IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE HELEN KATHLINE SULLIVAN, an individual, Appellant,

SAFEWAY, INC., Respondent. No. 71638-7-1

UNPUBLISHED OPINION FILED: April 27, 2015 o «C2 i/>o c=> -\cz en %3 ^ ^o TO

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— Helen Sullivan slipped and fell on liquid detergent in a grocery store and suffered injuries. She sued the store, claiming that her injuries "were caused by [the store's] failure to maintain and take reasonable steps to ensure the safety of their 

### property."1 The superiorcourt dismissed the suit on summaryjudgment. We affirm.
FACTS On April 9, 2012, Sullivan went grocery shopping at a Safeway store in Everett, Washington. While walking down an aisle stocked with paper towels, toilet paper, and liquidcleaning products, she slipped and fell on liquid soap spilled by another customer. Sullivan stated in a deposition that the pool of liquidwas green and "huge" but she did not


### see itbecause she was looking at the store shelves before the accident.2

1 Clerk's Papers at 61. 2Clerk's Papers at 52.No. 71638-7-1/2 

### In July 2013, Sullivan sued Safeway for injuries she suffered inthe fall. Safeway moved for summaryjudgment, arguing that there were no issues of fact as to whether it caused the spill or failed to use ordinary care in response to it. Insupport, Safeway
submitted several declarations. The store manager, Gwynn Graika, stated in her declaration that she was surprised Sullivan slipped on the detergent "because itwas a very large, noticeable puddle that was 

### dark green in colorwith a bottle sitting in the middle ofit."3 The spill spanned the width of the aisle and was "obvious" to Graika as soon as she entered the aisle.4 

### Graika said the aisle where Sullivan slipped, aisle 9, "was a very safe aisle."5 She could not recall any other accidents, spills, or safety problems on that aisle during the eight 

### years she managed the store. Graika also described the store's safety training and procedures: While Iwas manager ofthe store[,] employees were instructed to pay attention to the floors and look for any foreign objects on the floor as they went about their work in the store. Employees were instructed to pick up or clean up any foreign objects on the floor immediately when they saw them. On average throughout the day, an employee would be on [ajisle 9 at least 1- 2 times per hour during the course oftheir work, either helping customers find products, stocking products, or traveling from one part ofthe store to another. In addition, at the time of Ms. Sullivan's accidentf,] we had employees do an inspection ofthe entire store approximately twice per hour, checking for cleanliness and for any potential safety hazards, including foreign objects on the floor. On April 9, 2012,
... the first notice Safeway had ofany problem on [ajisle 9 was when the customerwho spilled the soap notified Chloe 

### Thompson of the spill.[6]
3Clerk's Papers at 31-32. 4Clerk's Papers at 32. 5Clerk's Papers at 7. 6Clerk's Papers at 8.No. 71638-7-1/3 Chloe Thompson stated in her declaration that on the day ofthe spill, a customer told her that she had spilled a bottle of liquid soap on aisle 9. Thompson "went straightto the phone and announced over the store intercom that there had been a spill on [ajisle 9 

### and we needed a clean-up on that aisle."7 When she finished the announcement, Thompson saw employee Cindy Ward heading to aisle 9 with equipment to clean up the spill. Thompson then repeated her intercom announcementthat there had been a spill on
aisle 9. A store video corroborated Graika and Thompson's declarations. Itshowed a 

### female customer reporting the spill to Thompson at 12:56. Approximately 30 seconds later, Sullivan can be seen entering aisle 9. Afteranother 30 seconds, Cindy Ward can be
seen heading toward aisle 9 with cleaning supplies. 

### In her response to Safeway's motion for summary judgment, Sullivan argued that, 

### given the nature of Safeway's self-service business, the spill was foreseeable and 

### Safeway was liable ifitfailed to conductperiodic inspections commensuratewith the foreseeability ofrisk. Noting that the evidence did not establish how much time elapsed between the spill and the customer's reporting of itto Thompson, Sullivan maintained that the adequacy ofSafeway's inspections was a question for the jury. The court granted Safeway summaryjudgment. Sullivan appeals.
DECISION 

### The sole issue on appeal is whetherthe court erred in granting summaryjudgment. 

### This court reviews a grant ofsummaryjudgmentde novo, undertaking the same inquiry as

Clerk's Papers at 29.No. 71638-7-1/4 

### the court.8 Summaryjudgment is proper if, viewing the facts and reasonable inferences mostfavorable to the nonmoving party, no genuine issue ofmaterial fact exists and the 

### moving party is entitled to judgment as a matter oflaw.9 Sullivan contends summaryjudgmentwas improper given the nature ofSafeway's business and the evidence before the court. She concedes that a proprietor is generally 

### not liable for a temporary unsafe condition on its premises absent notice ofthe condition and failure to exercise ordinary care in response to such notice. And she does not 

### contend that Safewayfailed to exercise ordinary care after itlearned of the spill. Instead, citing Pimentel v. Roundup Co., she points out that an exception to the general rule applies "when the nature ofthe proprietor's business and his methods ofoperation are such that 

### the existence ofunsafe conditions on the premises is reasonably foreseeable."10 In such circumstances, liability may be established "byshowing thatthe operator ofthe premises had failed to conduct periodic inspections withthe frequency required by the foreseeability ofrisk."11 Sullivan contends the spill in this case falls withinthe Pimentel exception and that evidence before the court created an issue offact as to whether Safeway conducted adequate inspections prior to the accident. We disagree. "The Pimentel exception is a narrow one, limited to specific unsafe conditions in 

### specific areas that are inherentin the nature ofself-service operations."12 Theexception

8Jones v. Allstate Ins. Co.. 146 Wn.2d 291, 300, 45 P.3d 1068(2002). 

### 9CR 56(c); Versuslaw. Inc. v. Stoel Rives. LLP. 127 Wn. App. 309, 319,111 P.3d 866 (2005). 10 100 Wn.2d 39, 49, 666 P.2d 888 (1983). 11 Wiltsev. Albertson's. Inc.. 116 Wn.2d 452, 461, 805 P.2d 793 (1991). 12 Arment v. Kmart Corp.. 79 Wn. App. 694, 698, 902 P.2d 1254 (1995).No. 71638-7-1/5 

### does not apply to allareas where customers serve themselves.13 Itonly applies where the risk of injury is "'continuous or foreseeably inherent inthe nature ofthe business or mode 

### of operation.'"14 The plaintiffhas the burden of proving that his or her case falls within this narrow exception.15 To invoke the exception, "a plaintiffmust present some evidence that the unsafe condition in the particularlocation ofthe accidentwas reasonably foreseeable."16 Sullivan did not satisfy this burden. Sullivan submitted no evidence demonstrating a continuous orforeseeably inherent 

### risk ofinjury in the area of the accident. There was no evidence of prioraccidents in that
area. In fact, the evidence affirmatively showed an absence ofaccidents on aisle 9. To the extent Sullivan claims the mere presence ofliquid products on aisle 9 was sufficient to 

### invoke the Pimentel exception, she is mistaken. The presence ofliquid products does not demonstrate that a risk of unsafe conditions—in this case, liquid spills—is continuous or 

### foreseeably inherent on aisle9.17 Unlike self-service cases where the evidenceshowed such continuous or inherent risks,18there was no evidence that the liquids on aisle 9

13 Inaersoll v. DeBartolo. 123 Wn.2d 649, 653, 869 P.2d 1014 (1994). 14 Id. (quoting Wiltse, 116 Wn.2d at 461). 15 id, at 654. 16 Arment. 79 Wn. App. at 698 (emphasis added). 

### 17 See Tavai v. Walmart Stores. Inc.. 176 Wn. App. 122, 132, 308 P.3d 811 (2013) 

### (court holding that"[t]he merefact thatWalmart sellsliquids isinsufficientto meet the Pimentel exception," and noting that "drinks in question were sold in sealed bottles, not open cups"). 

### 18 See Carlvle v. Safeway Stores. Inc.. 78 Wn. App. 272, 276, 896 P.2d 750 (1995) 

### (noting that '[cjertain departments of a store, such as the produce department, are areas where hazards are apparent and therefore the proprietor is placed on notice by the 

### activity"); O'Donnell v. ZuoanEnters.. Inc.. 107Wn. App. 854, 859-60, 28 P.3d 799(2001) (plaintiffpresented evidenceshowing that nature ofcheck-outoperations madeit 

### reasonablyforeseeable thatgrocery items would fall on thefloor and create a hazard).No. 71638-7-1/6 

### frequently fell on the floor orthat they were incontainers that were breakable or otherwise likely to spill ifthey fell onto the floor. Sullivan simply failed to produce evidencejustifying application ofthe Pimentel exception. Even ifSullivan had produced such evidence, she failed to demonstrate an issue of fact as to whether Safeway conducted inspections withthe frequency required by the 

### foreseeability ofrisk.19 As previously noted, there was no history ofaccidents on aisle 9. Thus, the risk ofaccidents at that location inthe store was low. Given the low risk, 

### Safeway's practice of two inspections per hour, togetherwithevidence that other 

### employees would, on average, be present in the aisle an additional one to two times per hour, was sufficientto satisfy its duty ofcare as a matter of law. We affirm the order of summaryjudgment.

WE CONCUR: 

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19Pimentel. 100 Wn.2d at 49.