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Francis v. Wal-Mart Stores4/18/2005
JUDGES: Concurring: C. Kenneth Grosse Mary Kay Becker
UNPUBLISHED
In this personal injury action, Haley Rose-Marie Francis must prove four basic elements: (1) the existence of a duty, (2) breach of that duty, (3) resulting injury, and (4) proximate cause. The threshold question here is whether Wal-Mart and The Amusement Factory owed a duty to her when she fell and injured her head on a video game in Wal-Mart's Bellingham store. We hold that there was such a duty. But whether there was an unreasonable risk of harm created by the placement of the video game and whether defendants should have anticipated the harm despite Francis' knowledge or the obvious nature of the harm are jury questions that remain for trial. We reverse and remand for further proceedings.
Francis, a two-year old, tripped and fell in a Bellingham, Washington Wal-Mart. When she fell, she allegedly struck her head on a motorcycle video game and was injured. Her parents sued Wal-Mart and the game's owner, The Amusement Factory, who placed the video game in the store's foyer. Wal-Mart and The Amusement Factory jointly moved for summary judgment, and the trial court dismissed Francis' premises liability and products liability claims against both defendants. Francis appeals.
PREMISES LIABILITY
Francis argues that summary judgment was inappropriate because, when viewing the facts in a light most favorable to her, a reasonable jury could find that the placement of the video game created an unreasonable risk of harm. Moreover, Francis contends that whether the defendants should have anticipated the harm despite the open and obvious nature of the allegedly dangerous condition is a jury question. We agree. On summary judgment a moving defendant may satisfy the initial burden by showing that there is an absence of evidence to support the nonmoving party's case. The moving defendant need not submit affidavits but may instead support the motion by merely challenging the sufficiency of the plaintiff's evidence as to any 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. "At that point, the evidence and all reasonable inferences therefrom is considered in the light most favorable to the plaintiff." Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law.
For negligence claims based on premises liability, Washington has adopted the Restatement (Second) of Torts, sections 343 and 343A to determine a landowner's liability to invitees. Section 343 provides that a landowner is liable for an invitee's physical harm caused by a condition on the land only if he:
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
Where the danger to the invitee is known or obvious, liability is limited by Restatement (Second) of Torts section 343A(1): A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.
These two provisions define the relevant duty of care here. Wal-Mart and The Amusement Factory correctly
Page 1 2 Washington Personal Injury Attorneys
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