IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CAMILLE PALMER, an individual,

Appellant,

v.

RAINBOW FACTORY SHOWROOM,

LLC, a Washington Corporation

Respondent.

DIVISION ONE

No. 72227-1-1

UNPUBLISHED OPINION

FILED: July 27, 2015

Dwyer, J. - Camille Palmer claims that she injured her hand while sliding

down a display slide in a play structure showroom. She appeals the dismissal of

her negligence claims against the showroom, arguing that summary judgment

was improper under the doctrine of res ipsa loquitur. Because she fails to

demonstrate that the doctrine applies in this case, we affirm.

I

On March 20, 2010, Camille Palmer and her daughter went shopping for

playstructures at Rainbow Factory Showroom (Rainbow). They climbed onto a

slide in the showroom and slid down together with Palmer's daughter sitting

between Palmer's legs. Palmer's complaint alleges that she injured her left hand

during her descent.

On March 12, 2013, Palmer sued Rainbow, alleging that her injuries "were

caused by a display slide that was negligently designed or assembled." Rainbow

filed a third party complaint against the slide's manufacturer, Rainbow Play
No. 72227-1-1/2

Systems, Inc. (RPS). Rainbow alleged that RPS was liablefor injuries caused by

any defect in the slide.

Exhibits and deposition testimony establish that the slide was supported

by wooden posts that were bolted to the side ofthe slide through a wood runner.

The bolts needed to be inspected and tightened annually to ensure that gaps did

not form between the runner and the slide or between the post and the runner.

In her deposition, Palmer testified that her hand was on the top edge of

the slide as she slid down it. Near the bottom of the slide, her left hand got

"stuck" or "caught." By the time herfeet reached the bottom ofthe slide, herleft

hand was behind her. When she "stood up to try to get it out, it came out."

Palmer did not know if her hand "impacted the vertical [support] post or whether it

became caught on the other side of [the runner.]" When asked if she thought the

injury happened in one of those two ways, she said, "I just know it happened

somehow offthe side of the slide." When asked if the injury could have occurred

further up the slide, she said, "I couldn't answer that."

Rainbow and RPS both moved for summary judgment. Palmer opposed

the motions, arguing thatthe evidence supported claims for negligent assembly

under the doctrine of res ipsa loquitur, and a design defect under the ordinary

consumer test. In itsreply to Palmer's response, Rainbow argued that res ipsa

loquitur did not apply because the slide and any defects or causes ofthe

accident were accessible to Palmer after the accident. Rainbow also argued that
No. 72227-1-1/3

itwas not a subsidiary of RPS and, therefore, the design defect claim against it

should be dismissed.

The court granted both motions for summaryjudgment and dismissed all

of Palmer's claims. Palmer appeals onlythe order dismissing her claims against

Rainbow. Her briefs on appeal address onlythe dismissal of her negligent

assembly claim.1

II

The sole issue on appeal is whetherthe superior courterred in granting

summary judgment. Summary judgment is appropriate if there is no genuine

issue of material fact and the moving party is entitled to a judgment as a matter

of law. CR 56(c). We review an order of summary judgment de novo, engaging in

the same inquiry asthe trial court. New Cinqular Wireless PCS. LLC v. City of

Clyde Hill, Wn. App. _, 349 P.3d 53, 56 (2015).

Palmer contends the doctrine of res ipsa loquitur precluded summary

judgment. Under that doctrine, a plaintiff is spared the normal requirement of

proving specific acts of negligence and the trier of fact is permitted to infer

negligence if the following criteria are met:

(1) the accident oroccurrence thatcaused the plaintiffs injury

would not ordinarily happen in the absence of [a defendant's]

negligence, (2) the instrumentality or agency that caused the

plaintiffs injury wasin the exclusive control ofthe defendant, and

(3) the plaintiff did not contribute to the accident or occurrence.

1Palmer has abandoned her design defect claim against Rainbow.

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No. 72227-1-1/4

Curtis v. Lein, 169 Wn.2d 884, 890-91, 239 P.3d 1078 (2010); Pacheco v. Ames,

149 Wn.2d 431, 436, 69 P.3d 324 (2003) (stating that test is whether occurrence

"is ofa type that would not ordinarily result ifthe defendant were not negligent"

(emphasis added)). If any ofthe three criteria are not satisfied, res ipsa loquitur

does not apply. Nauven v. City of Seattle, 179Wn. App. 155, 317 P.3d 518, 527

(2014). The doctrine is disfavored and is applied sparingly "'in peculiar and

exceptional cases, and only where the facts and the demands ofjustice make its

application essential.'" Tinder v. Nordstrom, Inc., 84 Wn. App. 787, 792, 929 P.2d

1209 (1997) (quoting Mornerv. Union Pac. R.R. Co., 31 Wn.2d 282, 293, 196

P.2d 744 (1948)). Whether the doctrine applies in a particular case is a question

of law that we review de novo. Pacheco, 149 Wn.2d at 436.

Palmer fails to demonstrate that res ipsa loquitur applies in this case. The

argument section of her opening brief consists primarily of several long case

quotations and contains just two paragraphs of legal analysis. Those paragraphs

state:

Here, the Plaintiffstestimony —which must be taken as true

in the light most favorable to her—is thatshe was using the slide

in a perfectly safe manner, but severely injured her hand. There is

no evidence to the contrary, and no other conceivable explanation

offered for her injury.

Furthermore, Plaintiff has evidence to concretely support a

plausible theory ofinjury —one that Defendants admit must be

guarded against! If the bolts holding the support posts to the slide

were improperly assembled, or had loosened, a "gap" would exist,

in which Camille's hand would have been "caught."

This argument is insufficient for several reasons.
No. 72227-1-1/5

First, it completely fails to address the first and second criteria for

application of the doctrine. See Nguyen, 179 Wn. App. at 173 n.17 ("Nguyen

inadequately argued this doctrine in his motion to reconsider and on appeal. His

argument consists of conclusory statements that essentially reiterate the

elements of res ipsa loquitur without elaboration."). We need not consider claims

on appeal that are inadequately argued. State v. Elliott, 114 Wn.2d 6, 15, 785

P.2d 440 (1990); State v. Thomas, 150 Wn.2d 821, 868-69, 83 P.3d 970 (2004).

Second, as Rainbow correctly points out, Palmer ignores the underlying

purpose of the doctrine. Our courts have repeatedly emphasized that "[t]he

doctrine permits the inference of negligence on the basis that the evidence ofthe

cause ofthe injury ispractically accessible to the defendant but inaccessible to

the injured person." Pacheco, 149 Wn.2d at436 (emphasis added); Curtis, 169

Wn.2d at 890 (quoting Pacheco). It "allows the plaintiff to establish a prima facie

case of negligence when he cannot prove a specific act ofnegligence because

he is notin a situation where he would have knowledge of that specific act."

Pacheco, 149 Wn.2d at 441; Curtis, 169Wn.2d at 894 (quoting Pacheco); accord

Robison v. Cascade Hardwoods. Inc., 117 Wn. App. 552, 563, 72 P.3d 244

(2003) (res ipsa loquitur applies where "the plaintiff is not in a position to explain

the mechanism ofinjury" and the defendant "is in a superior position to control

and to explain the cause ofthe injury"); Jackass Mt. Ranch. Inc. v. South

Columbia Basin Irrigation Dist.. 175 Wn. App. 374, 400, 305 P.3d 1108 (2013)

(res ipsa loquitur not applicable where evidence of cause of injury was not
No. 72227-1-1/6

inaccessible; injured party had ability to inspect to determine ifparty was

negligent).

In its response brief, Rainbow points out that Palmer had access to the

slide after the accident for expert and other analysis and that she photographed it

for purposes ofthis action. Nevertheless, despite Rainbow's arguments and the

above-mentioned authorities, Palmer does not address this issue in either of her

briefs on appeal. She fails to demonstrate that this is a "'peculiar and

exceptional'" case warranting application of res ipsa loquitur.

Although we need not address the issue further, we note that several of

the prerequisites for the application of res ipsa loquitur are arguably not satisfied

here. Specifically, on this record, it is difficult to sayeither that the mechanism

producing the injury does not normally happen absent a defendant's negligence,

or that Palmer did not contributeto the accident or occurrence. Palmer states in

the introduction section of her brief that "it's seemingly obvious that people using

a playground slide in the typical manner don't break their hand on the way down

unless there's been negligence in the assembly or maintenance ofthe slide

itself." She also claims it is undisputed that her hands were in a safe position on

the top of the edge of the slide atthe time of the accident. But Palmer admitted

in her deposition that she does not know whether her hand struck the plainly

visible support post below the edge ofthe slide. Thus, her own testimony

suggests that her hands may have been below the edge of the slide in an

arguably unsafe position. An injury resulting from using the slide in this manner

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No. 72227-1-1/7

could easily occur in the absence of "negligence in the assembly or maintenance

of the slide itself."

Palmer fails to demonstrate that the court erred in dismissing her

negligence claim on summary judgment.

Affirmed.

We concur: ^

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