nor did she present evidence to the

superior court       that the condition   was   not   known   or obvious.   Degel, .129 Wn.2d   at   50.   She failed


to present a genuine issue of material fact showing that even if she were an invitee, the crack was

not known or obvious to her. See Jackson, 158 Wn. App. at 651- 52.

                                                      CONCLUSION


          We hold that the superior court did not abuse its discretion in refusing to grant a second

continuance of the summary judgment motions and that it properly struck the unauthorized filings

by Williams' s formerly admitted pro hac vice counsel. Because Williams failed to raise a genuine




                                                              15
No. 455048 -II




issue of material fact, we affirm the superior court' s summary judgment orders dismissing

Williams' s negligence claims against First Transit and Central Bible.


       A majority of the panel having determined that this opinion will not be printed in the

Washington    Appellate   Reports,   but will be filed for public record in accordance with


RCW 2. 06. 040, it is so ordered.




                                                      SUTTON, J.
 We concur:




  JHANSON, C. J.




    ORC--




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