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Linehan v. Safeway Stores2/18/2003
Concurring: Mary K. Becker, William W. Baker
Unpublished
This case is before us for discretionary review of the trial court's order denying Safeway Stores' motion for summary judgment against plaintiff Michelle Linehan. Linehan slipped on some sugar and fell in one of Safeway's grocery stores. Safeway argues that the trial court should have dismissed Linehan's claim because she admitted she did not know how the sugar came to be on the floor and did not submit any evidence to show that the nature of Safeway's business and its mode of operation was such that existence of the unsafe condition was reasonably foreseeable in the area of the store in which she fell. We agree and reverse.
FACTS
Linehan filed a personal injury action against Safeway. Her complaint alleged that she slipped on some sugar and fell while shopping at Safeway's Lynnwood store. Safeway filed a motion for summary judgment. In support of its motion, Safeway submitted portions of Linehan's deposition.
In her deposition, Linehan testified that she had shopped regularly at the store for seven or eight years, two to three times per day. She had never slipped or fallen at the store or had any other accidents before this incident, nor had she ever noticed anything that concerned her from a safety standpoint.
On the day of the accident, Linehan was pushing a cart in the store while she shopped. She was in the pasta aisle when she slipped on a pile of sugar six to twelve inches in diameter. She estimated that the sugar was approximately twelve inches from the aisle. No sugar was stored on the shelves in that aisle, although Safeway did stock sugar one or two aisles over from where Linehan fell. Linehan said she did not know how the sugar got on the floor and did not know whether a Safeway employee knew of the spill before the accident.
Safeway also filed the declaration of Safeway employee Gary Johnson in support of its motion. Johnson described the accident and stated that when Linehan reported the accident, it was the first notice Safeway had received that there was sugar on the floor. He said no sugar was sold on the aisle where Linehan was injured. He also indicated that the entire sales floor had last been inspected and swept about 20 minutes before the accident and the floor was clean at that time.
Linehan moved to strike Johnson's declaration, arguing that it lacked foundation, was not based on personal knowledge, and it constituted hearsay. Linehan argued that the declaration should not be considered except insofar as the statements about inspecting and cleaning the floor constituted an admission by Safeway that it recognized the hazards inherent in a self-service grocery store and its duty to clean and inspect the floors.
Safeway then filed a supplemental declaration by Johnson. In that declaration, Johnson stated that he was on duty the night of the accident and that he learned the details of the accident from Linehan. He explained that after Linehan told him about the sugar, he talked to another employee who said she had told another employee to sweep 20 minutes before the accident. Safeway did not file any declarations from those other two employees. Johnson also stated that he had worked at the store for over six years and had never known of another customer to slip on sugar, nor had he ever known of any other time that sugar was found in the aisle where Linehan fell.
In response to Safeway's summary judgment motion, Linehan argued that she was not required to prove actual or constructive notice because her case fell within an exception to the notice requirement that applies to stores whose self-service metho
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