          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

ANN P. GORES,
                                             No. 69819-2-1
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                    Plaintiff,                                                        Cj


                                             UNPUBLISHED OPINION


SAFEWAY, INC., a Delaware                    FILED: March 3, 2014
corporation,

                    Respondent/
                    Cross-Appellant.


       Becker, J. —The question in this slip-and-fall case is whether the self-

service exception to the requirement of notice applies when a shopper slips on

egg whites spilled in the dairy aisle of a Safeway grocery store. We conclude the

exception does not apply. The plaintiff raises no issue of material fact that would

have put Safeway on notice of the egg whites. The trial court properly granted

summary judgment to Safeway.

       Summary judgment is proper if no genuine issue of material fact remains

and the moving party is entitled to judgment as a matter of law. CR 56(c); Tavai

v. Walmart Stores. Inc., 176 Wn. App. 122, 127, 307P.3d811 (2013). To obtain

summaryjudgment, the moving party must first show the absence of an issue of
No. 69819-2-1/2



material fact. Ingersollv. DeBartolo. Inc.. 123 Wn.2d 649, 654, 869 P.2d 1014

(1994). This court's review is de novo, and we construe all facts and reasonable

inferences in the light most favorable to the nonmoving party. Tavai. 176 Wn.

App. at 127 (citations omitted).

       The plaintiff, Ann Gores, visited a Bellevue Safeway to buy a few grocery

items on December 2, 2010. According to her declaration, Gores walked down

the store's dairy aisle to pick up a carton of eggs. Along one side of the aisle

was a large cooler with perishable products like eggs, yogurt, and cheese, and

on the other side was a large freezer with ice cream and other frozen goods.

After putting a carton of eggs in her shopping basket, Gores turned to walk away,

slipped, and fell. According to Gores, she fell hard on both knees. While on the

floor, she noticed puddles of a clear liquid. Edward Perry, another shopper in the

dairy aisle, offered to help Gores stand up. She managed to get up on her own.

       Gores picked up another item or two before heading to the check-out

stand. There, she reported her fall to a cashier and told her about the liquid on

the floor. The cashier summoned the store's assistant manager, Casey

Henrickson. Gores told Henrickson about the fall, gave her contact information,

and pointed to Perry, the shopper who had seen her on the ground and was then

at the check-out stand. Store employees helped Gores to her car with her

groceries. Shortly after Gores reported her fall, store personnel took

photographs of the area where Gores fell. Safeway produced the photographs in

discovery, which included a picture of an egg carton that was out of place.

       Gores claims that after she returned home, her knees began to swell,
No. 69819-2-1/3



throb, and stiffen. Tests done by an orthopedist showed Gores had torn the

meniscus in both knees. Gores had physical therapy and injections to her knees

for nearly a year and eventually had to have surgery on both knees.

       Gores sued Safeway for negligence. In November 2012, Safeway

successfully moved for summary judgment. Gores appeals.

       The duty to exercise reasonable care to protect business invitees from

harm is triggered upon the invitee's showing that the owner of the premises had

actual or constructive notice of the hazardous condition. O'Donnell v. Zupan

Enters.. Inc.. 107 Wn. App. 854, 858, 28 P.3d 799 (2001), review denied, 145

Wn.2d 1027 (2002). Constructive notice arises where a condition has existed for

such time as would have afforded the proprietor sufficient opportunity, in the

exercise of ordinary care, to inspect the premises and remove the danger.

Inqersoll, 123 Wn.2d at 652. Ordinarily, it is a question of fact for the jury

whether, under all of the circumstances, a defective condition existed long

enough so that an owner exercising reasonable care would have discovered it.

Fredrickson v. Bertolino's Tacoma. Inc.. 131 Wn. App. 183, 189, 127 P.3d 5

(2005). review denied. 157 Wn.2d 1026 (2006).

       The store manager, Patricia Johnson, testified that employees inspect or

"sweep" (i.e., "view") the store, including the aisles, about every half-hour. Gores

has not introduced evidence that Safeway's inspection routine is inadequate.

There is no basis for submitting the issue of constructive notice to a jury unless

there is "some evidence from which it could infer" that the routine inspections

were not adequate because the particular risk required greater vigilance. Carlvie
No. 69819-2-1/4



v. Safeway Stores. Inc.. 78 Wn. App. 272, 278, 896 P.2d 750, review denied. 128

Wn.2d 1004 (1995).

       Gores contends, however, that she raised a genuine issue of material fact

concerning constructive notice by showing that Safeway committed spoliation of

evidence. Safeway did not preserve surveillance camera footage or handwritten

"sweep" logs, temporary sign-off sheets from the time period in question. She

claims Safeway's motion for summary judgment should have been denied as a

sanction for spoliation, citing Pier 67. Inc. v. King County. 89 Wn.2d 379, 385-86,

573P.2d2(1977).

       Spoliation is the intentional destruction of evidence. Henderson v. Tyrrell.

80 Wn. App. 592, 605, 910 P.2d 522 (1996). In deciding whether to apply a

spoliation inference, this court uses two general factors: (1) the potential

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

the adverse party. Henderson, 80 Wn. App. at 607. None of the store

surveillance cameras covered the area where Gores fell. See Tavai. 176 Wn.

App. at 135-36. And Safeway had no duty to keep the handwritten logs, which

were merely temporary assignment sheets that were compared to inspections

that are logged in by time clock to create Safeway's official record of inspections.

The time clock evidence was available, and it showed that a Safeway employee

inspected the aisle about 10 minutes before Gores' fall. In any event, there is no

basis for a finding that Safeway intentionally destroyed the handwritten sheets.

We reject Gores' argument that an adverse inference must be drawn from

Safeway's handling of evidence.
No. 69819-2-1/5



      Gores testified that Debbie Getz, Safeway's risk management

representative, contacted her soon after the fall and told her that a security video

showed Safeway had swept the floor 10 minutes before her fall. Gores contends

this statement supports her spoliation claim because it undermines Safeway's

claim that there was no relevant surveillance camera footage. We disagree.

Gores does not rebut the actual evidence showing that the store security

cameras were not pointed at the location where she fell.

       Getz is the adjuster who investigated the claim on behalf of Safeway.

Gores took her deposition and obtained information about what Getz had done to

locate evidence and comply with Gores' discovery requests. Gores then gave

notice that she wanted to depose Getz a second time. The trial court granted

Safeway's request for a protective order which prevented Gores from taking a

second deposition of Getz. Gores contends this order was an abuse of

discretion and that it unfairly prevented her from asking Getz about the

statements she allegedly made to Gores disclaiming Safeway's liability and

repeating what witnesses told her. This argument is without merit. Getz was

merely an adjuster; she had no personal knowledge about the events that

allegedly created liability for Safeway. Gores fails to show that Getz had relevant

evidence to offer that would have justified a second deposition.

       Some of the evidence Safeway relies on was presented to the trial court in

a declaration ("Second Declaration of Patricia Johnson") accompanying its reply

on summaryjudgment. Gores contends the trial court abused its discretion by

denying Gores' motion to strike that declaration. We disagree. Filing of rebuttal
No. 69819-2-1/6



evidence is allowed by CR 56. The declaration did not raise a new issue. The

declaration was responsive to the spoliation argument raised in Gores' response

brief. See White v. Kent Med. Ctr.. Inc.. 61 Wn. App. 163, 168, 810 P.2d 4

(1991).

       In summary so far, Gores does not create an issue of material fact

showing that Safeway had actual or constructive notice that there were egg

whites on the floor at the time of Gores' visit. The question, therefore, is whether

the facts of this case bring it within an exception to the notice requirement

provided in Pirnentel v. Roundup Co.. 100 Wn.2d 39, 666 P.2d 888 (1983). The

plaintiff need not prove notice "when 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." Pirnentel, 100 Wn.2d at 49. This is the so-

called "self-service" or Pjmentel exception. O'Donnell. 107 Wn. App. at 858. The

rationale for the rule is 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.'" Pirnentel. 100 Wn.2d at 47-48, quoting

Jasko v. F.W. Woolworth Co.. 177 Colo. 418, 420-21, 494 P.2d 839 (1972).

Gores contends the Pirnentel exception applies and precludes summary

judgment.

       "The Pirnentel exception is a narrow one, limited to specific unsafe

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

operations." Armentv. Kmart Corp., 79 Wn. App. 694, 698, 902 P.2d 1254

(1995) (exception did not apply to drink spilled in the menswear department.)
No. 69819-2-1/7



Where Pirnentel applies, the law charges the proprietor with actual knowledge of
the foreseeable risks inherent in the self-service mode of operation. But

Pirnentel does not apply to the entire area of a store in which customers serve

themselves; there must be a relation between the hazardous condition and the

business' self-service mode of operation. Carlvie. 78 Wn. App. at 277.

       In Carlvie. the plaintiffslipped on shampoo spilled in the coffee section of

a Safeway. The court affirmed summary judgment because unsafe conditions

were not reasonably foreseeable in the area where the customer fell. The

plaintiff failed to produce evidence to justify application of Pirnentel. "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." Carlvie. 78 Wn. App. at 277; see

also Wiltse v. Albertson's. Inc.. 116 Wn.2d 452, 459-60, 805 P.2d 793 (1991) (no

liability for store where plaintiff slipped and fell on water that came from a leak on

the store's roof). The Pirnentel exception did not apply to a slip-and-fall on ice

cream spilled in the common area of the Tacoma Mall, Ingersoll. 123 Wn.2d at

653-55, or to a slip-and-fall on water 15 feet from a check-out counter, Tavai. 176

Wn.App. 122.

       In O'Donnell. the court did apply the Pirnentel exception to excuse the

plaintiff from proving that the grocery store where she slipped had knowledge of

the hazardous condition that led to her injury. In that case, the plaintiff slipped

and fell on a piece of produce that was on the floor in the check-out aisle. There

was evidence that it is not unusual for items such as grapes and blueberries to

fall on the floor while the customers unloaded their items from their carts onto the
No. 69819-2-1/8



conveyor belt at the check-out stand. O'Donnell. 107 Wn. App. at 857.

       This case is not like O'Donnell. Gores posits that customers sometimes

open egg cartons to inspect the eggs, creating the risk that eggs will fall on the

floor and break. But she has produced no evidence that the risk is recognized,

and no facts from which a jury could determine that the risk is reasonably

foreseeable as a consequence of the way the store displays eggs.

       Gores did submit the declaration of Tom Baird, a floor safety technician.

He testified that Safeway could have put an absorbent mat down as some stores

do. Gores claims that the trial court erred by striking Baird's declaration. "In the

context of a summary judgment motion, an expert must support his opinion with

specific facts, and a court will disregard expert opinions where the factual basis

for the opinion is found to be inadequate." Rothweiler v. Clark County. 108 Wn.

App. 91, 100. 29 P.3d 758 (2001). review denied. 145Wn.2d 1029(2002).

Baird's declaration offered legal advice, was conclusory, and had an inadequate

factual basis. The court properly refused to consider it.

       As the trial court observed, allowing customers to pick up their own

cartons of eggs is different from setting up a self-serve soup station. "Otherwise,

you would be saying, 'Well, we know people drop things when they take them off

the shelf, so, therefore, Pirnentel would apply in every case.' And it clearly

doesn't."

       We conclude the trial court properly granted summary judgment to

Safeway. In view of our conclusion, it is unnecessary to address Safeway's

cross appeal and Safeway's objection to Gore's reply brief.

                                          8
No. 69819-2-1/9




      Affirmed.




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WE CONCUR:




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