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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON ANTHONY DADVAR, Appellant,

v. APPLEBEE'S SERVICES, INC., APPLE AMERICAN GROUP, LLC, Respondents. DIVISION ONE No. 70552-1-1 UNPUBLISHED OPINION

FILED: June 9, 2014 Dwyer, J. -Anthony Dadvar sued Apple American Group, LLC (Applebee's) for negligence after he slipped and injured his ankle while entering a Lynnwood Applebee's Restaurant. Dadvarfailed, however, to demonstrate a genuine factual issue as to whetherApplebee's had actual or constructive notice ofthe alleged dangerous condition that caused his injury. Nor has he shown that the trial court abused its discretion indenying a continuance under CR 56(f). We therefore affirm the trial court's dismissal of Dadvar's claim on summaryjudgment. I On November 29, 2008, Anthony Dadvar drove to the Lynnwood Applebee's Restaurant for lunch. Patrons enter the restaurant through outer doors that leadNo. 70552-1-1/2 initially into a foyer or vestibule area. Asecond set ofdoors opens from the foyer into the restaurant. Dadvarentered the foyer along with two women, who were also going into the restaurant. He then hurried toward the inner doors, intending to open them for the
women. As he approached the doors, Dadvar's right foot "slipped violently" on the tile floor. Dadvar did notfall to the ground, but the twisting motion injured his ankle. Dadvar limped to the restaurant bar, where he sat on a stool and asked for
some ice for his ankle. After he told a manager about the accident, he saw Applebee employees mop the foyer floor. While sitting inthe bar, Dadvar noticed "some greasy, oily, slippery stuff' on the bottom of his right shoe. He claimed that on the day ofthe accident, his shoes
were "well-maintained, dry and did not have any grease or slippery substances on 

### them" and that he cleaned his garage floor regularly to keep it free of oil and grease. Dadvar did not see any foreign substance on the floor, but noticed thatthe floormats 

### in the foyer did not cover that portion of the floor that many patrons used to enter the

restaurant. 

### Applebee's stated that it employed a host to open the interior doors for 

### patrons. In the process, the employee "would look at the vestibulefloorfrequently" and clean up any standing wateron the floor. Dadvar recalled that a restaurant 

### employee had opened the inner doors on his previous visits, but he did notsee anyone performing that function at the time of his accident.

-2-No. 70552-1-1/3 On November 18, 2011, Dadvarfiled a complaintfor damages, alleging that Applebee's had negligently maintained the foyer area. He initially alleged that he had slipped on a foyer tile that was wet from the rain. He later claimed that there had been an oily or greasy substance on the floor. On April 15, 2013, Applebee's moved for summaryjudgment, arguing that Dadvar had failed to submit any evidence establishing the existence of a dangerous 

### condition on the foyer floor or that Applebee's had notice of the condition. At the 

### summaryjudgment hearing on May 29, 2013, Dadvar moved for a continuance under CR 56(f) to conduct additional discovery. The trial court denied the motion for a continuance and entered summaryjudgment in favor ofApplebee's. The court denied Dadvar's motion for reconsideration on July 21, 2013. II 

### Anappellate court reviews the grant ofsummaryjudgmentde novo, 

### undertaking the same inquiry as thetrial court. Jones v. Allstate Ins. Co., 146Wn.2d 291, 300, 45 P.3d 1068 (2002). Summaryjudgment is appropriate only ifthe 

### supporting materials, viewed in the lightmostfavorable to the nonmoving party, demonstrate "thatthere is no genuine issue as to any material fact and that the 

### moving party isentitled to ajudgmentas a matteroflaw." CR 56(c); Hartleyv. State, 103 Wn.2d 768, 774, 698 P.2d 77 (1985). A '"complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.'" Young v. Key Pharm.. Inc.. 112 Wn.2d 216, 225, 770 P.2d 182 (1989)

-3-No. 70552-1-1/4 (quoting Celotex Corp. v. Catrett. 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). Inorderto prevail on a negligence claim, Dadvar must prove duty, breach, causation, and injury. Tincani v. Inland Empire Zoological Soc'v, 124 Wn.2d 121, 127-28, 875 P.2d 621 (1994). Whetherthe defendant owed a duty to the plaintiff is 

### generally a question of law. Hutchins v. 1001 Fourth Ave. Assocs., 116 Wn.2d 217, 220, 802 P.2d 1360 (1991). In premises liability actions, the possessor's duty ofcare depended on the entrant's common law status as an invitee, licensee, or trespasser. Tincani, 124 Wn.2d at 128. Dadvar's status as a business invitee is undisputed. Applebee's therefore 

### owed him a duty toexercise "reasonable care" and "inspect fordangerous conditions, 

### 'followed by such repair, safeguards, orwarning as may be reasonably necessary for 

### [the invitee's] protection under thecircumstances.'" Tincani, 124Wn.2d at 139 (alteration inthe original) (quoting Restatement(Second) ofTorts § 343, cmt. b). Applebee's contends that Dadvarfailed to make any showing that a 

### dangerous condition existedin thefoyer. It argues that thetrial courtproperly disregarded Dadvar'sdeclaration in response to the summaryjudgmentmotion because itcontains self-serving opinions and speculation. Applebee's furtherasserts that the declaration contradicted both Dadvar's original claim that he slipped on a tile that was wetfrom the rain and his deposition testimony that he never saw the "greasy 

### substance" on the floor at the time he slipped. See Marshall v. AC&S, Inc., 56 Wn.

-4-No. 70552-1-1/5 App. 181, 185, 782 P.2d 1107 (1989) (party cannot create genuine factual issue merely by contradicting, without explanation, previously given clear testimony). For purposes ofthis appeal, however, we need not decide whether Dadvar's affidavit contradicted his deposition testimony or whether there was a slippery substance on the foyer floor. Even ifwe assume that the evidence presented raised
a factual issue as to the existence of a dangerous condition, Dadvar failed to make any showing that Applebee's had notice ofthe condition. For a possessor of land to be liable to a business invitee for an unsafe condition, "the possessor must have actual or constructive notice ofthe unsafe condition." Inqersoll v. DeBartolo. Inc.. 123 Wn.2d 649, 652, 869 P.2d 1014 (1994). 

### Dadvar does not allege thatApplebee's had actual notice of the alleged condition. 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 v. Manning's, Inc., 13Wn.2d573, 580, 126 P.2d 44 (1942)): see also Wiltse v. Albertson's Inc., 116 Wn.2d 452, 459, 805 P.2d 793 (1991) (constructive notice will be inferred ifthe 

### condition exists longenough for a person exercising ordinary care to discover it). To establish constructive notice, Dadvar relies on the evidence that 

### Applebee's employed a host whose duties included inspecting the foyerfloor and cleaning up any hazards. He asserts that the host's duties of inspecting for 

### dangerous conditions, coupled with the apparent absence of a host at thetime ofthe

-5-No. 70552-1-1/6 accident, supports a reasonable inference that Applebee's should have known ofthe dangerous condition. We disagree. Dadvar submitted no evidence ofthe host's work schedule or any other evidence suggesting how long the host might have been away from the area at the time ofthe incident. Consequently, he made no showing thatthe condition had been
on the floor for enough time to afford Applebee's "a sufficient opportunity, inthe 

### exercise of ordinarycare, to have made a proper inspection and to have removed the hazard." Carlvle v. Safeway Stores. Inc.. 78 Wn. App. 272, 275, 896 P.2d 750 

### (1995). Under the circumstances, Dadvarfailed to raise a genuine issue regarding constructive notice. The trial court properly granted summaryjudgment. Citing Iwaiv. State. 129Wn.2d 84, 915 P.2d 1089(1996), Dadvar argues that the circumstances here fall within an exception to the notice requirementfor a 

### specific unsafe condition that is "'foreseeably inherentin the nature of the business or mode of operation.'" Jwai, 129 Wn.2d at 98 (quoting WHtse, 116 Wn.2d at 461). But 

### in Washington, courts have applied thisexception onlytoself-service areas. See Pimentelv. Roundup Co.. 100 Wn.2d 39, 666 P.2d 888 (1983). Fourjustices inJwai 

### favored extending theexception. "Butin the absence of a majority, theJwai lead 

### opinion isnotbinding precedent and, sofar, noWashington court has extended Pimentel beyond the self-service setting." Fredrickson v. Bertolino's Tacoma. Inc., 131 Wn. App. 183, 192, 127 P.3d 5 (2005). Dadvarmakes no showing that thefoyer ofthe restaurant was a self-service area.

-6-No. 70552-1-1/7

Dadvar contends that the trial court erred in denying his CR 56(f) motion for a continuance. Under CR 56(f), ifthe nonmoving party demonstrates, by affidavit, why he or she cannot present evidence opposing summaryjudgment, the trial court "may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such otherorder as is just." The court may deny the motion for a continuance when (1) the requesting party does not offer a good reason forthe delay in obtaining the desired evidence; (2) the requesting party does not state what evidence would be established through the additional discovery; 

### or (3) the desired evidence will not raise a genuine issue of material fact. 

### Turnerv. Kohler. 54 Wn. App. 688, 693, 775 P.2d 474 (1989). We review the trial 

### court's denial of a CR 56(f) motion for an abuse of discretion. Coggle v. Snow, 56 Wn. App. 499, 504, 784 P.2d 554 (1990). Dadvar's counsel moved for a CR 56(f) continuance at the summaryjudgment 

### hearing on May 29, 2013. The record on appeal does not contain an affidavit in support of the motion, and the hearing was not reported. Counsel apparently sought to conduct additional discovery and investigationbecause he had firstappeared in the case on February 26, 2013, sixweeks before Applebee's filed its summary 

### judgmentmotion. Counselexplained that he had initiallyfocused onreviewing Dadvar's medical records. Dadvar's previous counsel withdrew in September2012.

-7-No. 70552-1-1/8 By the time ofthe May 29, 2013 hearing, however, counsel had represented Dadvarfor more than three months and had been present at Dadvar's deposition on February 28, 2013. Nothing inthe record indicates the specific nature ofthe additional investigation or discovery that counsel intended to undertake or the potential resulting evidence. Underthe circumstances, counsel's conclusory 

### allegations ofinsufficienttime to prepare did not justify a delay. On the record before us, Dadvar has failed to demonstrate any abuse ofdiscretion in the trialcourt's denial ofthe requestfor a CR 56(f) continuance.
Affirmed.

We concur: 

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