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O'Donnell v. Zupan Enterprises8/10/2001
In this personal injury action, we hold that a check-out aisle of a grocery store where customers are responsible for unloading their own groceries is a self-service area and, thus, the proprietor is charged with knowledge of the reasonably foreseeable risks inherent in the self-service mode of operation. Consequently, we reverse the order of summary judgment dismissing Sara O'Donnell's personal injury action against Zupan Enterprises, Inc. (Zupan), and we remand for trial.
FACTS
On the afternoon of her twelfth birthday, O'Donnell injured herself when she slipped and fell on a piece of lettuce a few steps inside the check-out aisle at Zupan's Food Pavilion (Zupan's). O'Donnell sued Zupan for negligence. The trial court dismissed her claim, finding that there were no issues of material fact.
O'Donnell appeals, asserting that (1) she was not required to establish that Zupan's had actual or constructive knowledge of the hazard because the check-out area was a self-service area of the store and the hazard was reasonably foreseeable in this area, and (2) she produced evidence sufficient to establish a question of fact as to whether Zupan's exercised reasonable care.
The record shows that Zupan's customers were responsible for unloading their grocery items from their grocery carts onto the conveyor belt at the check-out stand and that in this process it was not unusual for items, such as grapes and blueberries, to fall on the floor. Although there was no evidence of any other falls in this location, Zupan's was aware that debris on the floor could be hazardous.
Zupan's checkers were responsible for keeping the check-out area clear of debris but they had to leave their cash registers to see the check-out aisle floor. The cashiers inspected the check-out aisles only when they had the opportunity to do so, generally between customers, rather than complying with store policy requiring hourly checks.
The Zupan's janitor responsible for sweeping the floors in the check-out area, daily and on request, did not have a sweeping or inspection schedule other than the once-a-day cleaning. Nor did the janitor sweep or inspect the check-out aisles on a consistent basis. Further, although Zupan's required all employees to pick up any debris on the floor, employees could not easily see fallen debris in the check-out aisles.
I. Summary Judgment and Negligence
Summary judgment is appropriate 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' CR 56(c); Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). Once the moving party shows an absence of material fact, the nonmoving party has the burden to show the existence of a genuine issue of material fact. Ingersoll v. DeBartolo, Inc., 123 Wn.2d 649, 654, 869 P.2d 1014 (1994). We review a grant of summary judgment de novo and consider all facts and reasonable inferences arising from those facts in the light most favorable to the nonmoving party. Rice v. Dow Chem. Co., 124 Wn.2d 205, 208, 875 P.2d 1213 (1994).
Zupan concedes that there was sufficient evidence of injury and proximate cause for purposes of summary judgment. But it challenges the existence of a duty and breach of duty. Iwai v. State, 129 Wn.2d 84, 96, 915 P.2d 1089 (1996).
II. Self-Service Exception
Zupan's had a duty to exercise reasonable care to protect O'Donnell, a business invitee, from harm. See Coleman v. Ernst Home Ctr., Inc., 70 Wn. A
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