Insurers should be aware that the Washington Court of Appeals recently held that because the plaintiff failed to produce any evidence of the length of time a dangerous condition persisted on a business’s premise, summary judgment was appropriate because there would be no issue of fact with regard to whether the business had constructive notice of the condition.
Claims Pointer: When defending against claims that a business had constructive notice of a dangerous condition, the business is likely to succeed on a claim for summary judgment if plaintiff fails to provide evidence of the length of time the dangerous condition existed on the premises. This argument can be another way to quickly dispose of a plaintiff’s claim if they cannot provide evidence related to the length of time a dangerous condition existed before he or she was injured.
Dadvar v. Applebees Services Inc., in the Washington Court of Appeals, 181 Wash. App. 1025 (2014).
Anthony Dadvar (“Dadvar”) visited a Lynnwood, Washington Applebee’s on November 29, 2008 for lunch. Patrons entered the restaurant through outer doors that led into a foyer area, and a second set of doors opened from the foyer to the restaurant area. Dadvar entered the foyer where he hurried toward the second set of doors, intending to open them for two women who were also entering the restaurant. As he approached the second set of doors, Dadvar’s foot slipped violently on the floor, and although he did not fall to the ground, the twisting motion injured his ankle. Dadvar entered the restaurant where he told the manager about the incident and received ice for his ankle. While sitting at the bar, Dadvar saw employees mop the foyer floor. Dadvar also noticed a greasy substance on his right shoe which he maintained could not have been on his shoe prior to entering the foyer. Applebee’s presented evidence that it employed a host to open the second set of doors for patrons as well as to clean the floors and ensure it was free of hazards.
Dadvar brought suit against Applebee’s for negligence. The trial court held that Dadvar failed to establish a genuine issue of material fact regarding whether Applebee’s had actual or constructive notice of the alleged dangerous condition that caused his injury. Dadvar’s motion for a continuance of the summary judgment hearing to conduct additional discovery was also denied, and he appealed both rulings. For purposes of the appeal, it was undisputed that Dadvar was an invitee to which Applebee’s owed a duty to exercise reasonable care to inspect its premises for dangerous conditions, as well as provide appropriate safeguards and/or warnings, if necessary.
On appeal, Dadvar argued the fact that Applebee’s employed a host whose duties included inspecting the foyer floor, as well as cleaning hazards on the floor, coupled with the fact that the host was absent at the time of the incident, supported a reasonable inference that Applebee’s should have been on notice of the dangerous condition. The Court held that Dadvar failed to present any evidence regarding the length of the time for which the dangerous condition persisted, such that Applebee’s should have had a sufficient opportunity to have made a proper inspection and remove the hazard. The Court noted Dadvar could have presented evidence as to the host’s work schedule or any other evidence suggesting how long the host might have been away from the area at the time of the incident, but failed to do so.
The Court also addressed Dadvar’s second error, namely that the trial court abused its discretion in denying his motion to continue the summary judgment hearing in order to conduct additional discovery. The Court held that three months was sufficient time to prepare for the summary judgment hearing, particularly where Dadvar’s new counsel was present at his deposition and did not specify what additional discovery he sought to undertake.
Note: This opinion has not been published. It is provided to demonstrate how the court approaches the issues involved in the case. It cannot be cited as authority to a court of law.
Case updates are intended to inform our clients and others about legal matters of current interest. They are not intended as legal advice. Readers should not act upon the information contained in this article without seeking professional counsel.