The Washington State Supreme Court Further Expands Liability to Owners and Occupiers of Land

 Johnson v. State of Washington Liquor and Cannabis Board

In June 2011, Johnson, a business invitee at the defendant’s state liquor store, slipped and fell in the entryway to that store. It was wet and raining outside. The entryway to the store had an electronic door with a mat inside, meaning that those entering would walk across about five to six feet of carpet to get inside the store, in addition to the rubber mat on the outside of the entryway.  Johnson slipped and fell after stepping off the last mat and onto the waxed linoleum floor inside the entryway. The store clerk testified that it was one of his duties to put out a visible yellow sign that says “slippery when wet” when it rains.  On the day of the fall, the sign was not put out until after Johnson fell.  No one else had ever fallen in the entryway to the store nor did defendant have any reason to believe that something particular about its floors caused them to become slippery.

The store clerk testified that he was not aware of any water or liquid on the floor before Johnson fell nor did he see any water on the floor where she fell after the fall.  Likewise, Johnson testified that she had not noticed any water on the mat or the floor before she fell nor did she see any “mud, sand, dirt, or anything like that” on the floor.

At the close of Johnson’s case, the State moved for judgment as a matter of law, arguing that Johnson had not presented evidence that the State had notice of an unreasonably dangerous condition in the store.  The trial court denied this motion and the jury returned a verdict in Johnson’s favor.  The State appealed  and the Court of Appeals reversed and remanded, holding that Johnson did not present any evidence that the store had actual or constructive notice of a dangerous condition.  The Court of Appeals further held that the “reasonable foreseeability exception” to the notice requirement did not apply.  Johnson appealed to the Washington State Supreme Court for review.  The Washington State Supreme Court granted review “only on the issue of whether the foreseeability exception to the notice requirement applies in the context of premises liability actions.”

In a traditional slip and fall case, the plaintiff has the burden of establishing that the proprietor’s negligence was a cause in fact of his or her injuries by showing that the owner or occupier of land had either actual or constructive notice of the specific dangerous condition.  Actual notice is the same as knowing that the condition exists.  Constructive notice arises where the condition has existed for such time as would have afforded sufficient opportunity, in the exercise of ordinary care, to have made a proper inspection of the premises and to have removed the danger.

In Pimental v. Roundup Co., the Washington State Supreme Court crafted an exception to the traditional notice requirement.  This so-called “Pimental exception” or “reasonable foreseeability exception” held that when an invitee is injured at a self-service business, the traditional notice requirement is eliminated when the nature of the proprietor’s business and his methods of operation are such that the existence of unsafe conditions on the premises are reasonably foreseeable.  Self-service areas in a store generally include areas where goods are stocked and customers remove and replace items.  The Pimental court clearly noted that “the requirement of showing notice will be eliminated only if the particular self-service operation of the defendant is shown to be such that the existence of unsafe conditions is reasonably foreseeable.”

In ruling on the present matter, the Washington State Supreme Court found that customers entering a store during business hours while it is raining is “inherent in a store’s mode of operation.”  Thus, the Court made the “Pimental exception” the new general rule, holding that an invitee may prove notice with evidence that 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.”

In essence, the Washington Supreme Court held a plaintiff can invoke the “Pimentel exception” – and thus avoid needing to prove notice – so long as the dangerous condition was reasonably foreseeable. In many cases, this ruling eliminates the most burdensome obstacle of a premise liability case for a plaintiff.  For example, as in this case, the Court found that having an entryway open to the public on a rainy day is inherent to the store’s mode of operation.  Under this theory, simply being open during business hours in the rain could expose businesses to liability.