 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 SAMUEL TESSEMA, an individual,
                                                No. 77189-2-1
                     Appellant,
                                                DIVISION ONE
              V.
                                                UNPUBLISHED OPINION
 MACMILLAN-PIPER, INC., a
 corporation,

                     Respondent

 JOHN and JANE DOES 1 — 10,
 INDIVIDUALS; and ABC, DEF, GHI,
 and KJL CORPORATIONS,

                     Defendants.                FILED: October 22, 2018


      APPELWICK, C.J. — Tessema brought a negligence action against

MacMillan-Piper, seeking to recover for injuries he suffered when he slipped and

fell on a metal staircase at a MacMillan-Piper facility. Tessema argues that the

trial court erred in granting summary judgment dismissal. He asserts that the

staircase was in an unsafe condition due to code violations and ice and that

MacMillan-Piper had notice of the unsafe condition. We reverse.

                                        FACTS

      Samuel Tessema is a self-employed truck driver who has worked as an

independent contractor for MacMillan-Piper, Inc. since 2006. Five days a week,

he moves shipping containers between one of MacMillan-Piper's four facilities and
No. 77189-2-1/2


the port. Most of the time, he moves containers between the Airport Way Facility

and the port. At the facility, he uses a metal staircase to walk up to dispatch. The

staircase has been at the facility for about six or seven years. Since MacMillan-

Piper placed the staircase, Tessema has used it every day.

       On the morning of November 24, 2014, Tessema had just received his

second dispatch and had started walking down the staircase for the second time

that morning. While descending, his left foot slipped on the third from the last step

and he fell, causing injury. No one observed the fall. Tessema had not fallen on

the staircase prior to this incident.

       On December 9, 2014, about two weeks after his fall, Tessema sought

medical treatment at a clinic.

       On July 29, 2016, Tessema filed a negligence claim against MacMillan-

Piper. In his complaint, he alleged MacMillan-Piper breached its duty of care by

failing to maintain its premises in a safe condition—namely,"the unstable stairway

on the loading dock." As a result of MacMillan-Piper's negligence, Tessema

alleged he suffered injury.

       During Tessema's deposition, he offered the following testimony about ice

on the staircase:

               Q. Were the stairs slippery?

               A. There is ice. The day there is ice.

               Q. There was ice on the stairs?

              A. I didn't see before, you know, slippery. I slipped from the
       stairs. I don't remember after that.



                                              2
No. 77189-2-1/3

              Q. Okay. So are you saying you don't know if there was ice
       on the stairs?

              A. Yeah.

              Q. So you're not sure what made your foot slip?

              A. Yes.
Later, when asked if he thought that ice contributed to his foot slipping, Tessema

responded,"Yes."

       Tessema also offered the following testimony about why he thought his foot

slipped:

       At the moment, you know, I'm going to go to my truck, I'm trying to
       get to the front. I don't know if this is ice on the top of that or
       something else. After the incident when I see, even the stairs is
       shaking.

When asked if he noticed the stairs shaking before his fall, he responded, "No, I

don't know." When asked if he thought the stairs shaking contributed to his fall, he

responded, "I think so."

       MacMillan-Piper filed a motion for summary judgment dismissal of

Tessema's negligence claim. It argued that there was no evidence of an unsafe

condition on the stairs where Tessema fell and no evidence that it had actual or

constructive notice of an unsafe condition. In support of its motion, MacMillan-

Piper relied on Tessema's deposition testimony, a declaration by John Odland,

vice president of MacMillan-Piper, climatological records showing that the low

temperature at Boeing Field the day Tessema fell was 39 degrees, and Tessema's

driver log.




                                            3
No. 77189-2-1/4


       Tessema opposed the motion, relying on his own deposition, his medical

records, MacMillan-Piper's answers to his interrogatories, an expert report by Dr.

Daniel Johnson, and a declaration by Tony Barter, MacMillan-Piper's former

logistics manager. In Barter's declaration, he stated that he "saw ice on the stairs"

the day Tessema fell, and that Tessema told him "he fell because the stairs were

slick, icy and wobbly." Barter also stated that Joe Fisher, MacMillan-Piper's former

Warehouse Manager, poured rock salt on the stairs "approximately 20 to 30

minutes after Samuel's fall."

       After a hearing on the motion, the trial court excluded two pieces of

evidence as inadmissible hearsay. First, it excluded Barter's statement that

Tessema told him "he fell because the stairs were slick, icy and wobbly." Second,

it excluded Tessema's statement to an advanced registered nurse practitioner

(ARNP) that he slipped on ice. The ARNP who treated Tessema stated he told

him that he "slipped on ice and fell on his L[eft] hand outstretched."

       Next, although the court accepted the statements in Dr. Johnson's report, it

did not accept his conclusions. It stated that his conclusions were unsupported

"by the reports that are provided in these materials." The trial court found that his

report did not rise to the level of creating a question of fact in the case.

       And, the trial court found that although there "could be a triable issue as to

whether there was ice," a jury would not be able to conclude that MacMillan-Piper

had notice of ice on the stairs. The court based this conclusion on Barter's timing,

the timing of the fall, Mr. Odland's testimony about the number of people using the

staircase that day,"Tessema's use of the staircase earlier that day, and the


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No. 77189-2-1/5


absence of anyone reporting issues prior to Tessema's fall. The trial court granted

summary judgment in favor of MacMillan-Piper, dismissing Tessema's claim.

      Tessema appeals.

                                  DISCUSSION

      Tessema makes two main arguments. First, he argues that the trial court

erred in granting summary judgment, because he presented evidence that

MacMillan-Piper's code violations and ice on the staircase created an unsafe

condition.   Second, he argues that sufficient evidence exists to support an

inference that MacMillan-Piper had actual and constructive notice that the

staircase was in an unsafe condition.

      This court reviews summary judgment orders de novo. Hadley v. Maxwell,

144 Wn.2d 306, 310-11, 27 P.3d 600 (2001). Summary judgment is appropriate

only where there are no genuine issues of material fact and the moving party is

entitled to judgment as a matter of law. CR 56(c); Peterson v. Groves, 111 Wn.

App. 306, 310, 44 P.3d 894 (2002). When considering the evidence, the court

draws reasonable inferences in the light most favorable to the nonmoving party.

Schaaf v. Hiqhfield, 127 Wn.2d 17, 21, 896 P.2d 665(1995).

      Evidentiary rulings are ordinarily reviewed for abuse of discretion. Momah

v. Bharti, 144 Wn. App. 731, 749, 182 P.3d 455 (2008). However, this court

reviews de novo all trial court rulings made in conjunction with a summary

judgment motion. Id.

      To establish a cause of action for negligence, a plaintiff must demonstrate

that (1) the defendant owed the plaintiff a duty, (2) the defendant breached that


                                            5
No. 77189-2-1/6


duty, (3) damages resulted, and (4) the defendant's breach proximately caused

the damages. Tincani v. Inland Empire Zoological Soc'y, 124 Wn.2d 121, 127-28,

875 P.2d 621 (1994). The threshold determination of whether the defendant owes

a duty to the plaintiff is a question of law. Id. at 128. In premises liability actions,

a person's status, based on the common law classifications of persons entering

upon real property (invitee, licensee, or trespasser), determines the scope of the

duty of care owed by the possessor(owner or occupier) of that property. Id. Here,

the parties agree that Tessema was a business invitee.

       An owner is liable for harm to business invitees if he or she (1) knows of, or

by the exercise of reasonable care would discover, a condition presenting an

unreasonable risk of harm;(2) should expect that invitees would not discover the

danger or would fail to protect themselves from it; and (3) fails to exercise

reasonable care to protect invitees against the danger. lwai v. State, 129 Wn.2d

84, 93-94, 915 P.2d 1089 (1996). To demonstrate knowledge of an unsafe

condition, an invitee plaintiff must show that a proprietor caused the condition or

had actual or constructive notice of it. Coleman v. Ernst Home Ctr., Inc., 70 Wn.

App. 213, 217, 853 P.2d 473 (1993). Constructive notice will be inferred if the

condition exists long enough for a person exercising ordinary care to discover it.

Wiltse v. Albertson's. Inc., 116 Wn.2d 452,459-60, 805 P.2d 793(1991).

  I.   Code Violations

       Tessema argues that MacMillan-Piper's failure to comply with code

requirements created an unsafe condition on the stairs. Based on Dr. Johnson's

conclusions that these violations contributed to his fall, Tessema also argues that


                                              6
No. 77189-2-1/7


MacMillan-Piper had constructive notice of the violations and, prior to his fall,

should have repaired and safeguarded the stairs.

   A. Unsafe Condition

       Relying on expert testimony by Dr. Johnson, Tessema asserts that the

stairs were not compliant with either building code in effect in the state, because

MacMillan-Piper (1) allowed excessive variation between steps in excess of 0.38

inches,(2)failed to mark the stair nosing with a distinctive stripe,(3) had unstable

stairs and failed to fix the stairs in place, and (4) failed to make the handrail 2.5

inches higher.

       Expert testimony is admissible when (1)the witness qualifies as an expert,

(2) the opinion is based upon an explanatory theory generally recognized in the

scientific community, and (3) if it will be helpful to the trier of fact. ER 702; In 're

Pers. Restraint of Morris, 176 Wn.2d 157, 168-69, 288 P.3d 1140 (2012). Expert

testimony is helpful if it concerns matters beyond the average layperson's common

knowledge and is not misleading. State v. Groth, 163 Wn.App.548,564,261 P.3d

183 (2011). An expert must rely on facts and data, not mere speculation. See

Queen City Farms, Inc. v. Cent. Nat'l Ins. Co. of Omaha, 126 Wn.2d 50, 103, 882

P.2d 703, 891 P.2d 718(1994). Conclusory opinions lacking adequate foundation

will be excluded. Miller v. Likins, 109 Wn. App. 140, 148, 34 P.3d 835(2001).

       Dr. Johnson based his report on a conversation he had with Tessema and

his own observations and measurements of the staircase. He found that, in

violation of code, there was excessive variation between the staircase's steps, the

stair nosings were not demarcated, the staircase was not fixed in place, and the


                                              7
No. 77189-2-1/8


staircase's handrails were too low. He concluded that if these code violations had

not been present, then, on a more probable than not basis, Tessema's fall would

have been prevented.

       The trial court did not accept Dr. Johnson's opinions that alleged code

violations contributed to Tessema's fall, finding that they were unsupported by the

record. The court stated that there was "no indication from Mr. Tessema nor

anyone that the nosings or the variation or the handrails were a factor." It also

stated that the evidence failed to connect any vibration or instability to Tessema's

fall. At issue is whether there is sufficient evidence to create a genuine dispute of

fact as to whether code violations caused Tessema's fall.

       Tessema argues that regardless of whether he knows what caused him to

slip, there is sufficient expert testimony to create genuine issues of material fact

on whether MacMillan-Piper's alleged code violations were the proximate cause of

his injuries. He relies on Mehlert v. Baseball of Seattle, Inc., 1 Wn. App. 2d 115,

404 P.3d 97(2017).

       Causation is usually a question for the jury. Id. at 119. However, it becomes

a question of law for the court when the causal connection is so speculative and

indirect that reasonable minds could not differ. Id.

       In Mehlert, the plaintiff fell while leaving a store and landed at the bottom of

a set of stairs, injuring herself. Id. at 116-17. A ramp had been placed over the

stairs to make the store accessible by wheelchair, and there were no required

handrails adjacent to the ramp or the stairs. Id. at 116. This court held that a

genuine issue of fact existed regarding whether the absence of required handrails


                                             8
No. 77189-2-1/9


was the proximate cause of Mehlert's injuries. Id. It based its holding on expert

testimony that appropriate handrails would have lessened or prevented Mehlert's

injuries and Mehlert's testimony. Mehlert testified that she did not remember what

caused her fall, there were no witnesses to her fall, and she remembered wanting

to reach for something to stop her fall. Id. at 119.

       Here, the alleged handrail violation involves handrail height, not the

absence of handrails. But, like Mehlert, Tessema does not know what caused him

to slip, and no one witnessed him falling. Dr. Johnson states that if the handrails

had been higher, "then, on a more probable than not basis Mr. Tessema would

have been able to exert more force to them and avoided falling."

       When descending the stairs, Tessema was holding paper (and/or a pen) in

his hands. When asked if he was holding on to the handrails, Tessema testified,

"I don't think." But, he concluded that as he fell he thought he tried "to hold it."

       On summary judgment, we review the facts in the light most favorable to

the nonmoving party. Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d

16, 26, 109 P.3d 805 (2005). A reasonable jury could infer that Tessema

attempted to grab the handrail. A question of fact remains as to whether a code-

compliant handrail could have lessened or prevented Tessema's injuries.

       Dr. Johnson also found excessive riser and run variation on the staircase.

He states that if riser height increases or run length decreases after the first step

or two—which they did here—"the ball of the foot can easily and inadvertently be

placed on or beyond the nosing." The foot can then "slide or pivot over the edge

of the nosing." He cites numerous studies finding excessive variation between


                                              9
No. 77189-2-1/10


steps a common factor among falls. He also states that the decrease in run length

"would not have been visually noticeable to a person looking straight down at the

treads."' Tessema testified that his left foot slipped "from the point" on the third

from the bottom step on the staircase. Upon falling, he held his left hand out and

his right knee scratched the ground. Based on this evidence, a reasonable jury

could infer that the ball of Tessema's foot could have easily and inadvertently been

placed on or beyond the nosing and that his foot slid or pivoted over the edge of

the step's nosing due to excessive variation between the steps.

       Last, Dr. Johnson noted that the staircase was not fixed in place on the day

of the fall and "vibrated considerably when force was applied by hand." He states

that "[a]ny vibration whatsoever would have increased the chance of a misstep."

Nothing in evidence suggests a source of force applied to the stairs except by

Tessema during his descent. Tessema testified that after the incident, he saw the

stairs shaking. When asked if he noticed the stairs shaking before his fall, he

responded,"No, I don't know." But, when asked if shaking contributed to his foot

slipping, he responded, "I think so." Reviewing the facts in a light most favorable

to the nonmoving party, a reasonable jury could infer that the staircase's instability

was a contributing factor to the proximate cause of Tessema's injuries.



       1 Similarly, Dr. Johnson concluded that if a yellow stripe had been painted
on the stair nosings, this would have increased Tessema's ability to place his feet
accurately. But, because the nosings had the same reflectance as the other
sections of the steps, they were not readily discernible. Based on this testimony,
a reasonable jury could infer that if the nosings had been emphasized, their
different reflectance from the other sections of the steps could have increased
Tessema's ability to place his foot accurately.

                                             10
No. 77189-2-1/11


       Dr. Johnson's opinions that alleged code violations contributed to

Tessema's fall are supported by evidence sufficient to create a genuine question

of fact as to causation.

   B. Notice of Code Violations

       Tessema argues next that MacMillan-Piper had constructive notice of the

staircase's alleged code violations because it "had control over the stairs and

placed them on [its] premises."2 He asserts that the staircase has been on

MacMillan-Piper's premises for six or seven years, affording it "sufficient

opportunity to have made a proper inspection of the premises and to have

remedied the danger."

      "Constructive notice arises where the condition 'has existed for such time

as would have afforded [the proprietor] sufficient opportunity, in the exercise of

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

removed the danger." Ingersoll v. DeBartolo, Inc., 123 Wn.2d 649,652, 869 P.2d

1014 (1994) (alteration in original) (quoting Smith v. Manning's, Inc., 13 Wn.2d

573,580, 126 P.2d 44(1942)). It is ordinarily a question offact for the jury whether,

under the circumstances, "a defective condition existed long enough so that it

would have been discovered by an owner exercising reasonable care."



       2 MacMillan-Piper argues that we should not consider issues regarding
constructive notice based on agency or code violations, because Tessema never
raised or argued these issues before the trial court. However, Tessema did raise
these issues in his opposition to MacMillan-Piper's motion for summary judgment:
"That act, coupled with the declarations of Mr. Barter and Dr. Johnson, it should
be reasonably inferred that defendant had constructive knowledge that [it] had time
to remove the danger and prevent the fall."

                                            11
No. 77189-2-1/12


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

(2005).

       Tessema testified that the staircase has been at MacMillan-Piper's Airport

Way Facility for about six or seven years. MacMillan-Piper does not dispute this

testimony, the existence of alleged code violations, or its control over the staircase.

A reasonable jury could therefore infer that the alleged code violations existed long

enough so that MacMillan-Piper could have discovered them by exercising

reasonable care.

 II.   Ice on the Stairs

       Tessema argues next that there is sufficient evidence that ice on the

staircase created an unsafe condition, that MacMillan-Piper had both actual and

constructive notice of the condition, and that the condition was at least reasonably

foreseeable to MacMillan-Piper.

       A. Unsafe Condition

       To establish that ice created an unsafe condition on the staircase, Tessema

relies primarily on two pieces of evidence:(1) Barter's declaration, which includes

his statements that he saw ice on the staircase the day Tessema fell, and that

Tessema explained to him he fell because the stairs were "slick, icy and wobbly;"

and (2) his own medical record, which includes his statement to an ARNP that "[h]e

slipped on ice and fell."

       MacMillan-Piper argues that ice could not have contributed to Tessema's

fall, because climatological records judicially noticed by the trial court establish "the

impossibility of ice at the time of the fall." The records establish that on the day


                                              12
No. 77189-2-1/13


Tessema fell, the recorded low temperature at Boeing Field was 39 degrees. The

trial court took judicial notice that the low temperature was above freezing.

However, the court did not treat the records as dispositive evidence that there

could not have been ice on the staircase: "I have taken judicial notice of what

appears to be an impossibility of ice... . I'm going to stop and say, I don't think

that that necessarily answers the question." Likewise here, we do not accept the

records as dispositive.

       The trial court excluded Barter's statement about Tessema's explanation of

his fall and Tessema's statement to an ARNP that he slipped on ice as inadmissible

hearsay. "Hearsay" is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted. ER 801(c). Hearsay cannot be admitted into evidence unless an

exception applies. See ER 802. Tessema's explanation within Barter's declaration

constitutes an out-of-court statement, and Tessema does not establish that he is

offering the statement into evidence other than to prove its truth. It is therefore not

admissible.

       Tessema argues that his statement to the ARNP that he "slipped on ice and

fell" is admissible under an exception in ER 803(a)(4), because it was reasonably

pertinent to his medical diagnosis or treatment. Relying on State v. Butler, 53 Wn.

App. 214, 217, 766 P.2d 505 (1989), he argues that statements as to causation,

such as "I was hit by a car," would be allowed, but statements as to fault, such as

"which ran a red light," would not. Applying that reasoning here, the reason

Tessema fell—slipping on a staircase—is admissible, because it goes to


                                              13
No. 77189-2-1/14


causation. But, the reason he offers for slipping—ice—is not admissible, because

it goes to fault. The trial court properly excluded both statements.

       When asked at his deposition if the stairs were slippery, Tessema

responded, "There is ice. The day there is ice." When asked if there was ice on

the stairs specifically, Tessema responded,"I didn't see before, you know,slippery.

I slipped from the stairs. I don't remember that." But, he responded,"Yes," when

asked if he thought that ice contributed to his foot slipping.

       In addition, Tessema testified that when he went to do his first dispatch

before falling, he noticed ice on his windshield and at the facility. He was then

asked,"[W]hen you came back for your second dispatch, was there still ice on the

ground and ice on the Airport Way facility?" Tessema responded, "Yes. Even

midday there is ice on the ground." Later in the deposition, he was asked,"I'm just

asking if you know what you slipped on." Tessema responded, "I didn't see."

       Without the evidence properly excluded by the trial court, Tessema relies

on Barter's declaration and his own deposition testimony. In his declaration, Barter

states that loin the day of Samuel's fall, November 24, 2014, I saw ice on the

stairs." He does not specify what time of day he saw ice on the stairs. In addition,

he states that he saw Fisher apply rock salt to the stairs the day Tessema fell, but

Fisher "did not pour rock salt until approximately 20 to 30 minutes after Samuel's

fall."3 Barter recalls that Fisher also applied rock salt to the stairs the day before

Tessema's fall, and that the stairs were icy the day before Tessema's fall.


       3 MacMillan-Piper made no objection to the consideration of this statement.
We limit our consideration to whether it supports an inference that ice may have

                                             14
No. 77189-2-1/15


       Taken in the light most favorable to the nonmoving party, Tessema's direct

testimony and Barter's declaration create a genuine question of fact as to whether

there was ice on the staircase when Tessema fell, and whether it was a proximate

cause of Tessema's fall.

       B. Notice of Ice On Stairs

       Tessema argues that MacMillan-Piper had both actual and constructive

notice of ice on the staircase. He asserts that MacMillan-Piper had actual notice

because Barter and Fisher, MacMillan-Piper's agents, knew that there was ice on

the stairs the day before his fall. He also asserts that MacMillan-Piper had

constructive notice because Barter testified that he saw ice on the stairs the day

before and the day of Tessema's fall, and that he saw Fisher apply rock salt to the

stairs the day before Tessema's fall.

       Odland, MacMillan-Piper's vice president, states in his declaration that no

one reported slipping or falling on the staircase prior to Tessema's fall. He also

states that no one reported that the stairs "were icy, were slippery, or reported any

problem with the stairs before Tessema's fall on November 24, 2014." In an

interrogatory answer, MacMillan-Piper states that "Where is no specific person or

entity responsible for the maintenance or cleaning" on its premises.

       Barter, a MacMillan-Piper employee, arrived at the facility between 7:00 and

7:30 a.m. the day of Tessema's fall. Tessema stated that he fell in the morning.

Barter saw ice on the staircase the day of and the day before the fall. He knew


been present at a point in time after the fall, but not for purposes of whether
MacMillan-Piper had notice of the presence of ice prior to the fall.

                                            15
No. 77189-2-1/16


rock salt was applied to the staircase the day before the fall. And, he recalls the

stairs being icy the day before, "because it was an unusually cold and icey [sic]

couple of days in November." It is ordinarily a question offact for the jury to decide

whether a defective condition existed long enough to be discovered. Fredrickson,

131 Wn. App. at 189. There is no evidence that there was ice on the step on which

Tessema fell. However, in a light most favorable to the nonmoving party, a jury

could conclude that MacMillan-Piper had constructive notice of icy conditions on

the stairs. This is sufficient to deny summary judgment.4

       We reverse.




WE CONCUR:




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       4 We do not address Tessema's alternative argument that the risk of
someone slipping and falling on the staircase was reasonably foreseeable and
therefore an exception to the requirement of actual or constructive notice.

                                             16
