                                                           FILED
                                                       DECEMBER 14, 2017
                                                    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

CHERYL N. McPHERSON and JACKIE               )         No. 34696-0-111
E. McPHERSON, wife and husband,              )
                                             )
                    Appellants,              )
                                             )
      v.                                     )         UNPUBLISHED OPINION
                                             )
WAL-MART STORES, INC., a Delaware            )
corporation,                                 )
                                             )
                     Respondent.             )

      PENNELL, J. -The McPhersons appeal a summary judgment order, dismissing

their negligence claims arising from a slip and fall at W almart. We affirm.
No. 34696-0-III
McPherson v. Wal-Mart Stores, Inc.


                                         FACTS

       Cheryl McPherson was injured after she slipped and fell in the shampoo aisle of a

Walmart store in Sunnyside, Washington. The fall took place just after 5:00 p.m. After

the incident, a store manager noted a shampoo bottle that had been knocked over on one

of the shelves, resulting in some clear shampoo spilling down onto the floor. The spilled

shampoo was deemed to be the cause of Mrs. McPherson's fall.

       The store manager reviewed video surveillance of the aisle where Mrs. McPherson

fell. According to a declaration from the manager, the video showed a Walmart associate

had checked the condition of the shampoo aisle between 4:04 p.m. to 4:06 p.m. Later, at

4:53 p.m., the manager observed two women handling bottles of shampoo in the area

where Mrs. McPherson's fall occurred. One of these women placed a shampoo bottle on

the shelf in the same spot where the manager later discovered the shampoo bottle that

spilled onto the floor. The manager declared that no one had notified Walmart of any

spills in the shampoo aisle prior to Mrs. McPherson's fall.

      After the McPhersons sued for negligence, Walmart successfully moved for

summary judgment. The trial court agreed with Walmart that the McPhersons lacked

evidence the store had actual or constructive notice of the shampoo spill. Thus, the

McPhersons were unable to support their claim that Walmart failed to maintain a safe



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No. 34696-0-111
McPherson v. Wal-Mart Stores, Inc.


business premises. The McPhersons appeal.

                                        ANALYSIS

       This court reviews an order granting summary judgment de novo. Lyons v. US.

Bank Nat'! Ass 'n, 181 Wn.2d 775, 783, 336 P.3d 1142 (2014). We engage in the same

inquiry as the trial court, viewing the facts and all reasonable inferences in the light most

favorable to the nonmoving party. Id. Summary judgment is appropriate if the record

demonstrates there is no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. Id.

       In order to meet its burden on summary judgment, a moving party must show there

are no genuine issues of material fact. Elcon Constr., Inc. v. E. Wash. Univ., 174 Wn.2d

157, 169,273 P.3d 965 (2012). Alternatively, the moving party can meet its summary

judgment burden by challenging the sufficiency of the evidence supporting an essential

element of the plaintiffs claim. Carlyle v. Safeway Stores, Inc., 78 Wn. App. 272, 275,

896 P.2d 750 (1995); see also Arment v. Kmart Corp., 79 Wn. App. 694, 696, 902 P.2d

1254 (1995). If the moving party can successfully meet one of these standards, the

burden shifts to the nonmoving party to "set forth specific facts rebutting the moving

party's contentions." Elcon Constr., 174 Wn.2d at 169. If the nonmoving party fails to

meet this burden, then summary judgment is appropriate. Id. at 170; Atherton Condo.



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No. 34696-0-III
McPherson v. Wal-Mart Stores, Inc.


Apartment-Owners Ass 'n Bd. v. Blume Dev. Corp., 115 Wn.2d 506, 516, 799 P .2d 250

(1990). A nonmoving party cannot meet its burden through "speculative and

argumentative assertions." Adams v. King County, 164 Wn.2d 640, 647, 192 P.3d 891

(2008).

Constructive notice

       In order to be liable to a business invitee 1 for an unsafe property condition, an

owner must have actual or constructive notice of the unsafe condition. See Ingersoll v.

DeBartolo, Inc., 123 Wn.2d 649, 652, 869 P.2d 1014 (1994). The McPhersons do not

assert Walmart had actual notice of the shampoo spill; all of their arguments are limited to

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

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

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

danger."' Id. (alteration in original) (quoting Smith v. Manning's, Inc., 13 Wn.2d 573,

580, 126 P.2d 44 (1942)).

       In its motion for summary judgment, Walmart argued there were no facts showing

the shampoo spill had been on the floor long enough to provide constructive notice.

Walmart submitted the declaration of its store manager, who averred the shampoo aisle


       1
           The parties do not dispute that Mrs. McPherson was a business invitee.

                                              4
No. 34696-0-111
McPherson v. Wal-Mart Stores, Inc.


had been checked less than an hour before Mrs. McPherson's fall and that the shampoo

spill must have occurred approximately eight minutes before the slip and fall, when two

women were observed handling what appeared to have been the leaky shampoo bottle.

Walmart also produced an excerpt of its surveillance video that showed the Walmart

employee checking the shampoo aisle approximately one hour before Mrs. McPherson's

fall through the time from when the two women handled the bottle and the fall.

According to Walmart, eight minutes is not sufficient time to provide constructive notice

of a shampoo spill.

       The McPhersons do not challenge Walmart's assertion that eight minutes is

insufficient for constructive notice. Indeed, our case law indicates a much longer period

of time would be required for constructive notice of a shampoo spill. Carlyle, 78 Wn.

App. at 278. Rather than arguing over the adequacy of eight minutes, the McPhersons

argue the record is unclear as to whether the spill actually happened eight minutes prior to

the fall, when the two women handled the suspect bottle. The McPhersons claim the

location of the bottle was not consistent with that of the slip and fall. Accordingly, the

McPhersons assert there are issues of material fact as to whether the spill was in the aisle

for enough time to provide constructive notice.




                                              5
No. 34696-0-111
McPherson v. Wal-Mart Stores, Inc.


       We are unpersuaded. It is the McPhersons' burden to establish the spill was on the

floor for sufficient time to constitute constructive notice. Wiltse v. Albertsons Inc., 116

Wn.2d 452,458, 805 P.2d 793 (1991) ("The constructive notice rule requires the plaintiff

to establish how long the specific dangerous condition existed in order to show that the

proprietor should have noticed it."). Merely pointing out that the spill could have been on

the floor for longer than eight minutes is not enough to carry this burden. Because the

McPhersons have failed to present evidence the shampoo was, in fact, on the floor for a

period long enough to make out a colorable claim of constructive notice, Walmart was

entitled to summary judgment. Id. at 458-59; Ingersoll, 123 Wn.2d at 654 (summary

judgment appropriate when plaintiff fails to rebut the defendant's showing of an absence

·of actual or constructive notice).

Self-service exception

       The McPhersons also argue they should be excused from proving constructive

notice under the self-service exception, as recognized by our Supreme Court in Pimentel

v. Roundup Co., 100 Wn.2d 39, 49, 666 P.2d 888 (1983). The Pimentel court held that in

a premises liability action, a plaintiff need not prove actual or constructive notice "when

the nature of the proprietor's business and his methods of operation are such that the

existence of unsafe conditions on the premises is reasonably foreseeable." Id.



                                              6
No. 34696-0-III
McPherson v. Wal-Mart Stores, Inc.


       Despite its name, Pimentel's self-service exception has not been applied to all self-

service areas where customers retrieve items from store shelves. Ingersoll, 123 Wn.2d at

653. Most stores operate under a self-service model. Id. Yet not all store areas present

the types of readily apparent hazards discussed in Pimentel. A plaintiff who has sustained

injuries in a self-service section of a store is not automatically excused from proving

actual or constructive notice. Arment, 79 Wn. App. at 698. Instead, to avoid proving

notice, the plaintiff must establish the defendant's particular self-service operation makes

the existence of unsafe conditions reasonably foreseeable. Pimentel, 100 Wn.2d at 49-50.

       To meet Pimentel's self-service exception, a plaintiff must show the unsafe

condition giving rise to injury was "' continuous or foreseeably inherent in the nature of

the business or mode of operation."' Ingersoll, 123 Wn.2d at 653 (quoting Wiltse,

116 Wn.2d at 461 ). Specific to this case, the McPhersons needed to provide evidence

such as: (1) the frequency of shampoo spills at the Sunnyside Walmart, (2) the number

of store associates assigned to clean such spills, (3) the frequency of checks for spills by

store associates, (4) the number of injuries caused by slip and fall incidents involving

shampoo spills, and (5) whether Walmart encourages patrons to report spills, etc. See

Ingersoll, 123 Wn.2d at 654-55. No such evidence is in the record. The McPhersons




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No. 34696-0-111
McPherson v. Wal-Mart Stores, Inc.


therefore have not established facts sufficient to trigger application of Pimentel's self-

service exception.

                                      CONCLUSION

       The trial court's order of summary judgment in favor ofWalmart is affirmed.

       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.


                                           Pennell, J.
I CONCUR:




Fearing~




                                              8
                                   No. 34696-0-111
       LAWRENCE-BERREY, J. (concurring)- I write separately to express my

disagreement with the last paragraph prior to the conclusion of the majority

opinion. The majority errs by interpreting Ingersoll v. DeBartolo, Inc., 123 Wn.2d

649, 869 P.2d 1014 (1994) as requiring a plaintiff to provide evidence of five

factors in all cases where the plaintiff seeks to come within the exception found in

Pimentel v. Roundup Co., 100 Wn.2d 39, 49, 666 P.2d 888 (1983). Evidence of

these factors is not required in cases where, as here, the plaintiff was injured in an

area of the self-service store where hazards are apparent. A place where slippery

products are constantly handled constitutes such an area.

       In Ingersoll, the question was whether the self-service exception to notice

applied to the area where the plaintiff slipped and fell. Marjorie Ingersoll slipped

and fell in the common area of the Tacoma Mall. 123 Wn.2d at 650-51. She

testified that she slipped on something clear, perhaps melted ice cream. Id. The

Ingersoll court refused to apply the Pimentel self-service store exception because

Ingersoll failed to "produce any evidence ... that the nature of the business and

methods of operation of the Mall are such that unsafe conditions are reasonably

foreseeable in the area in which she fell." Id. at 654 (emphasis added). The court

then explained that the record was silent as to the existence of five factors, factors

which might shed. light on the nature of the Mall's business and methods of

operation. The Ingersoll court did not hold that a plaintiff must produce evidence
No. 34696-0-III (concurring)
McPherson v. Wal-Mart Stores, Inc.


of these five factors in every case to come within the Pimentel exception. These

factors have never been required in cases where the slip and fall occurred in an

area of a self-service store where hazards were apparent.

       The Pimentel self-service store exception to notice has been applied in

Washington "only when the slip-and-fall happens in an area where there is

constant handling of slippery products." Schmidt v. Coogan, 135 Wn. App. 605,

610, 145 P.3d 1216 (2006), rev'd on other grounds, 162 Wn.2d 488, 173 P.3d 273

(2007) accord Morton v. Lee, 75 Wn.2d 393, 397-98, 450 P.2d 957 (1969)

(outdoor produce display); O'Donnell v. Zupan Enters., Inc., 107 Wn. App. 854,

856, 28 P.3d 799 (2001) (grocery store check-out aisle); Ciminski v. Finn Corp.,

13 Wn. App. 815, 823-24, 537 P.2d 850 (1975) (cafeteria buffet line); see also

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

realized that certain departments of a store, such as the produce department, were

areas where hazards were apparent and therefore the owner was placed on notice

by the activity.").

       In State v. Schmidt, Teresa Schmidt slipped and fell on shampoo spilled in

the shampoo aisle. 135 Wn. App. at 608. Surprisingly, the Schmidt court refused

to apply the Pimentel exception because it determined that the constant handling

of shampoo in the shampoo aisle did not constitute the constant handling of

slippery products. Id. at 611-12. I agree with Schmidt's statement of the law, but




                                         2
No. 34696-0-111 (concurring)
McPherson v. Wal-Mart Stores, Inc.


disagree with its application of the law to its facts. I would hold that the constant

handling of shampoo in the shampoo aisle constitutes the constant handling of

slippery products. 1

          Here, Cheryl McPherson slipped and injured herself in the shampoo aisle.

The shampoo aisle is an area of the store where slippery products are constantly

being handled and, therefore, is an area where hazards are apparent. For this

reason, I would hold that the Pimentel exception applies. See Wiltse, 116 Wn.2d

at 461.

          Although I would apply the Pimentel exception here, I would affirm the

trial court's summary judgment dismissal of the McPhersons' claim. Even when

the Pimentel exception applies, the plaintiff must still "establish liability by

showing that the operator of the premises had failed to conduct periodic

inspections with the frequency required by the foreseeability of risk." Id. ( citing
                                                                                        r
Pimentel, 100 Wn.2d at 49). The McPhersons failed to establish this, given the
                                                                                        I
unrefuted evidence that Walmart inspects the shampoo aisle at least once per hour.

                                                                                        I
                                           Lawrence-Berrey, J.                \
         Most areas of self-service stores do not contain areas where hazards{re
          1

apparent. For example, hazards are not apparent in the following areas: greeting
cards, clothing, entertainment, sports, electrical, plumbing, linens, cereal, and
ground coffee. However, hazards are apparent in areas where items are wet, or
where slippery substances in containers can be spilled, either by being dropped
and broken or by being opened and spilled. Examples of these latter areas include:
milk, creamer, shampoo, and liquid hand soaps and detergents.

                                           3
