John Jones, App. v. Mcdonald's Restaurants Of Washington, Inc., Store 4957, Res. ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JOHN JONES,
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No. 70412-5-1 GO ~»c:
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UNPUBLISHED OPINION :E
MCDONALD'S RESTAURANTS OF •*-&» ^7^ *•"•
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Respondent. FILED: June 16, 2014
BECKER, J. — John Jones was injured when he slipped on spilled soda and
ice while exiting the restroom of a fast-food restaurant. He contends that the self-
service exception to the notice requirement applies because restaurant customers
filled their own beverages from a dispenser located next to the order counter. But
because Jones failed to identify specific facts suggesting that the risk of injury in the
area where he fell was a reasonably foreseeable consequence of the self-service
component of the restaurant's method of operations, the trial court properly
dismissed his negligence claims on summary judgment. We affirm.
The material facts are undisputed. At around noon on September 25, 2008,
Jones entered a Marysville McDonald's Restaurant and stood in line before placing a
food order at the counter. A man wearing a backpack stood in front of Jones and
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ordered a drink. After receiving a cup, the man continued several steps to the self-
service beverage dispenser, which was located next to the order counter.
While Jones placed his food order, the second man filled his cup from the
dispenser. Carrying his drink, the man then walked around the corner and
proceeded through an unoccupied dining area and into a short hallway, where he left
the restaurant through a rear door. Jones followed a few steps behind the man,
intending to use the restroom while waiting for his order. The restroom doors were
located in the hallway, opposite the rear exit door.
Jones entered the restroom at about the same time as the second man went
out through the exit door. As he was leaving, the second man spilled or dropped his
drink onto the hallway floor. Less than a minute before the man left the restaurant, a
store employee swept the rear dining area and inspected the hallway. Jones
concedes that the floor was clean and dry when he entered the restroom.
Jones estimated that he was in the restroom about two to five minutes. As he
came out of the restroom, Jones stepped into the spill and "bam, I fell just like that."1
After falling, Jones limped to the front counter and informed the manager of the
accident. Surveillance cameras recorded the accident.
Jones filed this action for personal injuries on September 21, 2011, alleging
that McDonald's was negligent in failing to maintain the hallway and in failing to warn
customers of an unsafe condition. McDonald's moved for summary judgment. Both
1 Clerk's Papers at 98.
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parties submitted video recordings from the restaurant's surveillance cameras. The
trial court granted McDonald's motion on April 12, 2013. The court denied Jones's
motion for reconsideration on April 25, 2013.
Standard of Review
An appellate court reviews summary judgment orders de novo, "standing] in
the same position as the trial court." Greenhalqh v. Dep't of Corr., 160 Wash. App. 706,
713-14, 248 P.3d 150 (2011). We consider the materials before the trial court and
construe the facts and inferences in the light most favorable to the nonmoving party.
Hubbard v. Spokane County, 146 Wash. 2d 699, 706-07, 50 P.3d 602 (2002).
Summary judgment is proper only if there is no genuine issue of material fact. CR
56(c); Hubbard. 146 Wash. 2d at 707.
Self-Service Exception
Generally, the possessor of land is not liable to a business invitee for an
unsafe condition caused by another unless the possessor had actual or constructive
notice of the unsafe condition. Inqersoll v. DeBartolo. Inc.. 123 Wash. 2d 649, 652, 869
P.2d 1014 (1994). Jones does not allege that McDonald's had actual or constructive
notice of the spill outside the restroom door. Rather, he contends that he was
relieved of the obligation to prove notice because the circumstances here fall within
the "self-service" exception to the notice requirement.
Under the self-service exception, a plaintiff need not demonstrate actual or
constructive notice if he or she can point to specific facts showing that "the nature of
No. 70412-5-1/4
the proprietor's business and his methods of operation are such that the existence of
unsafe conditions on the premises is reasonably foreseeable." Pimentel v. Roundup
Co.. 100 Wash. 2d 39, 49, 666 P.2d 888 (1983). Notice of specific hazards is
unnecessary in such circumstances because the proprietor's "mode of operation"
creates certain foreseeable risks of harm to the customers. Ciminski v. Finn Corp..
Inc.. 13 Wash. App. 815, 820, 537 P.2d 850. review denied. 86 Wash. 2d 1002 (1975).
Contrary to Jones's apparent assumption, however, the self-service exception
"does not apply to the entire area of the store in which customers serve themselves."
Inqersoll. 123 Wash. 2d at 653. The exception is a narrow one, "limited to specific
unsafe conditions in specific areas that are inherent in the nature of self-service
operations." Arment v. Kmart Corp.. 79 Wash. App. 694, 698, 902 P.2d 1254 (1995).
The exception applies only to those areas where the risk of injury is "continuous or
foreseeably inherent in the nature of the business or mode of operation." Wiltse v.
Albertson's. Inc.. 116 Wash. 2d 452, 461, 805 P.2d 793 (1991). "There must be a
relation between the hazardous condition and the self-service mode of operation of
the business." Inqersoll. 123 Wash. 2d at 654.
Consequently, in order to defeat summary judgment, Jones needed to identify
specific facts supporting an inference that McDonald's methods of operation were
such that unsafe conditions were reasonably foreseeable in the area where he fell.
This he failed to do.
No. 70412-5-1/5
McDonald's self-service drink dispenser was located next to the order counter.
The possibility of spills in this general area as customers help themselves to ice and
beverages is reasonably foreseeable. But the accident occurred around the corner
from the drink dispenser, past the dining area, and in the hallway between the
restrooms and a rear exit door. Jones submitted no evidence describing the flow of
patrons who use the beverage dispenser, the pattern of substances on the floor, or
the historical experience of slip and fall accidents in the area. See Inqersoll. 123
Wash. 2d at 654-55. Under the circumstances, he failed to demonstrate that any risk of
injury in the rear hallway was continuous or foreseeably inherent in McDonald's
methods of operation.
Because the self-service exception does not apply, and Jones does not allege
that McDonald's had actual or constructive notice of the condition, the trial court
properly dismissed his claims on summary judgment. See Tavai v. Walmart Stores,
Inc.. 176 Wash. App. 122, 132, 307 P.3d 811 (2013) (self-service exception did not
apply to wet floor 15 feet from check-out counter); Inqersoll. 123 Wash. 2d at 653-55
(exception did not apply to unknown substance in common area of a shopping mall);
Carlvle v. Safeway Stores. Inc.. 78 Wash. App. 272, 896 P.2d 750 (exception did not
apply to shampoo on the floor in the coffee section of a supermarket), review denied.
128 Wash. 2d 1004 (1995); Arment. 79 Wash. App. at 698 (exception did not apply to
drink spilled in menswear department).
No. 70412-5-1/6
Moreover, even if the self-service exception applied, it would not result in strict
liability. O'Donnell v. Zupan Enters.. Inc.. 107 Wash. App. 854, 860, 28 P.3d 799, 801-
02 (2001), review denied. 145 Wash. 2d 1027 (2002). Jones still bore the burden of
establishing that McDonald's failed to exercise reasonable care. O'Donnell. 107 Wn.
App. at 860. What is reasonable under the circumstances depends on "the nature
and the circumstances surrounding the business conduct[ ]," including the mode of
operation. Ciminski, 13 Wash. App. at 819. "The mere presence of a slick or slippery
substance on a floor is a condition that may arise temporarily in any public place of
business." Carlvle. 78 Wash. App. at 277. There is no dispute that the unsafe
condition here arose during the brief period that Jones was in the restroom when
another patron spilled or dropped his drink while walking out of the restaurant. Jones
failed to identify any evidence supporting an inference that McDonald's failed to
exercise reasonable care under the circumstances.2
Surveillance Videos
Jones appears to contend that the trial court erred in considering the
surveillance videos when ruling on the summary judgment motion. Both parties
submitted a DVD containing video recordings from the restaurant security cameras
on the day of the accident. The recordings included continuous footage from the
camera near the front order counter and the camera in the rear area. McDonald's
2Jones's citation to an unpublished Court of Appeals decision is improper. See GR
14(1)(a) (party may not cite as authority an unpublished decision of the Court of Appeals).
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No. 70412-5-1/7
also prepared a two-minute edited video that combined footage from both cameras
and depicted only the events directly surrounding the accident. When McDonald's
used the edited video during Jones's deposition, he identified himself as the person
depicted in the video and confirmed that the events related to his accident.
During oral argument, counsel for Jones expressed "concerns" about the
videos, but she did not challenge their admissibility and relied on the videos during
her argument on the summary judgment motion. On appeal, Jones asserts that the
DVD "is totally unreliable, ... not authentic[,].. . misinterprets time, place and how
the accident occurred,"3 and constitutes inadmissible hearsay. But he provides no
meaningful legal argument to support these conclusory allegations.
Under ER 901(a), "[t]he requirement of authentication or identification as a
condition precedent to admissibility is satisfied by evidence sufficient to support a
finding that the matter in question is what its proponent claims." State v. Bradford.
175 Wash. App. 912, 928, 308 P.3d 736 (2013). review denied, 179 Wash. 2d 1010
(2014). The trial court is not bound by the rules of evidence when making a
determination as to authenticity. State v. Williams, 136 Wash. App. 486, 500, 150 P.3d
111 (2007).
As indicated, Jones acknowledged during his deposition that the video
depicted him standing at the order counter on the day of the accident and certain
subsequent events leading up to his fall. McDonald's also submitted declarations
Br. of Appellant at 21.
No. 70412-5-1/8
from Lindsay Hitchcock and Benjamin Hampton describing how they processed the
original two digital files from the security cameras. Hitchcock converted the original
raw files to Windows Media format and then slowed down the original file speed so
that the recordings depicted events more closely to real time. Hampton described in
detail how he converted the original files to Windows Media format and then
combined footage from the two cameras to depict the events directly surrounding the
accident.
Jones asserts that because both Hitchcock and Hampton used the term
"edited" to describe their processing of the videos, they necessarily distorted or
omitted relevant information. But Hitchcock confirmed that she only slowed the
original recordings and "did not cut, delete nor tamper with any of the original
surveillance footage when producing the edited versions."4 Hampton explained that
in combining the footage from the two cameras, he did not delete any of the original
video from the point that Jones walked behind the second man to the restroom until
he limped back to the front counter after the accident. Jones does not identify any
evidence to the contrary. Any challenge to the authenticity of the videos is without
merit, and the trial court properly considered them in ruling on the summary judgment
motion.
Affirmed.
Clerk's Papers at 84.
No. 70412-5-1/9
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WE CONCUR:
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