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Elizabeth Las v. Yellow Front Stores Inc.3/9/1992
Las appeals the summary judgment dismissal of her personal injury claim arguing there is a material issue regarding the negligence of Yellow Front Stores. We affirm.
On July 30, 1989, Elizabeth Las (Las) and her daughter entered the Yellow Front Store (Yellow Front) in White Center to shop. After doing some shopping the two separated, and Ms. Las went alone to the kitchen department of the store.
Ms. Las was interested in iron frying pans. Ms. Las found a display of pans on the second-to-the-bottom shelf of a 5-shelf display. The shelves were all the same size and the shelf just above the pans blocked Ms. Las's view of any items behind the pans. None of the pans were overhanging the edge of the shelf. As Ms. Las removed one pan which was stacked on the others, five or six skillets fell to the floor. At least one of these pans struck Ms. Las on the foot and injured her. Ms. Las filed suit against Yellow Front claiming its negligence caused her injury. The court granted
Yellow Front's motion for summary judgment and this appeal followed.
A defendant in a civil action is entitled to summary judgment when that party shows that there is an absence of evidence supporting an element essential to the plaintiff's claim. The defendant may support the motion by merely challenging the sufficiency of the plaintiff's evidence as to any such material issue. In response the nonmoving party may not rely on the allegations in the pleadings but must set forth specific facts by affidavit or otherwise that show a genuine issue exists. Additionally, any such affidavit must be based on personal knowledge admissible at trial and not merely on conclusory allegations, speculative statements or argumentative assertions.
To avoid summary judgment Las must produce sufficient evidence to create a genuine issue that (1) there existed an unreasonable risk of harm to Yellow Front's invitees, (2) the danger was brought to the attention of the store owner, and (3) sufficient time or opportunity existed for the store owner or employees to remedy the unsafe condition. Las fails to establish sufficient proof of any of these elements.
To establish a dangerous condition Las expresses a "belief" that the pans must have been unbalanced or precariously stacked. There are no facts supporting this belief. She cannot testify to how the pans were stacked and, in fact, her view of the pans was obstructed by the other shelves. There is no evidence of Yellow Front's practice as to stacking the pans, nor any expert testimony as to how frying pans should
be safely stacked. The mere existence of the accident is insufficient proof of an unreasonable risk, absent facts justifying application of res ipsa loquitur. We decline to hold as a matter of law that stacking iron skillets creates an unreasonably dangerous condition.
Las attempts to avoid the requirement of showing Yellow Front's actual or constructive knowledge of the alleged danger by arguing the element does not apply to self-service operations. Las's reliance on Pimentel v. Roundup Co. is misplaced.
Initially, Pimentel is easily distinguished on its facts. In that case a paint can fell from a shelf and injured a customer. Unlike the frying pan in this case, in Pimentel it was undisputed that the can overhung the shelf and even the defendant's expert stated that the display was dangerous. There was also proof of store policies against such displays and providing for official inspection for such conditions. None of those facts are present here. The issue in Pimentel was whether the store operator knew of the condition and whether the plaintiff needed to prove such knowledge.
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