Two weeks ago, in a 9-0 opinion, the Washington Supreme Court decided a business owner can be held liable for injuries to a customer hurt as a result of an unknown, but reasonably foreseeable dangerous condition on the property. The general rule is that a business owner is not liable for injuries to customers unless it had actual knowledge or constructive knowledge (defined as would have discovered the condition in the exercise of reasonable care) of the dangerous condition that caused the injuries. The court went one step further here, however, and made clear the exceptions also include dangerous conditions that are reasonably foreseeable as a result of something inherent in a store’s operation.
This case started when the plaintiff slipped and fell as she entered a state-owned liquor store. It was raining outside as she came in. The store clerk on duty testified that he didn’t see anything on the floor. The plaintiff testified that she didn’t see anything on the floor prior to slipping, either. However, she testified that after she fell, her pant leg was wet. The clerk also testified that it wasn’t unusual for customers to have wet feet when they come into the store during a rain because there is no awning over the entrance.
The case went to trial. At the close of the plaintiff’s case, the state moved for a judgment as a matter of law, arguing in part that the plaintiff had not presented evidence that the state had actual or constructive notice of an unreasonably dangerous condition in the store. The motion was denied. The jury found in favor of the plaintiff. The defendant moved for a judgment notwithstanding the verdict, and that motion was also denied.
The state appealed. The Court of Appeals reversed the trial court, holding the state was entitled to judgment as a matter of law because the plaintiff did not present any evidence the store had actual or constructive notice of the wet floor.
The Supreme Court granted review on the issue of whether the foreseeability exception to the notice requirement applies. Prior to this case, the court had only applied the “reasonable foreseeability” exception to what is known as self-service parts of businesses. Those are areas of stores where customers help themselves to goods that have been stocked by the store—think produce section of a grocery store or the aisles of a hardware store.
In this case, the court held the foreseeability exception applied beyond the self-service context. The court walked through the case law, ultimately concluding that the foreseeability exception was never intended to apply only to self-service cases. The real purpose of the exception, the court reasoned, was “to focus on aspects of the proprietor’s business that make unsafe conditions reasonably foreseeable.”
It pointed to a prior Supreme Court case that invoked the concept of foreseeability while ultimately deciding the case for other reasons and ordering the foreseeability issue to be considered on remand. The defense argued those references to reasonable foreseeability were dicta. (Sidenote—it’s fairly ballsy to argue to the Supreme Court that language used by the Supreme Court in a prior opinion was dicta.) Nevertheless the court disagreed and noted that the its disposition of that case could not—by definition—be unnecessary to decide the case.
The court went on to reject the argument that this decision would vastly increase liability of businesses. This is an argument made by the defense in literally every case involving a novel issue of whether the defendant breached a duty. And it is usually rejected by the court because, as noted by the court, the plaintiff still has the burden of proving the element of a dangerous condition before getting to the issue of whether it was reasonably foreseeable.
In addition, the mere presence of water on the floor isn’t enough to prove a dangerous condition. As the court noted (emphasis in original): “It is thus possible, under the rule adopted today, that it could be reasonably foreseeable that the floor could becomes unreasonably dangerous through being wet and slippery, but, at the same time, there might not be proof that the floor was unreasonably dangerous in a particular instance.” However, the issue of whether the wet floor constituted an unreasonably dangerous condition was not before the court, so it did not decide that issue.
Given that, the court held that when viewing the evidence in the light most favorable to the plaintiff, the trial court correctly denied the state’s motion for judgment as a matter of law. The court also noted that the state’s other arguments could now be taken up by the Court of Appeals, including whether the plaintiff failed to provide evidence there was an unreasonably dangerous condition.