                                                                                             FILED
                                                                                        COURT OF APPi= LS .
                                                                                                     A


                                                                                        2013 SEP 24 PSI 2.34
    IN THE COURT OF APPEALS OF THE STATE OF W.

                                            DIVISION II                                 E
                                                                                        f   q  i   JA S, I N 3 Old
                                                                                                       H



H.CRAIG SCHWEIKART, individually and                                   No. 42720 6 II
                                                                                 - -

as Personal representative of the ESTATE OF
HELENA M. SCHWEIKART; and DARIC M.
SCHWEIKART, individually, and as the
Attorney in Fact for H. CLINE
          - -
SCHWEIKART,

                                Appellants,

       V.



FRANCISCAN HEALTH SYSTEM WEST,
                            -                                    UNPUBLISHED OPINION
db a ST. JOSEPH MEDICAL CENTER, a
 / /
Washington non -
               profit corporation;
NORTHWEST EMERGENCY PHYSICIANS
OF TEAMHEALTH, a Washington
corporation; RANDALL KAHNG M. .;    Da
Washington licensed physician; and JOHN
DOES 1 -10,




       PENOYAR, J. — H. Craig Schweikart and Daric M. Schweikart, individually and as the

respective representatives of Helena and Cline Schweikart (collectively, the Schweikarts),sued

Franciscan Health System West (FHS),operator of St. Joseph Medical Center, claiming
                         -

negligence after Helena died from       a   fall at St.   Joseph. The procedure at trial is somewhat

convoluted because the trial court granted FHS judgment as a matter of law based on the

evidence presented to the jury but let the jury decide whether the Schweikarts had proven

negligence under their alternative theory that FHS spoliated the evidence, triggering an inference

in favor of   a   negligence finding. The jury did not find spoliation, and the trial court entered

judgment    for FHS.
42720 6 II
      - -




        The Schweikarts appeal, arguing that the trial court erred by granting FHS's motion for

judgment as a matter of law on their negligence claim and in instructing the jury on FHS's duty

as owner of the premises and spoliation. But the trial court's judgment as a matter of law and its

instructions on FHS's duty correctly reflected the requirement that the Schweikarts prove that

FHS had notice of the unsafe condition. And because the Schweikarts did not object at trial to

the court's spoliation instruction, we do not consider their argument that the trial court erred by

giving that instruction. Furthermore, the trial court properly exercised its discretion in declining

to give the Schweikarts' proposed spoliation instruction because the instruction the court did

give on spoliation adequately addressed the good faith/ ad faith issue covered by proposed
                                                      b

instruction. Accordingly, we affirm.

                                              FACTS


I.      BACKGROUND


        On April 28, 2005, 83- old Helena Schweikart fell near an elevator at St. Joseph
                             year -

Medical Center. She was taken to the emergency room, treated for a dislocated shoulder, and

released. The next morning, family members found her unconscious. She died on May 3 from

intracranial bleeding.

         When Mrs. Schweikart fell near the elevator, security officer Matthew Dunne was sent to

the   scene   to   investigate. When Dunne arrived, he saw emergency room staff placing Mrs.

Schweikart in a wheelchair so they could take her to the emergency room. Dunne did not notice

at that time any hazards on the vinyl composite tile floor where she fell.

         Dunne asked if anybody had seen what happened. A woman who had seen the fall gave

Dunne a verbal statement that he did not record because he had left his notebook and witness



                                                 N
42720 6 II
      - -



statement forms at the security desk. Dunne also failed to obtain the witness's name and contact

information.


          Dunne returned to the security desk, retrieved witness statement forms, obtained the

incident report number, and then went to the urgent care unit where he recorded Mrs.

Schweikart's statement.        Mrs. Schweikart told Dunne that she had slipped on water or some

other   liquid   and   fallen.' Dunne gave her husband a contact card that had the incident report

number and instructions to contact Mike Hill, the security system manger, for a copy of the

report.

          Dunne returned to the scene 30 minutes after the fall, finding neither water on the floor

nor   the witness who had      given   Dunne her statement.   Dunne began a handwritten report that

same day, but did not finish it. When Dunne could not find his handwritten report the next day,
his   supervisor told    him to write the report   as   he remembered it. When Dunne asked about


including the witness's statement in the report, his supervisor instructed him to leave the

statement out because, absent her name and address, the witness could not be identified.
          When one of Mrs. Schweikart's sons, Grant, went to the security desk to ask for a copy of

the report, he was referred to a supervisor, who told Grant that he would have to contact Hill

after the report was reviewed. A May 1, 2005, e mail from a security supervisor to Hill stated
                                                -


  John Gastelum, an emergency room technician who helped Mrs. Schweikart after her fall,
purportedly testified during his deposition that Mrs. Schweikart's shoes and clothing were wet,
though he thought this was because it was raining. No evidence was presented that it was raining
that day in that area.

2 In Dunne's final report, however, he relates what the unidentified witness told Gastelum:
ERT John [ Gastelum] then stated the bystander [witness] told him that Mrs. Shweikart [sic]was
running to catch the elevator and fell." s Papers (CP)at 454. At trial, Dunne testified that
                                       Clerk'
this was what the witness had told him as well, and that the witness had not told him anything
else that was not reflected in his final report.
                                                        3
42720 6 II
      - -



that Grant Schweikart      was   trying   to    get   a   copy of the   report. Hill did not give any of the

Schweikarts a copy, but referred them instead to risk management, which also declined to

provide them the report.
II.      PROCEDURE


         In March    2006, the Schweikarts sued FHS for negligence. FHS moved for summary

judgment, arguing that it was not liable because it lacked actual or constructive notice of the

condition that caused Mrs. Schweikart's fall. In opposition, the Schweikarts claimed that "the

flooring where Helena Schweikart fell was unreasonably dangerous" and that "St. Joseph
Medical Center ...      had been notified that the flooring was unreasonably dangerous prior to Mrs.

Schweikart's fall."Clerk's       Papers (CP) at           31 32.
                                                             -     The trial court granted FHS's motion and

dismissed the negligence claim with prejudice.

         The   Schweikarts     moved      for    reconsideration.        In their motion, the Schweikarts

emphasized their spoliation of-
                            - evidence argument:

         Plaintiffs are entitled to a favorable inference or rebuttable presumption as to the
          actual existence of a liquid and its duration on the floor given the Defendants[]
         spoliation of the only independent eye-witness in this case who can testify directly
         to such a fact. Such an inference or presumption precludes summary judgment in
          this case as a matter of law.


CP at 91. The Schweikarts also claimed that the trial court had applied the wrong legal duty

when it treated the "presence of liquid"and not the flooring itself as the dangerous condition at
issue. CP at 91. FHS countered that there had been no spoliation of evidence because, among

other things, "the information [ the Schweikarts] claim was destroyed ( name and contact
information for     a   witness) was   never      obtained in the first      place."   CP at 118.   FHS also


maintained that the trial court had applied the correct actual or-
                                                               - constructive -notice standard

3
    After the Schweikarts filed this suit, the defendant produced the incident report.
                                                            4
42720 6 II
      - -




when it granted FHS summary judgment on the issue. The trial court granted the Schweikarts'

motion for reconsideration and set the matter for trial on the negligence claim, including the

spoliation issue.

        FHS sought discretionary review of the order granting the Schweikarts' motion for

reconsideration. On review, we reasoned that the Schweikarts' spoliation argument hinged on

whether Dunne was an FHS employee, and not an independent contractor, such that FHS had

control over the evidence. Schweikart v. Franciscan Health Sys.W.,
                                                               - noted at 149 Wn. App.

1038, 2009 WL 826227, at *2 3. Affirming the trial court's denial of summary judgment, we
                            -

held that material issues of fact existed as to Dunne's status and thus "the fact finder may infer

constructive notice if it determines that Dunne was an employee responsible for the spoliation of

evidence."Schweikart, 2009 WL 826227, at *3

        At trial, the Schweikarts' ergonomics expert, Dr. Gary Sloan, testified that he had tested

the slipperiness of the vinyl composite tile flooring at St. Joseph Medical Center in January

2007. Using a specialized cane like device, Sloan had measured the "slip index"of the flooring
                                -

when wet. Report of Proceedings (RP)Sept. 13, 2011) at 170. The measurements resulted in
                                    (

an average low number (less than 0. )that Sloan described as "equivalent to slipping on ice."
                                  2

RP (Sept. 13,    2011) at   214.   Sloan noted that he did not test the hospital flooring when dry

because "dry floors are almost always, in my experience, always slip -resistant." RP. Sept. 13,
                                                                                      (

2011)    at   213.   Sloan did, however, test some vinyl composite the he had bought for




4
    The trial court certified the matter for discretionary review under RAP 23( )(
                                                                            4).
                                                                              b
5
 At the time of Mrs. Schweikart's fall, Dunne was employed by Cognisa Security, with whom
FHS contracted for security services.
                                                   5
42720 6 II
      - -




measurements of its slip-
                        resistance when dry; the resulting high number (0.3) confirmed that it
                                                                         6

was slip-
        resistant.

         After the Schweikarts rested their case, FHS moved for judgment as a matter of law on

the negligence claim, arguing thatthe spoliation issue aside the Schweikarts had presented no
                                   —                         —

evidence that FHS had actual or constructive knowledge of the water on the floor that allegedly

caused Mrs. Schweikart to slip and fall. The trial court granted the motion. The case proceeded

to trial on the theory that constructive notice of the water on the floor should be attributed to FHS

for spoliation of evidence.

         The Schweikarts took exception to the court not giving their proposed jury instructions

13 and 15 on FHS's duty as premises owners and their proposed instruction 27 on spoliation.

6
    The Schweikarts' proposed instruction 13 reflected 6A WASHINGTON PRACTICE: WASHINGTON
PATTERN JURY INSTRUCTIONS: CIVIL 120. 6.at 17 (2011)WPI):
                                 01,0               (

                 An owner of premises owes to a business invitee a duty to exercise
         ordinary care for his or her safety. This includes the exercise of ordinary care to
         maintain in a reasonably safe condition those portions of the premises that the
         invitee is expressly or impliedly invited to use or might reasonably be expected to
         use.




CP at 264. The Schweikarts' proposed instruction 15 reflected WPI 120. 7,at 24:
                                                                     0

                 An owner of premises is liable for any physical injuries to its business
         invitees caused by a condition on the premises if the owner:
                 a) knows of the condition or fails to exercise ordinary care to discover the
         condition, and should realize that it involves an unreasonable risk of harm to such
         business invitees;
                 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 ordinary care to protect them against the danger.

CP at 266.

7
    The Schweikarts' proposed instruction 27 stated: "A party may be responsible for spoliation of
evidence without acting in bad faith." at 279.
                                     CP
                                                     6
42720 6 II
      - -



The Schweikarts also objected to the court's instruction 16, reflecting 6A WASHINGTON

PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 120. 6.at 20 (2011),
                                                      02,0               which

sets forth   a   landowner's   obligation   once   aware   of   a   dangerous   condition   on   the land.   The


Schweikarts did not object to the court's spoliation instruction. The Schweikarts also had no
objection to the court's special verdict form, which asked the jury to find, among other things,

whether any spoliation of evidence had occurred.

         By special verdict, the jury found that FHS had not spoliated evidence concerning Mrs.
Schweikart's fall.     Accordingly, the     trial court entered      judgment   for FHS. The Schweikarts


appeal.




8
    The court's instruction on spoliation—
                                         instruction 15—
                                                       stated:

                 Spoliation means the destruction of relevant evidence. When a party fails
          to produce relevant evidence without satisfactory explanation, you may infer that
          such evidence would be unfavorable to the party that failed to produce the
          evidence.
                  To determine if there is spoliation in this case, you may weigh (1)the
          potential importance or relevance of the missing evidence, and (2) culpability
                                                                           the
          or fault of the party that failed to preserve the evidence.
                   To determine the culpability or fault of the party that failed to preserve the
          evidence you may consider that party's 1)good or bad faith, 2)whether that
                                                     (                       (
          party had a duty to preserve the evidence, and (3) whether that party knew that the
          evidence was important to this pending litigation.
                  If you find spoliation, you may use that evidence only in determining
          whether to infer actual or constructive notice of a temporary unsafe condition.
          See Instruction No. 16). You may not use evidence of spoliation for any other
          purpose other than whether to infer actual or constructive notice to defendant of a
          temporary unsafe condition.

CP at 336.
                                                       7
42720 6 II
      - -



                                           ANALYSIS


I.     NEGLIGENCE


       The Schweikarts argue that the trial court erred by granting FHS's motion for judgment

as a matter of law on the negligence issue and by failing to properly instruct the jury. The jury

instructions properly reflected that Washington law continues to require a showing that the

landowner was or should have been aware of the specific dangerous condition that caused the

injury. Because no evidence was presented on how long the alleged spill had been on the floor

and because mere knowledge that the floors could become dangerous when wet is legally

insufficient to prove notice, we affirm.

       A.      Judgment as a Matter of Law

       We review judgment as a matter of law de novo and apply the same standard as the trial

court. Davis v. Microsoft Corp.,149 Wn. d 521, 530 31,70 P. d 126 (2003). Judgment as a
                                      2            -      3                "

matter of law is not appropriate if,after viewing the evidence in the light most favorable to the

nonmoving party and drawing all reasonable inferences, substantial evidence exists to sustain a

verdict for the   nonmoving party." Schmidt v. Coogan, 162 Wn. d 488, 491, 173 P. d 273
                                                             2                  3

2007).Substantial evidence is evidence sufficient to persuade a fair -
       "                                                             minded, rational person of
the truth of the declared premise." Corey v. Pierce County, 154 Wn. App. 752, 761, 225 P. d
                                                                                        3

367 (
    2010).

       The Schweikarts argue that it was error to grant FHS's motion for judgment as a matter

of law because it is for the jury to decide whether FHS exercised reasonable care in selecting the

flooring and discovering the spill. But it is clear under the law that, to prove negligence, the

Schweikarts were first required to prove that FHS knew or should have known of the condition
that caused the fall.

                                                3
42720 6 II
      - -



         As an initial matter, we must determine what the unsafe condition was that caused Mrs.

Schweikart's fall.     FHS maintains that the allegedly unsafe condition was the temporarily wet

flooring where Mrs. Schweikart fell. But the Schweikarts counter that the flooring itself, with its

propensity to become very slippery when wet,was the inherently unsafe condition.

         The plaintiff in Iwai v. State, 129 Wn. d 84, 97, 915 P. d 1089 (1996),
                                               2                2              made the similar

argument that the steep slope in the parking lot where she slipped and fell when the slope

became icy on a late November day was itself the inherently dangerous condition. But the court

rejected that argument:

          T] e alleged icy condition of [ efendant's]
           h                            d           parking lot on November 29, 1984,
         was not a continuous condition such that Defendants necessarily knew, or by the
         exercise of reasonable care should have known, of the danger's existence. The
         parking lot was sloped, so it could become dangerous when some amount of snow
         or ice accumulated on it. The parking lot did have a history of wintertime

         problems. However, the specific icy patch allegedly causing Plaintiff's fall was a
         temporary condition, and under the traditional position, Plaintiffs must show the
         specific and particular condition had existed long enough for Defendants to have
         become aware of it.


Iwai, 129 Wn. d at 97.
            2

         Much as the court reasoned in Iwai,the alleged wet condition of FHS's flooring on April

28, 2005, was not a continuous condition such that FHS necessarily knew, or by the exercise of

reasonable care should have known, of the danger's existence. The flooring was smooth vinyl

flooring   so   it could become   dangerous when some   amount of water   or   other   liquid was   on   it.




9
    Notably,the vinyl composite tile flooring was safely slip -resistant when dry.
                                                   9
42720 6 II
      - -




The flooring did have a history of some slips and falls when wet. The specific allegedly wet
patch causing Mrs. Schweikart's fall,however, was a temporary condition. Thus, the question is

whether the Schweikarts proved that FHS had notice of the condition.

         Relying on Iwai, the Schweikarts argue that either "a jury must decide whether a

landowner exercised reasonable care where it failed to discover a dangerous condition that

resulted in an invitee's death or serious injury," of Appellants at 16, or "a jury must decide
                                                 Br.

whether water being on the floor and causing the dangerous situation was reasonably

foreseeable."Br. of      Appellants   at 20.   But Iwai does not mandate either of these conclusions


here, and FHS correctly asserts that, under well -established Washington law, to prove liability,

the Schweikarts must show that FHS had actual or constructive notice of the particular patch of

allegedly wet flooring that caused Mrs. Schweikart's fall.

         In Iwai, the Washington Supreme Court noted that RESTATEMENT (SECOND)OF TORTS §§

343 and 343A provide "the appropriate standards for determining landowner liability to
invitees. "         2                      SECOND)OF TORTS § 343 states:
              129 Wn. d at 95. RESTATEMENT (


                A possessor of land is subject to liability for physical harm caused to his
         or her] invitees by a condition on the land if,but only if,he [or she]
                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




10 For example, FHS noted in its written motions in limine that it " as produced to plaintiffs 57
                                                                   h
Incident Reports of falls at St. Joseph during the period July 1, 2002 through June 2005,"    but
then   explained   that of all these falls   over   this four year   period, only   two falls —excluding   Mrs.
Schweikart's were attributable to a slippery floor inside the hospital. CP at 163.
               —
11
                  SECOND) OF TORTS § 343A, dealing with dangers on land that are known or
        STATEMENT .(

obvious to invitees, is not applicable here.
12
     Here,the parties do not dispute that Helena Schweikart was an invitee of FHS.
                                                         10
42720 6 II
      - -




                  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.

Iwai, 129 Wn. d at 93 94. The Iwai court also noted that Washington law requires a plaintiff to
            2         -

show that a landowner had actual or constructive notice of the unsafe condition on the premises.

129 Wn. d at 96 (citing Ingersoll v. DeBartolo, Inc.,123 Wn. d 649, 652, 869 P. d 1014
      2                                                    2                  2

1994)). plaintiff proves constructive notice by showing that "the specific unsafe condition
      A

had `existed for such time as would have afforded [the defendant] sufficient opportunity, in the

exercise of ordinary care, to have made a proper inspection of the premises and to have removed

the   danger. "' Iwai, 129 Wn. d at 96 (quoting Pimentel v. Roundup Co.,100 Wn. d 39, 44, 666
                             2                                                2

P. d 888 (1983)alteration in original)). " notice requirement insures liability attaches only
 2              (                      The

to owners once they have become or should have become aware of a dangerous situation."Iwai,

129 Wn. d at 96 97 (
      2         - citing Wiltse v. Albertson's Inc.,116 Wn. d 452, 453 54, 805 P. d 793
                                                          2            -        2

1991)).

         The Iwai court, however, pointed out that two exceptions to this notice requirement exist:

notice is not necessary if   a   specific unsafe   condition is "`   foreseeably inherent in the nature of the

business   or   mode of   operation, "' 129 Wn. d at 98 (quoting Wiltse, 116 Wn. d at 461), "[ f
                                              2                                2          or i]

the landowner caused the hazardous condition,"
                                             129 Wn. d at 102. The first of these exceptions
                                                   2

originated in Pimentel, where a paint can fell off a store shelf and onto the plaintiff's foot. 100

Wn. d at 41. In reversing a verdict for the defendant, the Pimentel court held that "where the
  2

operating procedures of any store are such that unreasonably dangerous conditions are

continuous or reasonably foreseeable, there is no need to prove actual or constructive notice of

such conditions in order to establish       liability   for   injuries caused by   them." 100 Wn. d at 40.
                                                                                                2




                                                        11
42720 6 II
      - -



                                                                13
This     holding, however, was     limited to the self-
                                                      service        areas of stores. Pimentel, 100 Wn. d
                                                                                                      2

at 49 50.
      -


           A hospital like St. Joseph Medical Centeris not a self -
                       —                            —             service establishment subject to

the Pimentel exception. See Kangley v. United States, 788 F.d 533, 534 (9th Cir. 1986) citing
                                                           2                           (

Pimentel but applying state law requiring notice of the unsafe condition that caused a slip and

fall in    an   army   hospital). Indeed, the Schweikarts do not attempt to. argue that the hospital is

such an establishment. Consequently, the facts concerning Mrs. Schweikart's fall in April 2005

are outside the ambit of the Pimentel exception. Further, the Schweikarts did not produce any,

evidence that FHS caused the flooring on which Mrs. Schweikart fell to,become wet. Therefore,

neither of the Iwai exceptions to the notice requirement applies and the Schweikarts must show

that FHS had actual or constructive notice of the unsafe condition occasioning Mrs. Schweikart's

fall.


           The spoliation issue aside, the Schweikarts did not produce any evidence that FHS knew

or should have known of a spill. Absent this evidence, the Schweikarts' claim on this issue fails,
                                                                                              15
and the trial court      properly granted   FRS's motion for   judgment   as a   matter of law.




13 "
       A self -
              service area is a location where `customers serve themselves, goods are stocked, and
customers handle the grocery items, or where customers otherwise perform duties that the
proprietor's employees customarily performed. "' Fredrickson v. Bertolino's Tacoma, Inc.,
                                                                                        131
Wn. App. 183, 191, 127 P. d 5 (2005) quoting O'onnell v. Zupan Enters.,Inc., Wn. App.
                         3            (           D                          107
854, 859, 28 P. d 799 (2001)). " service departments are areas of a store where customers
              3                 Self-
serve themselves. In such areas, where lots of goods are stocked and customers remove and

replace items, hazards are apparent. "' Coleman v. Ernst Home Ctr.,Inc., Wn. App. 213,
               `                                                       70
219, 853 P. d 473 (1993)quoting Wiltse, 116 Wn. d at 461).
           2              (                    2
14
  The Supreme Court subsequently confirmed that the Pimentel rule was limited to self -   service
areas.  Wiltse, 116 Wn. d at 461 62. Although four justices in Iwai sought to extend the rule
                        2           -
outside of self -
                service areas, their plurality opinion is not binding precedent. Fredrickson, 131
Wn. App. at 192.
                                                       12
42720 6 II
      - -



         B.      Jury Instructions

         J] instructions are sufficient if they allow the parties to argue their theories of the
          ury                              `

case, do not mislead the jury and, when taken as a whole; properly inform the jury of the law to

be   applied. "' Cox v. Spangler, 141 Wn. d 431, 442, 5 P. d 1265 ( 2000) quoting Hue v.
                                        2                3                (

Farmboy Spray Co., Wn. d 67, 92, 896 P. d 682 (1995)). " appeal, jury instructions are
                 127 2                2             On

reviewed de novo, and an instruction that contains an erroneous statement of the applicable law

is reversible error where it prejudices a party."Cox, 141 Wn. d at 442. "
                                                            2           An error is prejudicial

if it affects the outcome of the trial."Anfinson v. FedEx Ground Package Sys.,Inc.,
                                                                                  159 Wn.

App. 35, 44, 244 P. d
                  3             32 (2010). In   reviewing a trial court's discretion to give a particular

instruction, we will not overturn the decision unless it was manifestly unreasonable or based on

untenable     grounds   or   untenable   reasons.   Stiley v. Block, 130 Wn. d 486, 498, 925 P. d 194
                                                                           2                  2

1996);
     State ex rel. Carroll v. Junker, 79 Wn. d 12, 26, 482 P. d 775 (1971).
                                           2                2

         The Schweikarts argue that the trial court erred by failing to give their proposed

instructions on FHS's duty and by instead giving instruction 16. They argue that these errors

mislead [sic] the jury by giving them an incomplete view of the law." of Appellant at 29.
                                                                    Br.

Their    arguments      fail.     First, the Schweikarts' proposed instructions contain the same

foreseeability and reasonable care theories that we have rejected in the preceding discussion.
                              -

Second, instruction 16 properly and completely informed the jury of the applicable law.

         Instruction 16 stated:


                An owner of premises has a duty to correct a temporary unsafe condition
         of the premises that was not created by the owner, and that was not caused by
         negligence on the part of the owner, if the condition was either brought to the
         actual attention of the owner or existed for a sufficient length of time and under

is
     This ruling contemplated, however, that the Schweikarts could still establish constructive
notice through inference if the jury found spoliation.
                                                        13
42720 6 II
      - -



         such circumstances that the owner should have discovered it in the exercise of
         ordinary care.

CP at 337. The instruction imposed on FHS a duty to correct a temporary unsafe condition on its

premises if FHS had actual or constructive notice of that condition. And no direct evidence was

presented at trial indicating that any temporary unsafe condition was created by FHS or caused

by    FHS's   negligence. Accordingly, the trial court acted within its discretion in giving this

instruction and declining to give the two instructions on premises liability that the Schweikarts

proposed.

II.      SPOLIATION


         Finally, the Schweikarts assign error to the trial court's instructions on spoliation.

However, with one exception, the Schweikarts did not raise any of these claims of error at trial.

For instance, the Schweikarts argue that the trial court erred by giving instruction 15 on
                                                          16
spoliation    because that instruction misstated the law.      But, after the trial court gave the

Schweikarts the opportunity to object to this. instruction at trial, the Schweikarts did not do so.

We will not review these unpreserved arguments here. RAP 2. (
                                                         a).
                                                          5

         The only claim of error regarding jury instructions on spoliation that the Schweikarts

have preserved for appeal is their exception to the trial court's declining to give their proposed
instruction 27.     This instruction posited that "[ ]party may be responsible for spoliation of
                                                   a

evidence without acting in bad faith."CP at 279. The Schweikarts argue that by not giving this


16
  According to instruction 15, two of the factors the jury was to consider in finding spoliation
were (1) " potential importance or relevance of the missing evidence," (2) " culpability
        the                                                             and      the
or    fault of the party that failed to preserve the evidence." CP at 336.       We note as the
                                                                                         —
Schweikarts point outthat the court of appeals has used these two factors to determine not
                        —
whether spoliation occurred, but whether a rebuttable presumption sanction applies when
spoliation is already evident. See Henderson v. Tyrrell, 80 Wn. App. 592, 607, 609 11,910 P. d
                                                                                   -       2
522 (1996).
                                                 14
42720 6 II
      - -



instruction, the trial   court misstated the   law    on   spoliation.    Appellants' Br. at 43 ( citing

Henderson, 80 Wn. App. at 605; Homeworks Constr.,Inc. v. Wells, 133 Wn. App. 892, 900, 138

P. d 654 (2006) ( "[he Henderson opinion suggests that spoliation encompasses a broad range
 2              T]

of acts beyond those that are purely intentional or done in bad faith. It is possible, therefore, that

a   party may be responsible for spoliation without   a   finding of bad faith. ")citation omitted).
                                                                                   (


           We will not overturn a trial court's decision to omit an instruction unless that decision

was manifestly unreasonable or made on.
                                      untenable grounds or for untenable reasons. See Stiley,

130 Wn. d at 498; Junker, 79 Wn. d at 26.
      2                        2                     Here, the trial court's decision to not give this

instruction was proper. The trial court's instruction 15 on spoliationto which the Schweikarts
                                                                      —

did not object— id not dictate that bad faith was necessary to find spoliation; bad faith was only
              d

one of several factors the jury could consider in finding spoliation. Moreover, by not defining

spoliation as the intentional destruction of relevant evidence as it could havebut by
                                                               —               —
defining spoliation simply as the destruction of relevant evidence, the court's instruction did not

imply some requirement of bad faith. Rather, the court's instruction implied the substance of the

Schweikarts' proposed instruction, namely, that bad faith was not required to find spoliation.

The trial court's decision to omit the Schweikarts.' instruction, therefore, was not unreasonable

and did not result in a misstatement of the law.


           The trial court applied negligence law correctly in this case, which required the

Schweikarts to present evidence of how long the floor Mrs. Schweikart slipped on had been wet.

Because the Schweikarts did not produce this evidence, the trial court's judgment as a matter of

law and jury instructions were proper. Having failed to object to the trial court's instruction on

17
     See   Henderson, 80 Wn. App. at 605 (defining spoliation       as "` [   t] intentional destruction of
                                                                               he
evidence."' (
          quoting BLACK's LAw DICTIONARY 1401 ( 6th ed. 1990))emphasis added)
                                                               (
alteration in original)).
                                                     15
42720 6 II
      - -




spoliation,   the Schweikarts cannot now argue that it   was   improper.   And this instruction


adequately covered the Schweikarts' proposed instruction on spoliation that the trial court

declined to give. We affirm.

       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

040,
2.6.it is so ordered.
 0




I concur:




   t P.P. 9
   J.
   Hunt,/
          .
                       I/




                                              16
42720 6 II
      - -



          BJORGEN, J. concurring) —Although I agree with most of the majority's analysis, I
                       (


write separately because the Iwai plurality's reasoning for extending the Pimentel exception

beyond self -
            service operations is sound. Iwai v. State, 129 Wn. d 84, 915 P. d 1089 (1996);
                                                              2            2

Pimentel v. Roundup Co., Wn. d 39, 666 P. d 888 (1983).
                       100 2            2

          Pimentel, 100 Wn. d at 49 50,recognized an exception to the general rule that a
                          2         -

proprietor is liable to an invitee for an unsafe condition only if the condition was caused by the

proprietor or its employees or if the proprietor had actual or constructive notice of the condition.

Under that exception, the requirement to show actual or constructive notice is eliminated " nly if
                                                                                          o

the particular self -
                    service operation of the defendant is shown to be such that the existence of

unsafe conditions is reasonably foreseeable."Pimentel, 100 Wn. d at 50.
                                                             2

          In reaching its holding,Pimentel, 100 Wn. d at 46, noted case law examining injuries in
                                                  2

modern stores where customers serve themselves and concluded that " odern techniques of
                                                                  m

merchandising necessitate some modification of the traditional rules of liability."
                                                                                  The appeal

before it dealt with an injury in a Fred Meyer store, and the court confined its decision to that

situation: a store where customers serve themselves.


          The rationale for the court's holding, however, is broader. Pimentel, 100 Wn. d at 47 48,
                                                                                      2         -

rested its holding on the rule adopted by the Colorado Supreme Court in Jasko v. F.W.

Woolworth Co.,
             177 Colo. 418, 420 21,494 P. d 839 (1972), "`
                                -       2             that when the operating methods

of a proprietor are such that dangerous conditions are continuous or easily foreseeable, the

logical   basis for the notice   requirement dissolves. "' Pimentel, 100 Wn. d at 47 48 ( uoting
                                                                           2         - q

Jasko, 177 Colo. at 421. Thus, even though Pimentel constrained its holding to the facts before

it,the rule it consulted in reaching that holding has a much wider wingspan.



                                                     17
42720 6 II
      - -




       A Washington Supreme Court decision after Pimentel also suggests a broader

application. In Ingersoll v. DeBartolo,Inc., Wn. d 649, 654, 869 P. d 1014 (1994),
                                           123 2                  2              our

Supreme Court noted that

       self-service"is not the key to the [Pimentel] exception. Rather, the question is
       whether "
               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."


quoting Pimentel,    100 Wn. d at
                           2               49). Significantly, this recognition came after the court's

characterization of Pimentel as a limited rule for self service operations in Wiltse v. Albertson's
                                                        -

Inc., Wn. d 452, 461, 805 P. d 793 (1991).
    116 2                  2

       In Iwai,after reviewing case law and underlying policy,a plurality of four justices

decided to dispense with the self service requirement and, after Ingersoll, to ask whether "`
                                  -                                                        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. "'   Iwai, 129 Wn. d at 99 100
                                                                                          2         -

quoting Pimentel,. Wn. d at 49). the reasons above and those stated by the Iwai
                 100 2         For

plurality, this is the more fitting standard. Even though the advent of self -
                                                                             service stores decades

ago may have first illustrated the soundness of this standard, its rationale applies with equal force

to other establishments, such as hospitals.

       However, because the limitation of the Pimentel exception to self -
                                                                         service operations has

not yet been modified by the Supreme Court, I concur in the result.

                                                                                                    a


                                                                        BJORG J.




                                                            18
