IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON ANN P. GORES,

and Appellant/ Cross-Respondent,

THOMAS C. GORES, Plaintiff,

SAFEWAY, INC., a Delaware corporation, Respondent/ Cross-Appellant. No. 69819-2-1 DIVISION ONE

UNPUBLISHED OPINION FILED: March 3, 2014 c=> —\ <"". jr-

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### Becker, J. —The question in this slip-and-fall case iswhetherthe self

### service exception to the requirement of notice applies when a shopperslips on 

### eggwhites spilled in thedairy aisle ofa Safewaygrocery store. Weconcludethe exception does notapply. Theplaintiffraises no issue ofmaterial fact thatwould have put Safeway on notice of the egg whites. Thetrial courtproperly granted summaryjudgmentto Safeway. 

### Summaryjudgment is proper ifno genuine issue of material fact remains 

### and the moving party isentitled to judgment as a matter oflaw. CR56(c); Tavai v. Walmart Stores. Inc., 176 Wn. App. 122, 127, 307P.3d811 (2013). To obtain 

### summaryjudgment, the moving party mustfirst show the absence of an issue ofNo. 69819-2-1/2 

### material fact. Ingersollv. DeBartolo. Inc.. 123 Wn.2d 649, 654, 869 P.2d 1014 (1994). This court's review is de novo, and we construe all facts and reasonable 

### inferences inthe lightmostfavorable to the nonmoving party. Tavai. 176 Wn. App. at 127 (citations omitted). 

### The plaintiff, Ann Gores, visited a Bellevue Safewayto buy a few grocery items on December2, 2010. According to her declaration, Gores walked down the store's dairy aisle to pick up a carton ofeggs. Along one side ofthe aisle
was a large coolerwith perishable products likeeggs, yogurt, and cheese, and
on the other side was a large freezerwith ice cream and otherfrozen goods. After putting a carton ofeggs in her shopping basket, Gores turned to walk away, slipped, and fell. According to Gores, she fell hard on both knees. While on the floor, she noticed puddles of a clear liquid. Edward Perry, another shopper inthe dairy aisle, offered to help Gores stand up. She managed to get up on her own. Gores picked up another item or two before heading to the check-out stand. There, she reported herfall to a cashier and told her about the liquid on the floor. The cashier summoned the store's assistant manager, Casey Henrickson. Gores told Henrickson aboutthe fall, gave her contact information, and pointed to Perry, the shopperwho had seen her on the ground and was then at the check-out stand. Store employees helped Gores to her carwith her groceries. Shortly after Gores reported herfall, store personnel took 

### photographs ofthe area where Gores fell. Safeway produced the photographs in discovery, which included a picture of an egg carton thatwas out ofplace. Gores claims that after she returned home, her knees began to swell,No. 69819-2-1/3 

### throb, and stiffen. Tests done by an orthopedist showed Gores had torn the meniscus in both knees. Gores had physicaltherapy and injections to her knees 

### for nearly a year and eventually had to have surgery on both knees. Gores sued Safeway for negligence. In November 2012, Safeway successfully moved forsummaryjudgment. Gores appeals. The duty to exercise reasonable care to protect business invitees from 

### harm is triggered upon the invitee's showing that the owner of the premises had actual or constructive notice ofthe hazardous condition. O'Donnell v. Zupan Enters.. Inc.. 107 Wn. App. 854, 858, 28 P.3d 799 (2001), review denied, 145 Wn.2d 1027 (2002). Constructive notice arises where a condition has existed for 

### such time as would have afforded the proprietor sufficient opportunity, inthe exercise ofordinary care, to inspectthe premises and remove the danger. 

### Inqersoll, 123 Wn.2d at 652. Ordinarily, it is a question of fact forthejury whether, under all ofthe circumstances, a defective condition existed long enough so that an owner exercising reasonable care would have discovered it. Fredrickson v. Bertolino's Tacoma. Inc.. 131 Wn. App. 183, 189, 127 P.3d 5 (2005). review denied. 157 Wn.2d 1026 (2006). The store manager, Patricia Johnson, testified that employees inspect or "sweep" (i.e., "view")the store, including the aisles, about every half-hour. Gores has not introduced evidence that Safeway's inspection routine is inadequate. There is no basis for submitting the issue ofconstructive notice to a jury unless there is "some evidence from which itcould infer" that the routine inspections
were not adequate because the particular risk required greater vigilance. CarlvieNo. 69819-2-1/4



### v. Safeway Stores. Inc.. 78 Wn. App. 272, 278, 896 P.2d 750, review denied. 128 Wn.2d 1004 (1995). 

### Gores contends, however, that she raised a genuine issue of material fact 

### concerning constructive notice by showing that Safeway committed spoliation of evidence. Safeway did notpreserve surveillance camera footage or handwritten "sweep" logs, temporary sign-offsheets from the time period in question. She claims Safeway's motion forsummaryjudgment should have been denied as a sanction for spoliation, citing Pier 67. Inc. v. King County. 89 Wn.2d 379, 385-86, 573P.2d2(1977). Spoliation is the intentional destruction of evidence. Henderson v. Tyrrell. 

### 80 Wn. App. 592, 605, 910 P.2d 522 (1996). In deciding whetherto apply a spoliation inference, this court uses two general factors: (1) the potential 

### importance or relevance ofthe missing evidence and (2) the culpability or fault of the adverse party. Henderson, 80 Wn. App. at 607. None ofthe store surveillance cameras covered the area where Gores fell. See Tavai. 176 Wn. App. at 135-36. And Safeway had no duty to keep the handwritten logs, which
were merely temporary assignment sheets thatwere compared to inspections that are logged in by time clockto create Safeway's official record of inspections. The time clock evidence was available, and itshowed that a Safeway employee inspected the aisle about 10 minutes before Gores' fall. In any event, there is no basis for a finding that Safeway intentionally destroyed the handwritten sheets. We reject Gores' argument that an adverse inference must be drawn from Safeway's handling ofevidence.No. 69819-2-1/5 Gores testified that Debbie Getz, Safeway's risk management representative, contacted her soon afterthe fall and told herthat a security video 

### showed Safeway had sweptthe floor 10 minutes before herfall. Gores contends this statement supports her spoliation claim because itundermines Safeway's claim that there was no relevant surveillance camera footage. We disagree. Gores does not rebut the actual evidence showing that the store security


### cameras were not pointed at the location where she fell. 

### Getz is the adjusterwho investigated the claim on behalfofSafeway. Gores took her deposition and obtained information aboutwhat Getz had done to 

### locate evidence and comply withGores' discovery requests. Gores then gave notice that she wanted to depose Getz a second time. The trial court granted 

### Safeway's requestfor a protective orderwhich prevented Gores from taking a second deposition of Getz. Gores contends this order was an abuse of discretion and that itunfairly prevented her from asking Getz aboutthe 

### statements she allegedly made to Gores disclaiming Safeway's liability and 

### repeating what witnesses told her. This argument iswithoutmerit. Getz was merely an adjuster; she had no personalknowledge about the events that 

### allegedly createdliabilityfor Safeway. Goresfails to show that Getz hadrelevant evidence to offerthatwould havejustified a second deposition. 

### Some of the evidence Safeway relies on was presented to the trial courtin 

### a declaration ("Second Declaration of Patricia Johnson") accompanying itsreply 

### on summaryjudgment. Gores contends thetrial court abused itsdiscretion by 

### denying Gores' motion tostrikethatdeclaration. Wedisagree. Filing ofrebuttalNo. 69819-2-1/6 evidence is allowed by CR 56. The declaration did not raise a new issue. The 

### declaration was responsive to the spoliation argument raised in Gores' response brief. SeeWhite v. Kent Med. Ctr.. Inc.. 61 Wn. App. 163, 168, 810 P.2d 4 (1991).In summary so far, Gores does not create an issue of material fact 

### showing that Safeway had actual or constructive notice that there were egg whites on the floor atthe time ofGores' visit. The question, therefore, is whether the facts ofthis case bring it within an exception to the notice requirement provided in Pirnentel v. Roundup Co.. 100 Wn.2d 39, 666 P.2d 888 (1983). The plaintiff need not prove notice "when the nature ofthe proprietor's business and his methods ofoperation are such that the existence ofunsafe conditions on the premises is reasonably foreseeable." Pirnentel, 100Wn.2d at 49. This is the socalled "self-service" or Pjmentel exception. O'Donnell. 107 Wn. App. at 858. The rationale for the rule is that "'when the operating methods of a proprietor are such that dangerous conditions are continuous or easily foreseeable, the logical basis for the notice requirement dissolves.'" Pirnentel. 100 Wn.2d at47-48, quoting Jasko v. F.W. Woolworth Co.. 177 Colo. 418, 420-21, 494 P.2d 839 (1972). Gores contends the Pirnentel exception applies and precludes summary judgment. "The Pirnentel exception is a narrow one, limited to specific unsafe conditions in specific areas that are inherent inthe nature ofself-service operations." Armentv. Kmart Corp., 79 Wn. App. 694, 698, 902 P.2d 1254 

### (1995) (exception did not apply to drink spilled inthe mensweardepartment.)No. 69819-2-1/7 

### Where Pirnentel applies, thelawcharges theproprietorwith actual knowledge of the foreseeable risks inherentin the self-service mode of operation. But Pirnentel does not apply to the entire area of a store in which customers serve themselves; there must be a relation between the hazardous condition and the 

### business' self-service mode ofoperation. Carlvie. 78 Wn. App. at 277. In Carlvie. the plaintiffslipped on shampoo spilled inthe coffee section of


### a Safeway. The court affirmed summaryjudgment because unsafe conditions
were not reasonably foreseeable inthe area where the customerfell. The plaintiff failed to produce evidenceto justify application ofPirnentel. "The mere 

### presence of a slick or slippery substance on a floor is a condition that may arise temporarily inany public place ofbusiness." Carlvie. 78 Wn. App. at 277; see also Wiltse v. Albertson's. Inc.. 116Wn.2d 452, 459-60, 805 P.2d 793 (1991) (no liability for store where plaintiffslipped and fell on waterthat came from a leak on the store's roof). The Pirnentel exception did not apply to a slip-and-fall on ice
cream spilled in the common area of the Tacoma Mall, Ingersoll. 123 Wn.2d at 653-55, or to a slip-and-fall on water 15 feet from a check-out counter, Tavai. 176 Wn.App. 122. In O'Donnell. the court did apply the Pirnentel exception to excuse the plaintiff from proving that the grocery store where she slipped had knowledge of the hazardous condition that led to her injury. Inthat case, the plaintiffslipped and fell on a piece ofproduce thatwas on the floor inthe check-out aisle. There
was evidence that it is not unusual for items such as grapes and blueberries to fall on the floor while the customers unloaded their items from their carts onto theNo. 69819-2-1/8


### conveyorbelt at the check-out stand. O'Donnell. 107 Wn. App. at 857. This case is not like O'Donnell. Gores posits that customers sometimes open egg cartons to inspectthe eggs, creating the riskthat eggs will fall on the 

### floor and break. Butshe has produced no evidencethatthe risk is recognized, and no facts from which a jury could determine thatthe risk is reasonably foreseeable as a consequence ofthe way the store displays eggs. Gores did submitthe declaration of Tom Baird, a floor safety technician. He testified that Safeway could have put an absorbent mat down as some stores do. Gores claims thatthe trial court erred by striking Baird's declaration. "Inthe context of a summaryjudgment motion, an expert must support his opinion with specific facts, and a courtwill disregard expert opinions where the factual basis for the opinion is found to be inadequate." Rothweiler v. Clark County. 108 Wn. App. 91, 100. 29 P.3d 758 (2001). review denied. 145Wn.2d 1029(2002). Baird's declaration offered legal advice, was conclusory, and had an inadequate factual basis. The court properly refused to consider it. As the trial court observed, allowing customers to pick up their own cartons ofeggs is different from setting up a self-serve soup station. "Otherwise, you would be saying, 'Well, we know people drop things when they take them off the shelf, so, therefore, Pirnentel would apply in every case.' And itclearly doesn't." We conclude the trial court properly granted summaryjudgmentto 

### Safeway. In view of our conclusion, it is unnecessary to address Safeway's
cross appeal and Safeway's objection to Gore's reply brief.
8No. 69819-2-1/9

Affirmed. 

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WE CONCUR: 

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