Johnson v. Liquor & Cannabis Bd.

FILE THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
IN CLERK’S OFFICE MAY 13, 2021
SUPREME COURT, STATE OF WASHINGTON
MAY 13, 2021
SUSAN L. CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
DARCY L. JOHNSON, a single woman, )
)
Petitioner, ) No. 98726-2
)
v. ) En Banc
)
STATE OF WASHINGTON LIQUOR )
AND CANNABIS BOARD, Filed
)
) May 13, 2021
Respondent.
)
)
WHITENER, J.—This case concerns the proper notice rule governing
premises liability actions brought by business invitees. In 2011, Darcy Johnson, a
business invitee at the defendant’s state liquor store, slipped and fell in the entryway
to that store, just after entering. It was wet and raining outside. The jury returned a
verdict for Johnson. The Court of Appeals reversed, reasoning that the trial court
should have granted the State’s motion for a judgment as a matter of law because
Johnson had not satisfied the notice requirement in a premises liability action.
Johnson (Darcy L.) v. Liquor & Cannabis Bd. (No. 98726-2)
We granted review to resolve whether the reasonable foreseeability exception
to the notice requirement applies. We hold that it does. We therefore reverse and
remand to the Court of Appeals.
FACTS AND PROCEDURAL HISTORY
Johnson fell in the entryway to a Washington State Liquor Control Board 1
store in June 2011. At trial, it was undisputed where Johnson fell and that it was wet
outside. The entryway to the store had an electronic door with a mat inside, meaning
that those entering would walk across about five to six feet of carpet to get in, in
addition to the rubber mat on the outside. The floor was made of waxed linoleum.
Johnson slipped and fell after stepping off the last mat and onto the floor inside the
entryway.
The store clerk, Jay Smiley, testified that he was not aware of the presence of
any water or any other hazardous condition on the floor of the entryway before
Johnson fell. Nor did he see any water on the floor on the spot where Johnson fell
after the fall. Johnson testified that she had not noticed any water on the mat or the
floor before she fell. Nor did she see any “mud, sand, dirt, or anything like that” on
the floor. 4 Verbatim Report of Proceedings (VRP) (Sept. 20, 2017) at 446. (Later,
the attorney for the State referenced, in a different context, and in an attempt to
1
In 2015, legislation passed changing all references “from the Washington state liquor
control board to the Washington state liquor and cannabis board.” LAWS OF 2015, ch. 70,
§ 47.
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Johnson (Darcy L.) v. Liquor & Cannabis Bd. (No. 98726-2)
disprove a different assertion, Johnson’s falling “onto a wet spot on the floor,” but
Johnson did not confirm that entirely. Id. at 452.) Johnson did testify that “the outside
of my pant leg where I was laying . . . was wet” after the fall. Id. at 385. Her boyfriend
at the time, Steve Pallas, had also slipped (but not fallen) after stepping off the mat
in the entryway. He also testified that he did not see water on the floor, and indicated
he did not see “other foreign material” on the floor, either. 3 VRP (Sept. 19, 2017)
at 174.
Smiley testified about the nature of the entryway. He noted that one of his
duties was to put out a “very visible yellow sign that says, ‘slippery when wet’”
when it rains. 2 VRP (Sept. 18, 2017) at 90. (The day of the incident, Smiley did not
put the sign out until after Johnson fell.) He later clarified “that the practice at our
store was to put [the sign] out whenever it was wet out, like when it rains,” or if the
floor had been recently mopped. Id. at 109. He also noted that “[r]ainy days always
bring muddy footprints” into the entryway. Id. at 97. He also mentioned how, when
it was wet outside, customers had the tendency to have “their feet get wet and it [the
wetness] comes in[to] the store,” perhaps due to the lack of an awning over the
entryway. Id. at 108.
Smiley also indicated that he did not have “any knowledge that there was
anything unusual about the floors in this particular store that made them especially
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Johnson (Darcy L.) v. Liquor & Cannabis Bd. (No. 98726-2)
slippery when wet.” Id. at 98. Indeed, accordingly to Smiley, no one else had ever
fallen in the entryway to the store. Id. at 106. 2
After the close of Johnson’s case, the State moved for a judgment as a matter
of law under CR 50, arguing in part that Johnson had not presented evidence that the
State had notice of an unreasonably dangerous condition in the store. The trial court
denied this motion.
The jury ultimately returned a verdict for Johnson. The State moved for a
judgment notwithstanding the verdict under CR 59, arguing in part that the court had
erred in denying its judgment as a matter of law. The trial court denied this motion
as well.
The State appealed, raising several assignments of error: that the trial court
erred in denying the State’s CR 50 motion because of the absence of evidence that
the store had notice of water on the floor, that the trial court erred in denying the CR
50 motion because there was no evidence that the floor was dangerously slippery
when wet, that the trial court erred in excluding evidence regarding what caused
Johnson’s damages, that the trial court erred in dismissing the State’s comparative
fault defense as a matter of law, that the trial court erred by failing to give certain
jury instructions regarding apportionment of fault, that the trial court erred in
2
Johnson sought to introduce expert testimony regarding how the floor contributed to the
fall. The State’s motion to exclude this expert’s testimony was granted. The issue of
whether the exclusion of this expert was proper is not before the court.
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Johnson (Darcy L.) v. Liquor & Cannabis Bd. (No. 98726-2)
denying the State’s motion for remittitur, and that the trial court erred in awarding
prejudgment interest.
The Court of Appeals decided only the first assignment of error. Johnson v.
Liquor & Cannabis Bd., No. 51414-1-II, slip op. at 7 (Wash. Ct. App. Sept. 4, 2019)
(unpublished), http://www.courts.wa.gov/opinions/pdf/D2%2051414-1-
II%20Unpublished%20opinion.pdf. The Court of Appeals recited the standard thus:
“To establish the State’s liability for her injury, Johnson was required to show that
(1) an unreasonably dangerous condition existed in the liquor store, and (2) the liquor
store had actual or constructive notice of the dangerous condition.” Id. at 5. The
Court of Appeals held that “[r]egardless of whether the floor was an unreasonably
dangerous condition if it was wet, Johnson did not present any evidence that the store
had actual or constructive notice of a dangerous condition.” Id. at 5-6. The Court of
Appeals also disagreed with Johnson’s argument that the reasonable foreseeability
exception to the notice requirement applied. Id. at 7. It reversed and remanded with
instructions for the trial court to vacate the verdict and dismiss the case because
without evidence of notice, “the State was entitled to judgment as a matter of law.”
Id. at 7-8.
Johnson petitioned this court for review of several issues. We granted review
“only on the issue [of] whether the foreseeability exception to the notice requirement
applies in the context of premises liability actions.” Order, No. 98726-2 (Wash. Dec.
5
Johnson (Darcy L.) v. Liquor & Cannabis Bd. (No. 98726-2)
2, 2020).3 The parties filed supplemental briefing on this issue. We also received
amicus briefs from Washington Defense Trial Lawyers and the Washington State
Association for Justice Foundation.
STANDARD OF REVIEW
We review a motion for a judgment as a matter of law in the same manner as
the trial court. Delgado Guijosa v. Wal-Mart Stores, Inc., 144 Wn.2d 907, 915, 32
P.3d 250 (2001). Granting the State’s motion would be “‘appropriate [if], viewing
the evidence most favorable to the nonmoving party, the court can say, as a matter
of law, there is no substantial evidence or reasonable inference to sustain a verdict
for the nonmoving party.’” Id. (quoting Sing v. John L. Scott, Inc., 134 Wn.2d 24,
29, 948 P.2d 816 (1997)). Thus, such a motion can be granted “‘only when it can be
said, as a matter of law, that there is no competent and substantial evidence upon
which the verdict can rest.’” Id. (quoting State v. Hall, 74 Wn.2d 726, 727, 446 P.2d
323 (1968)). “‘Substantial evidence is said to exist if it is sufficient to persuade a
fair-minded, rational person of the truth of the declared premise.’” Id. (quoting
Brown v. Superior Underwriters, 30 Wn. App. 303, 306, 632 P.2d 887 (1980)).
3
The State argues that Johnson did not preserve the argument regarding the foreseeability
exception to the notice requirement because Johnson did not object to the jury instruction
giving the legal standard for negligence. But “[w]e may affirm a trial court’s disposition of
a motion for summary judgment or judgment as a matter of law on any ground supported
by the record.” Washburn v. City of Federal Way, 178 Wn.2d 732, 753 n.9, 310 P.3d 1275(2013).
6
Johnson (Darcy L.) v. Liquor & Cannabis Bd. (No. 98726-2)
“We may affirm a trial court’s disposition of a motion for summary judgment
or judgment as a matter of law on any ground supported by the record.” Washburn
v. City of Federal Way, 178 Wn.2d 732, 753 n.9, 310 P.3d 1275 (2013).
ANALYSIS
“A cause of action for negligence requires the plaintiff to establish (1) the
existence of a duty owed, (2) breach of that duty, (3) a resulting injury, and (4) a
proximate cause between the breach and the injury.” Tincani v. Inland Empire
Zoological Soc’y, 124 Wn.2d 121, 127-28, 875 P.2d 621 (1994). “The plaintiff in a
slip and fall case has traditionally had the burden of establishing that the proprietor’s
negligence was a cause in fact of his or her injury by showing that the proprietor had
constructive notice of the specific dangerous condition.” Wiltse v. Albertson’s Inc.,
116 Wn.2d 452, 458, 805 P.2d 793 (1991). The plaintiff may also show actual notice
to meet this burden. Id. at 458-59.
In the premises liability context with business invitees, we have often applied
the standards above alongside Restatement (Second) of Torts § 343 (Am. Law Inst.
1965). See, e.g., Tincani, 124 Wn.2d at 138-39; Wiltse, 116 Wn.2d at 457. This
provision reads:
A possessor of land is subject to liability for physical harm caused to
his invitees by a condition on the land if, but only if, he
(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
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Johnson (Darcy L.) v. Liquor & Cannabis Bd. (No. 98726-2)
(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.
RESTATEMENT § 343.
Subsection (a) provides requirements analogous to our traditional notice
requirement. Our traditional standard requires proof of actual or constructive notice.
Wiltse, 116 Wn.2d at 458-59. Actual notice is the same as “knowing” that the
condition exists. “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.’” Ingersoll v. DeBartolo, Inc., 123 Wn.2d 649, 652, 869
P.2d 1014 (1994) (alteration in original) (quoting Smith v. Manning’s, Inc., 13
Wn.2d 573, 580, 126 P.2d 44 (1942)). Thus, constructive notice is the same as “by
the exercise of reasonable care would discover the condition.” RESTATEMENT §
343(a).4
4
Amicus Washington State Association for Justice Foundation argues at length that
Restatement § 343 has replaced our notice requirements with its own. This is incorrect.
Decisions from our court make this clear. For instance, in Wiltse, we juxtaposed
Restatement and our traditional notice rule, first quoting Restatement in full, then stating
the knowledge requirement. 116 Wn.2d at 457-58. Indeed, we cited Restatement to support
the very proposition that the “plaintiff in a slip and fall case has traditionally had the burden
of establishing that the proprietor’s negligence was a cause in fact of his or her injury by
showing that the proprietor had constructive notice of the specific dangerous condition.”
Id. at 458. We have not replaced our requirements with those of the Restatement.
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Johnson (Darcy L.) v. Liquor & Cannabis Bd. (No. 98726-2)
In Pimentel v. Roundup Co., this court crafted an exception to the traditional
notice requirement. 100 Wn.2d 39, 49-50, 666 P.2d 888 (1983). Pimentel was
shopping at a Fred Meyer store in Yakima when she was injured by a paint can that
fell on her foot. Id. at 40-41. The paint can had been overhanging on the edge of a
shelf before it fell. Id. at 41. The trial court instructed the jury that Pimentel was
required to show actual or constructive notice of the unreasonably dangerous
condition, and the jury returned a verdict in favor of the defendant. Id. at 42. We
held that when an invitee is injured at a self-service business, the traditional notice
requirement is eliminated “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. at 49. We limited this exception, noting that “the
requirement of showing notice will be eliminated only if the particular self-service
operation of the defendant is shown to be such that the existence of unsafe conditions
is reasonably foreseeable.” Id. at 50.
As initially conceived, the exception from Pimentel would not apply here
because the entryway is not a self-service area of a store. “‘Self-service departments
are areas of a store where customers service themselves. In such areas, where lots of
goods are stocked and customers remove and replace items, hazards are apparent.’”
Ingersoll, 123 Wn.2d at 653 (internal quotation marks omitted) (quoting Coleman v.
9
Johnson (Darcy L.) v. Liquor & Cannabis Bd. (No. 98726-2)
Ernst Home Ctr., Inc., 70 Wn. App. 213, 218-19, 853 P.2d 473 (1993)). This would
exclude the entryway to the liquor store from the ambit of self-service exception.
The question is thus whether that foreseeability exception can be expanded to
apply here. 5 Our precedent shows that the exception applies to this case.
I. The foreseeability exception to the notice requirement applies beyond
the self-service context
For a time, this court applied the Pimentel reasonable foreseeability exception
only in contexts essentially identical to the one in which it arose: stores where
someone was injured due to the self-service operations of the store, in the self-
service area of the store.
In Wiltse, “[t]he plaintiff . . . slipped and fell in water that came from a hole
in the roof of the defendant[’s] . . . self-service grocery store.” 116 Wn.2d at 453.
We held that the Pimentel exception did not apply to this case, even though this
injury occurred in the self-service area of the store. Id. at 461. We reasoned that
[b]ecause Pimentel is a limited rule for self-service operations, not a per
se rule, the rule should be limited to specific unsafe conditions that are
5
At times, Johnson treats the reasonable foreseeability exception as equivalent to “proving
constructive notice with circumstantial evidence.” Pet’r’s Answer to Amicus Curiae Brs.
at 6. But the standards are distinct. “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.’” Ingersoll, 123 Wn.2d at 652 (alteration in original) (quoting Smith,
13 Wn.2d at 580). The reasonable foreseeability standard requires proof that “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.” Pimentel, 100 Wn.2d at 49. Whether
constructive notice is proved by circumstantial or direct evidence, it is distinct from
reasonable foreseeability.
10
Johnson (Darcy L.) v. Liquor & Cannabis Bd. (No. 98726-2)
continuous or foreseeably inherent in the nature of the business or mode
of operation. Risk of water dripping from a leaky roof is not inherent in
a store’s mode of operation.
Id. (emphasis added).
We confronted this exception again in Ingersoll, 123 Wn.2d 649. Ingersoll
“slipped and fell while walking in the common area of The Tacoma Mall.” Id. at
650. The fall was perhaps due to some substance on the floor. Id. at 651-52. We
affirmed the summary judgment granted to the defendants. Id. at 651. In so doing,
we did not take issue with Ingersoll’s assertion that the accident happened in the
self-service area of the store. See id. at 654. We noted that “‘self-service’ is not the
key to the exception. Rather, the question is whether ‘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. (quoting Pimentel, 100
Wn.2d at 49). Yet we concluded that “[t]he record shows that Plaintiff has failed to
produce any evidence from which the trier of fact could reasonably infer 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.While these cases did not expand the Pimentel reasonable foreseeability
exception beyond the self-service area of stores, they did not foreclose such an
expansion, either. In fact, they lay the foundation for an expansion of the exception
in the case before us now. While Wiltse’s holding that “[r]isk of water dripping from
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Johnson (Darcy L.) v. Liquor & Cannabis Bd. (No. 98726-2)
a leaky roof is not inherent in a store’s mode of operation” may at first seem to
foreclose including slip-and-fall cases within the ambit of the exception, this is not
the case. 116 Wn.2d at 461. Customers entering a store during business hours while
it is raining is “inherent in a store’s mode of operation.” Id. Perhaps more to the
point, Ingersoll emphasized that “self-service is not the key to the exception.” 123
Wn.2d at 654 (internal quotation marks omitted). While that did not obviate the self-
service requirement entirely, it reveals the real purpose of the exception: to focus on
aspects of the proprietor’s business that make unsafe conditions reasonably
foreseeable. Id. Similarly, while Wiltse cautioned against “applying the rule in
Pimentel to slip and fall type cases,” 116 Wn.2d at 460 (citing Kangley v. United
States, 788 F.2d 533, 535 (9th Cir. 1986)), Ingersoll was open to the possibility. 123
Wn.2d at 653-55. Ingersoll concerned a slip and fall, and we indicated that the
exception could have applied there, with better evidence. Id.The expansion of the exception began in Iwai v. State, 129 Wn.2d 84, 915
P.2d 1089 (1996) (plurality opinion). Iwai involved a slip and fall on the State’s icy
parking lot. Id. at 87. The lead opinion reasoned that the Pimentel exception applies
in essentially any premises liability context involving an invitee—including the slip
and fall in the parking lot at issue—removing the self-service requirement altogether.
Id. at 100. The lead opinion retained the requirement that “‘the nature of the
proprietor’s business and his methods of operation are such that the existence of
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Johnson (Darcy L.) v. Liquor & Cannabis Bd. (No. 98726-2)
unsafe conditions on the premises is reasonably foreseeable.’” Id. (internal quotation
marks omitted) (quoting Ingersoll, 123 Wn.2d at 654). But there would be no need
to connect this to the self-service area of a store. Id.While that opinion commanded only four votes, the one-justice concurrence
indirectly supported the expansion of the exception. The concurrence objected to the
lead opinion’s expansion of the “‘self-service’ exception to the notice requirement
(described in Pimentel . . .) without tying it to the RESTATEMENT sections.” Id. at 103
(Alexander, J., concurring) (emphasis added). The concurrence went on to note:
This [expansion of the foreseeability exception from Pimentel without
tying it to the Restatement sections] can do nothing but create confusion
for occupiers of land, landlords, insurers, trial judges, and practitioners.
Furthermore, the expansion of Pimentel achieves nothing, since §§ 343
and 343A [of Restatement (Second) of Torts] provide adequate
protection to invitees already. In short, the [lead opinion] has settled on
a rule functionally equivalent to the simple standard offered by §§ 343
and 343A from which nothing substantive is gained.
Id. (emphasis added). Thus, the concurrence viewed the invocation of the Pimentel
reasonable foreseeability exception to the notice requirement as unnecessary. See id.
The rules as they existed in our state already permitted recovery here. See id.
While Iwai’s concurrence leaves somewhat ambiguous whether the court fully
expanded the reasonable foreseeability exception to the notice requirement, that
expansion was soon completed by Mucsi v. Graoch Associates Ltd. Partnership No.
12, 144 Wn.2d 847, 31 P.3d 684 (2001). There, we considered the case of an invitee
who slipped and fell on ice outside an apartment complex. Id. at 851-52. Part of the
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Johnson (Darcy L.) v. Liquor & Cannabis Bd. (No. 98726-2)
case turned on the sufficiency of the evidence for notice. Id. at 862. Mucsi referenced
the Iwai lead opinion’s expansion of the Pimentel rule twice. First, the Mucsi court
said, after discussing the requirements of actual and constructive notice:
Continuing its analysis in Iwai, this Court also determined, where the
plaintiff is unable to establish actual or constructive notice, the plaintiff
may present evidence to establish the unsafe condition was reasonably
foreseeable.
Id. at 859 (citing Iwai, 129 Wn.2d at 100-01). We thus clearly treated the Iwai lead
opinion’s expansion of the foreseeability requirement as part of established law.
Second, Mucsi invoked this rule again when issuing instructions as to what
the trial court was to consider on remand:
There must be evidence of actual or constructive notice or
foreseeability, and a reasonable time to alleviate the situation. [Iwai,
129 Wn.2d at 94.] Mucsi has presented sufficient evidence, and when
all inferences are viewed most favorably to him, the case must be
submitted to the jury. Accordingly, we reverse and remand for trial.
Id. at 863 (emphasis added). We thus indicated that upon remand the trial court must
equally consider foreseeability of the condition as it would actual or constructive
notice. Id. Mucsi therefore adopted the expansion of the reasonable foreseeability
exception.
The State disagrees. It argues that the Mucsi court’s invocations of the
foreseeability requirement are dicta and thus need not be followed. “‘Statements in
a case that do not relate to an issue before the court and are unnecessary to decide
the case constitute obiter dictum, and need not be followed.’” In re Pers. Restraint
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Johnson (Darcy L.) v. Liquor & Cannabis Bd. (No. 98726-2)
of Domingo, 155 Wn.2d 356, 366, 119 P.3d 816 (2005) (internal quotation marks
omitted) (quoting Malted Mousse, Inc. v. Steinmetz, 150 Wn.2d 518, 531, 79 P.3d
1154 (2003)). The State argues that Mucsi’s references to foreseeability are dicta
because “[t]he plaintiff in Mucsi presented evidence that the landowner had actual
knowledge that snow and ice had accumulated on the walkways from the exits and
that the landowner had sufficient time to clear the snow and ice prior to the accident.”
State Resp’t’s Suppl. Br. at 11-12 n.6 (citing Mucsi, 144 Wn.2d at 862). This does
not, however, change the fact that when ordering a remand for trial, we indicated
that foreseeability was also to be considered. Mucsi, 144 Wn.2d at 863. We cannot
call our own disposition of the case, and our own commands of what should be
considered at trial, a “‘[s]tatement[ ] . . . that [did] not relate to an issue before the
court and [was] unnecessary to decide the case.’” Domingo, 155 Wn.2d at 366
(internal quotation marks omitted) (quoting Malted Mousse, 150 Wn.2d at 518).
Rather, it was part of our decision.
Our precedent has made the exception from Pimentel into a general rule that
an invitee may prove notice with evidence that 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.” 100 Wn.2d at 49. The self-
service requirement of the exception no longer applies.
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Johnson (Darcy L.) v. Liquor & Cannabis Bd. (No. 98726-2)
The State and amicus Washington Defense Trial Lawyers raise the specter of
vastly increased liability if we take this path. This fear is unwarranted. Removing
the self-service requirement does not obviate the need to prove the existence of the
unreasonably dangerous condition itself. It is therefore not true, as the State argues,
that under the reasonable foreseeability exception “a plaintiff who slipped and fell
in a store need not demonstrate that any dangerous condition ever existed in the
store,” or that other elements of a negligence claim disappear. State Resp’t’s Answer
to Amici Brs. at 5. Proof of a dangerous condition remains an element of a premises
liability claim. See Mucsi, 144 Wn.2d at 859 (showing that a specific condition must
exist even when “the unsafe condition was reasonably foreseeable” (emphasis
added)); RESTATEMENT § 343 (“A possessor of land is subject to liability for physical
harm caused to his invitees by a condition on the land . . . .” (emphasis added)). No
case of ours invoking the reasonable foreseeability exception has suggested
otherwise, and we do not do so today.
Determining whether an unreasonably dangerous condition existed is not
automatic. This is especially true in slip and fall cases. “It is well established in the
decisional law of this state that something more than a slip and a fall is required to
establish . . . the existence of a dangerous condition.” Brant v. Mkt. Basket Stores,
Inc., 72 Wn.2d 446, 448, 433 P.2d 863 (1967). “Nor does the presence of water on
the floor of a store establish negligence.” Id. More is needed, especially where
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Johnson (Darcy L.) v. Liquor & Cannabis Bd. (No. 98726-2)
wetness “is to be expected.” Id. at 450. Liability is therefore far from unlimited
because one cannot establish the existence of a dangerous condition merely by
proving “that [one] slipped and fell on a wet floor.” Id. at 451. It is thus possible,
under the rule adopted today, that it could be reasonably foreseeable that the floor
could become unreasonably dangerous through being wet and slippery, but, at the
same time, there might not be proof that the floor was unreasonably dangerous in a
particular instance.
II. Under the reasonable foreseeability exception, the trial court correctly
denied the State’s motion for a judgment as a matter of law
The reasonable foreseeability standard requires that the plaintiff prove that 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.” Pimentel,
100 Wn.2d at 49. Assuming that there was an unreasonably dangerous condition—
an issue untouched by the Court of Appeals and not before this court—when viewing
the evidence most favorably to Johnson (the nonmoving party), we hold that the trial
court correctly denied the State’s motion for a judgment as a matter of law under the
reasonable foreseeability standard. See Guijosa, 144 Wn.2d at 915 (providing the
standard).
Assuming that there was an unreasonably dangerous condition, the record
contains substantial evidence of the potentially dangerous slippery nature of the
entryway. The store policy “was to put [a ‘slippery when wet’ sign] out whenever it
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Johnson (Darcy L.) v. Liquor & Cannabis Bd. (No. 98726-2)
was wet out, like when it rains,” or if the floor had been recently mopped. 2 VRP
(Sept. 18, 2017) at 109. The store clerk’s testimony that “[r]ainy days always bring
muddy footprints” into the entryway of the store went uncontroverted. Id. at 97. So,
too, did his testimony that customers’ “feet get wet and it [the wetness] comes in[to]
the store” with them when it rains, perhaps due to the lack of an awning over the
entryway. Id. at 108. Further, people entering a store on a rainy day is an inherent
mode of operation of a business in Lewis County, as it is in various parts of our state
where it rains. Such evidence here was certainly “‘sufficient to persuade a fair-
minded, rational person of the truth of the declared premise.’” Guijosa, 144 Wn.2d
at 915 (quoting Brown, 30 Wn. App. at 306).
Not all the evidence in the record supports this conclusion. In fact, the clerk
also noted that he did not have “any knowledge that there was anything unusual
about the floors in this particular store that made them especially slippery when wet.”
2 VRP (Sept. 18, 2017) at 98. And according to Smiley, no one else had ever fallen
in the entrance to the store. Id. at 106. But given the requirement that we view the
evidence in the light most favorable to Johnson, it cannot “‘be said, as a matter of
law, that there is no competent and substantial evidence upon which the verdict can
rest.’” Guijosa, 144 Wn.2d at 915 (emphasis added) (quoting Hall, 74 Wn.2d at
727). The trial court thus correctly denied the State’s motion for judgment as a matter
of law. See Washburn, 178 Wn.2d at 753 n.9 (“We may affirm a trial court’s
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Johnson (Darcy L.) v. Liquor & Cannabis Bd. (No. 98726-2)
disposition of a motion for summary judgment or judgment as a matter of law on
any ground supported by the record.”).
This conclusion does not run afoul of Wiltse. There, we held that “[r]isk of
water dripping from a leaky roof is not inherent in a store’s mode of operation.”
Wiltse, 116 Wn.2d at 461. This, however, is distinct from the situation before us
here. While water dripping from a leaky roof is entirely incidental to a business’s
operations, customers tracking water in through the entryway of a business where
they are meant to enter the store is not: that is inherent in a store’s mode of operation.
This conclusion does not end the case. As noted above, the Court of Appeals
did not resolve all the State’s assignments of error. Indeed, the Court of Appeals did
not reach the issue of whether the judgment as a matter of law should have been
granted on the ground that Johnson failed to provide evidence of an unreasonably
dangerous condition. Johnson, No. 51414-1-II, slip op. at 5-6. 6 These issues may be
taken up again at the Court of Appeals upon remand.
6
Johnson argues that, at trial, the State conceded that the floor was unreasonably dangerous
when the State argued for exclusion of Johnson’s expert. This is not the case. Among other
arguments—such as the allegedly conclusory and nonscientific nature of the expert’s
proposed testimony—the State argued that it was “common knowledge” that a damp or
wet floor would be more slippery than a dry floor. Clerk’s Papers at 295. This is not a
concession that the floor was unreasonably dangerous when wet. We have long indicated
that a floor must have more than an ordinary amount of water on the floor to constitute an
unreasonably dangerous condition. Brant, 72 Wn.2d at 448-49. Indeed, we have called the
presence of water on a floor “‘a most common condition.’” Id. at 450 (quoting Shumaker
v. Charada Inv. Co., 183 Wash. 521, 530-31, 49 P.2d 44 (1935)).
19
Johnson (Darcy L.) v. Liquor & Cannabis Bd. (No. 98726-2)
CONCLUSION
We hold that the reasonable foreseeability exception applies outside the
context of a self-service area of a business where the “nature of the proprietor’s
business and his methods of operation are such that the existence of [the] unsafe
condition[ ] on the premises is reasonably foreseeable.” Pimentel, 100 Wn.2d at 49.
We also hold that under this standard, the trial court properly denied the State’s
motion for a judgment as a matter of law because Johnson presented evidence of the
reasonable foreseeability of an unreasonably dangerous condition. We therefore
reverse and remand to the Court of Appeals for further proceedings in line with our
decision.
20
Johnson (Darcy L.) v. Liquor & Cannabis Bd. (No. 98726-2)
WE CONCUR.
21