Defendant Roundup Company (d/b/a Fred Meyer Store) appeals a decision of the Court of Appeals reversing a defense verdict in an action for injuries caused when a paint can fell on plaintiff's foot.
The case presents two issues. The first issue is whether plaintiff, in order to establish liability, must show that the operator of a self-service style store had actual or constructive notice of the specific unsafe condition in the store which caused plaintiff's injury. We hold that where the operating procedures of any store are such that unreasonably dangerous conditions are continuous or reasonably foreseeable, there is no need to prove actual or constructive notice of such conditions in order to establish liability for injuries caused by them. The second issue is whether, under CR 26(b)(4) and CR 32(a)(3)(B), if a party chooses not to use one of his experts as a witness at trial, and the expert lives more than 20 miles from the location of the trial, the opposing party may use as evidence that expert's deposition taken prior to trial. We hold that CR 32(a)(3)(B) authorizes such use of an expert's deposition in this case.
The action before us arose out of injuries suffered by Patricia J. Pimentel in a Fred Meyer Store operated by
In preparation for the trial, plaintiff retained two expert witnesses. The magazine racks, which had been rearranged after plaintiff's injury, were reconstructed by store employees in June 1980. This reconstruction was available for a month, but neither of plaintiff's experts inspected it.
Trial began in late June 1980. The critical issue, as far as this appeal is concerned, was the cause of the paint can's descent onto plaintiff's foot. This issue turned, in part, on the extent to which the can overhung the shelf. Defendant acknowledged that the can overhung the shelf. A store employee testified that, at approximately 3 p.m. on the day of the incident, he observed the can overhanging about 1 1/2 to 2 inches. Mr. Pimentel, on the other hand, testified that according to his measurements of the shelf after the incident, the can was overhanging 3 3/16 inches. Plaintiff attempted to establish the significance of the extent of the overhang by publishing the deposition of an expert, Mr. C.V. Smith. In moving for publication, counsel explained that Mr. Smith testified in his deposition that when the overhang reached 3 3/8 inches the can would be extremely unstable and the slightest vibration might overbalance it.
Mr. Smith had been retained by defendant as a possible expert witness and had inspected the reconstructed magazine rack and made still photographs and high speed films. Plaintiff deposed Mr. Smith in the week preceding the trial. Subsequently, defendant decided not to call him as a witness.
Other testimony relevant to defendant's liability in the record before this court indicates that defendant store had a policy of keeping all containers well back on shelves and avoiding overhangs greater than 1 inch. The store was officially inspected for unsafe conditions before opening every morning. Thereafter, during the day, no employee was specifically assigned to inspect the store, but all employees were instructed to be alert for dangerous conditions.
The trial court instructed the jury that it must find actual or constructive notice of a dangerous condition in order to impose liability on defendant. This instruction was based on the decision of this court in Morton v. Lee, 75 Wn.2d 393, 450 P.2d 957 (1969). The court refused plaintiff's proposed instruction 5, based on Ciminski v. Finn Corp., 13 Wn.App. 815, 537 P.2d 850 (1975), which would not require the jury to find actual or constructive notice of the specific hazard causing the injury.
The jury returned a verdict for defendant. Plaintiff appealed, challenging the rejection of proposed instruction 5, and the refusal to admit the deposition of C.V. Smith. The Court of Appeals held that the instruction requiring actual or constructive notice was error and that the rule in Ciminski applied to this case. Further, the Court of Appeals held that the trial court erred in excluding the deposition of C.V. Smith.
On appeal before this court, defendant first challenges the Court of Appeals conclusion that the trial court's instruction 16 to the jury was improper. Instruction 16 stated:
The Court of Appeals remanded for a new trial using plaintiff's proposed instruction 5 instead of instruction 16. Plaintiff's proposed instruction 5 states:
Defendant argues that the Court of Appeals erred in concluding that it was not necessary for plaintiff to show that defendant had actual or constructive notice of the specific
It has long been settled in this state that for the possessor of land to be liable to invitees for the unsafe condition of his land, he must have actual or constructive notice of that unsafe condition.
Smith v. Manning's, Inc., 13 Wn.2d 573, 580, 126 P.2d 44 (1942).
The most recent expression of the rule by this court is Morton v. Lee, 75 Wn.2d at 393. There this court approved an instruction identical to instruction 16, given in the present case. In Morton, the plaintiff slipped on an apricot which had fallen from a display case at the entrance to the defendant's grocery store. The plaintiff's husband had noticed the apricot on the walk 5 minutes before the fall. The principal issue before the court was whether there was sufficient evidence to establish that the defendant had constructive notice of the dangerous condition caused by the apricot. The defendant argued that 5 minutes as a matter of law was insufficient to constitute constructive notice. This court held that the length of time the apricot had been seen to be on the walk was not dispositive. The jury could infer from other facts, in particular the "housekeeping procedures and practices" of the defendant, that the required care had not been exercised. Morton, 75 Wn.2d at 397-98.
Although the jury was permitted to infer from circumstantial evidence that the defendant had constructive notice of the dangerous condition, Morton stands clearly for the propositions that either actual or constructive notice must be established, and that the burden of establishing
In a case subsequent to Morton, however, the Court of Appeals decided that the notice requirement was satisfied as a matter of law because of the nature of the defendant's business. Ciminski v. Finn Corp., 13 Wn.App. 815, 537 P.2d 850, review denied, 86 Wn.2d 1002 (1975).
Ciminski, like Morton, was a slip and fall case. Plaintiff had come to grief on a damp spot on the floor in the serving line of a cafeteria-style restaurant. The defendant was awarded summary judgment of dismissal. The Court of Appeals reversed, holding that plaintiff had created a genuine issue of fact as to whether the defendant had taken reasonable precautions for her safety. The court decided that the requirement of notice was satisfied as a matter of law because the defendant was the owner of a self-service establishment.
Ciminski, 13 Wn. App. at 820-21.
The Court of Appeals concluded that the evidence presented by plaintiff on summary judgment created an issue as to whether the defendant had taken reasonable precautions for her safety. The court pointed specifically to evidence that there tended to be spills in the area where plaintiff fell, and the floor was sometimes greasy.
The issue in the present case is whether, as was held in Ciminski, defendant's method of doing business establishes notice of risk of harm to defendant's customers. Plaintiff and amicus on behalf of Washington State Trial Lawyers Association, argue, and the court below held, that the Ciminski rule applies to all self-service operations. The
Courts in other jurisdictions have taken a variety of approaches in fashioning rules to determine liability of a storekeeper for injuries occurring on his premises. See Annot., Liability for Injury to Customer or Other Invitee in Store by Falling of Displayed, Stored, or Piled Objects, 38 A.L.R.3d 363 (1971); Annot., Store or Business Premises Slip-and-Fall: Modern Status of Rules Requiring Showing of Notice of Proprietor of Transitory Interior Condition Allegedly Causing Plaintiff's Fall, 85 A.L.R.3d 1000 (1978).
The predominant theme running through these cases appears to be that modern techniques of merchandising necessitate some modification of the traditional rules of liability. The cases differ, however, in the extent of their modifications of the traditional rules. At least three different approaches may be isolated.
The first is the most radical. Under this approach, when the plaintiff proves a substantial risk of injury in the method of doing business, the burden is shifted to defendant to disprove negligence. There is no need, under this approach, for the plaintiff to establish actual or constructive notice of the specific unsafe condition causing the injury.
The rule in Louisiana, one of the states following this approach, is explained in Johnson v. Insurance Co. of N. Am., 360 So.2d 818, 819 (La. 1978).
The court held in Johnson on facts similar to those before this court that a premise hazard had not been established where stacked cans fell on the plaintiff's leg. New Jersey applies a similar rule. Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 221 A.2d 513 (1966). In New Jersey, as in Louisiana, the burden is shifted to the defendant when a business is conducted in a manner which creates a substantial risk of injury. In Wollerman, the rule was stated thus:
47 N.J. at 430.
The second approach is more moderate in that it does not shift the burden of disproving negligence to the defendant. It does, however, eliminate the requirement that the plaintiff establish actual or constructive notice of a specific unsafe condition. The rationale for this rule was explained in Jasko v. F.W. Woolworth Co., 177 Colo. 418, 420-21, 494 P.2d 839 (1972).
The third approach requires neither shifting of the burden of proof nor elimination of the notice requirement. Instead, it seeks to recognize the special problems associated with self-service retailing by concentrating on the concept of constructive notice. Rather than requiring direct testimony as to the length of time the unsafe condition has existed, courts which follow this approach recognize that constructive notice may be established by inference from circumstantial evidence. Strack v. Great Atl. & Pac. Tea Co., 35 Wis.2d 51, 150 N.W.2d 361 (1967); Steinhorst v. H.C. Prange Co., 48 Wis.2d 679, 180 N.W.2d 525 (1970). The court in Strack said:
35 Wis.2d at 57-58.
The difference between the second and third approaches is more semantic than real. Although the second approach eliminates the constructive notice requirement while the third approach retains it, there is no functional difference between the two approaches. Under the second approach, the requirement of showing constructive notice is eliminated if "dangerous conditions are continuous or easily foreseeable". Jasko v. F.W. Woolworth Co., 177 Colo. at 421. Under the third approach, the requirement of constructive notice may be satisfied by showing "a reasonable probability that an unsafe condition will occur". Strack, 35 Wis.2d at 57-58. Under both approaches, these elements
The second approach is also preferable to the first approach. The first approach substantially modifies established principles by shifting the burden of proof to the defendant. We see no reason to depart from traditional burdens of proof in cases of this type.
This analysis modifies our holding in Morton which assumed that either actual or constructive notice must be established in every such case. Where the existence of unsafe conditions is reasonably foreseeable, it will now be unnecessary to establish the length of time for which the particular unsafe condition existed.
A similar result was reached by the Court of Appeals in Ciminski v. Finn Corp., 13 Wn.App. 815, 537 P.2d 850 (1975). Our decision in the present case differs from Ciminski in one important respect, however. The Ciminski decision contains language which suggests that the requirement of showing notice is eliminated as a matter of law for all self-service establishments. 13 Wn. App. at 820-21. This
The second issue before us is whether the Court of Appeals was correct in its conclusion that the trial court erred in excluding the deposition of Mr. C.V. Smith.
Plaintiffs sought to have the deposition admitted into evidence pursuant to CR 32(a)(3)(B), which provides:
It is not disputed that Mr. Smith resided more than 20 miles from Yakima.
Defendant opposed admission of the deposition, relying on Crenna v. Ford Motor Co., 12 Wn.App. 824, 532 P.2d 290,
This ruling was upheld by the Court of Appeals, which concluded that although the rule was directed to discovery, its purpose carried over into the trial. Crenna, 12 Wn. App. at 828.
We agree with the Court of Appeals that Mr. Smith's deposition was clearly admissible under CR 32(a)(3)(B), and its exclusion by the trial court constituted an abuse of discretion.
The Court of Appeals is affirmed and the case remanded for a new trial in accordance with this opinion.
WILLIAMS, C.J., and ROSELLINI, STAFFORD, UTTER, BRACHTENBACH, DOLLIVER, DORE, and DIMMICK, JJ., concur.