Rush v. Sundown M Ranch Corp.

AMY RUSH, Appellant, v. SUNDOWN M RANCH CORPORATION, a Washington State corporation. Respondent.

No. 38422-5-III

Court of Appeals of Washington, Division 3

December 22, 2022

UNPUBLISHED OPINION

SIDDOWAY, C.J.

Amy Rush appeals the trial court's summary judgment dismissal of her negligence action against Sundown M Ranch Corporation (Sundown), in which she sought to recover damages for a slip and fall on an outdoor walkway in February 2019. Ms. Rush was uncertain what caused her to fall, but assumed it was ice.

Ms Rush argued she was not required to show that Sundown had actual or constructive notice of the specific icy patch on which she slipped, because an outdoor activity in which residents at Sundown were encouraged to participate made it reasonably foreseeable that persons like herself would encounter unsafe conditions. She also relied on the fact that she slipped and fell to prove the existence of a dangerous condition that Sundown unreasonably failed to remedy or warn against. While the former argument finds support in the Washington Supreme Court's 2021 decision in Johnson v. Liquor &Cannabis Board, 197 Wn.2d 605, 486 P.3d 125, the latter argument does not. Because Ms Rush failed to present evidence creating a jury question whether Sundown's snow and ice remediation was negligently performed and exposed her to a dangerous condition, summary judgment was proper.

FACTS AND PROCEDURAL BACKGROUND

On February 12, 2019, Amy Rush was a residential patient at Sundown, an inpatient treatment center for substance abuse disorders in Yakima. There had been snow on the ground for nearly the entire week Ms. Rush had resided at Sundown. Weather records for two days preceding February 12 report average temperatures were below freezing, and there had been some accumulation of snow between the evening of February 11 and into the morning of February 12.

At about 8:40 a.m. in the morning on the 12th, Ms. Rush was walking with five other patients for a ceremony to celebrate the completion of the in-patient program by one of the members of their therapy group. The ceremony was a bell ringing, which took place in a gazebo outside the front entrance to Sundown's administration building. To get there, Ms. Rush and the others went out the front door of the administration building and traveled on a main walkway.

The walkway to the gazebo was covered for a distance by what was sometimes referred to as a portico. Somewhere near where the walkway became uncovered, Ms. Rush reports suddenly slipping and "falling and landing [with] all my weight on my knee and my rear." Clerk's Papers (CP) at 61. She continued to the bell-ringing ceremony, but because she experienced pain in her wrists and knees, she reported the incident to Sundown's administration just before her daily schedule commenced at 9:00 a.m. She eventually required knee surgery.

In November 2019, Ms. Rush filed a personal injury action against Sundown. She alleged it had been negligent in failing to ensure the walkway was safe to walk on and for failing to warn or protect her from the allegedly dangerously slippery condition of the walkway where she fell.

Ms Rush was deposed almost two years after her fall, in December 2020. She testified as follows:

Q. ... [W]hat did you slip on? Was it ice, snow or what?

A. It was-it was the ground. It was like it was, I assume, ice.

Q. Did you know-

A. I don't-yes, I don't recall.

Q. What were you-what kind of shoes were you wearing?

A. I believe the only shoes I had when I went in there was a pair of Converse tennis shoes.

Q. Allstars or something?

A. Yes.

Q. Did you slip all of a sudden or had you been slipping all the way down that driveway or how did it happen?

A. No. It just happened all of a sudden.

Q. Anybody else with you slip at all?

A. No.

CP at 60.

Sundown moved for summary judgment dismissal of Ms. Rush's complaint. It contended that her alleged fall was in an area where snow removal had been done and other cautionary measures had been taken, no one else reported any problems with slipping in that area earlier in the morning or at any other time, and there had been no requirement or necessity for her to traverse the exterior walkway at the time of her fall.

Among Sundown's supporting evidence was a declaration of its facility manager, Robert Bale. Mr. Bale described the area where Ms. Rush claimed she fell as "one of the main entrances to the adult facility" and stated that for that reason, and because a transfer van is parked in that area, "it is a priority to keep that area shoveled and de-iced." CP at 38. He testified "[i]t is the usual and common practice" of Sundown's maintenance department "to plow driveways and parking lots . . . and [make sure] that sidewalks and walkways are shoveled and de-iced." Id. More specifically, he testified:

4. Typically if it snows overnight maintenance personnel will arrive at Sundown between 4:00 and 5:00 a.m. to begin plowing. This allows sufficient time to clear driveway and parking areas and walkways prior to when most people will be using them. Timecard records show that a member of the maintenance crew clocked in at 4:50 a.m. on February 12, 2019.

This indicates that most probably he was there to plow and apply de-icing.

5. Based upon all this information more probably than not the area where Ms. Rush allegedly says she fell would have been plowed and de-iced prior to 8:30 on the morning of February 12, 2019.

6. Moreover, right inside the door of this entrance during that time and presently a snow shovel is kept as well as a de-icer. Staff and maintenance are instructed that they should shovel any snow accumulations and/or apply de-icer to any potentially slippery areas if they become aware that an area is slippery or presents a slip and fall risk. ....

8. In my work and maintenance, I am not aware of any other person slipping and falling in that area because of the area being slippery because of snow and ice conditions or for any other reason.

CP at 38-39.

Sundown also supported its motion with defense counsel's declaration authenticating weather records, depictions of Sundown's facilities, and excerpts of Ms. Rush's deposition, including her testimony that "all of a sudden" she "slip[ed] . . . on the ground . . . I assume ice." CP at 60. Finally, it supported the motion with a declaration of its adult clinical supervisor, who stated that attending a bell-ringing ceremony was an option, not a requirement, for members of the graduating patient's therapy group.

In opposition to the motion, Ms. Rush submitted a declaration. She now stated, "I slipped and fell on black ice," and "[t]he walkway was very slippery." CP at 140. She also testified that she did not observe any ice melt in the area where she fell. She did not claim that she had looked for signs of ice melt in that area.

Ms. Rush also submitted portions of Mr. Bale's deposition, in which he had admitted that he had no ice melt log or other records documenting the snow and ice remediation done on the morning of February 12. But asked in his deposition if issues involving slippery snow and ice had been an ongoing issue with patients at Sundown, Mr. Bale answered that they had not been.

Ms. Rush argued that although Sundown presented evidence of precautionary measures, "they . . . failed their own measures as evidenced by the fall," and "Ms. Rush was injured by the dangerous condition." CP at 89-90 (emphasis added). She argued that "there is no doubt" that reasonable care was not taken to protect against the danger "as evidenced by the slippery walkway and fall." CP at 94-95 (emphasis added). She argued, "If [S]undown properly cleared and treated the walkway, Ms. Rush would not have fell." CP at 95 (emphasis added).

Ms. Rush argued that evidence of Sundown's policies and procedures for removing and clearing ice and snow is evidence "they had notice of the dangerous condition that they failed to remedy." CP at 95. She also argued that the Pimentel^[1]exception to the requirement that a possessor of land have actual or constructive notice of a dangerous condition applied to Sundown, because the risk of the dangerous condition that resulted in her injury was foreseeable where the bell-ringing ceremony "was an integral part of [Sundown's] recovery program." CP at 93.

Sundown asked the court to disregard Ms. Rush's new testimony that she had slipped on black ice, which conflicted with her unequivocal deposition testimony that she slipped on the ground, and merely assumed it was ice. It submitted a supplemental declaration of Mr. Bale in which he testified he was aware of only one occasion when a patient at Sundown claimed to have slipped and fallen on snow or ice, and it had happened quite a distance from Ms. Rush's alleged fall, and was not near one of the main entrances to the facility.

The trial court ultimately granted Sundown's motion for summary judgment, based in part on a supplemental declaration from Darren Alderman, the maintenance employee who had reported to work at 4:50 a.m. on the morning of Ms. Rush's fall. Mr. Alderman's declaration authenticated his timecard, which was attached as an exhibit, and testified:

It is my understanding and I have been informed that it was snowing that day and it had been snowing on the previous days. Based upon the clocking in at that time, the reason I would do so was so I could start my job responsibilities of plowing and applying ice melt. One of the areas that has priority because of the frequent travel it has is around the main entrance to the adult facility. Based upon this information, I can state with certainty that I would have not only plowed that area but also applied ice melt. That is one of the areas where we always apply ice melt and I would have

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