Cheryl N. McPherson, et vir v. Wal-Mart Stores, Inc.
34696-0
| Wash. Ct. App. | Dec 14, 2017Background
- Cheryl McPherson slipped and fell in the shampoo aisle of a Sunnyside Walmart just after 5:00 p.m.; spilled clear shampoo on the floor was identified as the cause.
- Store surveillance and manager declaration show an employee inspected the aisle between 4:04–4:06 p.m.; at 4:53 p.m. two women were seen handling a shampoo bottle in the shelf location later associated with the spill.
- Walmart's manager declared no complaints/notifications of spills before the fall; Walmart produced video corroborating its inspection cadence and the 4:53 p.m. activity.
- Walmart moved for summary judgment arguing there was neither actual nor constructive notice; the trial court granted summary judgment for Walmart.
- The McPhersons challenged summary judgment, arguing (1) factual uncertainty about when/where the bottle spilled (so constructive notice might exist) and (2) the Pimentel self-service exception should excuse proof of notice in a shampoo aisle.
- The Court of Appeals affirmed, holding plaintiffs failed to present evidence the spill existed long enough for constructive notice and failed to meet the Pimentel exception evidentiary requirements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Constructive notice — duration on floor | McPhersons: record unclear; spill may have occurred earlier than 8 minutes before fall | Walmart: video and declaration show spill occurred ~8 minutes before fall — insufficient time for constructive notice | Court: Plaintiff bears burden to show how long condition existed; no evidence it was on floor long enough; summary judgment affirmed |
| Sufficiency of evidence to rebut summary judgment | McPhersons: pointing to inconsistency in bottle location raises material fact | Walmart: offered surveillance and manager declaration undermining any genuine dispute | Court: Speculation/argument insufficient; must produce evidence; plaintiffs failed to meet burden |
| Pimentel self-service exception (excuse from proving notice) | McPhersons: shampoo aisle is self-service area where spills are foreseeable; exception should apply | Walmart: plaintiffs provided no evidence about frequency of spills, inspections, staffing, reporting practices | Court: Exception not automatic; plaintiff must show unsafe condition is continuous/foreseeably inherent and provide operational evidence; plaintiffs gave none, so exception not triggered |
| Burden when Pimentel applies | McPhersons: if exception applies, no need to prove notice | Walmart: even if exception applied, plaintiff still must show operator failed to inspect with frequency required by foreseeability | Court: Concurring judge would apply Pimentel here but still affirm because plaintiffs did not show inadequate inspection frequency; majority did not reach exception application because plaintiffs failed to establish its prerequisites |
Key Cases Cited
- Ingersoll v. DeBartolo, 123 Wn.2d 649, 869 P.2d 1014 (Wash. 1994) (constructive notice requires condition existed long enough that proprietor should have discovered it by reasonable inspection; Pimentel exception scope discussed)
- Pimentel v. Roundup Co., 100 Wn.2d 39, 666 P.2d 888 (Wash. 1983) (self-service exception: notice need not be proven when unsafe conditions are reasonably foreseeable from the proprietor’s mode of operation)
- Wiltse v. Albertsons Inc., 116 Wn.2d 452, 805 P.2d 793 (Wash. 1991) (plaintiff must establish how long dangerous condition existed to show constructive notice)
- Carlyle v. Safeway Stores, Inc., 78 Wn. App. 272, 896 P.2d 750 (Wash. Ct. App. 1995) (short duration spills generally insufficient for constructive notice)
- Arment v. Kmart Corp., 79 Wn. App. 694, 902 P.2d 1254 (Wash. Ct. App. 1995) (self-service areas do not automatically trigger Pimentel; plaintiff must show foreseeability tied to operation)
- Lyons v. U.S. Bank Nat'l Ass'n, 181 Wn.2d 775, 336 P.3d 1142 (Wash. 2014) (standard of review for summary judgment)