Lead Opinion
— This is a premises liability case where Plaintiff Barbara Iwai allegedly slipped and fell on snow or ice on an inclined section of Defendants’ parking lot. We have heard about slippery slopes countless times, but this is the first case actually involving one. Defendants urge this court formally to adopt the natural accumulation rule for commercial parking lots, which would preclude landowner liability for injuries caused by naturally accumulated snow or ice. Defendants also claim Plaintiffs failed to establish Defendants’ notice of the dangerous condition. The trial court granted summary judgment in favor of Defendants, but the Court of Appeals reversed and remanded the matter for trial. We affirm the Court of Appeals.
On November 27, 1984, over seven inches of snow fell in Spokane. On the same day, a contractor plowed Employment Security’s parking lot, but apparently no sand was applied after the lot was plowed. From the 27th to the 29th of November, the temperature fluctuated from a high of thirty-six degrees to a low of twenty-eight degrees.
On November 29, 1984, Mrs. Iwai (hereinafter Iwai) knew it was slippery out, and she wore her snow boots when she left her house that morning. She drove to Employment Security’s Spokane Job Service Center to check the job postings. Having bеen to the Center numerous times in the past two weeks, she was familiar with the facilities. When Iwai drove through Employment Security’s parking lot, she realized the lot was icy. The parking lot was also covered by a small amount of residual snow. She parked in the only available parking stall, located on a sloped part of the lot far away from the building entrance. Upon exiting her car, Iwai slipped on ice and broke her wrist. After falling, she climbed back into her car and drove to a hospital.
Plaintiffs offered very little evidence to support their negligence claim. Plaintiffs argued there was no sand, gravel, or railings available in the parking lot at the time of Iwai’s fall, a clаim which Defendants did not refute. However, the absence of those aids does not in itself constitute negligence. The only solid piece of evidence regarding the actual and specific parking lot conditions on the day Iwai slipped is temperature and precipitation information from the National Weather Reports. All other details rest entirely on Iwai’s own uncorroborated statements in her deposition and in the complaint. Iwai’s deposition offers only the vague and general description of there being ice, covered by a trace amount of snow. Employment Security did not have the opportunity to document the parking lot conditions on November 29th because Plaintiff did not notify Employment Security of the accident until the following week. Defendants dispute that they had any notice of the accident prior to the lawsuit being filed on July 23, 1986.
In the attempt to show that Defendants had notice of the dangerous condition, Plaintiffs deposed John Lester, who was in charge of maintenance for Employment Security’s parking lots at the time of Iwai’s fall. With the deposition taking place almost five years after the accident, Lester had no specific recollection of the conditions during the month that Iwai fell. Nonetheless, he was questioned in detail about the parking lot.
Besides deposing Lester, Plaintiffs submitted the affidavit of a traffic engineer who inspected the lot on April 17, 1987, over two years after the alleged accident. According to the engineer, persons and cars "would more probably than not” be expеcted to slip without special sanding or de-icing because of the steep nature of the slope. Clerk’s Papers at 21. The analysis concludes the parking lot was negligently designed. The affidavit, however, does not say how much ice or snow must be present before the condition "become[s] extremely dangerous,” nor does the affidavit claim to have any knowledge of the specific conditions on the day that Iwai slipped. Clerk’s Papers at 21. The Defendants strongly challenge the relevance of the engineer’s affidavit in their petition for review, but these objections were not raised in the trial court as far аs the record reveals.
Besides the weakly argued negligence claim premised on Defendants’ duty to keep the lot safe, Plaintiffs also posed a different theory for liability in one set of motion
Defendants moved for summary judgment, arguing they owed no duty to protect invitees frоm natural accumulations of snow or ice. Defendants also challenged the sufficiency of Plaintiffs’ pleadings. Defendants argued Plaintiffs failed to demonstrate how the condition causing Iwai’s fall was a result of Defendants’ negligence, and Defendants claimed Plaintiffs failed to allege Defendants’ notice of a specific dangerous condition.
The trial court granted summary judgment for Defendants. The court cited with approval the natural accumulation rule, under which landowners have no duty to clear the natural accumulation of ice and snow. The only way Employment Security could be liable, according to the triаl court, was if it voluntarily assumed the duty to remove snow and ice, but failed to act in a reasonable and safe manner. The court found insufficient evidence to demonstrate how Employment Security’s plowing the lot two days before Iwai’s injury was done in an unreasonable manner so as to cause the accident.
The Court of Appeals cited with approval the natural accumulation rule, but it found that there was a question of fact whether Employment Security was negligent by having the parking lot plowed on the 27th without subsequently sanding the plowed areas. Iwai v. State,
I
The legal duty owed by a landowner to a person entering the premises depends on whether the entrant
Historically, landowners had no duty to protect invitees from conditions caused by natural accumulations of snow or ice. See 62A Am. Jur. 2d Premises Liability § 699 (1990 & Supp. 1995) (discussing landowners’ responsibility for snow or ice both on adjacent public sidewalks and on private premises). This traditional position was known as the natural accumulation rule, or the Massachusetts rule, the latter name stemming from Woods v. Naumkeag Steam Cotton Co.,
In 1975, this court flatly rejected the Massachusetts rule. Geise v. Lee,
The duty of the landlord being to exercise reasonable care to prevent the occurrence of defective or dangerous conditions in the common approaches, the fact that a particular danger arose from the fall of snow or the freezing of ice can afford no ground of distinction. Indeed, the causes which are at work to produce it are no more natural causes than are those which, more slowly, bring about the decay of wood or the rusting of iron. To set apart this particular source of danger is to create a distinction without a sound difference.
Geise,
Despite the ruling in Geise, the Court of Appeals, Division Three, recently applied the Massachusetts rule and found no owner liability when a customer slipped in a store’s parking lot. Schaeffer v. Woodhead,
Schaeffer has been cited with approval in one decision by the Court of Appeals, Division One, but in that case the court found the owner potentially liable on other grounds. Sorenson v. Keith Uddenherg, Inc.,
Schaeffer’s adherence to the Massachusetts’ rule is an anomaly, and the case has not been followed by most subsequent decisions in this state. Most appellate cases discussing the duties owed to invitees have recognized Geise as controlling for all landowners. See Ford v. Red
The reasoning in Ford is clearly consistent with Geise. Ford involved a customer who slipped and fell in a snow-covered parking lot of the hotel. The trial court applied the natural accumulation rule and granted summary judgment for the defendant. The Court of Appeals upheld the summary judgment on other grounds, but it observed that the natural accumulation rule had been disapproved by this court in Geise. Ford,
Ford set forth Restatement (Second) of Torts §§ 343 & 343A (1965) as the appropriate tests for determining landowner liability to invitees. Ford,
A possessor of land is subject to liability for physical harm caused to his [or her] invitees by a condition on the land if, but only if, he [or she]
(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
*94 (c) fails to exercise reasonable care to protect them against the danger.
An invitee’s awareness of a particular dangerous condition does not necessarily preclude landowner liability. Seсtion 343A of the Restatement, entitled Known or Obvious Dangers, states in part:
(1) A possessor of land is not liable to his [or her] 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.
See Degel v. Majestic Mobile Manor, Inc., No. 62312-1, slip op. at 6-7 (Apr. 18, 1996) (adopting sections 343 and 343A) (citing Tincani v. Inland Empire Zoological Soc’y,
The Restatement gives additional weight to Defendant’s status as a government agency, "which maintains land upon which the public are invited and entitled to enter as a matter of public right.” Restatement (Second) of Torts § 343A(2) cmt. g (1965). In cases where defendants are public utilities or agencies, members of the public can be expected to "encounter some known or obvious dangers which are not unduly extreme, rather than to forego the
Taken together, Geise, Ford, and Tincani reject the natural accumulation rule and impose Restatement (Second) op Torts §§ 343 and 343A as the appropriate standards for determining landowner liability to invitees. Degel, which was decided after this case was argued, also holds both sections of the Restatement as еmbodying this state’s common law. Degel, slip op. at 7. The standards imposed by these sections do not distinguish between artificial and natural conditions—the duty to protect invitees from harm is the same in both situations.
By ignoring Ford’s well reasoned reading of Geise, the trial court and Court of Appeals in this case have failed to apply the correct standard for determining Employment Security’s liability. The Court of Appeals was correct in holding Employment Security potentially liable if the dangerous condition was caused by negligent snowplowing. Iwai v. State,
II
Even when analyzed under the proper standard as set forth in the Restatement, Defendants argue summary judgment was still appropriate because Plaintiffs failed to allege Defendants had knowledge of a specific dangerous condition.
In a summary judgment motion, the moving party must first show the absence of an issue of material fact. Young v. Key Pharmaceuticals, Inc.,
To establish the elements of an action for negligence, the plaintiff must show "(1) the éxistence of a duty owed, (2) breach of that duty, (3) a resulting injury, and (4) a proximate cause between the breach and the injury.” Tincani,
In applying this knowledge requirement to premises liability actions, Washington law requires plaintiffs to show the landowner had actual or constructive notice of the unsafe condition. See Ingersoll v. DeBartolo, Inc.,
Plaintiffs, relying on the submitted affidavit of a traffic engineer, claim the parking lot, because of the steep slope, was inherently dangerous. However, the alleged icy condition of Employment Security’s parking lot on November 29, 1984, was not a continuous condition such that Defendants necessarily knew, or by the exercise of reasonable care should have known, of the danger’s existence. The parking lot was sloped, so it could become dangerous when some amount of snow or ice accumulated on it. The parking lot did have a history of wintertime problems. However, the specific icy patch allegedly causing Plaintiffs fall was a temporary condition, and under the traditional position, Plaintiffs must show the specific and particular condition had existed long enough for Defendants to have become aware of it.
Defendants argue their general knowledge of the parking lot’s tendency to get slippery in the wintertime does not constitute constructive notice of the existеnce of a specific and unreasonably dangerous condition on the day Iwai slipped. Defendants’ argument holds some merit. There is no evidence giving any indication of how long the particular icy condition had existed. There is no corroborating evidence of how much snow or ice was on the ground when Iwai fell. The weather report is the only solid evidence submitted by Plaintiffs having any relevance to the conditions on the day of the accident. The sole fact of the temperature being around freezing at the time of Iwai’s fall does not sufficiently demonstrate Employment Security "knew or should have known that a dangerous condition existed.” Brant v. Market Basket Stores, Inc.,
Although Plaintiffs may have failed to demonstrate Defendants’ notice of the condition, our analysis is not complete. This court has created two exceptions to the notice requirement in premises liability cases. If this case falls under either exception, then Plaintiffs need not establish notice as an essential element of their negligence claim.
Under the first excеption, if a specific unsafe condition is "foreseeably inherent in the nature of the business or mode of operation,” plaintiffs need not prove notice for liability to be imposed. Wiltse,
The basic notice requirement springs from the thought that a dangerous condition, when it occurs, is somewhat out of the ordinary .... In such a situation the storekeeper is allowed a reasonable time, under the circumstances, to discover and correct the condition, unless it is the direct result of his (or his employees’) acts. However, when the operating methods*99 of a proprietor аre such that dangerous conditions are continuous or easily foreseeable, the logical basis for the notice requirement dissolves. Then, actual or constructive notice of the specific condition need not be proved.
(Italics ours.) Pimentel,
In a subsequent case construing the notice exception, this court explained after a dangerous condition is shown to be ongoing or reasonably foreseeable, "[t]he plaintiff can establish liability by showing that the operator of the premises had failed to conduct periodic inspections with the frequency required by the foreseeability of risk.” Wiltse,
This court has applied the reasonably foreseeable exceptiоn exclusively to self-service type stores because, in those situations,
[i]t is much more likely that items for sale and other foreign substances will fall to the floor .... Customers are naturally not as careful in handling the merchandise as clerks would be ... .
An owner of a self-service operation has actual notice of these problems. In choosing a self-service method of providing items, he is charged with the knowledge of the foreseeable risks inherent in such a mode of operation ....
Ciminski v. Finn Corp.,
As recently as 1994, this court stated "[t]here must be a relation between the hazardous condition and the self-service mode of operation of the business.” Ingersoll v. De-Bartolo, Inc.,
Although any parking lot without valet parking could be construed as a self-service operation so as to fit under the reasonably foreseeable exception as previously applied by this court, we will refrain from such creative maneuvering. The better response to the facts of this case is to extend the analysis made in Ingersoll and dispense with the self-service requirement altogether. The reasonably foreseeable exception to the notice requirement should be applied to any situation, whether or not the mode of business involves self-service, where " 'the nature of the proprietor’s business and his methods of operation are such that the existence of unsafe conditions on the premises is reasonably foreseeable.’ ” Ingersoll,
In All, the plaintiff tripped in a pothole in a store parking lot. The plaintiff was unable to show the owner had actual or constructive knowledge of the specific hole in which she tripped. On the other hand, the plaintiff was able to show the parking lot had been deteriorating, other potholes existed in the lot, and because of these known conditions, the owner was planning to repave the lot. The court cited numerous self-service cases, and then determined the reasonably foreseeable exception should be applied to the dangerous potholes:
*101 [Plaintiff] presented sufficient evidence to establish that the dangerous condition of the parking lot was a continuous and foreseeable consequence of [defendants’] operating methods. The formation of the specific hole into which fell was not an isolated incident. . .. It was enough to show that [defendants] were awаre of the continuous formation of potholes in the parking lot through the winter and spring of 1982.
All,
The reasonably foreseeable exception to the notice requirement has also been applied in cases involving slips caused by tracked-in rain or snow. See, e.g., Buttrey Food Stores Div. v. Coulson,
Plaintiffs’ failure to establish actual or constructive notice of the specific dangerous condition should not preclude a trial court from hearing this case. A strict application of the notice requirement would unfairly allow Employment Security to plead ignorance about each patch of ice causing an injury, despite its general knowledge of the situation. Employment Security knew the . inclined section of the parking lot became a treacherous slippery slope during the winter months when covered with snow or ice. Even though the ice on which Iwai allegedly slipped was not continuous, a jury could сertainly find that its occurrence was foreseeable during inclement weather. If the risk was foreseeable, Employment Security should have maintained a vigilant watch for dangerous buildups of ice and snow. Wiltse,
Plaintiffs have raised factual questions concerning the foreseeability of the dangerous icy conditions of the park
A second exception to the notice requirement also might apply to this case. If the landowner caused the hazardous condition, then a plaintiffs duty to establish notice is also waived. Carlyle v. Safeway Stores, Inc.,
Smith, Johnson, and Talmadge, JJ., concur.
Concurrence Opinion
(concurring) — While I agree with the result the majority reaches, I disagree with the reasoning set forth in part II of the opinion. I do so because I fear that this portion of the majority opinion may actually increase uncertainty in premises liability law by offering an unclear liability rule. We should avoid that result because, as Holmes said, "the tendency of the law must always be to narrоw the field of uncertainty.” Oliver W. Holmes, The Common Law 101 (Mark D. Howe ed., 1967).
As the dissent points out, Restatement (Second) of Torts §§ 343 and 343A (1965) clearly specify the duties owed by
"Law, . . . unlike science, is concerned not only with getting the result right but also with stability.” Richard A. Posner, The Problems of Jurisprudence 51 (1990). Stability is best achieved by propounding clear and simple liability rules. Here the Plaintiffs have raised factual questions about whether the Defendants exercised reasonable care in keeping Employment Security’s parking lot free from dangerous snow and ice. I agree that a jury, nоt the court, must decide these questions, but not using the rule the majority sets forth.
Concurrence in Part
(concurring and dissenting) — As to part I of the majority opinion, I fully concur. As to part II, I dissent to the portion of the opinion that holds a landlord liable without actual or constructive notice of a dangerous condition and a reasonable time for repair.
The majority opinion would hold a landlord liable for any dangerous condition on his or her land that is reasonably foreseeable. Authority for this important change in
We note that even if the injury does occur in the self-service department of a store, this alone does not compel application of the Pimentel rule. Self-service has become the norm throughout many stores. However, the Pimentel rule does not apply to the entire area of the store in which customers serve themselves. Rather, it applies if the unsafe condition causing the injury is "continuous or foreseeahly inherent in the nature of the business or mode of operation.”
Ingersoll,
Nothing in these cited cases extends the Pimentel exception to the general rule that a landlord must have actual or constructive notice of the dangerous condition and a reasonable opportunity for repair beyond the self-service area of a store and into a parking lot. Restatement (Second) of Torts § 343 (1965), entitled Dangerous Conditions Known to or Discoverable by Possessor, protects an invitee without making the landlord an insurer against unknown defects on his or her land.