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                                                              10URT OF APPEALS D1V I
                                                               STATE OF WASHINGTON
                                                               2013 DEC 23 AM 10' 10




     IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON



DEBRA FULWILER,
                                                  No. 69338-7-I
                     Appellant,
                                                  DIVISION ONE



ARCHON GROUP, L.P., a foreign entity
WHITEHALL STREET REAL ESTATE,
L.P., a foreign entity, W2007 SEATTLE
OFFICE 10700 BUILDING REALTY,                     UNPUBLISHED OPINION
LLC, a Delaware limited liability
company; WA-10700 BUILDING, LLC,
a Delaware limited liability company;
CB RICHARD ELLIS, INC., a Delaware
Corporation; and BELLEVUE COLLEGE
(formerly BELLEVUE COMMUNITY
COLLEGE) (BCC)), a division of the
STATE OF WASHINGTON,

                     Respondent.                  FILED: December 23. 2013

       Spearman, A.C.J. — Deborah Fulwiler commenced this premises liability

personal injury action to recover for injuries from a fall on a set ofexterior steps
at Bellevue College's north campus. The trial court granted the defendants'
motions for summary judgment. Because there is sufficient evidence to raise

issues of material fact regarding Fulwiler's claims, we reverse.
No. 69338-7-1/2

                                            FACTS

       On September 5, 2008 at about 10:45 a.m., Debra Fulwiler and her friend

visited an office building located at 10700 Northrup Way, Bellevue, Washington.

Archon Group, Whitehall Street Real Estate, W2007 Seattle Office 10700

Building Realty, LLC, WA-10700 Building (collectively, Archon) owned the

building. CB Richard Ellis, Inc. (CBRE) provided property management services.

Bellevue College, (herein, BC) leased the building, inclusive of use of the exterior

steps and parking lot.

       Fulwilertestified at her deposition that she met her friend at BC in order to

show her friend where to register for classes and to visitthe bookstore before

having lunch at another location. Fulwiler had previously taken a class at BC, but

was not attending or registering herself for class at that time. In order to enter the

building, both women climbed the staircase at issue in this case.

       Both Fulwiler and her friend visited the bookstore and browsed for books.

In a declaration filed in response to the defendants' motions for summary

judgment, Fulwiler stated that her friend did make a purchase at the bookstore.1
Fulwiler also stated that she had intended to purchase a book ifshe found

something she liked, but, after asking a bookstore employee some questions

about a book, she opted not to purchase it.




        1The defendants moved the trial court to strike Fulwiler's declaration and the declarations
ofherexperts, Thomas Baird and Gary Sloan, on the grounds thatthey contradicted Fulwiler's
deposition testimony and thus could not be used to create an issue of material fact. But the order
granting the defendants' summary judgment motions states that the court considered each of the
declarations objected to, thus implicitly denying the motions to strike. Thedefendants did not
cross appeal this ruling. Thus, Fulwiler's declaration and those ofher experts are part of the
record on review.
No. 69338-7-1/3

       About 15 minutes later, Fulwiler and her friend emerged from the

bookstore and headed toward their parked cars. Fulwiler's friend preceded her

down the stairs without incident. Fulwiler testified that she walked down the

upper section of the stairs herself without incident. Then, she "lost her balance

and fell" on the lower section of the stairs. Clerk's Papers (CP) at 3. She further

testified that: "you cannot hardly tell one step from the other here. And that's

what I believe that's why I fell.... I couldn't see the step." [sic]. CP at 119. In her

declaration, she stated that she relied heavily on the handrail while descending

the stairs. She stated that she grasped the handrail and, as her foot was in

motion leaving the first step, she naturally looked down for cues about where to

place her foot on the next step. As she did so, the individual steps of the

aggregate rock stairs blended together so that the steps were indiscernible from

one another. Fulwiler fell down the stairs on the aggregate rock cement. Injuries

to her ankle sustained in the fall left her permanently disabled after multiple

surgeries.

       Fulwiler commenced this action alleging that all defendants were negligent

in maintaining the stairs and/or failing to warn of their unsafe condition.2
Fulwiler's response to the defendants' motions for summary judgment, included




       2In her complaint, Fulwiler also advanced a res ipsa loquitur theory, butabandoned it in
her response to defendants' motions for summary judgment.
No. 69338-7-1/4


her declaration and detailed declarations from two experts.3 The trial court

granted the motions for summary judgment. Fulwiler appeals.

                                         DISCUSSION

        We review summary judgment decisions de novo. Ranger Ins. Co. v.

Pierce County. 164 Wn.2d 545, 552, 192 P.3d 886 (2008). Summary judgment is

proper ifthere is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. CR 56(c). A genuine issue of material fact

exists if "reasonable minds could differ on the facts controlling the outcome of the

litigation." Ranger Ins. Co.. 164 Wn.2d at 552 (citing Wilson v. Steinbach. 98

Wn.2d 434, 437, 656 P.2d 1030 (1982)). When determining whether an issue of

material fact exists, the court must construe all facts and inferences in favor of

the nonmoving party, jd.

        Summary judgment is subject to a burden-shifting scheme. IcL The initial



        3Thomas K. Baird, a safety expert, and the principal ofSafety Systems America, Inc.,
submitted a declaration in this case. Mr. Baird opined that the subject stairs are "unreasonably
hazardous and dangerous because there was no contrast on the nosings of the steps in order for
Debra Fulwiler to adequately identify the step edge. This hazardous condition presented an
unreasonable risk of injury to her as she walked down the stairs." CP at150-151. He further
opined that this risk "was foreseeable such that the owner or occupier of the subject property
should discover the condition through reasonable care, and should realize, not only that it
involves an unreasonable risk to persons using the stairs, but that it is a danger that someone
using the stairs would not realize and would not be prepared to protect themselves from." Jd. He
also stated that the stairs do not comply with the "American Society for Testing and Materials
(ASTM) F1637-95 Standard Practice for Safe Walking Surfaces,... a nationally recognized
consensus safety standard; that the rise and run of the stairway exceeded the 3/8" variance
allowed under the 1979 Uniform Building Code (UBC); and opined that the excessive variance in
the rise and run of the stairs may have been a contributing factor in Fulwiler's fall on the stairs.
CP at 150-152.
         Gary Sloan, Ph.D., a human factors expert, measured the luminance of the stairs and
concluded, "there was little difference in brightness between the nosing of the middle landing and
the tread of the step immediately below it...." CP at 220. He stated that in his opinion there was
"inadequate contrast" between the stair landing and the steps, and that the aggregate rock of the
stairs created a camouflaging effect. CP at 220. In addition, Dr. Sloan opined that the height of
the handrails of the stairwell may have contributed to Fulwiler's fall and the stairwell posed an
unnecessary risk to pedestrians that should have been appreciated by defendants.
No. 69338-7-1/5

burden to show the nonexistence of a genuine issue of material fact is on the

moving party. ]dj. see also Vallandigham v. Clover Park School Dist. No. 400. 154

Wn.2d 16, 26, 109 P.3d 805 (2005). For example, a defendant may move for

summary judgment by showing that there is an absence of evidence to support

the plaintiff's case. Sligar v. Odell, 156 Wn. App. 720, 725, 233 P.3d 914 (2010),

review denied. 170 Wn.2d 1019, 245 P.3d 772 (2011) (citing Young v. Key

Pharm.. Inc., 112 Wn.2d 216, 225 n.1, 770 P.2d 182 (1989) (citing Celotex Corp.

v. Catrett. 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986))). Once this

initial showing is made, the inquiry shifts to the plaintiff to "make a showing

sufficient to establish the existence of an element essential to [its] case .. . ." Jd,

at 725 (citing Celotex. 477 U.S. at 322). In a negligence action, a plaintiff bears

the burden of proving four basic elements: (1) the existence of a duty, (2) breach

of that duty, (3) resulting injury, and (4) causation.4 Coleman v. Hoffman, 115
Wn. App. 853, 858, 64 P.3d 65 (2003) (citing Tincani v. Inland Empire Zoological
Soc'v. 124 Wn.2d 121,127-28, 875 P.2d 621 (1994)). Ifany of these elements

cannot be met as a matter of law, summary judgment for the defendants is

proper.

                                               Duty

        The legal duty owed by a possessor of land to a person entering the
premises depends on whether the entrantfalls underthe common law category




          4It is undisputed that Fulwiler's evidence was sufficient to withstand summary judgment
on the elements of cause in fact and injury.
No. 69338-7-1/6

of a trespasser, licensee, or invitee.5 See. Younce v. Ferguson. 106 Wn.2d 658,
662, 724 P.2d 991 (1986). A business invitee is "'a person who is invited to enter

or remain on land for a purpose directly or indirectly connected with business

dealings with the possessor of the land.'" Beebe v. Moses. 113 Wn. App. 464,

467, 54 P.3d 188 (2002) (quoting Restatement (Second) of Torts § 332

(1965)). It is well established that an actual sale need not take place for a

potential customer to be considered a business invitee. Kinsman v. Barton & Co..

141 Wash. 311, 314, 251 P. 563 (1926) (even a "window shopper" is a business

invitee, and visitors to a store are business invitees even if they do not make a

purchase, the mere possibility of a future purchase being sufficient). An indirect

business purpose on the property is sufficient for classification as a business

invitee. Restatement (Second) of Torts § 332 (1965) comment f ("It is not

necessary that the visitor's purpose be to enter into immediate business dealings

with the possessor. The benefit to the possessor may be indirect and in the

future."); see, e^, Fuentes v. Port of Seattle. 119 Wn. App. 864, 868-69, 82 P.3d

1175 (2003) (A motorist, who was a victim of carjacking while waiting to pick up

passenger disembarking from airplane at airport, was an invitee, not a mere

licensee because the motorist's purpose for being at the pick-up drive was

connected to airport business, and port authority provided pick-up drive for

specific purpose for which she was there).


        5Bellevue College contends that we may only consider Fulwiler's complaint and
deposition testimony to determine her status in relation to her visit to the bookstore. It then argues
that based on that evidence, Fulwiler's status is that of a licensee. As indicated above, the trial
court implicitly denied the motion to strike the declarations of Fulwiler and her experts and
Bellevue College did not appeal this ruling. Thus, on appellate review we consider the entire
record that was before the trial court.
No. 69338-7-1/7

       Moreover, a person who enters land incidental to business relations of the

possessor and a third party is also a business invitee. Restatement (Second) of

Torts § 332 (1965) comment g ("Visits incidental to business relations of

possessor and third persons. It is not necessary that the visitor shall himself be

upon the land for the purposes of the possessor's business. The visit may be for

the convenience or arise out of the necessities of others who are themselves

upon the land for such a purpose. Thus those who go to a hotel to pay social

calls upon the guests or to a railway station to meet passengers or bid them

farewell, are business visitors, since it is part of the business of the hotelkeeper

and railway to afford the guest and passengers such conveniences. So too, a

child taken by a mother or nurse to a shop is a business visitor; and this is true

irrespective of whether it is necessary for the customer to take the child with her

in order to visit the shop.") see also. Farrier v. Levin. 176 Cal.App.2d 791, 1 Cal.

Rptr. 742 (1959) (person accompanying friend into store where friend intended to

make a purchase was an invitee); Gustafson v. Mathews. 109 lll.App.3d 884, 441

N.E.2d 388 (1982) (children accompanying father to tavern were invitees in

tavern parking lot).

       Here, Fulwiler stated in her declaration that she intended to purchase a

book if she saw one she liked, and asked a bookstore employee about a book.

Although she did not make a purchase herself, she was, at least arguably,

"window shopping." She also testified to facts establishing that her visit to the

property was incidental to business relations between the possessor and a third

person, namely the sale of the book to her friend at the BC bookstore.
No. 69338-7-1/8

Additionally, Fulwiler's other purpose for entering the property (to facilitate her

friend's enrollment in a course), which is undisputed by the parties, arguably,

albeit indirectly, conferred a business benefit on BC, whose primary mission and

purpose is to provide such educational course offerings to the community. These

facts, if believed by a jury, are sufficient to establish Fulwiler's status as a

business invitee.

          A possessor of land is liable to invitees for injury-causing conditions 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
          (b) should expect that they will not discover or realize the
          clanger, or will fail to protect themselves against it, and
          (c) fails to exercise reasonable care to protect them against
          the danger."

Tincani. 124 Wn.2d at 138, (quoting Restatement (Second) of Torts § 343

(1965)). However, the duty only arises if and when the first condition is met. See.

Iwai v. State. 129 Wn.2d 84, 93-95, 915 P.2d 1089 (1996). Archon, CBRE and

BC assert that Fulwiler fails to establish either actual or constructive notice.

          Fulwiler concedes there is no evidence that the defendants had actual

notice of the alleged dangerous condition but argues that the evidence is

sufficient to establish constructive notice. Constructive notice arises when a

dangerous condition "'has existed for such time as would have afforded [the

possessor] 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) (quoting Smith v.



                                             8
No. 69338-7-1/9

Manning's. Inc.. 13 Wn.2d 573, 580, 126 P.2d 44 (1942)). "Ordinarily, it is a

question of fact for the jury, whether under all of the circumstances, a defective

condition existed long enough so that it would have been discovered by an owner

exercising reasonable care." Morton v. Lee. 75 Wn.2d 393, 397, 450 P.2d 957

(1969) (quoting Presnell v. Safeway Stores. Inc.. 60 Wn.2d 671, 374 P.2d 939

(1962)). "Constructive notice to the [defendant] may be inferred from the elapse

of time a dangerous condition is permitted to continue when it is long enough to

be able to say that [the defendant] ought to have known about the condition.

Holland v. City of Auburn. 161 Wash. 594, 297 P. 769 [(1931)]." Nibaroer v. City

of Seattle. 53 Wn.2d 228, 332 P.2d 463 (1958) (holding that, as a matter of law,

the passage of 15 hours after formation of a dangerous condition of accumulated

snow and ice is insufficient to constitute constructive notice, but noting that the

passage of six or seven days raises a jury question).

       In the present case, the defendants do not claim to have performed

regular inspections or maintenance of the stairs in question or that they could not
have reasonably been expected to discover the alleged dangerous condition.

They point to photographs of the stairs and argue simply that the stairs were not

unsafe. Thus, they contend there was nothing for them to take notice of or to
warn Fulwiler about. They also rely on the fact that no prior incidents of similar

falls had been reported. In response, Fulwiler contends that she has presented
sufficient evidence to create an issue of material fact on whether, in the exercise

of ordinary care, the defendants should have discovered the alleged unsafe
condition. She points to the approximately 25 years the stairs had been in
No. 69338-7-1/10

existence and the expert testimony regarding the stairs' condition and the ability

to reasonably ascertain the danger they presented. We agree this evidence is

sufficient to create a factual dispute about whether the condition of the stairs was

unsafe and if so, whether the defendants should have been on notice of that

condition.


       The defendants also argue that, even ifthey had notice, they had no duty

to warn Fulwiler because the alleged unsafe condition was open and obvious.

Where an alleged unsafe condition is both obvious and known to the plaintiff, the

defendants owe no duty to warn of this condition. Mele v. Turner. 106 Wn.2d 73,

80, 720 P.2d 787 (1986); Seiberv. Poulsbo Marine Center. Inc.. 136 Wn. App.

731, 740, 150 P.3d 633 (2007). But an exception to this rule may apply, where it

is shown that the defendant should anticipate harm to the invitee,

notwithstanding such knowledge or obviousness. See e.g.. Suriano v. Sears.

Roebuck & Co.. 117 Wn. App. 819, 72 P.3d 1097 (2003); Deoel v. Majestic

Mobile Manor. Inc.. 129 Wn.2d 43, 50, 914 P.2d 728 (1996). In this

circumstance, the defendant may owe an additional duty to remove or warn of

the danger regardless of its obvious nature. Tincani. 124 Wn.2d at 139-40.

"Distraction, forgetfulness, or foreseeable, reasonable advantages from

encountering the danger" are factors which trigger a responsibility to warn of, or

make safe, known or obvious dangers, jd, at 140. Whether the possessor should

anticipate such harm is a question for the jury. Mavnard v. Sisters of Providence.

72 Wn. App. 878, 866 P.2d 1272 (1994).




                                         10
No. 69338-7-1/11


        Fulwiler successfully raised a genuine issue of material fact on the issue

of constructive notice. The determination of whether the alleged dangerous

condition was open and obvious and, if so, whether the defendants should

nonetheless have anticipated injury from the condition, were questions for the

jury.

                                        Breach


        As discussed above, a possessor of land breaches the duty of care owed

to invitees if the possessor has actual or constructive notice of an unsafe

condition and fails to exercise reasonable care to protect the invitee against the

danger. Iwai, 129 Wn.2d at 93-94 (citing Restatement (Second) of Torts § 343

(1965)). Reasonable care requires a landowner to inspect for dangerous

conditions, "'followed by such repair, safeguards, or warning as may be

reasonably necessary for [the invitee's] protection under the circumstances.'"

Tincani. 124 Wn.2d at 139 (quoting Restatement (Second) of Torts § 343, cmt.

b).

        Here, Fulwiler offers two expert reports detailing the potential perils of the

staircase, the various nonconformities with building codes, and several relatively

easy repairs the defendants could have made to protect their invitees. In

response, the defendants note that "[t]he lack of yellow paint at the front of each

step does not, as a matter of law, render a staircase unreasonably dangerous.

Staircases that are all the same color or texture are ubiquitous in King County &

Seattle." Brief of Respondents, Archon and CBRE at 15 (citing CP at 254-66).

While it may generally be true that the lack of distinguishing colors or textures on



                                          11
No. 69338-7-1/12

steps does not make them, as a matter of law, "unreasonably dangerous," it is a

factual determination for the jury whether the lack of such demarcation, or other

safeguards or warnings, made the specific staircase in this case unreasonably

dangerous. We conclude that Fulwiler sufficiently established the breach element

of her claim to withstand summary judgment.

                                 Proximate Cause

      The issue of proximate cause is generally a question of fact for the jury

and not subject to determination at summary judgment as a matter of law. Ruff v.

County of King. 125 Wn.2d 697, 703-04, 887 P.2d 886 (1995); Bernethv v. Walt

Failor's Inc.. 97 Wn.2d 929, 935, 653 P.2d 280 (1982). Because the question of

proximate cause is for the jury, "it is only when the facts are undisputed and the

inferences therefrom are plain and incapable of reasonable doubt or difference of

opinion that it may be a question of law for the court." Bernethv. 97 Wn.2d at 935.

However, summary judgment is proper where the plaintiff lacks evidence that her

injuries stemmed from the defendant's negligence. Little v. Countrvwood Homes.

Inc.. 132 Wn. App. 777, 133 P.3d 944 (2006).

       Circumstantial evidence is sufficient to establish a prima facie case of

negligence, if it affords room for reasonable minds to conclude that there is a

greater probability that the conduct relied upon was the proximate cause of the

injury than there is that it was not. Hernandez v. Western Farmers Ass'n. 76

Wn.2d 422, 426, 456 P.2d 1020 (1969). But, the nonmoving party may not rely

on mere speculation or argumentative assertions that unresolved factual issues

remain. Marshall v. Ballv's Pacwest. Inc.. 94 Wn. App. 372, 377, 972 P.2d 475



                                         12
No. 69338-7-1/13

(1999). A cause of action may be said to be speculative when, from a

consideration of all of the facts, it is as likely that it happened from one cause as

another. Rasmussen v. Bendotti. 107 Wn. App. 947, 959, 29 P.3d 56 (2001).

       Citing Reese v. Stroh. 128 Wn.2d 300, 309, 907 P.2d 282 (1995), the

defendants assert that Fulwiler offers only a speculative explanation of what

caused her injury, and that such speculation is not enough to establish proximate

cause on summary judgment. They argued in her testimony that she "did not

know" how she fell likens her case to Seiber. 136 Wn. App. 731, Little, supra.,

and Gardner v. Seymour. 27 Wn.2d 802,809, 180 P.2d 564 (1947). These cases

are not controlling.

       In Seiber. the plaintiff suffered injuries under similar circumstances to

those present here: she fell down some steps leading from a boardwalk to the

street. Seiber claimed the stairs posed an unreasonable risk of harm because

they lacked distinguishing colors or textures and were otherwise out of

compliance with building codes. Seiber could not recall any of the specifics of

how she fell, nor did she claim any specific breach on part of the defendants. Her

theory of the defendant's negligence was that "'[i]f everything would have been

right, [she] wouldn't have fallen.'" ]d. at 734. Seiber did not sue the possessor or

owner of the property in question (the boardwalk). Rather, she sued the

possessor and owner of the adjacent building, where she had been shopping

prior to her fall. \± at 733. We held that a person in control of a property abutting

a public sidewalk is not an insurer of pedestrian safety and affirmed summary




                                          13
No. 69338-7-1/14

judgment on the basis that Seiber failed to establish duty and breach. We never

reached Seiber's claims that she established proximate cause.

      In Little, the plaintiff was a contractor's employee who had been injured in

a fall from a ladder. He had no memory of the accident and offered no witness

testimony as to the cause of his injury. We affirmed the trial court's summary

judgment for the contractor, holding that he failed to establish proximate cause

because he did not present any evidence that would have allowed a reasonable

person to infer, without speculating, that the contractor's negligence was more

probably than not what caused the accident, jd. at 780-81.

       In Gardner, our Supreme Court upheld summary judgment for the

defendant where the plaintiff failed to offer any evidence to support her theory of

the defendant's negligence in causing the accident. In Gardner, an employee had

fallen down a freight elevator shaft and died. jd. No one witnessed the

employee's fall. jd. His widow sued the employer, jd. The widow asserted that
the employee fell through open doors after another employee had manipulated

the cables to move the elevator to another floor. ]d. at 806. The Court found, in

the absence of supporting evidence or testimony, it was equally likely that he

could have been manipulating the cables himself, lost his balance, and fallen into

the empty shaft. Id The Court held that "'no legitimate inference can be drawn
that an accident happened in a certain way by simply showing that it might have
happened in that way, and without further showing that it could not reasonably
have happened in any other way.'" id. at 810 (quoting Whitehouse v. Bryant
Lumber & Shingle Mill Co.. 50 Wash. 563, 565, 97 P. 751 (1908)).



                                         14
No. 69338-7-1/15

       In Little and Gardner, the plaintiffs offered no evidence of why the injured

party fell (the cause of the injuries). They could not provide any such evidence

because the injured party either did not remember what happened or was

deceased and there were no witnesses. Accordingly, their claims were dismissed

because the plaintiffs' theory of the defendant's negligence was based on mere

speculation. See also. Marshall. 94 Wn. App. at 378-80 (affirming summary

judgment for failure to establish proximate cause where plaintiff could not

remember the circumstances surrounding her fall from a treadmill and resulting

head injury, and offered no theory explaining that her injuries resulted from the

breach of a duty by health club, treadmill manufacturer, or treadmill repairer.)

       In contrast, Fulwiler does offer evidence of why she fell. She testified that

she fell because she was unable to distinguish one step from another; she

elaborated on this testimony in her declaration. She also presented two expert

declarations that corroborate her assertion that the steps were difficult to

distinguish and opine that this condition probably contributed to her fall. This

evidence is sufficient to create a factual dispute about the reason for Fulwiler's

fall and whether the defendants breached their duty to exercise reasonable care

in maintaining the steps and/or warning pedestrians. We find that Fulwiler made
a sufficient showing of proximate cause to withstand summary judgment.

                                     Conclusion

       Because Fulwiler successfully raised a genuine issue of material fact as to

the disputed elements of her claim, it was errorto grant the defendants' motions

for summary judgment.



                                          15
No. 69338-7-1/16

      Reversed.




WE CONCUR:
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