      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



DEANNE ALVAREZ,                                       No. 69434-1-1


                    Appellant,    )                   DIVISION ONE
                                  )
          v.                      )
                                  )                                                  §   "3
WAL-MART STORES, INC., a Delaware )                   UNPUBLISHED
corporation doing business in the state     )
of Washington,                              )         FILED: February 10, 2014 o         ^3
                                            )
                     Respondent.

                                                                                     3rx:


      Cox, J. — Deanne Alvarez appeals the summary dismissal of her

premises liability claim against Wal-Mart Stores Inc. Because Alvarez fails in her
burden to show the existence of any genuine issue of material fact, we affirm.

       In March 2008, Alvarez went to a Wal-Mart store in Lynnwood with her

mother and daughter. While in the health and beauty department, Alvarez

slipped and fell on what she described as a "white, thick creamy-like substance,"
which appeared to be "hair conditioner or lotion-like product."

       Alvarez testified that before and after her fall she did not see any other

customers or store employees in the aisle where she fell.

       After she fell, Alvarez found a seat in the pharmacy department. She

testified that a man, who identified himself as a manager, talked to her while she
No. 69434-1-1/2


was there, and she told him about her fall. She further testified that the man

called for a cleanup in the aisle where she fell, but she was not able to see the

cleanup from where she was sitting. Alvarez then completed an accident report.

       Alvarez commenced this personal injury action for negligence against

Wal-Mart for injuries caused by the fall. Wal-Mart moved for summary judgment,

arguing that it did not have actual or constructive notice of the alleged unsafe

condition, that an exception to notice did not apply in this case, and that it met its

duty to use reasonable care to maintain the safety of the premises. Ultimately,

the trial court granted Wal-Mart's motion.

       Alvarez appeals.

                                       NOTICE

       Alvarez argues that the trial court should not have dismissed her claim

because of lack of notice. First, Alvarez argues that there is a genuine issue of

material fact whether Wal-Mart had actual or constructive notice of the allegedly

unsafe condition. Second, she argues that she did not need to prove that Wal-

Mart had notice of the condition because the "self-service exception" to notice

applies. We disagree with both arguments.

       This court reviews a grant of summary judgment de novo, undertaking the

same inquiry as the court.1 Summary judgment is proper if, viewing the facts and
reasonable inferences most favorable to the nonmoving party, no genuine issue




       1 Jones v. Allstate Ins. Co.. 146 Wn.2d 291, 300, 45 P.3d 1068 (2002).
No. 69434-1-1/3


of material fact exists and the moving party is entitled to judgment as a matter of

law.2

        The moving party has the initial burden to show that there is no genuine

issue as to any material fact.3 If the moving party satisfies its burden, only then
does the burden shift to the nonmoving party to present evidence that material

facts are in dispute.4 "If the nonmoving party fails to do so, then summary
judgment is proper."5

        To prevail on a negligence claim, a plaintiff must prove duty, breach,

causation, and injury.6 For a premises liability action, a land possessor's duty of
care is governed by the entrant's common law status as an invitee, licensee, or

trespasser.7
        Here, the parties agree for the purpose of summary judgment that Alvarez

was a business invitee. Thus, Wal-Mart owed a duty to exercise "reasonable

care" and "inspect for dangerous conditions, 'followed by such repair,




        2CR 56(c); Versuslaw, Inc. v. Stoel Rives. LLP. 127 Wn. App. 309, 319,
111 P.3d 866 (2005).

        3 Hiatt v. Walker Chevrolet Co.. 120 Wn.2d 57, 66, 837 P.2d 618 (1992).

        4 Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109
P.3d 805 (2005).

        5k±

        6 Tincani v. Inland Empire Zoological Soc, 124Wn.2d 121, 127-28, 875
P.2d621 (1994).

        7 Id. at 128.
No. 69434-1-1/4


safeguards, or warning as may be reasonably necessary for [the invitee's]

protection under the circumstances.'"8
                           Actual or Constructive Notice


       Alvarez argues that there are genuine issues of material fact whether Wal-

Mart had actual or constructive notice of the allegedly unsafe condition. We

disagree.

       In order for a possessor of land to be liable to an invitee for an unsafe

condition on the land, the possessor must have actual or constructive notice of

that condition unless an exception applies.9 Actual notice requires proof that the
condition was brought to the possessor's attention.10 Constructive notice is
measured by whether the possessor had "sufficient opportunity, in the exercise of

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

removed the danger."11 Ordinarily, the length oftime the dangerous condition
persisted is central to the constructive notice inquiry.12
       In Carlvle v. Safeway Stores Inc., Division Three of this court considered

whether there was a genuine issue of material fact regarding notice.13 There,


       8 Id at 139 (alteration in the original) (quoting Restatement (Second) of
Torts § 343, cmt. b).

       9 Pimentel v. Roundup Co., 100 Wn.2d 39, 44, 666 P.2d 888 (1983).

       10 JU
       11JcL
       12 See, e.g., Carlvle v. Safeway Stores, Inc.. 78 Wn. App. 272, 275, 896
P.2d 750 (1995).

       13 78 Wn. App. 272, 275, 896 P.2d 750 (1995).
                                              4
No. 69434-1-1/5


Jeanne Carlyle slipped and fell on "a quarter-sized spot of shampoo" in the

coffee section of a Safeway store.14 The court concluded that Carlyle failed to
present evidence to prove that Safeway had notice ofthe spilled shampoo.15
"[Tjhere was no evidence the spill had been on the floor for a long enough time to

afford Safeway a sufficient opportunity, in the exercise of ordinary care, to have

made a proper inspection and to have removed the hazard . . . ,"16
       Here, the same type of evidence is missing. Alvarez does not point to

evidence that Wal-Mart had actual notice. Rather, Alvarez argues that Wal-Mart

had constructive notice. To support this argument, she points to her testimony

that she did not see any employees near the dangerous condition immediately

before her fall and approximately 30 to 45 minutes after her fall. But this

testimony does not address the length of time that the condition may have

persisted before her fall. Rather, this testimony mainly focuses on the period of

time after the fall.

       Like Carlvle. there was no evidence that the condition had been on the

floor for a long enough time to afford Wal-Mart "a sufficient opportunity, in the

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

removed the hazard."17 In the absence of such evidence, she has failed to


        14
             14 at 274.
        15
             JU at 275.

        16
             Id.

        17
             Id.
No. 69434-1-1/6


establish that Wal-Mart was on constructive notice of the condition that allegedly

caused her injury.

       In sum, Alvarez fails to point to any evidence that establishes a genuine

issue of material fact regarding either actual or constructive notice.

       Alvarez argues that the supreme court's "analysis of constructive notice" in

Schmidt v. Cooqan is "directly on point in this case."18 But that case is
distinguishable.

       In Schmidt, the supreme court briefly considered whether Schmidt failed to

prove all of the elements of an underlying premises liability claim for a legal

malpractice action.19 The court concluded that there was sufficient evidence to
show "[wjhether a defective condition existed long enough so that it should have

reasonably been discovered."20 The evidence showed "that the spill was visible
to employees from the cash registers and that during the time [Schmidt] was at

the checkout stand, none of the store employees made any effort to clean it

up."21 "In addition, there was evidence that preceding the fall the aisle was clear
of other customers who might have recently caused the spill."22




       18 Appellant's Opening Brief at 34 (citing Schmidt v. Coogan, 162Wn.2d
488, 173 P.3d 273 (2007)).

       19 Schmidt, 162 Wn.2d at 492.

       20ldL
       21 Id,
       22 Id.
No. 69434-1-1/7


      While Alvarez and her daughter testified that they did not see any

customers or employees in the aisle where she fell, this alone is not enough.

There was no other evidence to establish the length of time the condition

persisted, and there was no evidence that Wal-Mart employees could have easily

seen the condition. The absence of this type of evidence distinguishes this case

from Schmidt.23

      As a final note, Alvarez argues that she was "not required to be on vigilant

watch for substances on the floor."24 "To the extent Wal-Mart contends

otherwise, there is an issue of material fact concerning whether she could have

discovered or anticipated the danger posed by the substance on the floor."25
While this may be true, as Wal-Mart points out, it did not make arguments

regarding contributory negligence in its motion for summary judgment. Rather,

summary judgment was proper because Alvarez fails to establish a genuine

issue of material fact with respect to notice. Thus, this argument is not helpful.

                         Self-Service Exception to Notice

      Alvarez also argues that Wal-Mart did not need to have notice of the

condition because of Pimentel v. Roundup Co.'s self-service exception.26 We

again disagree.



       23 See id.

       24 Appellant's Opening Brief at 42-44.
       25
            Id. at 44.

       26 Appellant's Opening Brief at 40-42 (citing Pimentel v. Roundup Co., 100
Wn.2d 39, 666 P.2d 888 (1983)).
No. 69434-1-1/8



       Under Pimentel, there is a narrow exception to the notice requirement

"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."27 In such cases, the defendant is deemed to be on notice that

hazards will occur in the normal course of business.28 Accordingly, a plaintiff can
show negligence by demonstrating that the defendant failed to engage in

"periodic inspections with the frequency required by the foreseeability of risk."29
       Courts have declined to extend this exception to cases not directly related

to a store's "self-service mode of operation."30 "'Self-service departments are
areas of a store where customers service themselves. In such areas, where lots

of goods are stocked and customers remove and replace items, hazards are

apparent.'"31 But the exception does not necessarily apply to all areas where
customers serve themselves.32 It only applies to those areas where risk of injury

is "'continuous or foreseeably inherent in the nature of the business or mode of




       27 Pimentel, 100 Wn.2d at 49.

       28 Wiltse v. Albertson's. Inc.. 116 Wn.2d 452, 461, 805 P.2d 793 (1991).

       29 Id

       30 See, e.g.. id.

       31 Ingersoll v. DeBartolo. Inc., 123 Wn.2d 649, 653, 869 P.2d 1014 (1994)
(internal quotation marks omitted) (quoting Coleman v. Ernst Home Ctr.. Inc.. 70
Wn. App. 213, 218-19, 853 P.2d 473 (1993)).

       32]d\

                                             8
No. 69434-1-1/9


operation.'"33 The plaintiff has the burden of proving that his or her case falls
within this narrow exception.34
       In Carlvle, Division Three also concluded that the Pimentel self-service

exception did not apply where Carlyle slipped and fell on shampoo in the coffee

section of a Safeway store.35 The court explained that Carlyle "failed to produce
any evidence from which it could reasonably be inferred that the nature of

Safeway's business and its methods of operation are such that unsafe conditions

are reasonably foreseeable in the area in which she fell."36 "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."37 But something more is needed.38 The plaintiff
must show that there is "a relation between the hazardous condition and the self-

service mode ofoperation of the business."39
       Here, Alvarez fails to meet her burden. She argues that the "very nature"

of the health and beauty department satisfies the requirements of this exception.

She asserts that the "health and beauty section of a self-service store contains

more lotions, creams, gels and oils than any other section of the store." She


       33lg\ (quoting Wilste. 116 Wn.2d at 461).

       34 Id, at 654.
       35 Carlvle, 78 Wn. App. at 274.

       36 jd, at 277.

       37 jd,
       38 Id.

       39 Id.
No. 69434-1-1/10


contends that it "defies common sense to suggest that the hazard encountered

by Ms. Alvarez in the health and beauty department was not reasonably

foreseeable" given the type of products stocked in this department.

       But Alvarez does not provide any evidence to support her bald assertion

that the health and beauty department "contains more lotions, creams, gels and

oils than any other section of the store." Other departments in the store can

conceivably contain just as many containers of liquids and would not necessarily

fall within this exception.

       More importantly, the fact that Wal-Mart stocks containers of liquids in its

health and beauty department is not enough to invoke the exception.40 Rather, it
is the relation between the unsafe condition and the self-service mode of

operation that is critical. And, like the plaintiff in Carlvle. Alvarez fails to establish

this nexus.41

       During oral argument, Alvarez cited a recent Division Two case that

discussed the Pimentel self-service exception. In Tavai v. Walmart Stores Inc.,

Division Two concluded that the exception did not apply because Avrilirene Tavai

failed to produce evidence to show that there was a "relation between a self-

service mode of operation at Walmart and the wet floor she slipped on."42 The
court explained that "[w]hile Tavai presented evidence that other people slipped

in the store in the past, she did not provide evidence that other people slipped in


       40 Id.

       41 kL
       42 176 Wn. App. 122, 131, 307 P.3d 811, 816(2013).

                                                10
No. 69434-1-1/11


the particular area she slipped in. "43 The court stated that this evidence was

inadequate.44

       Similarly, Alvarez points to the fact that Wal-Mart stated that the spill was

likely caused by a customer. She also highlights that Wal-Mart admitted that

there had been previous spills in the health and deputy department, which

caused people to fall. But, as Wal-Mart points out, during a three-year period,

"there were only two reported slip-and-fall accidents in the health and beauty

section" in that particular store. Only one of those falls was due to a health and

beauty product spill. The other fall was due to a "chocolate smear." This

evidence is not enough to show "'that the unsafe condition in the particular

location ofthe accident was reasonably foreseeable.'"45
       Additionally, Alvarez argues that Tavai emphasizes the importance of the

location of the spill. She contends that the spill in this case was reasonably

foreseeable because she fell on a shampoo-like substance in the shampoo aisle.

But, as previously discussed, this allegation does not address how the mode of

operation in the health and beauty department made the spill reasonably

foreseeable. The mere fact that this department sells liquids, creams, gels, and

oils is insufficient to meet the requirements of the exception.




       43]dLat132.

       44 \±

       45 ]d. (quoting Armentv. Kmart Corp.. 79 Wn. App. 694, 698, 902 P.2d
1254(1995)).


                                             11
No. 69434-1-1/12



       Because Alvarez fails to prove that the Pimentel self-service exception

applies in this case and fails to point to evidence that creates a genuine issue of

material fact regarding actual or constructive notice, the trial court properly

dismissed Alvarez's claim. Any factual issues for the other elements of a

negligence claim are not material for summary judgment purposes.

                               REASONABLE CARE

       Alvarez also argues that there is a genuine issue of material fact whether

Wal-Mart exercised reasonable care to prevent her injury. We need not reach

this argument because Alvarez fails to show the existence of any genuine issues

of material fact with respect to notice.

       We affirm the order granting summary judgment.



                                                           6&AA
WE CONCUR:




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