                                                                       FILED
                                                                  SEPTEMBER 27, 2016
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




              IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                 DIVISION THREE

PATRICIA JONSON,                             )
                                             )        No. 33869-0-111
                      Appellant,             )
                                             )
         V.                                  )
                                             )
SEARS, ROEBUCK & CO., a New York             )        UNPUBLISHED OPINION
for profit corporation,                      )
                                             )
                     Respondent.             )

         SIDDOWAY, J. - Patricia Jonson appeals the summary judgment dismissal of her

personal injury claim against Sears, Roebuck & Co., arising from a hard fall sustained

when she tripped over an ottoman left in an aisle in its Kennewick store. Ms. Jonson's

testimony about the accident and that of her expert, a human factors engineer specializing

in safety and risk management, raise genuine issues of fact. We reverse the order

dismissing her complaint and remand for further proceedings.

                     FACTS AND PROCEDURAL BACKGROUND

         Because we are reviewing the dismissal of a claim by summary judgment, we

view disputed evidence in the light most favorable to Patricia Jonson as the nonmoving

party.
No. 33869-0-111
Jonson v. Sears, Roebuck & Co.


       On the morning of January 10, 2012, 75-year-old Patricia Jonson traveled to the

Sears store in Kennewick to look at l'IComfort-brand shoes she had seen advertised in

the morning's paper. She was familiar with where the shoe department was located in the

store and on entering, walked down aisles in that direction. Upon reaching the shoe

department, she saw an "l'IComfort" banner hung above merchandise and continued

down the aisle where it was located.

       In response to an interrogatory posed by Sears, Ms. Jonson described what

happened next:

              I did not look downward into that aisle. Both sides of the aisle had
       some sort of store cupboards or such on them. This was a side aisle,
       compared to a main aisle, in my estimation, but was intended for customer
       use. I had only taken a few steps into this aisle, my eyes still focused on
       my final destination, when I saw out of the left peripheral a swift glance at
       something blocking the aisle. I had no time to stop my progress, other than
       the thought ran through my mind, that I was going to fall.

Clerk's Papers (CP) at 25. The object blocking the aisle turned out to be an ottoman,

later reported by Sears to be 14" wide, 28" long, and 18" high.

       As she fell, Ms. Jonson reached out to brace herself, grabbing the ottoman. As she

hit the floor, it rolled over with her. She came to rest against a cabinet on the side of the

aisle, her legs tangled in the ottoman. She was stunned. A man helped her up and took

her to the area of the shoe department where there were chairs, so she could sit.

       After she sat down, a female employee came out from an employee area and asked

her if she needed assistance. Ms. Jonson responded that she had fallen and needed a

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Jonson v. Sears, Roebuck & Co.


moment to collect herself. When Ms. Jonson was ready, the employee helped her try on

a pair of the !¥Comfort shoes, but Ms. Jonson chose not to buy them. She then went

home.

        Ms. Jonson had hit her "right shoulder, hip, elbow, knee, ankle, hand, and also the

right side of [her] head" in the fall. CP at 25. She had her glasses on, and they cut her

ear but did not break. Upon arriving at home she "wasn't feeling good," "felt shook up,"

and her "head was really hurting ... a lot," so she went to bed. CP at 40-41.

        The next day, Ms. Jonson "felt much, much worse":

        I felt so rotten, I didn't want to go out. I just wanted to stay home. I took a
        lot of Tylenol, you know. And by then, all the bruising started and all that
        kind of thing. So I kept ice on that.

CP at 41. Among other bruising, she had a black eye. She did not seek urgent care

because she already had a regular physical exam scheduled for January 12.

        Ms. Jonson called Sears at the opening of business on the morning of January 12

to speak with a manager about her fall and her concern about the safety of others. She

spoke with the assistant manager of the Kennewick store, Ryan Seaver.

        Later that morning, she went to see her doctor, Michael J. Pattillo, M.D., and told

him about her fall. His dictation and report includes his notation at the outset of her

history, "She fell 2 days ago. She wasn't watching where she was going. No head

trauma. Still has bruising." CP at 45. Dr. Pattillo did not personally give her a referral




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No. 33869-0-III
Jonson v. Sears, Roebuck & Co.


for physical therapy because, according to Ms. Jonson, "[h]e was sending me on, which I

knew he would do, to another doctor." CP at 43.

       Ms. Jonson sued Sears for negligence, alleging the ottoman blocking its aisle

presented an unreasonable risk of harm to its business invitees and Sears should have

expected that invitees would not discover or protect themselves from an obstruction

existing below eye level. In response to discovery, she claims to have suffered not only

the original trauma but to have continuing pain in her right knee; increased pain in her

arthritic right wrist and thumb; neck stiffness and pain that requires occasional steroid

injections and physical therapy; nystagmus; 1 and balance problems, dizziness, and lost

stamina and strength. She claims approximately $15,000 in medical expenses, the largest

items of expense being associated with physical therapy, and seeks general damages.

       Following the conduct of discovery, Sears moved for summary judgment, arguing

that "[a]n ottoman is not a dangerous condition"; that even if dangerous or hazardous, the

ottoman was "completely open and obvious"; that Ms. Jonson had failed to show that

Sears knew an ottoman in the aisle was dangerous; and that Ms. Jonson had not shown

that it knew the ottoman had been moved into an unsafe position. CP at 8.

       In opposition to the motion for summary judgment, Ms. Jonson submitted her own

declaration and Sears' responses to discovery. In answering discovery seeking Sears'


       1
        A vision disorder, one cause of which is injury to the head. See
http://www.aao.org/eye-health/diseases/nystagmus-cause (last visited Sept. 14, 2016).

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No. 33869-0-111
Jonson v. Sears, Roebuck & Co.


policies related to "clearing shopping aisles," "periodic inspections required during the

course of the day to ensure there are no obstructions in any of the shopping aisles," or

"inspection of aisles for obstructions prior to the opening of the store at the

commencement of a business day," the only policy identified by Sears stated:

               Responsibility for maintenance and inspection of the premises is
       shared by store management, loss control and floor associates, with
       management and loss control associates responsible for the entire store
       premises and floor associates responsible for the department in which they
       are working. The premises occupied are inspected prior to opening and
       during public hours, inspected on an on-going basis by store management 1
       lost [sic] control and floor associates.

CP at 62-64 (Interrogatories 4 through 6). In response to Ms. Jonson's request for "any

logs, journals, or other periodic inspection reports related to aisle obstructions for January

10, 2012, in or around the department where Ms. Jonson suffered her injury," Sears

answered, "Inspections are not timed, recorded, or scheduled." CP at 64.

       Ms. Jonson also submitted electronic mail that Mr. Seaver sent to another

individual after receiving Ms. Jonson's call on January 12. It stated:

             I was notified by customer Pat Jonson on Thursday 1/12/12 at
      approximatly [sic] 9am that she was victim of a slip and fall in the shoe
      department on Tuesday 1/10/12. She claimed to be quite badly injured and
      was going to need medical treatment. I asked Ms. Jonson if she notified
      anyone of her incident and she claims she did. She claims to have told an
      associate in the shoe department, but insists that she does not want to get
      that person in trouble.
             She also claims that she wants to have the item that she tripped on
      removed /repaired/replaced but declined to tell me what it was because she
      just wanted to "send me a report[.]" I informed Ms. Jonson that there was a
      process that we needed to follow in these situations and that would involve

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No. 33869-0-III
Jonson v. Sears, Roebuck & Co.


       her filling out an accident report and include any witnesses to the accident
       and her description of how it happened. She offered to type something up
       and I told her that we would be in touch with a copy of our accident report
       for her to fill out.

CP at 69.

       Finally, and most importantly for purposes of this appeal, Ms. Jonson filed a

declaration and report of Joellen Gill, a human factors engineering consultant specializing

in safety and risk management together with color photographs of the ottoman that had

been provided to Ms. Gill. Ms. Gill's curriculum vitae reflect a relevant educational

history, numerous academic honors, relevant professional certifications, and over 20

years' experience as a human factors engineering consultant.

       Ms. Gill's curriculum vitae and report reflect familiarity with industry practices,

disclosing that she had "reviewed dozens of safety plans for retair stores" and was "quite

familiar with the risk management practices of a wide variety of retail and governmental

enterprises, including commercial, business, and retail establishments." CP at 79, 81.

       They disclose her sources of information on Ms. Jonson's fall. Ms. Gill's

declaration states she reviewed Ms. Jonson's deposition, the photographs of the ottoman,

and Sears' diagram of its floor plan. It is clear from the report itself that she also

reviewed Sears' discovery responses. See CP at 82 ("It is clear from Sears' Discovery

Responses ... ").




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No. 33869-0-111
Jonson v. Sears, Roebuck & Co.


       Ms. Gill's report provides information on typical human behavior relevant to the

fall and its foreseeability:

       As people walk through their environment they typically do not look at the
       ground in the immediate vicinity of their feet. Rather, they look out at the
       "horizon", usually 25 feet or more ahead, and use visual cues for gross
       navigation. They usually rely on kinesthetic 2 and proprioceptive 3 cues to
       actually interact with the surface on which they are walking. This tendency
       is exacerbated in a retail setting with displays designed to capture the
       attention of the shopper.

CP at 78. Noting that Ms. Jonson had been looking up at an overhead banner as she

walked down the store aisle, Ms. Gill explained:

       When focusing our gaze out in front of us (i.e. or above us as in this case),
       our visual acuity rapidly degrades as we depart from the horizontal visual
       angle to the point where at a mere 20 degrees (i.e. 3 clicks of a second
       hand) we are considered legally blind.

CP at 78-79.

       Ms. Gill acknowledged that "While we do engage in rapid eye scans (i.e. called

saccade) in our environment as we move about, we are searching for areas of information

or features of the environment that may have some importance to us." CP at 79. She

expressed the opinion that the ottoman was unlikely to be detected by a shopper whose

focus was elsewhere, reasoning, "Our eyes are naturally drawn to areas of information:




       2
         "[O]f or relating to bodily reaction or motor memory." WEBSTER'S THIRD NEW
INTERNATIONAL DICTIONARY 1244 (1993).
       3
         "[A]ctivated by, relating to, or being stimuli produced within the organism." Id.
at 1819.

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No. 33869-0-111
Jonson v. Sears, Roebuck & Co.


motion, blinking lights light contrast, color contrast[, y]et the subject ottoman was void of

any such attributes." Id. The color photograph of the ottoman reveals that the color of its

cover was almost identical to the color of the carpet in the shoe department.

       As evidence that retail stores recognize the hazard posed by low-level

obstructions, she pointed to her experience in reviewing retail safety plans, stating that

retail stores

       consistently prohibit items on the sales floor less than 24 inches in height
       and in some cases less than 36 inches in height. For example the standard
       safety cone is transitioning from 24 inches tall to 36 inches tall. The reason
       for these precautions is the recognition that typical shoppers will fail to
       detect such a hazard in their peripheral vision when shopping in a retail
       environment with many distracting displays.

CP at 79.

       As evidence that these principles about human walking and observing behavior

have been recognized and applied to risk management for many decades, she cited

illustrative treatises and industry standards dealing with safe walking surfaces. CP at 79-

81. Pointing out that industry standards discourage one, two, or three riser steps in a

walkway unless action is taken to make them conspicuous, Ms. Gill stated:

       The point to be made is that if people cannot reliably detect the height
       difference of a 3 riser step across the entire width of a walkway, they
       cannot be expected to detect an ottoman that is unexpected and in their
       peripheral vision.

CP at 81.




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No. 33869-0-III
Jonson v. Sears, Roebuck & Co.


       Finally, Ms. Gill explained how Sears' acts or omissions failed the Fundamental

Principle of Safety, a three-tier process used by the safety and human factors profession

to address known hazards. Under the first tier, or best altemative-"Safety by Design"-

Sears should have "ensur[ ed] the ottoman was placed correctly in an expected location

when not in use, thereby eliminating the hazard by preventing the ottoman from being

left in a narrow aisle." CP at 82. According to Ms. Gill,

      [T]he presence of the unexpected ottoman in the shoe department aisle
      violated a typical shoppers' mental model or "schema" about the world.
      That is, our expectation would be that while we see seats for sitting and
      trying on shoes, they are typically in the open area between displays or at
      the endcaps of shoe display aisles. It is atypical and therefore unexpected
      to find an ottoman in the center of an aisle between racks of shoes for sale.

CP at 81.

      Ms. Jonson's deposition testimony was in accord. She testified that it was

common to have ottomans in shoe departments in her experience, but "[t]hey aren't

placed where this one was." CP at 40. And when asked if shoe stores even have

ottomans on rollers that can be moved around by customers, she answered, "Really? I've

never seen those." Id.

      According to Ms. Gill, the required safety precautions recognized by the safety

and human factors profession include proper training and enforcement of an effective

safety plan. She expressed the opinion that "at the very least," Sears should have

"provid[ed] a warning such as a bright safety yellow covering on the ottoman." CP at 82.


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No. 33869-0-111
Jonson v. Sears, Roebuck & Co.


       Finally, Ms. Gill observed that Sears recognized the importance to the safety of

continual inspection as evidenced by its policy imposing responsibility on employees to

inspect store premises "prior to opening and during public hours" and "on an on-going

basis." CP at 63. Yet in her view, Sears' failure to impose an inspection schedule and

recording requirement undercut the policy's effectiveness:

       While regular inspections are an important component of an effective safety
       program, they should be required on a regular basis, and such inspections
       should be recorded; without such implementation procedures it is
       impossible to ensure that such inspections are taking place as required,
       which is important for self-evaluation.

CP at 82.

       In replying, Sears did not offer any conflicting expert opinion but continued to

insist there were undisputed bases on which Ms. Jonson's claim could be summarily

dismissed. It did submit a declaration of the individual who became the asset and profit

protection manager at Sears' Kennewick store two years after Ms. Jonson's fall; he

authenticated a photograph of the shoe department and fixtures at the store and testified

that a review of claims files "shows that from at least 2005 on, there has never been a

claim of injury in the shoe department of the Sears Kennewick store." CP at 103.

      The trial court granted Sears' motion and dismissed Ms. Jonson's complaint. She

appeals.




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No. 33869-0-111
Jonson v. Sears, Roebuck & Co.


                                        ANALYSIS

       When reviewing a grant of summary judgment, we engage in the same inquiry as

the trial court. Marincovich v. Tarabochia, 114 Wn.2d 271, 274, 787 P.2d 562 (1990).

Summary judgment is appropriate if "there is no genuine issue as to any material fact and

... the moving party is entitled to a judgment as a matter of law." CR 56(c). "The court

must consider the facts in the light most favorable to the nonmoving party, and the

motion should be granted only if, from all the evidence, reasonable persons could reach

but one conclusion." Marincovich, 114 Wn.2d at 274.

       "Negligence is generally a question of fact for the jury, and should be decided as a

matter of law only 'in the clearest of cases and when reasonable minds could not have

differed in their interpretation' of the facts." Bodin v. City ofStanwood, 130 Wn.2d 726,

741, 927 P.2d 240 (1996) (quoting Young v. Caravan Corp., 99 Wn.2d 655, 661, 663

P.2d 834, 672 P.2d 1267 (1983)).

       In order to maintain a general claim in negligence, a plaintiff must establish a duty

owed by the defendant to the plaintiff, a breach of that duty, and an injury that was

proximately caused by the breach. Crowe v. Gaston, 134 Wn.2d 509, 514, 951 P .2d 1118

(1998). Injury and causation are not at issue on appeal. All that is at issue is whether the

fact that the ottoman was placed or allowed to be placed in the aisle where Ms. Jonson

fell breached a duty owed to Ms. Jonson.




                                             11
No. 33869-0-111
Jonson v. Sears, Roebuck & Co.


       At common law, a business proprietor owes a duty to invitees to make the

premises reasonably safe. Holm v. Inv. & Secs. Co., 195 Wash. 52, 59, 79 P.2d 708

(1938). In Washington, a proprietor breaches the duty and is liable for the harm caused

by a physical condition on the premises where the proprietor,

              (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 discovery or realize the danger,
      or will fail to protect themselves against it, and
              (C) fails to exercise reasonable care to protect them against the
      danger.

Iwai v. State, 129 Wn.2d 84, 93-94, 915 P.2d 1089 (1996) (quoting RESTATEMENT

(SECOND) OF TORTS§ 343 (AM. LAW INST. 1965)).

       Sears defends the trial court's summary judgment dismissal of Ms. Jonson's claim

"because (1) the ottoman did not constitute a dangerous condition; (2) Sears had no actual

or constructive knowledge of any dangerous condition; and (3) even if a dangerous

condition did exist, such condition was open and obvious." Br. of Resp't at 5. It argues

that on all these scores, as to which Ms. Jonson bears the burden of production, she "has

not demonstrated any evidence supporting otherwise." Id. We address these suggested

bases for affirming summary judgment in the order stated.

                          Knowledge of a Dangerous Condition

             In contrast to what a licensee may expect, an invitee "is ... entitled
      to expect that the possessor [of land] will exercise reasonable care to make
      the land safe for his [or her] entry". RESTATEMENT (SECOND) OF TORTS§

                                            12
No. 33869-0-111
Jonson v. Sears, Roebuck & Co.


       343, cmt. b. Reasonable care requires the 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." RESTATEMENT(SECOND)OFTORTS § 343, cmt. b.

Tincani v. Inland Empire Zoological Soc y, 124 Wn.2d 121, 138-39, 875 P.2d 621 (1994)

(most alterations in original).

       Ms. Jonson was entitled to expect that Sears employees had exercised reasonable

care to provide safe aisleways. Even ifwe were to conclude that Ms. Jonson's lay

testimony failed to raise a jury issue as to whether an 18" high ottoman blocking the aisle

of the Sears store would be recognized as a dangerous condition, Ms. Gill's declaration

and report serve as an expert opinion on that score. Sears responds by offering three

arguments why Ms. Gill's declaration is inadmissible. None is persuasive.

       Citing Holmes v. Wallace, 84 Wn. App. 156, 165, 926 P.3d 339 (1996), Sears

argues that Ms. Gill's opinion is inadmissible because she did not conduct "field work,"

which it defines as witness interviews, site visits, physical inspections, accident re-

creation, experiments, or tests. Br. of Resp't at 8. Holmes does not read any "field work"

requirement into ER 702. Rather, it holds that if test- or experiment-like evidence is

offered, it must be sufficiently relevant and reliable. Holmes involved an early morning

auto-pedestrian accident, in which a point in contention was whether the defendant driver

should have been using his high beam headlights. The defense wished to offer testimony

from its experts that when they visited the location of the accident, they did not observe


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No. 33869-0-111
Jonson v. Sears, Roebuck & Co.


drivers using high beam lights. The trial court excluded the evidence because their

observations "did not occur at the same time of day or under the same conditions as the

actual accident" and they were "unable to support this evidence with specific data." Id. at

165.

       Sears does not show the information reviewed by Ms. Gill was insufficient to

support her conclusion as to negligence. There is no "field work" requirement that her

review and report fails to meet.

       Sears next argues that Ms. Gill's opinions would not be helpful to a jury because

the dangerousness of the ottoman is not beyond the average layperson' s common

knowledge. If so, then the case presents a jury question of negligence based on Ms.

Jonson's lay opinion that Sears was negligent in placing an 18" high ottoman where it

would block the center of an aisle. While laypersons might disagree, hers is not an

unreasonable lay opinion. More importantly, Ms. Gill's report does provide specialized

information that could assist jurors in determining whether Sears breached a duty. It

qualifies as an admissible expert opinion under ER 702.

       Finally, Sears argues that Ms. Gill's report cites industry standards that apply to

walkways, not ottomans, and that the standards therefore have no relevance. We

disagree. Relevant evidence is "evidence having any tendency to make the existence of

any fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence." ER 401. "The threshold to admit

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No. 33869-0-111
Jonson v. Sears, Roebuck & Co.


relevant evidence is very low[; e]ven minimally relevant evidence is admissible." State

v. Darden, 145 Wn.2d 612,621, 41 P.3d 1189 (2002). Industry standards that address

analogous safety issues arising from the same human behavior satisfy the low relevance

threshold. The fact that the standards do not have direct application to ottomans goes to

the weight of the evidence, not its admissibility.

       We also note that even if Ms. Gill's discussion of the industry standards was

excluded, her report would still contain enough observations about human behavior, risk

management, and retail and commercial safety practices to create a jury question as to

negligence.

                            Actual or Constructive Knowledge

       Sears next argues that Ms. Jonson fails to demonstrate that it had knowledge of the

condition. A plaintiff can ordinarily establish knowledge of the condition at issue by

showing either that the condition was caused by the proprietor or that the proprietor had

actual or constructive knowledge of it. Pimentel v. Roundup Co., 100 Wn.2d 39, 49,666

P.2d 888 (1983). Sears contends it lacked knowledge, but its argument confuses

knowledge of the condition with a distinct legal issue: it argues that it could not have

known the ottoman might be dangerous. This argument does not pertain to whether

Sears had notice of the condition, but rather to whether Sears should realize the condition

involved an unreasonable risk of harm.




                                             15
No. 33869-0-111
Jonson v. Sears, Roebuck & Co.


       Sears offered evidence that its claims files for the Kennewick store only go back to

2005 and review of the claims shows that "from at least 2005 on, there has never been a

claim of injury in the shoe department of the Sears Kennewick store." CP at 100, 103.

Sears, a national retailer, cannot disclaim notice that low-lying items blocking aisles of a

retail store present a hazard by relying on 10 years' history in the shoe department of a

single store. We note that an annotation on personal injury claims such as this one

includes eight reported decisions involving customers injured in Sears stores. Linda A.

Sharp, Annotation, Liability for Injury to Customer from Object Projecting into Aisle or

Passageway in Store, 40 A.L.R.5TH 135 (1996). In addition to those cases, see Suriano

v. Sears, Roebuck & Co., 117 Wn. App. 819, 72 P.3d 1097 (2003) (affirming the outcome

of a Spokane jury trial on plaintiffs claim to have tripped over the base of a seven foot,

four inch tall sign located in a nine-foot wide aisle). Cf Petey v. Larson, 28 Wn.2d 790,

796, 183 P .2d 1020 (194 7) ( finding no contributory negligence as a matter of law where

jury could find that boxes stacked next to a retail service counter over which plaintiff

tripped had projected out into an aisle; "If this be so, the plaintiffs were entitled to go to

the jury").

       Here, there is no dispute that Sears knew the ottoman existed and where it was

placed. Sears even states in its brief that the ottoman was "appropriately positioned,"




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No. 33869-0-111
Jonson v. Sears, Roebuck & Co.


strongly implying that the ottoman was placed there by an employee. Br. ofResp't at 1. 4

Clearly, Sears had knowledge of the condition.

                                Open and Obvious Danger

       Finally, Sears argues that if the ottoman was dangerous, it was open and obvious.

A proprietor will not be liable for the harm caused by an open and obvious hazardous

condition, unless the proprietor should anticipate that the condition may harm invitees

despite their knowing of it. Kam/av. Space Needle Corp., 147 Wn.2d 114, 126, 52 P.3d

472 (2002). Ms. Gill states the issue from the perspective of a safety specialist:

       While it may have been "physically possible" for Ms. Jonson to detect the
       ottoman where she tripped and fell, the only relevant question in safety is
       whether a person could reasonably and foreseeably fail to detect the


       4 Sears' arguments that an ottoman is not a dangerous condition and that this
ottoman was obvious also suggest it intended for the ottoman to be in the aisle:
       An ottoman ... is exactly the type of thing one would expect to find in a
       shoe department in any store . . . . A place to sit and try on shoes is a
       necessary function of a shoe department. It could not offer the service it
       intends to provide without such accommodations. A chair, an ottoman or a
       bench are all completely ordinary furnishings that one would expect to
       encounter at a department store ....
               . . . . The ottoman was in plain view in an area where the average,
       reasonable person would expect to find a seat or fixture of some kind. Not
       only is that type of fixture open and obvious in a department store, it is
       completely ordinary.
CP at 8-9. If Sears intended for the ottoman to be in the seating area of the shoe
department but moveable by customers wishing to try on shoes in an aisle, then the self-
service exception to the notice requirement, briefed by both parties, would appear to
apply. In that event, Ms. Jonson need only show that given the self-service nature of the
shoe department, the existence of unsafe conditions was reasonably foreseeable.
Pimentel, 100 Wn.2d at 49.

                                             17
No. 33869-0-III
Jonson v. Sears, Roebuck & Co.


       unexpected ottoman, and not whether the ottoman was physically visible if
       a person was looking for such an unexpected hazard.

CP at 78.

       Section 343A of the Restatement provides several illustrations of when a possessor

of land can and should anticipate that a dangerous condition will cause physical harm to

an invitee notwithstanding its known or obvious nature. Three involve retail store

operations:

       2. The A Department Store has a weighing scale protruding into one of its
       aisles, which is visible and quite obvious to anyone who looks. Behind and
       about the scale it displays goods to attract customers. B, a customer,
       passing through the aisle, is intent on looking at the displayed goods. B
       does not discover the scale, stumbles over it, and is injured. A is subject to
       liability to B.
      3. The A Drug Store has a soda fountain on a platform raised six inches
      above the floor. The condition is visible and quite obvious. B, a customer,
      discovers the condition when she ascends the platform and sits down on a
      stool to buy some ice cream. When she has finished, she forgets the
      condition, misses her step, falls, and is injured. If it is found that this could
      reasonably be anticipated by A, A is subject to liability to B.
      4. Through the negligence of A Grocery Store a fallen rainspout is
      permitted to lie across a footpath alongside the store, which is used by
      customers as an exit. B, a customer, leaves the store with her arms full of
      bundles which obstruct her vision, and does not see the spout. She trips
      over it, and is injured. If it is found that A should reasonably have
      anticipated this, A is subject to liability to B.

RESTATEMENT    § 343A cmt. f.

       Given the many reported decisions that impose liability for injuries caused to

customers tripping over low-lying hazards in the aisles of retail stores, the Restatement



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No. 33869-0-111
Jonson v. Sears, Roebuck & Co.


examples, and the information and opinions offered by Ms. Gill, a jury question exists as

to whether Sears should have anticipated that an ottoman blocking a store aisle could

cause physical harm to a customer notwithstanding its obvious nature.

       We reverse the order dismissing Ms. Jonson's claims and remand for further

proceedings.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.


                                                   d)d-kw~, ~-
                                                 Siddoway, J.

I CONCUR:




Fearing, C.J.




                                            19
                                        33869-0-111

       KORSMO, J. (dissenting)-As Ms. Jonson's doctor nicely summed up this case:

"She wasn't watching where she was going." Clerk's Papers (CP) at 45. Ms. Jonson

agreed with that sentiment: "I did not look downward into that aisle. . . . I had only taken

a few steps into this aisle, my eyes still focused on my final destination, when I saw out

of the left peripheral a swift glance at something blocking the aisle." CP at 25. Ms.

Jonson even produced an expert who explained why she did not look where she was

walking-her attention was drawn to a hanging banner that advertised the shoes she was

seeking. After having conclusively established why she tripped over a visible object in

her path, Ms. Jonson mysteriously faults Sears for the tumble.

      Although establishing how she was distracted, her explanation does not indicate

why the offending ottoman thereby was rendered invisible or unknowable. It does not

appear the ottoman was colored such that it blended in with the floor or the cupboard it

stood against. The ottoman was in the department where it belonged--the shoe

department. Ms. Jonson, a veteran shopper, had experience with that particular Sears

shoe department. She did not claim to be surprised by the presence of an ottoman in the
No. 33869-0-III
Jonson v. Sears, Roebuck & Co. {dissent)


shoe department, an argument she might have been able to make if the fall had occurred

in housewares or another department where customers do not need to sit in order to try on

merchandise. Indeed, while she could remember a time when ottomans were not

prevalent, she believed that "most stores" now had them. CP at 40. She also never

suggested that in her experience it would be unusual for any merchandise or fixture to

intrude on the aisles, or even that aisles existed solely for traversing the store.

       In an earlier Sears trip and fall case, we characterized as "persuasive" 1 the decision

in Cudney v. Sears, Roebuck & Co., 84 F. Supp. 2d 856 (E.D. Mich. 2000), ajf'd, 21 F.

App'x. 424 (6th Cir. 2001) (unpublished). There a customer, also claiming to be

distracted by displays, tripped over the base of a clothing rack that extended into the

aisle. Id. at 857. Rejecting the distraction 2 argument, the trial court noted that it was




       1
           Suriano v. Sears, Roebuck & Co., 117 Wn. App. 819, 828, 72 P.3d 1097 (2003).
       2
         In a further rejection of the distraction argument, the Cudney court noted that "a
department store is not a sterile environment that provides public invitees a place to be
free from visual stimuli; quite to the contrary, proprietors put items on display for the
express purpose of drawing customers to them in the hope that the items will be
purchased. Members of the public come to department stores precisely because things
are on display, wanting to see the actual wares they may purchase. That, of course, is
why Ms. Cudney was in the store. Clothing racks and the clothes upon them are part and
parcel of that process. The rites of consumerism in no way obviate a consumer's
obligation to watch where she is going. Even if Ms. Cudney had been distracted
constantly by the clothing on display, her distraction would not have altered Sears' legal
duty to her." 44 F. Supp. 2d at 860.

                                               2


                                                                                                 I
No. 33869-0-111
Jonson v. Sears, Roebuck & Co. (dissent)


"clear from her testimony that she could have avoided coming into contact with the rack

simply by watching where she was walking." Id. at 860. The condition was "open and

obvious" as well as "completely ordinary." Id. at 861. Summary judgment was granted

in favor of the store. Id. at 862.

       Similarly here, the ottoman was "open and obvious" in the aisle. Indeed, Ms.

Jonson did see it, albeit too late to respond. It also is "completely ordinary" to see an

ottoman in a shoe department; even Ms. Jonson concurred in that assessment. Like the

clothing rack in the aisle in Cudney, the ottoman in the shoe aisle in the Kennewick Sears

was open and obvious. It could be seen by anyone looking to see it. The trouble here is

that Ms. Jonson was not looking. Instead, she was transfixed on a sign a few aisles over

and watched it instead of where she was going.

       She had an obligation to see what was open and obvious. 3 She did not. Her

distraction with Sears' marketing efforts does not change the nature of the ottoman's

open and obvious presence in the shoe department, a place where one typically finds

them. The majority opinion, unfortunately, focuses on an irrelevancy. The explanation




       3 In her trial court briefing, she described the opposing argument: "It is over
simplistic for the Court to grant summary judgment simply because Ms. Jonson was not
watching where she was walking." CP at 49. Like the trial judges here and in Cudney, I
disagree. Her statement is not an answer to the argument that the condition was open and
obvious. It simply is an attempt to shift the focus of the debate.

                                              3
No. 33869-0-III
Jonson v. Sears, Roebuck & Co. (dissent)


of how and why Ms. Jonson ignored what was there to be seen is not an excuse for failing

to see the ottoman. Sears did not hide the ottoman or otherwise disguise its presence.

Tunnel vision does not present a jury question that excuses Ms. Jonson from seeing what

was in front of her.

       I respectfully dissent.




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