          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

VALERIE STROUT, a single person;                No. 77235-0-1
and KATHRYN HANEY, a single
person,                                         DIVISION ONE

                         Appellants,

                 V.

WAL-MART STORES, INC., a
Delaware Corporation; and PLY GEM
PACIFIC WINDOWS CORPORATION,                    UNPUBLISHED OPINION
a Delaware Corporation, as successor
to INSULATE INDUSTRIES, INC.,

                         Respondents,

VICKI McGEE, a single person; and
HAIER AMERICA TRADING, LLC, a
Delaware Corporation,

                         Defendants.            FILED: July 29, 2019

      SCHINDLER, J. — Valerie Strout fell out of the window of a second-story

townhouse while trying to grab a portable air conditioner. Strout landed headfirst on the

concrete patio. Strout and her daughter Kathryn Haney (collectively, Strout) filed a

negligence and product liability lawsuit against the townhouse building owner Vicki

McGee, the portable air conditioner manufacturer Haler America Trading LLC, Wal-Mart

Stores Incorporated, and window manufacturer Ply Gem Pacific Windows Corporation.
No. 77235-0-1/2

The defendants filed summary judgment motions to dismiss. The court denied the

motion to dismiss claims against McGee and the claims against Haler under the

Washington products liability act(WPLA), chapter 7.72 RCW. The court dismissed the

WPLA claims against Wal-Mart and Ply Gem. Strout appeals dismissal of Wal-Mart and

Ply Gem. We affirm dismissal of the WPLA claims against Ply Gem. We reverse

dismissal of the WPLA claim against Wal-Mart as a product seller under RCW 7.72.040,

and remand for trial.

                                               FACTS

       Vicki McGee owned a two-story building with four residential townhouse units in

Auburn, Washington. The building was constructed between 1979 and 1981. Each

residential unit has a garage with a recessed front entry and a backyard.

       On October 1,2012, McGee entered into a rental agreement with Valerie Strout

to rent the three-bedroom townhouse unit located at the west end of the building. Strout

told McGee that her boyfriend Robert Lang had experience doing remodel work and

managing rentals. McGee agreed to pay Lang $25 an hour and reduce the rent for

work on the townhouse.

       Strout, her 14-year-old daughter, and Lang moved into the townhouse. There is

a living room, kitchen, and a bathroom on the first floor and three bedrooms and a

bathroom on the second floor. Strout and Lang occupied the second floor south-facing

bedroom above the backyard and concrete patio.1 The bedroom is approximately 11

feet by 16 feet with a floor-to-ceiling height of 7 feet 8 inches. A window is located at

the southwest corner of the bedroom. The window opening was designed for a 4-foot 8-

inch by 3-foot 10-inch window.

       1 McGee installed the concrete patio in the backyard of the unit in approximately 2008.


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No. 77235-0-1/3

       In 1993, the building owner replaced the original window with a new vinyl sliding-

glass window manufactured by Insulate Industries Incorporated. The left side of the

vinyl sliding-glass window is fixed. The right side of the window or "sash" is a horizontal

slider. The sliding sash "moves from right to left to open the window." The sliding glass

window has "two separate locking devices." However, if the window sash is opened

"more than about three inches," both locking devices "become inoperable."

       The second floor south-facing bedroom is exposed to "significant solar heat"

during the summer months. On July 1, 2013, Lang and Strout went to the Wal-Mart in

Federal Way to purchase an air conditioner unit. Lang and Strout decided to purchase

a portable air conditioner manufactured by Haier American Trading LLC. Lang said it

was the only portable air conditioner unit left on the shelf that was "reasonably priced."

The box appeared to have been "opened and then taped shut again" and had "been

wrapped" in "clear" packing tape.

       There were two illustrations of a double-hung window on the box. The top of the

box stated the"'[c]ontents in canon'" included the air conditioning unit, window

installation parts, a "User and Care Guide," and a "Quick Start Guide." When Lang

opened the box to install the air conditioner, the User and Care Guide and some of the

parts were missing. Lang said the box contained the Haier Quick Start Guide "folded in

half, not in a.. . plastic sleeve"; "one bracket"; and "a few loose screws."2

       Lang bypassed the sliding glass window locking devices to open the right side of

the window and install the air conditioner. Lang used one of the brackets that came in

the box and a "shelf bracket" to install the air conditioner: "I didn't have all the parts, but

one piece 1 did have was a 90-degree bracket with a screw hole in it." Lang placed the

       2   Boldface omitted.


                                              3
No. 77235-0-1/4

"ridge in the bottom of the air conditioner. . . into the frame of the window on the sliding

portion, so that it sat down into the track." Lang said, "[T]here was a protrusion on the

bottom of the air conditioner that fit into that groove[ ]in the recessed part of the

[window] channel." Lang fit one of the two brackets "onto the fixed piece of the frame."

"[T]he other [bracket] rested against the sliding part of the window." Lang then "closed

the window onto the air conditioner."

       Lang told Strout "not to open the window" because the window was "holding the

air conditioner in" and "nothing was affixing the bracket to any inanimate object or any

solid surface."3

                Q.      Other than the sliding window, was there anything holding
       this air conditioner in place?
                A.      The brackets.
                Q.      But that was only when the window was closed, correct?
                A.      Correct.
                Q.      Onto the air conditioner.
                A.      Correct.
                Q.      Once someone — should someone open that window, the
       air conditioner could fall out?
                A.      Yes, it could. The bracket on the other side helped maintain
       it, but with it being unbalanced, it could.[41

       Lang used cardboard to seal approximately two feet of "open space between the

top portion of the air conditioner and the top of the sliding window" to "keep as much of

the heat out as possible."5 Lang turned on the air conditioner "and left it on" throughout

the summer. In the fall, Lang removed and stored the air conditioner in a closet.




       3 Boldface omitted.
       4 Boldface omitted.

       5 Boldface omitted.


                                              4
No. 77235-0-1/5

       In late June or early July 2014, Lang installed the portable air conditioner in the

second-floor-bedroom sliding window "in exactly the same way."6 However, instead of

cardboard, Lang used a black curtain to close the space "between the top of the air

conditioner" and the top of the window.

       On July 5, Strout and Lang spent the day with two friends from out of town. At

approximately 6:30 p.m., Strout went upstairs to take a nap. Lang and their friends

were outside on the patio.

       Strout remembers that before taking a nap, she went to the bedroom window,

moved the curtain, and called down to Lang,"'Hey, let the dog out.'" Lang saw Strout

"pull[]the curtain back" with "one hand that was holding the curtain." Lang said he was

"about to" respond when he saw Strout "lean forward and try to grab the air conditioner,"

and then fall out of the window.

       One of their friends, Deborah Heins, saw Strout "appear at the window in the

upstairs bedroom." Heins said Strout "started to say something" and "as she did, the air

conditioning unit in the window appeared unsteady." Heins said that when Strout

"reached for the air conditioning unit, the weight of the air conditioner seemed to pull her

through the window."

       Strout landed headfirst on the concrete patio. Strout suffered a serious

permanent injury that paralyzed her from the waist down.

       Valerie Strout and her minor daughter Kathryn Haney (collectively, Strout) filed a

lawsuit against building owner Vicki McGee; air conditioner manufacturer Haier America

Trading LLC; Wal-Mart Stores Incorporated; and window manufacturer Ply Gem Pacific

Windows Corporation, the successor to Insulate Industries Incorporated. Strout alleged

       6   Boldface omitted.


                                             5
No. 77235-0-1/6

claims against McGee for breach of duty as a property owner, breach of contract,

breach of the warranty of habitability, negligent maintenance and repair, and failure to

ensure a safe construction site. Strout alleged claims against Haier, Wal-Mart, and Ply

Gem under the Washington products liability act(WPLA), chapter 7.72 RCW.

       McGee, Ply Gem, Haier, and Wal-Mart filed separate motions for summary

judgment dismissal. McGee argued she did not breach the duty of care owed to Strout;

the Residential Landlord-Tenant Act of 1973, chapter 59.18 RCW; or the Washington

Industrial Safety and Health Act of 1973, chapter 49.17 RCW, regulations and chapter

296-24 WAC,"General Safety and Health Standards."

       Ply Gem argued it did not defectively design the window and it had no duty to

warn Strout about "obvious or known dangers."7 Ply Gem argued Strout could not

establish proximate cause because when Lang installed the air conditioner, he

"rendered [the] locking features on the window.. . useless."

       Haier and Wal-Mart argued Strout could not establish proximate cause. Haier

and Wal-Mart cited Lang's testimony that even if he had read the User and Care Guide

that states the air conditioner unit was for use with only a double-hung window, he

"[m]ost likely" would have installed the air conditioner unit in the sliding window.

              Q.   And would you turn to Page 6 [of the User and Care Guide].
                    Now, at the bottom of this page it says "Installation
       Requirements," does it not?
              A.   Yes.
              Q.   And at the top of the page it says "Location Requirements,"
       correct?
              A.   Yes.
              Q.   And under the "Note" section of these installation
       requirements, there are three bullet points.
              A.   Yes.


       7 Emphasis omitted.



                                             6
No. 77235-0-1/7

              Q.      And the third bullet point states,"The air conditioner must
      not be installed in a through-the-wall sleeve or in a wall. It can only be
      installed in a double-hung window."
                      Did I read that accurately?
              A.      Yes.
              Q.      If you had read that, would you have installed this air
      oonditioner in the sliding window?
              A.      Most likely.
              Q.      Why?
              A.      Because I needed it. It was hot, it was uncomfortable, it —1
      wasn't aware of any other type of unit that I could purchase that would do
      what I needed it to do, so — I may have made different accommodations,
      but I probably still would have used it.
              Q.      And would you agree that had you read this and had you
      installed it, despite what the manufacturer is stating, that it can only be
      installed in a double-hung window, you would have been violating the
      installation requirements?
              A.      Yes.
              Q.      Would you turn to Page 12 of the user and care guide.
              A.      I'm there.
              Q.      Do you see the two illustrations of the double-hung window
      at the top of this page?
              A.      Yes.
              Q.      And then do you see at the bottom of Page 12 the caption is
      "How to Install" the air conditioner, and do Instructions 4 through 9 instruct
      the customer that they need to screw the bracket that is inside the box
      onto the side of the air conditioner and then screw the two openings on
      the bottom bracket into the windowsill?
              A.      Yes.
              Q.      And you're supposed to do that on both sides of the air
      conditioner in order that the air conditioner is secured to the windowsill.
              A.      Correct.
              Q.      Did you do that?
              A.      No.

              Q.     So based on the fact you're putting it into a sliding window
      that's configured the way it is, even if you wanted to follow these
      instructions, you couldn't have?
              A.     Correct.
                 •.
              Q.     . .. Would you agree that the installation instructions tell us
      the following three things? That this air conditioner should be installed
      only in a double-hung window?
              A.     Yes.
              Q.     That the air conditioner should be affixed to the sill of the
      double-hung window with brackets and screws on both sides?


                                             7
No. 77235-0-1/8

              A.     Yes.
              Q.     And that the top of the air conditioner should be secured with
       a window lock-bracket and screw into the upper window sash?
              A.     Yes.
              Q.     And would you agree that you did not follow any of those
       instructions or requirements?
              A.     Yes.

             Q.      When you opened this box, did you realize that there was no
      instruction or owner's manual inside the box?
             A.      Yes.
             Q.      Did you call Wal-Mart about that?
             A.      No.
             Q.      Why not?
             A.      Because I needed the unit, and I didn't feel that it was going
      to make a difference, and I wasn't going to return the unit because I knew
      there wasn't another one.[81

      Strout filed a response to the summary judgment motions of McGee and Ply

Gem and a combined response to Haier and Wal-Mart. Strout submitted the declaration

of architect and building inspector Stan Mitchell in opposition to the motions for

summary judgment. In his declaration, Mitchell incorporates "fully by.. . reference" a

29-page "Inspection Report." The Inspection Report addresses the construction of the

building, the bedroom and window configuration, safety hazards, and concerns.

Mitchell concluded,"Each of the four Defendant[s] acts or omissions contributed to

causing Ms. Strout's injury. Had any of these acts or omissions been absent, Ms.

Strout's injury would likely had been prevented."

       Mitchell testified the low 24 /
                                     1 2-inch sill height of the window was "extremely

dangerous" and "hazardous" and did not meet the 1976 "Uniform Building Code"(UBC)

standards.

      Going back decades (e.g., UBC 1964 version) minimum building code has
      required guards (guardrailing) where the elevation from the floor down to
      adjacent surfaces exceeds certain heights (e.g., UBC 1976 at a maximum

      8   Boldface omitted.


                                             8
No. 77235-0-1/9

       30-inch height). Code stipulates a minimum guardrail height of 36 inches
       in single-family residences. At 24 1/2 inches the subiect window sill height
       does not comply with the code-minimum of 36 inches. The subject
       window sill is about 70% of the height required by code. Also, the 2-foot
       sill height is well below an adult's center of gravity (as well as inherently
       hazardous for children). (See related points in Background section
       regarding codes and a person's center of gravity).

       Further, the subject low (2-foot) window sill height is non-standard (does
       not comply with industry standards), especially for a second floor window
       over exterior concrete paving (patio).

      The low (2 feet) window sill height is extremely dangerous in terms of a
      building occupant inadvertently backing into the window if open (including
      when screens are installed). Similarly, even with the window closed, both
      of the window panes would be vulnerable in certain scenarios if a building
      occupant was to fall into the window.[91

       Mitchell states the owner of the building is "responsible for the maintenance of

buildings and structures."

      Building Code states: all buildings as structures, both existing and new
      and all parts thereof shall be maintained in a safe and sanitary condition.
      All devices or safeguards which are required by this code shall be
      maintained in conformance with the code edition under which it was
      installed.

       Mitchell states the UBC required the owner of the building to install "guards on

'unenclosed floor and roof openings, open and glazed sides of landings or ramps,

balconies or porches, which are more than 30 inches above grade.'" In his opinion, the

low window sill required McGee to install guards on the sliding glass window:

      [guardrails not less than 42 inches in height on the subject window. This
      section has been, in practice within the industry, applied to low window
      sills situations as well as the described landings, ramps, balconies or
      porches specifically described in § 1716. This was the industry standard
      at the time the premises were originally built in 1979-1981, because low
      window sills, such as in the Strout premises, presented the same risk of
      falling as an unenclosed side of a landing or ramp.



      9   Emphasis in original.


                                             9
No. 77235-0-1/10

      Mitchell states:

      The low window sill of 24-9/16 inches at the subject premises after the
      window was installed had a window opening tall and wide enough for an
      adult person to fall through. This was an extremely dangerous condition
      jeopardizing the safety of its occupants.

      Mitchell identified a number of other building defects, including "inadequate roof

framing venting" and insulation. Mitchell testified that under the UBC, McGee was

responsible for the maintenance of the building.

       Mitchell identifies the following safety hazards and defects that contributed to the

accident:

      1.      NO INSTALLATION INSTRUCTIONS: The lack of installation
              instructions is one of the main defects and factors relating to the
              subject incident. This is primarily because the instructions
              contained a statement that the subject air conditioning unit was to
              be installed only in double-hung windows. . ..

      2.      MISSING PARTS: That the packaged air conditioner was also
              missing parts also contributed to Ms. Strout's incident... .

       3.     PRODUCT QUALITY AND RETURNS: I would anticipate the
              subject air conditioner's quality was also a factor in the incident.
              Low-quality products inevitably lead to product returns after the box
              is opened.. . . Returns also risk the compromise of product
              packaging designed to protect the integrity of its contents. The air
              conditioning unit Ms. Strout and Mr. Lang purchased came in a box
              that had been apparently "cannibalized" and taped back
              together. . ..

       4.     WINDOW SILL HEIGHT: The inappropriate low window sill height
              also was a major defect and factor contributing to the incident. Had
              the subject window sill met(or exceeded)the code-required
              minimum height of 36 inches it would have provided an effective
              barrier for prevention of a building occupant such as Ms. Strout
              from falling through the window. In addition to code, the sill height
              also does not comply with standards. During ABlestmi (numerous)
              home inspection evaluations, we rarely observe a floor-to-window
              sill height of 2 feet, especially when there is underlying concrete
              paving. I would anticipate the frequency of encountering second
       10 Architectural Building Inspection Incorporated.


                                                   10
No. 77235-0-1/11

              floor window sills in a single-family residence at 2 feet is less than
              1%, and at 2.5 feet less than 10%....

       5.     ROOF VENTILATION: One of the primary reasons Ms. Strout and
              her family were exposed to significant solar heat gain living in the
              subject building during the summer months is that the building had
              very poor roof ventilation that did not comply with code. . . .

      6.     MARGINAL ROOF OVERHANG: In addition to the point about roof
             ventilation, the marginal roof overhang at the west side of the
             subject building also contributed to heat gain and the desire for air
             conditioning.

       7.     VIBRATIONS: Building and building component vibrations also
              would have been a factor in Ms. Strout's incident in terms of
              loosening the subject air conditioning unit. ...

      8.      LIGHTING/CONTRAST: The lighting/contrast in the subject
              bedroom between the window area and the exterior was also a
              contributing factor. ...

      9.      EGRESS WINDOW: There was no mention in the Haier installation
              instructions of maintaining a code-required egress window when
              installing the air conditioner. The subject window was the code-
              required egress window for the bedroom.

       Mitchell addresses the improper installation of the air conditioner unit:

      At the time of Ms. Strout's incident the subject air conditioner was
      improperly installed and secured to the window. The missing installation
      instructions along with the missing parts and information regarding the
      type of window that this equipment should be installed in, resulted in its
      installation i[n] an inappropriate type of window. The subject window was
      not only the wrong type (horizontal sliding instead [of] the recommended
      single hung) but it is also in itself a hazardous window by having a low sill
      height, further increasing the risk of a fall.

       In the "Other Points" section of his report, Mitchell notes the window frame

created a "false sense of security":

      The subject window is physically narrow, and when its slider is open the
      resultant opening is also very narrow. Further, the window frame itself has
      a center sash frame that overlaps. This size and configuration create a
      false sense of security. That is, someone approaching the window with




                                             11
No. 77235-0-1/12

       the installed air conditioner would not anticipate the possibility s/he could
       fall out of such a small narrow space that is set off the floor.

       Mitchell concluded: "Multiple non-standard aspects affecting building

installations and facilities represent a significant safety risk, and contribute to a building

occupant's distraction and vulnerability to personal injury." According to Mitchell,

"Obviously, due to a lack of instructions and missing parts, the subject air conditioner

was installed in an inappropriate location, and in an incomplete manner, compromising

its stability." Mitchell states, "Stability was further compromised due to vibrations from

various external forces, and the air conditioner's own operation." Mitchell states that

"factors such as adverse lighting contrast conditions and the subject window's sill height

inhibited her ability to see the unit properly and maintain her position inside the bedroom

after taking hold of the unit." Mitchell concluded,"The combination of these defects and

discrepancies led to Ms. Strout's injury. If any one of them had been eliminated or

remedied, her incident likely would not have occurred."

       In response to McGee's motion for summary judgment, Strout argued the

testimony of Mitchell established McGee was liable for the low window sill that violated

the UBC and created "an extremely dangerous" safety hazard. Strout cited the

defective building conditions "noted by" Mitchell, including the "lower window sill through

which Ms. Strout fell [that] was 24-9/16 inches high" and violates several building and

property maintenance codes; the inadequate insulation and venting; the window

opening that "created a deceptively narrow window opening appearance"—"[t]he height

of the window,4 feet 8 inches (4'8" or 56"), necessitates the low window sill opening.

The window as manufactured could not have been installed in the premises with a sill

any higher than the one utilized"; the roof eave above the window was not large enough


                                              12
No. 77235-0-1/13

to provide adequate shade to the window; and the concrete patio McGee installed

increased the danger from a fall.

       Strout argued Mitchell's testimony established that McGee violated the UBC by

not installing guards on the window:

              Architect Stan Mitchell has testified that Ms. McGee breached her•
      statutory duties of maintenance on the premises and the breach of these
      duties was a proximate cause of Ms. Strout's injuries. Mr. Mitchell states
      that had the required guards been installed on the window Ms. Strout's
      injury would have been prevented.011

       In response to Ply Gem's motion for summary judgment, Strout argued Mitchell's

testimony established design defect and the failure to warn under both the risk-utility

test and the consumer expectations test.

       Mitchell states Ply Gem "should have . . . either created a design that utilized

guards, which would prevent falls at the code required 42 inches above the floor," or

"could have designed the window with an opening through which a person could not fall

when opened. The cost of the guards would have been minimal. In my report I

estimated the cost at approximately $100 to $300."

       Strout argued whether the danger was open and obvious was a material issue of

fact. Strout cited Mitchell's testimony that because of "the danger of a window installed

with a low window sill," Ply Gem "should have warned Ms. Strout and others similarly

situated about the danger windows such as this present to building occupants. Ply Gem

could have recalled the window and installed guards." Mitchell also addressed the

failure of Ply Gem to warn:

      [Marnings about the deceptive appearance of the window and the fall
      hazards that the subject Ply Gem window presented when installed with a


       11 Footnote omitted.


                                            13
No. 77235-0-1/14

       low sill should have been provided when the window was originally
       installed on the premises.

       Ply Gem moved to strike Mitchell's "opinions about window design and warnings"

as outside his area of expertise.

       In opposition to the motions of Haier and Wal-Mart, Strout submitted the

declaration of certified industrial hygienist Michelle Copeland and retail store operations

expert Alex Balian. Copeland testified that the Haier "literature and graphics" do not

adequately warn consumers about the danger of installing the air conditioner "in

windows other than double hung windows" and "do not meet current standards."

Copeland testified neither the Haier shipping box nor the Quick Start Guide included

any prohibition against using the air conditioner unit in another type of window.

Copeland testified that the statement in the User and Care Guide that the unit "can only

be installed in a double hung window" is not highlighted or "emphasized" as a safety

precaution. Balian testified that a retailer must inspect returned merchandise to ensure

"all manufacturer intended product, documents and parts" are included.

      Strout argued that because Lang did not have the Haier User and Care Guide,

his testimony was speculative. Strout cited the testimony of Lang and her testimony to

argue there were material issues of fact on proximate cause. Lang and Strout testified

they would have read and followed the instructions in the Haier User and Care Guide.

      The court denied the summary judgment motion to dismiss the claims against

McGee in part. The court denied Haier's motion to dismiss the WPLA claims. The court

cited the testimony of Copeland that Haier should have placed warnings on the air

conditioner unit. The court granted Wal-Mart's motion for summary judgment dismissal.

The court ruled Wal-Mart was not a "manufacturer" under the WPLA. The court ruled


                                            14
No. 77235-0-1/15

Strout could not establish proximate cause. The court cites the testimony of Strout that

she "didn't play any role in checking out how to properly install the air conditioner or

where it was supposed to be placed in terms of the type of window it should be placed

in" and "relied exclusively on Rob Lang to properly install the air conditioner into the

sliding window" and the testimony of Mitchell that the missing parts "probably didn't

contribute to this incident."12

       The court granted Ply Gem's motion to strike Mitchell's testimony on consumer

expectations and warnings and granted Ply Gem's summary judgment motion to

dismiss the WPLA claims.

       Strout filed a motion for reconsideration. Strout submitted additional declarations

and deposition designations. The court ruled Strout "could have submitted this

evidence" previously but "chose not to." The court denied the motion for

reconsideration. McGee and Haier entered into a settlement agreement with Strout.

McGee and Haier stipulated to an order of dismissal. The court entered an order

dismissing the claims against McGee and Haier with prejudice.

                                        ANALYSIS

       Strout contends the court erred by dismissing the WPLA claims against Wal-Mart

and Ply Gem on summary judgment.

Standard of Review

       We review the court's decision on summary judgment de novo, performing the

same inquiry as the trial court. Kruse v. Hemp, 121 Wn.2d 715, 722, 853 P.2d 1373

(1993); Nichols v. Peterson Nw., Inc., 197 Wn. App. 491, 498, 389 P.3d 617 (2016).

We view all facts and reasonable inferences drawn from those facts in the light most

       12   Boldface omitted.


                                             15
No. 77235-0-1/16

favorable to the nonmoving party. Young v. Key Pharm. Inc., 112 Wn.2d 216, 226, 770

P.2d 182(1989). Summary judgment is appropriate lithe pleadings, affidavits,

depositions, and admissions demonstrate the absence of any genuine issues of

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

Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300-01,45 P.3d 1068 (2002); Kofmehl v.

Baseline Lake, LLC, 177 Wn.2d 584, 594, 305 P.3d 230 (2013).

       When the defendant files a motion for summary judgment showing the"'absence

of evidence to support the [plaintiff]'s case,'"the burden shifts to the plaintiff to set forth

specific facts showing a genuine issue of material fact for trial. Young, 112 Wn.2d at

225 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d

265 (1986)); Walston v. Boeing Co., 181 Wn.2d 391, 395-96, 334 P.3d 519 (2014).

Bare assertions that a genuine material issue exists cannot defeat a motion for

summary judgment. SentineIC3, Inc. v. Hunt, 181 Wn.2d 127, 140, 331 P.3d 40 (2014).

Allegations or conclusory statements of fact unsupported by evidence are not sufficient

to establish a genuine issue of material fact. Baldwin v. Sisters of Providence in Wash.,

Inc., 112 Wn.2d 127, 132, 769 P.2d 298 (1989); Griswold v. Kilpatrick, 107 Wn. App.

757, 761-62, 27 P.3d 246 (2001); Elcon Constr., Inc. v. E. Wash. Univ., 174 Wn.2d 157,

169, 273 P.3d 965 (2012). A party must present more than "[u]ltimate facts" or

conclusory statements. Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 359,

753 P.2d 517 (1988), abrogated on other grounds by Mikkelsen v. Pub. Util. Dist. No. 1

of Kittitas County, 189 Wn.2d 516, 404 P.3d 464 (2017). The nonmoving party cannot

rely on "speculation, argumentative assertions that unresolved factual issues remain, or




                                              16
No. 77235-0-1/17

in having its affidavits considered at face value." Seven Gables Corp. v. MGM/UA

Entm't Co., 106 Wn.2d 1, 13; 721 P.2d 1(1986).

WPLA

        The WPLA is the exclusive remedy for product liability claims in Washington.

Wash. Water Power Co. v. Gravbar Elec. Co., 112 Wn.2d 847, 853, 774 P.2d 1199

(1989). The WPLA creates a cause of action for product-related harms. Stanton v.

Bayliner Marine Corp., 123 Wn.2d 64, 71, 866 P.2d 15 (1993); Wash. Physicians Ins.

Exch. & Ass'n v. Fisons Corp., 122 Wn.2d 299, 322, 858 P.2d 1054 (1993). The WPLA

imposes liability on a product manufacturer for the harm proximately caused by a

product that was not reasonably safe as designed or because adequate warnings or

instructions were not provided. RCW 7.72.030(1). RCW 7.72.030(1) states, in pertinent

part:

        A product manufacturer is subject to liability to a claimant if the claimant's
        harm was proximately caused by the negligence of the manufacturer in
        that the product was not reasonably safe as designed or not reasonably
        safe because adequate warnings or instructions were not provided.
               (a) A product is not reasonably safe as designed, if, at the time of
        manufacture, the likelihood that the product would cause the claimant's
        harm or similar harms, and the seriousness of those harms, outweighed
        the burden on the manufacturer to design a product that would have
        prevented those harms and the adverse effect that an alternative design
        that was practical and feasible would have on the usefulness of the
        product: PROVIDED, That a firearm or ammunition shall not be deemed
        defective in design on the basis that the benefits of the product do not
        outweigh the risk of injury posed by its potential to cause serious injury,
        damage, or death when discharged.
               (b) A product is not reasonably safe because adequate warnings
        or instructions were not provided with the product, if, at the time of
        manufacture, the likelihood that the product would cause the claimant's
        harm or similar harms, and the seriousness of those harms, rendered the
        warnings or instructions of the manufacturer inadequate and the
        manufacturer could have provided the warnings or instructions which the
        claimant alleges would have been adequate.




                                              17
No. 77235-0-1/18

Although RCW 7.72.030(1) uses the term "negligence," the strict liability applies to a

design defect claim or a failure to warn claim under RCW 7.72.030(1)(a) or (b). Ayers v.

Johnson & Johnson Baby Prods. Co., 117 Wn.2d 747, 765, 818 P.2d 1337 (1991);

Soproni v. Polygon Apt. Partners, 137 Wn.2d 319, 326-27, 971 P.2d 500(1999)(citing

Falk v. Keene Corp., 113 Wn.2d 645, 782 P.2d 974 (1989)).13

       The WPLA also imposes liability on a product manufacturer for implied warranty

of merchantability under Title 62A RCW. RCW 7.72.030(2) states:

       A product manufacturer is subject to strict liability to a claimant if the
       claimant's harm was proximately caused by the fact that the product was
       not reasonably safe in construction or not reasonably safe because it did
       not conform to the manufacturer's express warranty or to the implied
       warranties under Title 62A RCW.

Wal-Mart

       Strout contends the court erred by granting summary judgment dismissal of her

WPLA claims against Wal-Mart as a manufacturer under RCW 7.72.030 for design

defect, failure to warn, and breach of implied warranty. Strout asserts Wal-Mart is

strictly liable for "selling a defectively remanufactured product that did not include

Haier's instructions, warnings, and installation parts."14

       Under the WPLA, a "manufacturer" includes a product seller who "produces,

makes, fabricates, constructs, or remanufactures" the product for sale. RCW

7.72.010(2). RCW 7.72.010(2) states:

       "Manufacturer" includes a product seller who designs, produces, makes,
       fabricates, constructs, or remanufactures the relevant product or
       component part of a product before its sale to a user or consumer. The
       term also includes a product seller or entity not otherwise a manufacturer
       that holds itself out as a manufacturer.

        13 However, for failure to warn claims involving a danger that becomes known after manufacture,
a negligence standard is applied. Avers, 117 Wn.2d at 765.
        14 Emphasis in original.




                                                  18
No. 77235-0-1/19

              A product seller acting primarily as a wholesaler, distributor, or
      retailer of a product may be a "manufacturer" but only to the extent that it
      designs, produces, makes, fabricates, constructs, or remanufactures the
      product for its sale. A product seller who performs minor assembly of a
      product in accordance with the instructions of the manufacturer shall not
      be deemed a manufacturer. A product seller that did not participate in the
      design of a product and that constructed the product in accordance with
      the design specifications of the claimant or another product seller shall not
      be deemed a manufacturer for the purposes of RCW 7.72.030(1)(a).

      Statutory construction is a question of law we review de novo. Bostain v. Food

Express, Inc., 159 Wn.2d 700, 708, 153 P.3d 846 (2007). Our primary goal is to

determine legislative intent. Bostain, 159 Wn.2d at 708. In determining legislative

intent, we consider the text and the plain and ordinary meaning of the language used as

the expression of the intent of the legislature. Bostain, 159 Wn.2d at 708.

       In Washburn v. Beatt Equipment Co., 120 Wn.2d 246, 259, 840 P.2d 860 (1992),

the Washington Supreme Court cites dictionary definitions to define the terms

"produce,""make," "fabricate," and "construct" as used in RCW 7.72.010(2).

             "Produce" includes "to give being, form, or shape to" and "to make
      economically valuable". ([Emphasis] ours.) Webster's Third New
      International Dictionary 1810 (1981). To "make" includes "to bring (a
      material thing) into being by forming, shaping, or altering material"; "to lay
      out and construct", and "to put together from components or ingredients".
      ([Emphasis] ours.) Webster's, at 1363. To "fabricate" means "to form into
      a whole by uniting parts" and "to build up into a whole by uniting
      interchangeable standardized parts". ([Emphasis] ours.) Webster's, at
      811. To "construct" includes "to form, make, or create by combining parts
      or elements". Webster's, at 489.05)

Washburn, 120 Wn.2d at 259. The dictionary defines "remanufacture" as "to

manufacture (used or scrap material) into a new product." WEBSTER'S THIRD NEW

INTERNATIONAL DICTIONARY 1919 (2002).




       15   Emphasis in original.


                                            19
No. 77235-0-1/20

        Strout cites Washburn to assert "repackaging" the Haier air conditioner without

the necessary parts or User and Care Guide made Wal-Mart a "remanufacturer." In

Washburn, Beatt Equipment Company contracted to construct and install a pipeline

system. Washburn, 120 Wn.2d at 252-53. Beatt argued it was a product seller not a

manufacturer. The evidence established the "prime contract for which [Beatt] was a

subcontractor was not for individual parts, but for a system." Washburn, 120 Wn.2d at

259.16 The court concluded the evidence supported finding Beatt was a manufacturer

because it "ma[d]e, fabricate[d] and construct[ed] a pipeline system" where Beatt had to

"complete the manufacturing process" by cleaning, stripping, and joining pieces of pipe.

Washburn, 120 Wn.2d at 259-60.17

        Viewing the evidence in the light most favorable to Strout, the record shows that

after the Haier air conditioner unit was returned, Wal-Mart repackaged and taped the

Haier box closed and the box did not contain the User and Care Guide or all the parts

necessary for installation. Unlike Washburn, there is no evidence that Wal-Mart

designed, produced, made,fabricated, altered, or constructed the Haier air conditioner

or any of its component parts. Like "produce,""make," "fabricate," and "construct,"

remanufacturing requires making a new product."




        16    Emphasis in original.
        17    Emphasis in original.
           18 In a statement of additional authorities, Strout cites Rublee v. Carrier Corp., 192 Wn.2d 190,
428 P.3d 1207(2018). In Rublee, the Washington Supreme Court adopted the "apparent manufacturer"
doctrine: "One who puts out as his own product a chattel manufactured by another is subject to the same
liability as though he were its manufacturer." Rublee, 192 Wn.2d at 201-02; RESTATEMENT(SECOND)OF
TORTS § 400(Am. LAW INST. 1965). The court states the "two predominant ways a nonmanufacturing
entity puts out a chattel as its own product" are "(1) the entity appears to be the manufacturer of the
product or(2) the product appears to have been made for the particular entity." Rublee, 192 Wn.2d at
199 (citing RESTATEMENT § 400 cmt. d). There is no evidence in the record that Wal-Mart appears to be
the manufacturer or that the air conditioner was made particulaq for Wal-Mart.


                                                    20
No. 77235-0-1/21

       We conclude Wal-Mart is not a manufacturer under the WPLA and the court did

not err by dismissing the claims for design defect, failure to warn, or breach of implied

warranty under RCW 7.72.030.

       In the alternative, Strout contends the court erred in dismissing her claim against

Wal-Mart for negligence as a product seller under RCW 7.72.040. RCW 7.72.040(1)(a)

states, "[A] product seller other than a manufacturer is liable to the claimant only if the

claimant's harm was proximately caused by" the product seller's "negligence."

      "As a general rule, manufacturers of defective products are held to a higher

standard of liability, including strict liability where injury is caused by a manufacturing

defect or a breach of warranty." Johnson v. Recreational Equip., Inc., 159 Wn. App.

939, 946, 247 P.3d 18(2011)(citing RCW 7.72.030(2)). By contrast, a product seller

that does not make, fabricate, construct, or remanufacture a product is "liable only for

negligence, breach of express warranty, or intentional misrepresentation." Johnson,

159 Wn. App. at 946-47.

       Strout argues Wal-Mart's negligence was a proximate cause of the harm. Strout

asserts Wal-Mart was negligent in failing to "make an inspection of the product prior to

sale" and breached its "duty to inspect customer returned merchandise to ensure that all

Haier's intended to be enclosed product, written documents, and parts were in fact

contained within undamaged packaging prior to reshelving the product for resale."

       Viewed in the light most favorable to Strout, the evidence supports finding Wal-

Mart negligently repackaged and sold the returned Haier air conditioner. Strout and

Lang testified that the box looked like it had "been opened" and "taped shut again."

Strout said the box "wasn't shut like .. . normal" and "look[ed] like it had been opened




                                              21
No. 77235-0-1/22

and repacked or resealed." Retail store operations expert Balian testified that Wal-Mart

had a duty to check returned merchandise to ensure the product, its attachments,

packaging and parts are complete and undamaged," and Wal-Mart's return policy did

"not meet the standard of acceptable practices in the retail industry."19

        Strout also contends material issues of fact on proximate cause preclude

summary judgment. Strout argues the deposition testimony of Lang and Strout creates

a material issue of fact as to whether Lang and Strout would have followed instructions

in the User and Care Guide had they been provided. Wal-Mart contends there is no

evidence the missing hardware was a proximate cause and Lang's testimony shows he

would have installed the air conditioner in the sliding window even if the User and Care

Guide was in the box.

        Viewing the evidence in the light most favorable to Strout, there are material

issues of fact on proximate cause. Lang testified the Haier box did not contain all the

parts necessary to install the air conditioner and the User and Care guide was not in the

box. Mitchell's testimony that the missing hardware for installation of the air conditioner

in a double-hung window "probably didn't contribute to this incident" is speculative and

equivocal. Lang testified he would have followed the instructions if the User and Care

Guide had been in the box:

                 Q.     So if there had been this use and care guide inside the box,
        would you have read it to ensure that you knew how to safely and properly
        install this air conditioner?
                A.       Yes.
                 Q.      And would you have followed these instructions?


        19 Strout also claims Wal-Mart breached the agreement with Haier that required Wal-Mart "to
send any returned item back to the original manufacturer." Although the record shows Wal-Mart may
send returned merchandise back to Haier, there is no specific contract provision that requires Wal-Mart to
do so.


                                                   22
No. 77235-0-1/23

               A.      Yes.[201

Strout testified that if she had the User and Care Guide, she "probably" would have told

Lang,"'You better not install it in the sliding window, because this is designed only for a

double-hung window.'"

       We reverse summary judgment dismissal of the claim against Wal-Mart for

negligence as a product seller under RCW 7.72.040.21

Ply Gem

       Strout challenges the trial court's decision to grant the motion of Ply Gem to

strike in-part the testimony of Mitchell and dismissal of the WPLA claims under RCW

7.72.030. Strout contends the expert testimony of architect and building inspector

Mitchell creates material issues of fact as to whether Ply Gem is liable for defective

design and failure to warn under the WPLA.

       Expert Testimony

       Ply Gem moved to strike Mitchell's testimony on defective design and warnings.

Ply Gem cited Mitchell's deposition testimony that he is "not a window manufacturing

industry standard expert," that he had never "seen any warning on a window before,"

and that he was not providing an opinion on warnings. The court concluded Mitchell

"offers several opinions that are outside his area of expertise."

              The declaration of Stan Mitchell, an architect and a building
       inspector, is the primary evidence that Plaintiff Valerie Strout offers in
       support of her claims against Ply Gem. But the Court finds that Mitchell
       offers several opinions that are outside his area of expertise. He opines
       about how a person would perceive the window opening in question,

       20  Boldface omitted.
       21 To the extent that Wal-Mart characterizes Lang's installation of the air conditioner unit as a
superseding cause, this is an affirmative defense Wal-Mart must prove at trial. We note an intervening
negligent act does not supersede Wal-Mart's negligence if reasonably foreseeable. Parkins v. Van Doren
Sales Inc., 45 Wn. App. 19, 27-29, 724 P.2d 389 (1986).


                                                  23
No. 77235-0-1/24

       alleged defects in the window's design and construction, the need for
       warnings related to the window, what consumers expect regarding a
       window, and causation. Yet the evidence before the Court does not
       establish a foundation for Mitchell to offer these as expert opinions.[22]

       Strout asserts the court erred by concluding several of Mitchell's opinions were

outside his area of expertise and inadmissible. We review evidentiary rulings de novo

when made in conjunction with a summary judgment motion. Wilkinson v. Chiwawa

Cmtvs. Ass'n, 180 Wn.2d 241, 249, 327 P.3d 614 (2014); Taylor v. Bell, 185 Wn. App.

270, 285, 340 P.3d 951 (2014).

       The Rules of Evidence govern the admission of expert testimony. ER 702.

"Generally, expert testimony is admissible if(1) the expert is qualified,(2) the expert

relies on generally accepted theories in the scientific community, and (3) the testimony

would be helpful to the trier of fact." Johnston-Forbes v. Matsunaga, 181 Wn.2d 346,

352, 333 P.3d 388 (2014). "A witness may qualify as an expert 'by knowledge, skill,

experience, training, or education.'" L.M. v. Hamilton, 193 Wn.2d 113, 135, 436 P.3d

803(2019)(quoting ER 702). ER 702 states:

                If scientific, technical, or other specialized knowledge will assist the
       trier of fact to understand the evidence or to determine a fact in issue, a
       witness qualified as an expert by knowledge, skill, experience, training, or
       education, may testify thereto in the form of an opinion or otherwise.

       If requisite qualifications are established, any deficiencies in an expert's

qualifications go to the weight, not the admissibility, of the testimony. O'Neill v. City of

Port Orchard, 194 Wn. App. 759, 768, 375 P.3d 709 (2016). However,"'[a]n expert

may not testify about information outside his area of expertise.'" L.M., 193 Wn.2d at

135 (quoting In re Marriage of Katare, 175 Wn.2d 23, 38, 283 P.3d 546 (2012)).



       22   Footnotes omitted.


                                              24
No. 77235-0-1/25

       Mitchell unequivocally testified he has never "seen any warning on a window

before" and was not "providing opinions as to this case on what type of — as to whether

there should be warnings on the windows." Based on Mitchell's testimony, the court did

not err in concluding his opinions about warnings Ply Gem should have provided were

inadmissible.

       However, the court erred in concluding Mitchell was not qualified to testify as an

architect about design defects, the consumer expectations and risk-utility tests, and the
                           •
safety hazards created by installation of the Ply Gem window in the second floor

bedroom. Mitchell has a master's degree in architecture and is a state licensed home

inspector. Mitchell owns Architectural Building Inspection Incorporated,"a professional

consulting service that provides pre-purchase building inspections of residential and

commercial buildings, feasibility analyses, troubleshooting building problems,[and]

expert witness testimony." Mitchell "practiced as an architect for over 39 1/2 years" and

has been "in the building construction industry for 57 years." Mitchell has "inspected

approximately 15,000 buildings while operating ABI" and "approximately 10,000

buildings while in the Army Corp. of Engineers." Mitchell has "evaluate[d] the

circumstances and causes of injuries occurring to people in or around buildings" and

provided expert testimony in "over 300 superior court cases locally and nationally."

       Design Defect and Warnings

       Stout relies on Mitchell's testimony to argue the court erred in dismissing the

WPLA claims against Ply Gem for design defect and the failure to warn. Mitchell's

testimony and report do not create a material issue of fact or support the conclusion that

Ply Gem is liable under the WPLA for design defect of the sliding glass window or




                                            25
No. 77235-0-1/26

failure to warn purchasers that installing the sliding glass window in a second floor

opening with a low sill that violates the UBC is a safety hazard that requires use of

guards.

       A plaintiff may establish liability under the WPLA for design defect or failure to

warn claims by using either a risk-utility test or a consumer expectations test. Falk, 113

Wn.2d at 645 (design defect claim); Avers, 117 Wn.2d at 747 (failure to warn claim).

Under the WPLA, a plaintiff must show (1) the manufacturer's product (2) was not

reasonably safe because of its design or lack of adequate warnings or instructions

which (3) proximately caused the harm to the plaintiff. See Avers, 117 Wn.2d at 752.

       Below, Strout relied on Mitchell to argue the window was not reasonably safe as

designed under the consumer expectations and risk-utility tests. On appeal, Strout

relies solely on the consumer expectations test.

       The consumer expectations test requires the plaintiff to show "the product was

unsafe to an extent beyond that which would be contemplated by the ordinary

consumer." RCW 7.72.030(3); Falk, 113 Wn.2d at 654.

              "In determining the reasonable expectations of the ordinary
       consumer, a number of factors must be considered. The relative cost of
       the product, the gravity of the potential harm from the claimed defect and
       the cost and feasibility of eliminating or minimizing the risk may be
       relevant in a particular case. In other instances the nature of the product
       or the nature of the claimed defect may make other factors relevant to the
       issue."

Falk, 113 Wn.2d at 649 (quoting Seattle-First Nat'l Bank v. Tabert, 86 Wn.2d 145, 154,

542 P.2d 774 (1975)). Under RCW 7.72.030(3), a plaintiff may show the product was

"unsafe to an extent beyond that which would be contemplated by the ordinary

consumer."




                                             26
No. 77235-0-1/27

      "The ultimate issue in a strict liability claim is whether the product is in a defective

condition unreasonably dangerous to the user, at the time the product leaves the

seller's hands." Davis v. Globe Mach. Mfg. Co., 102 Wn.2d 68, 74, 684 P.2d 692

(1984).23 The expectations of the consumer "are judged against the reasonable

expectations of the ordinary consumer." Soproni, 137 Wn.2d at 327.

      Strout cites Soproni and Mitchell's testimony to argue a consumer would "not

appreciate the risk of Ply Gem's window design." In Soproni, a 20-month-year-old child

fell out of a second-story "pop-out" window. Soproni, 137 Wn.2d at 322. The window

"was secured by a 'detent mechanism' or 'drop bolt' which was designed to drop

vertically by gravity into a slot into the window track when the window was closed or at a

three-inch opening." Soproni, 137 Wn.2d at 322. But the window could be opened

"with minimal effort" and did not "have a locking device for the detent." Soproni, 137

Wn.2d at 322. The plaintiffs argued the window was unreasonably dangerous at the

time of manufacture to an extent beyond which would be contemplated by the ordinary

consumer because "the detent mechanism could be easily manipulated by an infant and

... the window was not safe without a device to deter or prevent a small child from

opening it." Soproni, 137 Wn.2d at 323-24.

       Unlike in Soproni, there is no evidence Ply Gem defectively designed the sliding

glass window. The sliding glass window is 4 feet 8 1/4 inches tall and 3 feet 10 inches

wide. The left windowpane is fixed. Ply Gem designed the window with two locking

devices. A "cam lock" or lock-and-key device keeps the sliding sash "in a fully closed

position to prevent anyone from opening it from the outside." The cam lock can also

"prevent children from opening it from the inside." The second locking device on the

       23   Emphasis in original.


                                             27
No. 77235-0-1/28

window is a "sash stop" that allows the sliding "sash to be opened only two to three

inches, at which point a plunger can be pushed into" the opening to prevent the window

from opening more than three inches.

       Strout cites Mitchell's testimony that the window opening was "deceptively

narrow" and "[t]he window's size and configuration create a false sense of security." In

his declaration, Mitchell states:

       [T]he Ply Gem manufactured window through which Ms. Strout fell is
       physically narrow and, when its sliding sash is open, the resultant opening
       appears to be deceptively narrow. The window's size and configuration
       create a false sense of security. Someone approaching the window would
       not anticipate the possibility (s)he could fall out of what appears to be a
       small and narrow appearing space. A person approaching the window
       would have the tendency to let his or her guard down.

       Mitchell testified that "common sense would tell a reasonable person if they got

their center of gravity over the window sill, they'd fall out." Mitchell said, "[M]ost people

would understand that. . . . They might not get the center of gravity thing but would get it

at a certain point that they're going to fall out." Mitchell testified that the "2-foot sill

height is well below an adult's center of gravity."24 In July 2014, Strout was 5 feet 11

inches tall and weighed approximately 220 pounds. The sill of the window was at

approximately Strout's knee. Mitchell testified, "The low window sill of 24-9/16 inches at

the subject premises after the window was installed had a window opening tall and wide

enough for an adult person to fall through."

       The crux of Mitchell's testimony is that the size and configuration of the window

opening and the low window sill that does not meet the code requirements creates the




       24   Emphasis omitted.


                                                28 .
No. 77235-0-1/29

hazardous and dangerous condition, not the sliding glass window.25 Mitchell does not

testify that the Ply Gem window or the failure to warn violated the UBC. The

uncontroverted record shows Ply Gem did not install the window and did not have a role

in designing the window opening or determining the location or installation of the

window in the second story of the townhouse.

       Mitchell testified the architect and contractor designed and installed the low sill

and window opening in the second story bedroom in violation of the UBC. The record

shows the building was constructed between 1979 and 1981. In 1993, the building

owner replaced the original window with a Ply Gem vinyl sliding-glass window. Ply Gem

did not install the window in 1993. Mitchell testified that "builders, like architects, are

tasked with constructing buildings to conform with code" and that the building owner

must "maintain the buildings to comply with code."26 Mitchell testified that "if you had a

big space, a two-story space," the window "could have been installed with a sill at three

feet and the header higher than doors." Mitchell testified, "[There's no problem with this

window" if installed at ground level. In his report, Mitchell also notes the UBC requires

"operable windows in sleeping spaces" have a minimum fire egress of 20 inches. The

20 %-inch width of the window opening meets the minimum fire egress requirements of

20 inches.




        25 We note Mitchell testified about safety hazards and "feasibly safe [window] alternatives" in
Soproni. See Soproni, 137 Wn.2d at 324.
        26 The construction statute of repose bars construction claims of "any improvement upon real
property" that has not accrued within six years after substantial completion. RCW 4.16.300,.310; Puente
v. Res. Conserv. Co. Intl, 5 Wn. App. 2d 800, 808, 428 P.3d 415 (2018).


                                                  29
No. 77235-0-1/30

        Mitchell testified that because a low sill height is a hazard, Ply Gem should have

warned about the risk and provided a guard.27 However, Mitchell testified, "In a

conventional scenario with a standard eight foot floor to ceiling configuration, this

window never should have been designed, manufactured and installed in a conventional

floor to ceiling height."

        The designated Ply Gem witness, warranty and service manager Bryan Doyea,

testified,"We typically don't know where our windows are going. They can go

anywhere. It's up to the installer or the architect or the builder to determine what

window configurations go where." Doyea also testified that because the design and

placement of the window is the responsibility of the architect and contractor, Ply Gem

cannot "warn against everything or understand exactly every kind of parameter that we

would have to warn against in terms of where our windows go."

        Strout also argues there is a question of fact whether Ply Gem is liable for the

failure "to warn users of its windows regarding the risk of falling from them, particularly if

consumers foreseeably misapplied air conditioner units in them." Foreseeability is not

an element of a failure to warn claim under RCW 7.72.030(1)(b). Avers,, 117 Wn.2d at

764.




        27 Mitchell testified about the cost of guards in the context of the risk-utility test. As previously
noted, on appeal, Strout focuses solely on the consumer expectations test to argue liability under the
WPLA.


                                                       30
No. 77235-0-1/31

        We conclude the court did not err by granting summary judgment dismissal of the

claim against Ply Gem for failure to warn.28

        We affirm summary judgment dismissal of the WPLA claims against Ply Gem but

reverse dismissal of the WPLA claim against Wal-Mart as a product seller under RCW

7.72.040 and remand for trial.




WE CONCUR:




    c/...„ 9,




        28 For the first time at oral argument, Strout cited Taylor v. Intuitive Surgical, Inc., 187 Wn.2d 743,
389 P.3d 517(2017), to argue Ply Gem breached the duty to warn the purchaser of the window about the
danger of installing the window on the second floor with a low sill. Taylor is inapposite. In Taylor, the
Washington Supreme Court held the WPLA requires manufacturers to warn hospitals about their
"dangerous medical devices." Taylor, 187 Wn.2d at 747-48. The court concluded that "where the product
is an extremely complex and inherently dangerous medical device, it is logical that hospitals would need
warnings" because "hospitals have an independent duty of care to their patients." Taylor, 187 Wn.2d at
755.


                                                     31
