Dana Imori And Daniel Imori v. Marination Llc ( 2016 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DANA IMORI and DANIEL IMORI,
husband and wife, DIVISION ONE
Appellants, NO. 73417-2-1
v. UNPUBLISHED OPINION
MARINATION LLC, a Washington
Limited Liability Company,
Respondent. FILED: March 7, 2016
Dwyer, J. — Dana Imori (Imori) and her husband Daniel Imori appeal from
the summary judgment dismissal of their negligence claim against Marination
LLC. Finding no error, we affirm.
I
This case arises out of a slip and fall that occurred at the Marination
Ma Kai restaurant around lunchtime on November 29, 2013. After a
customer reported spilling a beverage in front of the bathroom area, Alex
Smith, a dishwasher at the restaurant, was asked to clean up the spill.
Smith poured water into a mop bucket and added a biodegradable mop
solution. He took the bucket, a mop, and a collapsible, bright yellow "wet
No. 73417-2-1
floor" sign and went to clean up the spill, which he observed to be a puddle
of clear liquid about eight inches in diameter.1 Smith mopped the floor with
the solution in the bucket for approximately one minute, wringing out the
mop in the bucket at least twice. He stated that, after mopping, the floor
remained "a bit damp" but there were no puddles of liquid remaining.
Smith did not rinse or dry the floor. He testified that the mop solution is
designed to dry quickly and that, in his experience, a floor mopped with the
solution would be dry in less than 10 minutes. Smith then placed the wet
floor sign immediately next to the mopped area so that it did not block the
pathway to the bathroom.
Shortly thereafter, Imori entered the restaurant to buy lunch. After
placing her order, Imori walked toward the bathroom, at which point she
slipped on what she described as "water" or "liquid." She fell, fracturing her
knee. Imori stated that there was enough water on the floor such that it
soaked into her pants as she lay on the floor. She alleged she did not see
any water or the wet floor sign until after she fell.
Approximately 10 minutes after mopping the spill, Smith learned that
Imori had slipped and fallen. Smith mopped the area a second time, dried
1 In a statement made shortly after Imori's fall, Smith described the spill he was asked to
clean as "greasy." In a later statement as well as in his deposition, Smith denied the spill was
greasy and testified that itwas a "clear liquid." Imori never testified that the spill was greasy, only
that itwas water or liquid. Imori nowargues that she is entitled to an inference that the spilled
substance was greasy. Imori's claim is of no consequence because the only evidence in the
record, even viewed in the light most favorable to Imori, was that the floor was wet, not greasy, at
the time she slipped.
No. 73417-2-1
the area with hand towels, and placed two additional wet floor signs around
the area in a triangular formation.
Imori filed a complaint for damages against Marination. Marination
moved for summary judgment, contending Imori had failed to set forth facts
demonstrating that (1) the wet floor created an unreasonable risk of harm,
(2) Marination should have anticipated Imori would fail to protect herself
from the danger of slipping, and (3) Marination failed to exercise
reasonable care in cleaning the spill.
In response, Imori submitted two photographs she took with her cell
phone while waiting for the ambulance to arrive. While it is difficult to glean
much useful information from these photographs given the poor
reproduction quality, there appears to be a shiny spot in both photographs
consistent with Imori's claim that there was water on the floor. One of the
photographs corroborates Smith's testimony regarding the placement of
the wet floor sign.
Imori also submitted the declaration of William Christenson, a case
manager with Construction Dispute Resolution. According to Christenson's
curriculum vitae, his background and expertise is in "construction
management, building and civil construction, building envelope
investigations, and building envelope design." Christenson reviewed
Imori's photographs and visited the restaurant to observe the concrete floor
outside the bathroom. Christenson claimed that "[t]he area where the fall
No. 73417-2-1
occurred varied from slightly gritty to smooth" and this variability "when
combined with the wet floor creates an uncertain surface for a person
walking to safely navigate." Christenson also claimed that Smith failed to
use the manufacturer's instructions for the mop solution, which he asserted
required the user to rinse the floor after mopping and then dry the floor
using a dry mop or squeegee. Christenson opined that failing to follow the
instructions "increased the potential for a person to slip and fall." Finally,
Christenson claimed that the industry standard is to set multiple warning
barricades at the outer perimeter of a hazard area and that Smith failed to
use enough wet floor signs or orient them correctly after mopping for the
first time.
The trial court granted summary judgment in favor of Marination and
denied Imori's motion for reconsideration.2 Imori appeals.
II
We review a summary judgment order de novo, engaging in the
same inquiry as the superior court. Lvbbert v. Grant County, 141 Wn.2d
29, 34, 1 P.3d 1124 (2000). We view the facts and all reasonable
inferences therefrom in the light most favorable to the nonmoving party.
Lvbbert, 141 Wn.2d at 34. A defendant can move for summary judgment
by showing that there is an absence of evidence to support the plaintiff's
2 Because Imori did not assign error to or otherwise challenge the trial court's denial of
her motion for reconsideration, we do not address it. See RAP 10.3(a)(4), (6).
No. 73417-2-1
case. Young v. Key Pharm.. Inc.. 112 Wn.2d 216, 225 n.1, 770 P.2d 182(1989). The burden then shifts to the plaintiff to set forth specific facts
showing a genuine issue of material fact for trial. Young, 112 Wn.2d at
225. Mere allegations or conclusory statements of fact unsupported by
evidence are not sufficient to establish a genuine issue of fact. CR 56(e);
Baldwin v. Sisters of Providence in Wash., Inc.. 112 Wn.2d 127, 132, 769
P.2d 298 (1989). Nor may the nonmoving party rely on speculation or
argumentative assertions that unresolved factual issues remain. Seven
Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986).
Ifthe plaintiff "'fails to make a showing sufficient to establish the existence
of an element essential to that party's case, and on which that party will
bear the burden of proof at trial,'" summary judgment is proper. Young,
112 Wn.2d at 225 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106
S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).
Ill
To establish negligence, a plaintiff must prove (1) the existence of a
duty, (2) breach of that duty, (3) resulting injury, and (4) proximate cause.
Degel v. Majestic Mobile Manor. Inc., 129 Wn.2d 43, 48, 914 P.2d 728(1996). For negligence claims based on premises liability, Washington has
adopted the standards set forth in the Restatement (Second) of Torts §§
No. 73417-2-1
343 and 343A to determine a landowner's duty to invitees.3 Iwai v. State.
129 Wn.2d 84, 93, 915 P.2d 1089 (1996). A landowner is liable for an
invitee's physical harm caused by a condition on the land only if the
landowner:
"(a) knows or by the exercise of reasonable care would
discover the condition, and should realize that it involves an
unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the
danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against
the danger."
Iwai. 129 Wn.2d. at 94-95 (quoting Restatement (Second) of Torts § 343
(1965)). Applying this test, we conclude that Imori fails to establish a
genuine issue of material fact that Marination breached any duty of care.
First, there is no evidence in the record that the wet floor presented
an unreasonable risk of harm. Imori testified that she slipped on a wet floor
and fell. Christenson testified that the floor's uneven texture created "an
uncertain surface for a person walking to safely navigate" when the floor
was wet. Taking all reasonable inferences in Imori's favor, this constitutes
evidence that the pathway to the bathroom was wet and the wetness made
the floor slippery. But there is no evidence that the floor was unreasonably
slippery. The fact that Imori slipped and fell does not, by itself, mean that
there is an unreasonably dangerous condition. See Knopp v. Kemp &
Hebert. 193 Wash. 160, 164-65, 74 P.2d 924 (1938) ("It is common
3 Imori's status as an invitee is undisputed.
No. 73417-2-1
knowledge that people fall on the best of sidewalks and floors. A fall,
therefore, does not, of itself, tend to prove that the surface over which one
is walking is dangerously unfit for the purpose."). Nor is the mere presence
of water on a floor where someone slips enough, in and of itself, to prove a
breach of duty by the landowner. See Shumakerv. Charada Inv. Co.. 183
Wash. 521, 530-31, 49 P.2d 44 (1935) ("A wet cement surface does not
create a condition dangerous to pedestrians. It is a most common
condition, and one readily noticed by the most casual glance.").
Second, Imori fails to establish that she could not reasonably have
been expected to protect herself from the wet floor. After Smith mopped
the spill, he placed a bright yellow sign reading "Caution: Wet Floor"
immediately next to the mopped area. Imori argues that the lettering on the
sign was "facing the wall instead of facing approaching foot traffic." But this
does not create a genuine issue of material fact given the small size of the
mopped area, the proximity of the sign, and the fact that a bright yellow
sign typically signifies a warning of some kind.
Finally, even if the wet area was hazardous, there is no evidence
that Marination failed to exercise reasonable care in alleviating the hazard.
The duty of reasonable care requires a landownerto inspect for dangerous
conditions, "'followed by such repair, safeguards, or warning as may be
reasonably necessary for [the invitee's] protection under the
circumstances.'" Tincani v. Inland Empire Zoological Soc'v, 124Wn.2d
No. 73417-2-1
121, 139, 875 P.2d 621 (1994) (alteration in original) (quoting
Restatement (Second) of Torts § 343 cmt. b). The evidence shows that
as soon as the restaurant was notified of the spill, Smith completely
mopped the spill using a quick-drying biodegradable cleaner and placed a
bright yellow wet floor sign near the mopped area. Christenson claims that
Smith was negligent for failing to follow the manufacturer's instructions for
the cleaner or the industry standard for the use of wet floor signs. But
Christenson did not provide a copy of the manufacturer's instructions nor
any evidence that the industry standard requires multiple warning signs.4
The facts required by CR 56(e) to defeat a summary judgment motion are
evidentiary in nature, and conclusory statements are insufficient.
Christenson's declaration fails to establish the existence of genuine issues
of fact for trial.
Affirmed.
We coricdr:
4 The record shows that Imori later submitted a copy of the manufacturer's
instructions with her motion for reconsideration. Under RAP 9.12, our review of an order
granting summary judgment is limited to the "evidence and issues called to the attention
of the trial court." We do not consider the instructions on appeal because this evidence
was not before the trial court at the time of the summary judgment hearing and Imori
does not challenge the order denying reconsideration.