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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON JEANNE PASCAL and DALLAS SWANK, husband and wife, Appellants,

WH PARK PLACE MEZZ, LLC; and WH PARK PLACE, LLC; Respondents, WASHINGTON REAL ESTATE HOLDINGS LLC; TRANSWESTERN PARK PLACE SEATTLE, LLC; TRANSWESTERN INVESTMENT COMPANY, LLC; TRANSWESTERN PARK PLACE SEATTLE HOLDINGS, LLC; WASHINGTON HOLDINGS STRUCTURED FINANCE, LLC; and FUJITEC AMERICA, INC., Defendants. No. 69839-7-1 DIVISION ONE

UNPUBLISHED OPINION

FILED: March 10,2014 Schindler, J. — On January 21, 2010, Jeanne Pascal fell while stepping into the 

### garage passenger elevator in the Park Place Building. Pascal filed a personal injury lawsuitagainst the owner of the building WH Park Place Mezz LLC (Park Place) and the elevator maintenance company Fujitec America Inc. Pascal appeals summary 

### judgmentdismissal of her claims against Park Place. Because there is no evidence thatNo. 69839-7-1/2 Park Place breached the duty of care or that itknew or should have known of a dangerous condition on January 21, 2010, we affirm. FACTS InJanuary 2010, WH Park Place Mezz LLC (Park Place) owned the Park Place 

### Building at 1200 Sixth Avenue (the Building).1 The Building has eight elevators including one garage passenger elevator. Park Place contracted with Fujitec America Inc. (Fujitec) to service the elevators 

### in theBuilding.2 Thecontract required Fujitec toperform monthly preventative maintenance on the elevators and respond to all service calls. The contract also 

### required Fujitec to maintain elevator leveling accuracy within one-quarter inch. Park Place employed a propertymanagement company,Wright Runstad, to 

### manage the Building, including the elevator contractwith Fujitec. Wright Runstad was responsible for scheduling routine maintenance ofthe elevators, taking tenant 

### complaints, writing up anyincident oraccident reports related to theelevators, and contacting Fujitec for emergency repairs. 

### On January21, 2010while stepping into the garage passenger elevator, Jeanne 

### Pascal tripped and fell forward, dislocating hershoulder and tearing herrotator cuffs. Pascal and her spouse Dallas Swank(collectively Pascal) filed a personal injury 

### lawsuit against Park Place and Fujitec.3 Pascal alleged her injuries were "directly and proximately caused by the negligence ofDefendants and/or agents ofDefendants."

1The members of Park Place are Transwestern Park Place Seattle Holdings LLC and WH Structure Finance LLC. WH Structure Finance LLC is a subsidiary of Washington Real Estate Holdings LLC. 2Fujitec initially contracted with adifferentowner butwasstill servicing theBuilding in January 2010 when Park Place assumed ownership. 3In July 2012, Pascal dismissed the five otherdefendants shenamed in herinitial complaint.No. 69839-7-1/3 Park Place filed a motion for summaryjudgment dismissal. Park Place argued there was no evidence that Park Place knew or should have known of a dangerous condition. In support, Park Place presented the deposition testimony of Fujitec employee Chris Love and Wright Runstad employee Travis Smith. Park Place also presented Pascal's deposition testimony. Fujitecjoined in the motion for summary judgmentfiled by Park Place. Fujitec service mechanic Chris Love was responsible for inspecting and maintaining the elevators. Love performed the monthly maintenance inspection ofthe elevators on January 13, 2010. Love testified that he completed all required monthly maintenance tasks during each of his inspections. Love explained that any unchecked boxes inthe Fujitec maintenance record for the January 13 inspection meant that those tasks were not necessary. Love testified that he did not observe a misleveling problem in the garage passenger elevator during any ofthe monthly inspections he performed between September 2009 and January 13, 2010. Love described "misleveling" as "an elevator 

### either being above or below floorlevel." Love said misleveling can occur "from clipping

a door lock" or "from [a] safety circuit being broken, and that's pretty much it." Love testified that Fujitec did not receive any complaints of misleveling problems 

### with the garage passenger elevator. Love testified that between September2009 and January 2010, there were only two service calls inOctober 2009 concerning the garage 

### passenger elevator. Love testified the two calls in October concerned replacing the talon belt on the garage passenger elevator and Fujitec performed the necessary repairs.No. 69839-7-1/4 Travis Smith worked for Wright Runstad as the chief engineer ofthe Building. Smith said that Wright Runstad had no notice of any misleveling problems withthe garage passenger elevator before Pascal's fall on January 21. Smith testified that he could not "recall any complaints" about the garage passenger elevator between September 2009 and January 21, 2010 and Fujitec did not report any malfunction ofthe garage passenger elevator. During her deposition, Pascal testified that as she entered the elevator, her foot "clipped the elevator floor and itpitched me forward and Ifell." Pascal said that she "assumed" her foot clipped the elevator floor because "the garage floor is concrete and stationary. The only thing that can possibly elevate or not elevate is the elevator." Pascal testified that she did not observe the garage passenger elevator misleveling on the day of her accident. Pascal said she did not remember ifshe ever noticed the 

### garage passenger elevator misleveling but did notice "some of the elevators did not level from time to time. If I saw it I walked over it." In opposition to the motion for summaryjudgment, Pascal argued there were issues of material fact as to whether as a common carrier Park Place "exhibited the 

### highestdegree of care possible consistent with the practical operation of itselevators," and "whether Fujitec used the required degree ofcare in maintaining the Park Place 

### elevators." Pascal also argued the summary judgment motion was "premature in light of remaining discovery. In particularhandwritten logbooks maintained by building security 

### guards" and outstanding depositions "ofcertain key Fujitec personnel familiar with software operating the elevator systems." Nonetheless, Pascal did not ask for a continuance. Instead, Pascal asserted there was "sufficient" information from theNo. 69839-7-1/5 "discovery already made" to defeat summaryjudgment. In opposition, Pascal submitted a declaration and declarations from individuals 

### who had previously or currently worked in the Building. Pascal also submitted the declaration of an elevator expert and documents produced during discovery. 

### MichaelGraeber, Bogdan Wojnicz, Kevin McDermott, Eileen Livingstone, and Jennifer Eason each stated in their declarations that they observed misleveling ofthe 

### elevators in the Building, butdid nottestify that they observed any misleveling in the 

### garage passenger elevator between January 13 and January 21, 2010. Graeberworked as a security guard at the Building between October 2001 and 

### April 2008. Graber said that beforeleaving in April 2008, he was "personally aware, 

### and wastold by building tenants that the Park Placebuilding elevators, including the 

### garage elevator stopped above orbelow the level ofthe floors on occasion." Graeber does not identify when he observed misleveling orwhen tenantscomplained tohim about misleveling before he left inApril 2008. 

### Wojnicz worked in the Building until June 2008. Wojnicz recalled at least a dozentimes when "the garage elevator stoppedhigh orlow ofthefloor." McDermott 

### worked in theBuilding from 1990 to2009 and Livingstone worked in theBuilding from December 1982 to December 2010. Both McDermott and Livingstone said they 

### observed elevators in the Building misleveling butdo notidentify which elevator orwhen 

### they observed misleveling. Eason hasworked in theBuilding since January 2007. Eason states that she observed "the elevators" in the Building mislevel but does not 

### identify when she made those observations orwhich elevators were misleveling. BarbaraLither has worked in the Building since November 1978. LithertestifiedNo. 69839-7-1/6 that on February 4, 14 days after Pascal's accident, the garage passenger elevator was misleveling approximately one-halfto three-quarters of an inch. Lither took photographs ofthe elevator misleveling. Lither also testified that she "watched the elevator doors open and close at least twice" and noticed that "the floor did not misalign every time." Pascal states in her declaration that on January 21, the garage passenger elevator "misleveled, creating a trip hazard, which Idid not see." Pascal also submitted an e-mail from Park Place Security, a 2009 work order to Fujitec, and the records from the maintenance inspection in January 2010. The May 12, 2009 e-mail asks Fujitec to "check on reports of intermittent leveling problems — no specifics as to floor or direction." The October 15, 2009 work order to Fujitec states that the "day porter reports garage car not leveling on 1st Floor." In his declaration, elevator expert Charles Buckman relies on Lither's declaration and the fact that Pascal tripped to conclude that the garage passenger elevator 

### "probably" misleveled by more than one-half inch because misleveling ofless than onehalf inch would be unlikely to trip someone. Based on the assumption that the elevator "was at times 3/4 inch misleveled," Buckman then concludes "maintenance ofthat 

### elevatorwas inadequate. With proper maintenance the elevator should not have been more than the 1/4 inch out of alignment with the floor." Buckman also states misleveling is the most common cause ofelevator passenger injury, and Park Place was negligent 

### infailing to "aggressively check" for the source of the misleveling problems and following up on reports of misleveling. 

### In reply, Park Place reiterated there was no evidence ofmisleveling of the garage passenger elevator between the date Fujitec inspected and performed maintenance onNo. 69839-7-1/7 January 13 and the date Pascal fell on January 21. Park Place also asserted there was
no evidence that Park Place had notice of misleveling from January 13 to January 21, and ittook reasonably foreseeable steps by contracting with Wright Runstad and Fujitec "to assist in the fulfillment of its responsibilities" as a common carrier. The court granted the motion for summaryjudgment and entered an order 

### dismissing the claims againstPark Place andFujitec.4 Thecourt denied Pascal's
motion for reconsideration. ANALYSIS Pascal argues the court erred indismissing the claims against Park Place on 

### summary judgment because there are genuine issues of material fact on breach of the duty of care. 

### We review summaryjudgment de novo. Tiffany FamilyTrust Corp. v. City of Kent, 155 Wn.2d 225, 230, 119 P.3d 325 (2005). Summaryjudgment is appropriate 

### when there is no genuine issue of material fact and the moving party is entitled to summaryjudgment as a matter of law. CR 56(c). A defendant can move for summaryjudgment by" 'showing

.. . there is an 

### absence of evidence to support the [plaintiffj's case.'" Young v. Kev Pharm.. Inc., 112 Wn.2d 216, 225 n.1, 770 P.2d 182 (1989) (quoting Celotex Corp. v. Catrett. 477 U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). Ifthe defendant shows an absence of evidence to establish the plaintiffs case, 

### the burden then shifts to the plaintiffto setforth specific facts showing a genuine issue of material fact for trial. Young, 112 Wn.2d at 225. As the nonmoving party, the 

### plaintiffmay notrely on speculation or "mere allegations, denials, opinions, or 4Pascal does not appeal the summaryjudgmentdismissalof her claimsagainst Fujitec. 7No. 69839-7-1/8 conclusory statements" to establish a genuine issue ofmaterial fact. Int'l Ultimate. Inc. v. St. Paul Fire & Marine Ins. Co., 122 Wn. App. 736, 744, 87 P.3d 774 (2004) (citing Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 359, 753 P.2d 517 (1988)). While we construe all evidence and reasonable inferences in the light most favorable to the nonmoving party, 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,'" summaryjudgment is proper. Young. 112 Wn.2d at 225 (quoting Celotex. 477 U.S. at 322). Ifthe plaintifffails to carry its burden,

" 'there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element ofthe nonmoving party's case necessarily renders all other facts immaterial.'" Young, 112 Wn.2d at 225 (quoting Celotex. 477 U.S. at 322-23). As an elevator operator, Park Place is a common carrier and must take 

### reasonably foreseeable precautions on behalf of its passengers. Brown v. Crescent Stores, Inc., 54 Wn. App. 861, 863-64, 776 P.2d 705 (1989). A common carrier owes "a 

### duty of the highest care for its passengers' safety compatiblewith the practical operation of its business." Brown, 54 Wn. App. at 863. Butthe standard of care owed 

### by a common carrier is not one of strictliability. Walkerv. King CountyMetro. 126Wn. App. 904, 908, 109 P.3d 836 (2005). A common carrier is not the insurer of its 

### passengers' safety, and negligence should not be presumed or inferred from the mere 

### happening of an accident. Tortes v. King County, 119Wn. App. 1, 7-8, 84 P.3d 252 (2003). 

### Anelevator operator also has specific statutory duties, including a duty to

8No. 69839-7-1/9 

### maintainfloor leveling accuracy within one-halfinch. WAC 296-96-00650.5 Breach ofa duty imposed by statute or administrative rule may be considered as evidence of negligence. RCW 5.40.050. 

### Pascal relies on Brown to argue there are material issues of fact as to whether Park Place met the standard of care for a common carrier. In Brown, an elderly woman 

### wasinjured when she washit by anelevatordoor in a department store. Brown. 54Wn. App. at 863. 

### The store moved for summary judgment dismissal of the suit, arguing the 

### automatic elevators complied with safety standards and it had noduty to provide an 

### alternative elevatorfor elderly passengers. Brown. 54Wn. App. at 868. In opposition, 

### the plaintiffpresented evidence thatthedepartment store knew aboutthe "age, size and 

### physical condition" ofits elevatorpassengers yet regularly invited elderly customers for luncheons. Brown. 54Wn. App. at 868. Theplaintiffalso presentedevidence that the 

### store knew otherelderly passengershad been injured by theautomatic elevatordoors and a safer manual elevatorwas available for use that day. Brown. 54Wn. App. at 868- 

### 69. The trial court granted summaryjudgmentdismissal ofthelawsuit. Brown. 54Wn. 

### App. at862-63. We reversed on the grounds thatthe facts "raise aquestion whether [the store] should have reasonably anticipated an accident might occurand was therefore obligated to take precautionary measures." Brown. 54 Wn. App. at869.

6RCW 70.87.030 provides thattheWashington StateDepartmentofLaborand Industries 

### (Department) "shall adoptrules governing the mechanical and electrical operation, acceptance tests, 

### conveyancework, operation, and inspection thatare necessary and appropriate and shall also adopt minimum standards governing existing installations." The statute directs the Departmentto considerthe American Society ofMechanical Engineers Safety Codefor Elevators, Dumbwaiters, and Escalators 

### (ASME) RCW70 87.030. TheWashington Administrative Code (WAC) states thatthe Departmenthas 

### adopted theASMEA17.1-2004, Rule 2.26.11(a) and (b). WAC 296-96-00650. ASME Rule 2.26.11 requires floor leveling accuracy within one-halfinch.No. 69839-7-1/10 Here, unlike in Brown, there is no evidence ofbreach ofthe duty ofcare or that Park Place had notice of any misleveling problems inthe garage passenger elevator 

### between the Fujitec inspection on January 13 and Pascal's fall on January 21. Park 

### Place met its duty to take reasonably foreseeable precautions on behalf of its 

### passengers bycontracting with Wright Runstad and Fujitec to maintain the elevators. 

### Fujitec service technician Love testified that he performed monthly maintenance on the 

### garage passengerelevatorfrom September 2009 toJanuary 13, 2010. Love also testified that he did not observe any misleveling problems in the elevator nor did he 

### receive any complaints ofmisleveling between September2009 and January 13, 2010. Pascal did not present any evidence showing misleveling of the garage 

### passengerelevatorwhen Fujitec performed the monthly maintenance inspection ofthe elevators on January 13. None ofthe declarations Pascal submitted report any 

### misleveling in January 2010, and Pascal admitted in her deposition that shedid not observe any misleveling theday shefell. Lither's testimony that she observed misleveling ofthe garage passengerelevator onFebruary 4 does not support an inference that the elevator was misleveling when Pascal fell on January 21. Pascal cites Murohvv. Montgomery Elevator Co.. 65 Wn. App. 112, 828 P.2d 

### 584 (1992), to argue that scheduling once monthly maintenance inspections does not meet the standard of care for a common carrier. But Murphy concerned the standard of 

### care required by an elevator maintenance company and does not address the standard ofcare for a common carrier. Murphy. 65 Wn. App. at 116-18. 

### Pascal also argues theFujitec inspection and maintenance records create a material issue offact as towhether Love completed all required maintenance during the

10No. 69839-7-1/11 

### inspection on January 13. Pascal points to a blank box on the "PM Ticket" to argue Love did not complete all of the required tasks during his January inspection. Pascal 

### also points to the "Ticket Summary By Single Location" that notes, "PM System: 

### January,TASKS: INCOMPLETE." But during hisdeposition, Love was asked only one question related to these two documents, "Was there anything thatyou should have done on thatcall thatyou did notdo?" In response, Love answered that he performed all required tasks on January 13 and "anyofthe blank boxes are tasks that are not required for that month." Pascal contends that an October 15, 2009 work order describing a leveling 

### problem with the "garage car" creates a material issue offact. Pascal assertsthere is
noevidence showing this report ofmisleveling was investigated orsolved. Butthe unrebutted evidence establishes that Fujitec made only two service calls in October 

### 2009 regarding thegarage passengerelevator and neither service call involved misleveling. 

### Further, contrary to Pascal's assertion, Buckman's testimony does not create a material issue of fact. Buckman bases his conclusion that Park Place breached the 

### duty ofcare on the premisethatelevators do not mislevel without some negligence. But Buckman acknowledges theelevator safety codes recognize some degree of 

### misleveling cannotbeeliminated and require floor leveling accuracy onlywithin one-half inch. In Adams v. Western Host. Inc.. 55 Wn. App. 601, 779 P.2d 281 (1989), the court addressed whether misleveling constitutes the kind ofmalfunction that may occur even 

### in the absence of negligence. Adams. 55 Wn. App. at 606.

11No. 69839-7-1/12 InAdams, a passenger was injured when a hotel elevator misleveled between

one and two and one-halffeet. Adams. 55 Wn. App. at 603. The elevator company presented evidence that itperformed regular maintenance on the elevators twice each month and there were no complaints of elevator misleveling prior to the accident. Adams, 55 Wn. App. at 603. The elevator company also showed that the misleveling

was caused by a broken shunt and "there is no way to anticipate when metal fatigue will

cause a shunt to break." Adams. 55 Wn. App. at 603. We recognized that "[ejlevators are mechanical devices ofsome complexity. Materials can wear out or break without negligence being involved," and affirmed summaryjudgment dismissal because the plaintiffs expert "did not state an opinion as to the cause of the misleveling" and therefore failed to rebut the evidence showing that 

### the misleveling was not caused by negligence. Adams, 55 Wn. App. at 606-07. Here, as inAdams, Pascal's expert did not state an opinion as to why the 

### elevator may have misleveled or how it is attributable to any negligence by Park Place. Pascal also did not rebut the evidence that Park Place took reasonably foreseeable 

### precautions in maintaining its elevators. We conclude the courtdid not err in dismissing the claims against Park Place on summaryjudgment. Denial of Motion for Reconsideration Pascal claims the court erred in denying her motion for reconsideration because 

### of the outstanding discovery requests. We review the trialcourt's order denying a motion for reconsideration for an abuse of discretion. Go2Net, Inc. v. C I Host, Inc., 115 

### Wn. App. 73, 88, 60 P.3d 1245 (2003). Atrial court abuses its discretion when its

12No. 69839-7-1/13 

### decision is manifestly unreasonable or based on untenable grounds or untenable

reasons. Go2Net, 115 Wn. App at 88. Pascal contends the court erred in denying her motion for reconsideration 

### because there was an outstanding request for production of the Building security guard 

### logbooks containing elevatorcomplaints, and she did not have the opportunity to 

### depose the Fujitec personnelfamiliar with the software running the garage elevator. But the record establishes Pascal knew about the security guard logbooks and the need to 

### depose the Fujitec software personnel before the courtruled on summaryjudgment. In opposition to summaryjudgment, Pascal stated that the motion was 

### "premature in light ofremaining discovery," in particular, thelogbooks and theneed to depose Fujitec software personnel, but Pascaldid not ask thecourtfor a continuance. Instead, Pascal asserted the summaryjudgment motion could be decided without 

### considering additional evidence—"Nevertheless, discovery already made has revealed information sufficientto defeat summaryjudgment." The trial courtdid not abuse its discretion in denying Pascal's motion for reconsideration. 

### Weaffirm summaryjudgmentdismissal ofthe claims against ParkPlace.

WE CONCUR: 

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