MAXINE BLOOD, а married woman, Appellant, v. WILLOW-WIST FARM, INC., a Washington corporation; VIKING FEAST ICE CREAM, a Washington business; and “JANE DOE,” an individual, Respondent.
No. 81848-1-I
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
FILED 11/16/2020
UNPUBLISHED OPINION
Willow-Wist Farm, a dairy farm in Sequim, participated in the Clallam County Farm Tour on October 4, 2014. Viking Feast Ice Cream was a local vendor selling their ice cream products at Willow-Wist Farm that day. Viking Feast is a sole proprietorship owned and operated by Thormod Skald. Skald makes his ice cream with Willow-Wist milk, but is not a wholesale buyer; he orders milk on an as-needed basis. The day of the incident, Skald had employed a friend, Amber Golding, to help with ice creаm sales at the Farm Tour event.
At some point on the afternoon in question, Viking Feast ran out of ice cream and arranged to purchase pints from the Willow-Wist farm store to sell at their stand. Skald sent Golding into the fаrm store, which was on site, to get more pints of ice cream. Blood arrived at Willow-Wist and went into the farm store to obtain a half-pint of milk for her grandson. According to Blood, Golding rushed into the farm store and “hurriedly” grаbbed some pints of ice cream from the freezer. Golding then abruptly turned around and collided with Blood, knocking Blood to the ground. Another patron in the store provided testimony that Golding was “in a hurry” and “not really paying attention” when she knocked Blood over. No one testified that anyone else knocked into Golding or Blood to cause the accident.
Blood broke her right femur, which required surgery the next day, a two-month hospitalization in an in-patient rehabilitation center, and other follow up treatment. In March of 2016, Blood filed her complaint against Willow-Wist, Viking Feast, and Golding. Blood alleged that overcrowding in the farm store posed a foreseeable danger to its business invitees and that Willow-Wist failed to maintain
The trial court granted Willow-Wist‘s motion for summary judgment and Blood filed a motion for reconsideration. The court requested a written response from Willow-Wist. The court eventually denied the motion and issued a memorandum opinion еxplaining the basis for the denial. After the claim against Willow-Wist was dismissed, Blood secured a judgment against Viking Feast for $628,523.64 in October 2019. Blood then filed this appeal.
ANALYSIS
Blood first assigns error to the trial court‘s grant of Willow-Wist‘s motion for summary judgment. This court reviews a grant of summary judgment de novo. Mohandessi v. Urban Venture LLC, 13 Wn. App. 2d 681, 692, 468 P.3d 622 (2020). Summary judgment is properly granted when there is “no genuine issue as to any material fact and that the moving party is entitled to a judgment аs a matter of law.”
Blood contends that there was a dispute as to how crowded the farm store was at the time of her injury such that it created an issue of material fact. It is clear, however, that the court provided this inference in Blood‘s favor when it ruled “[u]nder this standard, the ‘store’ was crowded.” But we agree with the trial court‘s determination that the proper focus for the inquiry is “the specific area in the store wherе the incident occurred.” This fundamental question highlights Blood‘s inability to establish proximate cause for her negligence claim as it relates to Willow-Wist.
“Washington law recognizes two elements to proximate cаuse: Cause in fact and legal causation.” Hartley v. State, 103 Wn.2d 768, 777, 698 P.2d 77 (1985). Cause in fact is the “but for” consequences of an act—the physical
The evidence presented demonstrates that crowding of the farm store as a whole was not a cause of Blood‘s injury. Blood herself provided deposition testimony that indicated crоwding was not an issue in front of the milk case where her injury occurred and that there was sufficient space for Golding to avoid contact with her. Though there was evidence that the store was generally crowded, the evidence as to the specific area where the accident occurred provided that Golding had sufficient space to walk to the freezer as well as open and close the frеezer door. Blood argues to this court that the trial court improperly placed great weight on Golding‘s testimony that she was able to walk to the freezer. This argument fails to recognize the need for Bloоd to establish that if overcrowding was a breach of a duty owed to her, it still needed to play a role in her injury. There was no evidence to this effect. In fact, Blood testified that she and Golding were not crowding оne another and that she had provided Golding sufficient space such
Blood argues that her expert‘s report established a genuine issue of material fact as to whether crowding played a role in her injury. Blood‘s Human Factors expert, Gill, provided in the abstract that; “crowded cоnditions can increase the potential for contact between patrons.” But Gill also stated in the report that she cannot resolve factual disputes and that her opinion 3 “applies only if the store was overcrowded.” Opinion 3 states “[t]he conditions of the inside of the farm store, if indeed it was overcrowded, were a contributing cause to this incident.” But, “[i]n order to preclude summary judgment, an expert‘s affidаvit must include more than mere speculation or conclusory statements.” Cho v. City of Seattle, 185 Wn. App. 10, 20, 341 P.3d 309 (2014). It is worth noting that Gill‘s identification of what she considered to be factual disputes has no bearing on the court‘s rеview under the summary judgment standard and its ultimate ruling as to whether there exists a genuine issue of material fact. Orion Corp. v. State, 103 Wn.2d 441, 461-62, 693 P.2d 1369 (1985).
In Cho v. City of Seattle, this court rejected an expert‘s declaration that a red light or other traffic infrastructure would have prevented a collision with the plaintiff by a drunk driver who was inattentive at the time of the crash. Id. at 20-21. The drunk driver admitted they had not been looking at the road when the
Here, like in Cho, the expert‘s declaration which states “crowded conditions can increase the potential for contact” did not create a genuine issue of material fact, but rather simply stated what many would consider common knowledge. Further, the expert‘s declaration provided, “[t]o the extent the store was overcrowded at the time of this incident, this would be a contributing cause to Ms. Blood‘s injury incident.” This statement by Gill is unsupported by the testimony on which she based her opinion and, as such, is mere conclusory speculation without supporting evidence. Blood‘s argument that Gill‘s declaration was sufficient to create a dispute of material fact is wholly unsupported by the record.
The undisputed evidеnce submitted to the trial court, and now this court, shows that there was sufficient space in the vicinity of the freezer and that crowding was not a proximate cause of Blood‘s injury. In light of our conclusion, there is no rеason to wade into Blood‘s related assertion that negligent overcrowding is a viable theory for a tort claim in Washington; this case is not about overcrowding and there is no evidence to establish that ovеrcrowding played a role in Blood‘s injury.
Affirmed.
WE CONCUR:
Andrus, A.C.J.