FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON MARCH 13, 2025
IN CLERK’S OFFICE SUPREME COURT, STATE OF WASHINGTON SARAH R. PENDLETON MARCH 13, 2025 SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
HWAYO JENNY GALASSI and ) MICHAEL GALASSI, wife and husband, ) ) No. 102410-0 Respondents, ) ) v. ) En Banc ) LOWE’S HOME CENTERS, LLC, a ) Foreign Limited Liability Company, ) Filed: March 13, 2025 ) Petitioner. ) ____________________________________)
YU, J. — This case presents a fact-specific application of the “reasonable
foreseeability exception” to the traditional notice rule in a premises liability action.
Plaintiff Hwayo J. Galassi alleges she was injured by falling merchandise in the
self-service area of a retail hardware store, when an improperly shelved roll of wire
garden fencing fell on her. She filed this negligence action against the store’s
proprietor, defendant Lowe’s Home Centers LLC.
As the plaintiff, Galassi has the burden of proving all the elements of her
negligence action, including that Lowe’s alleged negligence was a “‘cause in fact’” Galassi v. Lowe’s Home Ctrs. LLC, No. 102410-0
of her injuries. Johnson v. Wash. State Liquor & Cannabis Bd., 197 Wn.2d 605,
612, 486 P.3d 125 (2021) (quoting Wiltse v. Albertson’s Inc., 116 Wn.2d 452, 458,
805 P.2d 793 (1991)). In a premises liability case, the cause-in-fact element
traditionally requires proof that the defendant had actual or constructive notice of
the alleged unsafe condition. Id. However, we have recognized an exception to
this “traditional notice requirement” where “‘the nature of the proprietor’s business
and [its] methods of operation are such that the existence of unsafe conditions on
the premises is reasonably foreseeable.’” Id. at 613 (quoting Pimentel v. Roundup
Co., 100 Wn.2d 39, 49, 666 P.2d 888 (1983)).
This case is before us on Lowe’s motion for summary judgment. It is
undisputed that Galassi cannot prove cause in fact pursuant to the traditional notice
rule because Lowe’s did not have notice of the improperly shelved roll of wire
fencing before she was injured. Therefore, Lowe’s is entitled to summary
judgment unless the evidence in the record creates a genuine issue of material fact
as to the applicability of the reasonable foreseeability exception. The trial court
granted summary judgment to Lowe’s, but the Court of Appeals reversed and
remanded for further proceedings. We affirm the Court of Appeals.
The record is limited because this case was resolved on summary judgment
at the trial court. However, the evidence shows that the nature of Lowe’s business
is a large, warehouse-style hardware store serving retail customers. Its methods of
2 Galassi v. Lowe’s Home Ctrs. LLC, No. 102410-0
operation include (1) a practice of displaying 2x25 foot rolls of wire fencing on
high shelves for customers to serve themselves and (2) policies requiring store
employees to perform safety walks and immediately correct unsafe conditions,
such as improperly shelved items that could fall and injure customers.
From this evidence, a trier-of-fact could find Lowe’s methods of operation
made it reasonably foreseeable that (1) retail customers serving themselves would
take bulky rolls of wire fencing down from their high display shelves for
inspection, then attempt to replace any unwanted items back on the shelves,
(2) customers attempting to replace bulky, unwanted items on high shelves may do
so improperly, and (3) a bulky, improperly shelved roll of wire fencing could fall
from its high shelf and injure someone, creating the alleged unsafe condition that
injured Galassi. Yet, there is also contrary evidence, such as a lack of prior similar
incidents, which could support the opposite conclusion.
Thus, there is a genuine issue of material fact precluding summary judgment
as to the applicability of the reasonable foreseeability exception. We affirm the
Court of Appeals and remand to the trial court for further proceedings.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Because this case is before us on Lowe’s motion for summary judgment, the
facts are presented in the light most favorable to Galassi. Keck v. Collins, 184
Wn.2d 358, 370, 357 P.3d 1080 (2015).
3 Galassi v. Lowe’s Home Ctrs. LLC, No. 102410-0
Galassi was shopping at Lowe’s for wire fencing to protect her garden from
animals. She found the fencing in an aisle toward the rear of the garden center, in
an area of the store without video surveillance. Various rolls of fencing were
displayed horizontally on a large shelving unit with stop bars at the front of the
shelves, allowing customers to serve themselves.
There were no store employees or other customers in the aisle with Galassi
at the time. She located a 2x25 foot roll of fencing she wished to purchase on the
second-highest shelf, slightly above her eye level and nearly 6 feet off of the floor.
The front-most roll 1 of fencing was “askew” or “[c]rooked,” sitting partially on the
shelf and partially slanted forward, over the stop bar. Clerk’s Papers (CP) at 57,
62. Galassi tried to remove it, but the roll of fencing “pop[ped]” off the shelf as
soon as she touched it, “in the blink of an eye.” Id. at 64, 57. The roll of fencing
fell down from the shelf and landed directly on Galassi’s foot, breaking her toe and
causing long-term physical and mental injuries.
Galassi “struggled” to replace the roll of fencing on the shelf, concerned that
if she left it on the floor, someone else “might not see it and then might have an
accident.” Id. at 58. She then sought help from a Lowe’s employee (Employee
1 From the evidence in the record, Lowe’s wire fencing display appears somewhat similar to a large vending machine. Each type of fencing occupied a single shelf in the display with the rolls of fencing stored horizontally, one behind the other. When a customer wished to purchase a particular type of fencing, they could remove the roll at the front of the shelf (the “front-most roll”), and any remaining rolls on that shelf would slide forward for the next customer.
4 Galassi v. Lowe’s Home Ctrs. LLC, No. 102410-0
Jenkins), who was working in another section of the garden center. A manager
called 911, and Employee Jenkins took a photograph of the display shelf.
Galassi and her husband filed a complaint against Lowe’s, alleging
negligence and seeking damages for medical expenses, physical and mental pain,
and loss of consortium. 2 After filing its answer, Lowe’s moved for summary
judgment, asserting that it “did not have actual or constructive notice of the
allegedly unsafe condition” and that “the [reasonable foreseeability] exception to
showing notice does not apply.” 3 Id. at 9.
Lowe’s conceded Galassi could “argue that the danger of falling objects is
reasonably foreseeable at a large warehouse hardware store” but argued “this is not
sufficient.” Id. at 15. Instead, according to Lowe’s, the only way for Galassi to
avoid summary judgment would be to submit evidence satisfying the “criteria,” id.,
from Ingersoll v. DeBartolo, Inc., 123 Wn.2d 649, 869 P.2d 1014 (1994).
In Ingersoll, the plaintiff sought damages for injuries she allegedly incurred
from slipping on a “smear” of an unknown “substance” in the common area of a
shopping mall. Id. at 651. Due to the “lack of evidence to prove actual or
2 Given the narrow issue before us on review, this opinion attributes all plaintiffs’ arguments to “Galassi.” No disrespect is intended. 3 We decline to consider any additional issues raised on appeal, including “the existence of an unsafe condition” or whether Lowe’s breached its duty of care through “any unsafe merchandising practice.” Br. of Resp’t at 8 (Wash. Ct. App. No. 56715-6-II (2022)) (capitalization and boldface omitted); Resp. to Br. of Amicus Curiae Wash. State Ass’n for Just. Found. at 5.
5 Galassi v. Lowe’s Home Ctrs. LLC, No. 102410-0
constructive notice,” the plaintiff sought to apply the reasonable foreseeability
exception “based on the unsupported assumption that the substance came from a
food-drink vendor.” Id. at 654. Ingersoll held the exception did not apply because
the “record [was] silent as to obviously relevant facts” to support the plaintiff’s
theory, such as information about the vendors in the mall and their methods of
operation, or evidence as to the “historical experience of slip and fall incidents.”
Id. at 654-55. Drawing from Ingersoll, Lowe’s argued that Galassi must present
similar evidence to avoid summary judgment in this case.
With its summary judgment motion, Lowe’s filed a declaration from
Employee Jenkins, who “did not see any improperly stocked or improperly put
away items on the wire fencing display shelf” prior to Galassi’s injury. CP at 45.
Employee Jenkins also explained Lowe’s safety policies, stating that “[t]he first
thing employees do in the store every day is a safety walk” to “specifically look for
improperly stocked or improperly put away items that could fall or injure
customers.” Id. Employees are further “trained to immediately correct unsafe
conditions such as improperly stocked or improperly put away items on display
shelves as soon as such a condition is brought to our attention or if we notice it on
our own.” Id. Lowe’s also filed portions of Galassi’s deposition testimony
6 Galassi v. Lowe’s Home Ctrs. LLC, No. 102410-0
consistent with the facts set forth above, a photograph of the display shelf,4 and an
interrogatory answer stating there were “no other similar incidents at the subject
store for the three-year period prior to this incident.” Id. at 73.
In opposition to Lowe’s motion for summary judgment, Galassi argued that
the improperly shelved roll of fencing in this case is unlike the unknown substance
the plaintiff slipped on in Ingersoll. Based on her own experience attempting to
retrieve the roll from the display shelf, as well as the safety policies described in
Employee Jenkins’ declaration, Galassi argued, “It is reasonably foreseeable that
another customer would take out a fencing roll and then decide to put it back but
do so carelessly or incorrectly,” creating the alleged unsafe condition that caused
her injury. Id. at 21-22. Galassi did not submit additional evidence regarding the
nature of Lowe’s business or its methods of operation, but she filed declarations
describing the extent of her injuries.
The trial court granted Lowe’s motion for summary judgment, citing the
“categories of evidence” from Ingersoll in its oral ruling. Verbatim Rep. of Proc.
at 25. Its written order similarly states that Galassi “cannot establish any of the
criteria necessary to apply the [reasonable foreseeability] exception.” CP at 40.
4 Galassi alleges for the first time in her supplemental brief that Lowe’s used two different photographs in its briefing to the trial court but falsely indicated they were the same. Suppl. Br. of Resp’t at 3-4; compare CP at 11, with id. at 69. Lowe’s argues this allegation is irrelevant and not properly before us. Pet’r’s Suppl. Reply Br. at 1. Resolution of this dispute is not necessary to our review.
7 Galassi v. Lowe’s Home Ctrs. LLC, No. 102410-0
The Court of Appeals reversed, citing “two key pieces of evidence—
Galassi’s testimony about the askew roll of wire fencing falling on her when she
touched it and [Employee] Jenkins’ declaration that associates are trained to
immediately correct improperly stocked items on display and do a safety walk at
the beginning of the day.” Galassi v. Lowe’s Home Ctrs., LLC, 27 Wn. App. 2d
593, 600, 534 P.3d 354 (2023). The court concluded that a trier-of-fact could find
the nature of Lowe’s business and its methods of operation made it reasonably
foreseeable that a roll of fencing would be improperly shelved and “may fall from
the display shelves and create unsafe situations.” Id.
Lowe’s petitioned for review, supported by amicus Washington Defense
Trial Lawyers (WDTL). We granted review 5 and accepted an amicus brief
supporting Galassi from the Washington State Association for Justice Foundation
(WSAJF), to which both parties responded.
ISSUE
Does the evidence in the record, viewed in the light most favorable to
Galassi, create a genuine issue of material fact regarding the applicability of the
reasonable foreseeability exception?
5 Lowe’s petition for review was initially stayed pending Moore v. Fred Meyer Stores, Inc., No. 102258-1, but Moore was later dismissed on the parties’ joint motion. After the mandate issued in Moore, we lifted the stay in this case and granted review.
8 Galassi v. Lowe’s Home Ctrs. LLC, No. 102410-0
ANALYSIS
Our recent opinion in Johnson, 197 Wn.2d 605, provides a detailed analysis
of the history and application of the reasonable foreseeability exception. However,
the parties disagree as to how the legal standards set forth in Johnson apply to the
facts presented in this case.
The facts here are somewhat unusual because Galassi was allegedly injured
by falling merchandise, rather than in a slip-and-fall incident. The reasonable
foreseeability exception certainly can apply in falling merchandise cases; indeed,
we first adopted it in a case involving “injuries caused when a paint can fell on
plaintiff’s foot.” Pimentel, 100 Wn.2d at 40. Yet, we have generally addressed the
reasonable foreseeability exception in the context of alleged slip-and-fall incidents.
See Johnson, 197 Wn.2d 605; Mucsi v. Graoch Assocs. Ltd. P’ship No. 12, 144
Wn.2d 847, 31 P.3d 684 (2001); Iwai v. State, 129 Wn.2d 84, 915 P.2d 1089
(1996) (plurality opinion); Ingersoll, 123 Wn.2d 649; Wiltse, 116 Wn.2d 452.
Thus, this case presents the opportunity to clarify the application of settled law in
the context of a relatively unusual fact pattern.
We reaffirm that the reasonable foreseeability exception applies equally to
falling merchandise, slip-and-falls, or other incidents where business invitees are
injured by alleged unsafe conditions. The exception is “‘not a per se rule,’” and
there is no fact pattern to which it automatically applies. Johnson, 197 Wn.2d at
9 Galassi v. Lowe’s Home Ctrs. LLC, No. 102410-0
614 (quoting Wiltse, 116 Wn.2d at 461). For the exception to apply, the plaintiff
must prove they were injured by “‘specific unsafe conditions that are continuous or
foreseeably inherent in the nature of the business or mode of operation.’” Id.
(quoting Wiltse, 116 Wn.2d at 461). Moreover, even where it does apply, the
exception is merely a way for the plaintiff to prove “‘cause in fact.’” Id. at 612
(quoting Wiltse, 116 Wn.2d at 458). It “does not shift the burden to the defendant
to disprove negligence” or otherwise relieve the plaintiff’s burden to prove every
element of their claim. Pimentel, 100 Wn.2d at 49.
Because this case is before us on summary judgment, our review is “de
novo, considering the evidence and all reasonable inferences from the evidence in
the light most favorable to the nonmoving party.” Keck, 184 Wn.2d at 370.
Therefore, we must consider the evidence “from both sides” in the light most
favorable to Galassi. Van Hook v. Anderson, 64 Wn. App. 353, 358, 824 P.2d 509
(1992). If Lowe’s meets its “initial burden of showing the absence of an issue of
material fact . . . then the inquiry shifts to the party with the burden of proof at
trial,” Galassi, who “‘must set forth specific facts showing that there is a genuine
issue for trial.’” Young v. Key Pharms., Inc., 112 Wn.2d 216, 225-26, 770 P.2d
182 (1989) (quoting CR 56(e)).6
6 As discussed below, Lowe’s chose to submit evidence with its motion for summary judgment, such as Employee Jenkins’ declaration, but it was “not required” to do so. Young, 112
10 Galassi v. Lowe’s Home Ctrs. LLC, No. 102410-0
The limited record at this stage of the proceedings is certainly not
conclusive. Nevertheless, we affirm the Court of Appeals’ holding that a trier-of-
fact could find the reasonable foreseeability exception applies in this case.
A. Overview of the reasonable foreseeability exception
To provide context for our analysis, it is first necessary to review the
reasonable foreseeability exception to the traditional notice rule, as recently
clarified and reaffirmed in Johnson, 197 Wn.2d 605.
The traditional notice rule arises “[i]n the premises liability context with
business invitees,” such as where a customer is allegedly injured by an unsafe
condition in a retail store. Id. at 612. Business proprietors must “‘exercise
reasonable care to protect’” against “‘physical harm caused to [their] invitees by a
condition on the land.’” Id. (quoting RESTATEMENT (SECOND) OF TORTS § 343
(AM. L. INST. 1965)). However, business proprietors are not strictly liable for all
injuries to their customers. Instead, the injured customer must prove the elements
of a negligence action: “‘(1) the existence of a duty owed, (2) breach of that duty,
(3) a resulting injury, and (4) a proximate cause between the breach and the
Wn.2d at 226. Contra Pet’r’s Suppl. Br. at 14-15. As a result, it is not “circular” or “troubling” to consider this evidence in the light most favorable to Galassi when deciding whether Lowe’s met its initial burden. See Galassi, 27 Wn. App. 2d at 600. Contra Lowe’s Home Ctrs., LLC’s Pet. for Discr. Rev. at 13; Resp. to Br. of Amicus Curiae WSAJF at 1. To the contrary, that is the standard of review required by controlling precedent. Keck, 184 Wn.2d at 370.
11 Galassi v. Lowe’s Home Ctrs. LLC, No. 102410-0
injury.’” Id. at 611 (quoting Tincani v. Inland Empire Zoological Soc’y, 124
Wn.2d 121, 127-28, 875 P.2d 621 (1994)).
Our traditional notice rule goes to the proximate cause element; specifically,
cause in fact. The traditional rule “‘springs from the thought that a dangerous
condition, when it occurs, is somewhat out of the ordinary.’” Pimentel, 100 Wn.2d
at 47 (quoting Jasko v. F.W. Woolworth Co., 177 Colo. 418, 420-21, 494 P.2d 839
(1972)). Based on this view, a proprietor “‘is allowed a reasonable time, under the
circumstances, to discover and correct’” unsafe conditions that temporarily arise on
the premises. Id. (quoting Jasko, 177 Colo. at 421). Thus, to establish “‘that the
proprietor’s negligence was a cause in fact of [their] injury,’” the traditional notice
rule requires the customer to prove that the proprietor had “actual or constructive
notice of [the] unsafe condition.”7 Johnson, 197 Wn.2d at 612 (quoting Wiltse,
116 Wn.2d at 458); Pimentel, 100 Wn.2d at 44.
Our traditional notice rule was well established by the mid-1930s. See
Wiard v. Mkt. Operating Corp., 178 Wash. 265, 268, 34 P.2d 875 (1934). Fifty
years later, this court followed the “predominant theme” among other jurisdictions
in recognizing “that modern techniques of merchandising necessitate some
7 Cause in fact may also be established if the unsafe condition “‘is the direct result’” of actions attributable to the proprietor. Pimentel, 100 Wn.2d at 47 (quoting Jasko, 177 Colo. at 421). Galassi does not assert that Lowe’s directly caused the alleged unsafe condition here.
12 Galassi v. Lowe’s Home Ctrs. LLC, No. 102410-0
modification of the traditional rules of liability,” leading to our adoption of the
reasonable foreseeability exception. Pimentel, 100 Wn.2d at 46.
The exception was adopted in the context of “the modern merchandising
method of self-service.” Ciminski v. Finn Corp., 13 Wn. App. 815, 818, 537 P.2d
850 (1975), abrogated in part on other grounds by Pimentel, 100 Wn.2d 39. As
compared to prior merchandising methods using “individual clerk assistance,” a
self-service method of operation can provide a “pecuniary benefit” to the
proprietor by requiring “customers to perform the tasks previously carried out by
employees.” Id. at 818-19. Yet, self-service operations also increase the risk of
injury to customers, who “may pick up and put back several items before
ultimately selecting one” for purchase, and “are naturally not as careful in handling
the merchandise as clerks would be.” Id. at 818. As a result, “‘where lots of goods
are stocked and customers remove and replace items, hazards are apparent.’”
Ingersoll, 123 Wn.2d at 653 (internal quotation marks omitted) (quoting Coleman
v. Ernst Home Ctr., Inc., 70 Wn. App. 213, 218-19, 853 P.2d 473 (1993)).
When a proprietor chooses a method of operation in which hazards are
apparent, unsafe conditions are not necessarily “‘out of the ordinary,’” as the
traditional notice rule presumes. Pimentel, 100 Wn.2d at 47 (quoting Jasko, 177
Colo. at 421). To the contrary, sometimes “‘the operating methods of a proprietor
are such that dangerous conditions are continuous or easily foreseeable.’” Id. at
13 Galassi v. Lowe’s Home Ctrs. LLC, No. 102410-0
47-48 (quoting Jasko, 177 Colo. at 421). In those circumstances, “‘the logical
basis for the [traditional] notice requirement dissolves.’” Id. at 48 (quoting Jasko,
177 Colo. at 421). Thus, the reasonable foreseeability exception to the traditional
notice rule provides “that an invitee may prove notice with evidence that the
‘nature of the proprietor’s business and [their] methods of operation are such that
the existence of unsafe conditions on the premises is reasonably foreseeable.’”
Johnson, 197 Wn.2d at 618 (quoting Pimentel, 100 Wn.2d at 49).
Although the reasonable foreseeability exception arose in the self-service
context, we have since clarified that “‘self-service is not the key to the exception.’”
Id. at 615 (internal quotation marks omitted) (quoting Ingersoll, 123 Wn.2d at
654). Instead, “the real purpose of the exception [is] to focus on aspects of the
proprietor’s business that make unsafe conditions reasonably foreseeable.” Id.
In this case, Lowe’s argues that because self-service is no longer necessary
to the reasonable foreseeability inquiry, self-service should no longer be important.
Lowe’s notes that “[i]n today’s world, just about all retail stores are self-service
stores,” suggesting that businesses should not be held responsible for “‘choosing’ a
self-service method of operation” because there is effectively no other choice.
Resp. to Br. of Amicus Curiae WSAJF at 6-7. In other words, Lowe’s appears to
argue that because most establishments have now adopted “modern techniques of
14 Galassi v. Lowe’s Home Ctrs. LLC, No. 102410-0
merchandising,” we should return to more “traditional rules of liability.” Contra
Pimentel, 100 Wn.2d at 46. We decline to do so.
Although Johnson expanded the reasonable foreseeability exception beyond
the self-service context, the underlying legal standard did not change. The proper
inquiry is still whether “‘the nature of the proprietor’s business and . . . methods of
operation are such that the existence of unsafe conditions on the premises is
reasonably foreseeable.’” Johnson, 197 Wn.2d at 613 (emphasis added) (quoting
Pimentel, 100 Wn.2d at 49). Whether the proprietor uses a self-service method of
operation remains an important part of this inquiry, alongside many other types of
potentially relevant evidence.
Our precedent has broadly interpreted “the nature of the business and
methods of operation” to encompass any “aspects of the proprietor’s business that
make unsafe conditions reasonably foreseeable” in light of “the actual cause of the
hazard” that allegedly injured the plaintiff. Id. at 615; Wiltse, 116 Wn.2d at 461.
Thus, to use the example of a retail store, “the nature of the business and methods
of operation” may include (but are not limited to) any or all of the following: the
physical features and layout of the store, including the location where the injury
occurred; the types of merchandise offered for sale; where and how different types
of merchandise are displayed; the extent to which customers are required or
encouraged to interact with the merchandise before purchase; typical customer
15 Galassi v. Lowe’s Home Ctrs. LLC, No. 102410-0
patterns and behaviors; where store employees are generally situated; whether
there is signage providing instructions or warnings to customers; any history of
prior injuries; the store’s safety, inspection, or maintenance policies; and even the
store’s geographical location and relevant local weather patterns. E.g., Pimentel,
100 Wn.2d at 42; Wiltse, 116 Wn.2d at 461-62; Ingersoll, 123 Wn.2d at 654-55;
Iwai, 129 Wn.2d at 88-89, 101; Johnson, 197 Wn.2d at 608-09, 615.
As discussed below, the evidence that will be relevant and necessary in any
particular case varies considerably, depending on the specific factual allegations at
issue. However, as amicus correctly argues, “the fact that a business elects to use a
self-service mode of operations” can still be important in appropriate cases. Br. of
Amicus Curiae WSAJF at 8. Self-service may be more commonplace today than it
was when Pimentel was decided, but the “‘hazards’” associated with self-service
operations are no less “‘apparent.’” Ingersoll, 123 Wn.2d at 653 (internal
quotation marks omitted) (quoting Coleman, 70 Wn. App. at 218-19).
Nevertheless, we emphasize that the reasonable foreseeability exception
does not automatically apply to any particular business or in any particular case. It
applies only where the plaintiff carries their burden to “prove notice with evidence
that the ‘nature of the proprietor’s business and [its] methods of operation are such
that the existence of unsafe conditions on the premises is reasonably foreseeable.’”
Johnson, 197 Wn.2d at 618 (quoting Pimentel, 100 Wn.2d at 49). The exception
16 Galassi v. Lowe’s Home Ctrs. LLC, No. 102410-0
“does not obviate the need to prove the existence of the unreasonably dangerous
condition” or “shift the burden to the defendant to disprove negligence.” Id. at
619; Pimentel, 100 Wn.2d at 49. It is simply one way in which a plaintiff might
prove “‘the proprietor’s negligence was a cause in fact of [their] injury.’” Johnson,
197 Wn.2d at 612 (quoting Wiltse, 116 Wn.2d at 458).
B. The reasonable foreseeability exception requires a fact-specific analysis
As discussed above, reasonable foreseeability generally can be shown
through a broad range of evidence pertaining to the nature of a business and its
methods of operation. However, the evidence needed to prove reasonable
foreseeability in any particular case depends on the specific facts presented. We
therefore reject Lowe’s suggestion that the reasonable foreseeability exception
must always be supported by similar evidence.
“Cause in fact refers to the ‘“but for” consequences of an act—the physical
connection between an act and an injury.’” Meyers v. Ferndale Sch. Dist., 197
Wn.2d 281, 289, 481 P.3d 1084 (2021) (quoting Hartley v. State, 103 Wn.2d 768,
778, 698 P.2d 77 (1985)). “Establishing cause in fact involves a determination of
what actually occurred,” and thus presents a factual question that “is generally left
to the jury.” Schooley v. Pinch’s Deli Mkt., Inc., 134 Wn.2d 468, 478, 951 P.2d
749 (1998); Meyers, 197 Wn.2d at 289. Likewise, because the reasonable
foreseeability exception is used to establish cause in fact, “whether it applies is
17 Galassi v. Lowe’s Home Ctrs. LLC, No. 102410-0
fundamentally a question of fact for the jury” unless the facts are not disputed and
“reasonable minds could not differ.” Moore v. Fred Meyer Stores, Inc., 26 Wn.
App. 2d 769, 777, 532 P.3d 165 (2023);8 Meyers, 197 Wn.2d at 289.
Nevertheless, Lowe’s urges the court to take a checklist-style approach,
arguing that in every case where the reasonable foreseeability exception is
disputed, the plaintiff must produce particular types and quantities of evidence in
support of “a location-and-condition specific analysis” mirroring Ingersoll. Pet’r’s
Suppl. Br. at 12. This approach is inconsistent with our precedent and the fact-
intensive nature of the inquiry. As we recently reaffirmed, the reasonable
foreseeability exception applies beyond the contexts “in which it arose.” Johnson,
197 Wn.2d at 614. As a result, in each individual case, courts must conduct a fact-
specific analysis “focus[ed] on aspects of the proprietor’s business that make
unsafe conditions reasonably foreseeable.” Id. at 615.
8 We decline Lowe’s request to “reverse” the Court of Appeals’ opinion in Moore. Pet’r’s Suppl. Reply Br. at 5; see also Amicus Curiae Mem. of WDTL at 11-13. Moore held that the Washington “pattern instruction on premises liability . . . is no longer an accurate statement of the law” because “Johnson establishes reasonable foreseeability as equal to traditional notice requirements and whether it applies is fundamentally a question of fact for the jury.” 26 Wn. App. 2d at 776-77. Moore is not currently before us; as noted above, we granted the parties’ joint motion to dismiss review in that case. To the extent Lowe’s objects to Moore’s holding on jury instructions, that issue is not presented here. If Lowe’s intends to argue that reasonable foreseeability is not a question of fact, that is incorrect. The traditional notice rule establishes “‘cause in fact,’” which “is generally left for the jury” unless “reasonable minds could not differ.” Johnson, 197 Wn.2d at 612 (quoting Wiltse, 116 Wn.2d at 458); Meyers, 197 Wn.2d at 289. Lowe’s does not explain how the exception to the traditional notice rule could be relevant to some different, nonfactual issue.
18 Galassi v. Lowe’s Home Ctrs. LLC, No. 102410-0
The unusual facts in this case further demonstrate why Lowe’s approach is
inappropriate, as many types of evidence that were necessary in Ingersoll are
simply not necessary here. Ingersoll involved a slip-and-fall incident, but Galassi
did not slip on anything; Lowe’s merchandise allegedly fell on her. This factual
distinction is not determinative, but it is highly relevant. Indeed, after Pimentel
adopted the reasonable foreseeability exception in a falling merchandise case,
“Wiltse cautioned against ‘applying the rule in Pimentel to slip and fall type
cases.’” Id. (emphasis added) (quoting Wiltse, 116 Wn.2d at 459). Though we
later applied the exception to slip-and-fall incidents, Wiltse correctly recognized
the importance of such factual distinctions in assessing reasonable foreseeability.
The legal principles governing the reasonable foreseeability exception are
the same in both slip-and-fall cases and falling merchandise cases. E.g., Johnson,
197 Wn.2d 605; Pimentel, 100 Wn.2d 39. Nevertheless, they often raise different
factual issues. For example, in a slip-and-fall incident, it may be unclear what the
injury-causing substance actually was, an issue that is rarely disputed in cases of
falling merchandise. Compare Ingersoll, 123 Wn.2d at 651 (plaintiff “could not
identify” the substance she slipped on), with Pimentel, 100 Wn.2d at 40 (“a paint
can fell on plaintiff’s foot”). Here, there is no question as to what allegedly injured
Galassi; it was a 2x25 foot roll of wire garden fencing.
19 Galassi v. Lowe’s Home Ctrs. LLC, No. 102410-0
Similarly, in many slip-and-fall incidents, it is not clear how the substance
ended up on the floor in the location where the plaintiff slipped. E.g., Ingersoll,
123 Wn.2d at 654 (plaintiff made an “unsupported assumption that the substance
came from a food-drink vendor”); Moore, 26 Wn. App. 2d at 771 (plaintiff “did
not know where the water came from or how it got on the floor”); Tavai v.
Walmart Stores, Inc., 176 Wn. App. 122, 126, 307 P.3d 811 (2013) (no evidence
how water got on the floor “15 feet away from a check-out counter”); Arment v.
Kmart Corp., 79 Wn. App. 694, 697, 902 P.2d 1254 (1995) (“drink spill in the
menswear department”); Carlyle v. Safeway Stores, Inc., 78 Wn. App. 272, 276,
896 P.2d 750 (1995) (“leaking shampoo bottle in the coffee section”). In this case,
by contrast, the improperly shelved roll of fencing was on its high display shelf,
precisely where Lowe’s had chosen to display it. As to how the improper shelving
occurred, Galassi does not make “unsupported assumption[s],” as the plaintiff did
in Ingersoll. 123 Wn.2d at 654. Instead, she attempts to support her theory with
inferences drawn from the evidence presented on summary judgment, viewed in
the light most favorable to her.
These distinctions do not mean the reasonable foreseeability exception is
necessarily satisfied in this case. However, they are clearly relevant to determining
the evidentiary showing that is relevant and necessary on summary judgment.
20 Galassi v. Lowe’s Home Ctrs. LLC, No. 102410-0
C. Lowe’s did not meet its initial burden on summary judgment
Applying the above principles to this case, we hold that Lowe’s did not meet
its “initial burden to show the absence of a genuine issue of material fact” on
summary judgment. Id. Therefore, the inquiry never shifted to Galassi to produce
evidence creating a factual dispute as to reasonable foreseeability; the evidence
from Lowe’s had already done so.
As discussed above, the evidence Lowe’s presented on summary judgment
includes portions of Galassi’s deposition testimony, a photograph of the display
shelf, and Employee Jenkins’ declaration. Galassi’s testimony, 9 along with the
photograph of the display shelf, could allow a trier-of-fact to find Lowe’s has a
practice of displaying bulky rolls of wire fencing on high shelves. It is undisputed
that the display shelf could be accessed by customers without employee assistance,
and there is no indication in the record that Lowe’s prohibited or discouraged self-
service from this particular display shelf. As a result, a trier-of-fact could
reasonably infer that Lowe’s methods of operation include allowing customers to
help themselves to bulky rolls of wire fencing from high display shelves,
9 Lowe’s argues that “Galassi’s testimony consists of self-serving and conclusory statements” regarding “an unsupported allegation with no extrinsic evidence.” Lowe’s Home Ctrs., LLC’s Pet. for Discr. Rev. at 11. This is inaccurate. Galassi testified to factual matters based on personal knowledge from her own experience, and her allegations are corroborated by extrinsic evidence, including Employee Jenkins’ declaration and the photograph of the display shelf. Whether Galassi’s testimony is credible or persuasive must be decided by the trier-of-fact. A court on summary judgment “must not weigh the veracity of a declaration simply because it is ‘self-serving.’” Jones v. State, 170 Wn.2d 338, 355 n.7, 242 P.3d 825 (2010).
21 Galassi v. Lowe’s Home Ctrs. LLC, No. 102410-0
potentially “pick[ing] up and put[ting] back several items before ultimately
selecting one” for purchase. Ciminski, 13 Wn. App. at 818.
In addition, Employee Jenkins’ declaration describes store policies requiring
employees to perform a daily “safety walk” and “immediately correct unsafe
conditions such as . . . improperly put away items on display shelves,” which
“could fall and injure customers.” CP at 45. From this, a trier-of-fact could infer
that due to Lowe’s methods of operation, it was reasonably foreseeable that
customers serving themselves would sometimes “improperly put away items on
display shelves.” Id. The trier-of-fact could also infer that a bulky, improperly
shelved, 2x25 foot roll of wire fencing “could fall and injure customers,” creating
the specific unsafe condition that allegedly injured Galassi. Id.
Thus, a trier-of-fact could find the alleged unsafe condition in this case was
reasonably foreseeable due to the nature of Lowe’s business and its methods of
operation. Yet, there is also contrary evidence, such as a lack of prior similar
incidents, from which a trier-of-fact could reach the opposite conclusion. As a
result, the Court of Appeals correctly held that there is “a genuine issue of material
fact regarding whether the [reasonable foreseeability] exception to traditional
notice requirements applies.” Galassi, 27 Wn. App. 2d at 595.
Lowe’s argues that notwithstanding the evidence discussed above, Galassi
was “required to put on evidence” to avoid summary judgment. Pet’r’s Suppl. Br.
22 Galassi v. Lowe’s Home Ctrs. LLC, No. 102410-0
at 13. Similarly, amicus argues that the Court of Appeals “erroneously relieve[d]
plaintiff of the burden of proof.” Amicus Curiae Mem. of WDTL at 3 (boldface
omitted). These arguments are misplaced.
It is certainly true that as the plaintiff, Galassi must bear the burden of proof
at trial. Yet, as the moving party on summary judgment, Lowe’s has “the initial
burden of showing the absence of an issue of material fact.” Young, 112 Wn.2d at
225. Lowe’s could have met its initial burden by simply “‘pointing out’” the “lack
of evidence to prove actual or constructive notice.” Id. at 225 n.1 (quoting Celotex
Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986));
Ingersoll, 123 Wn.2d at 654; see also Keck, 184 Wn.2d at 370; CR 56(b). A
similar strategy is often employed in medical malpractice actions, where “a
defendant may move for summary judgment on the ground the plaintiff lacks
competent medical evidence to make out a prima facie case.” Young, 112 Wn.2d
at 226. The burden then shifts to the plaintiff to produce “competent evidence to
rebut the defendants’ initial showing.” Id. at 227.
However, the defendant has a choice of strategies; it “may move for
summary judgment by setting out its own version of the facts or by alleging that
the nonmoving party failed to present sufficient evidence to support its case.” Pac.
Nw. Shooting Park Ass’n v. City of Sequim, 158 Wn.2d 342, 350, 144 P.3d 276
(2006) (emphasis added). Here, Lowe’s selected the former strategy, setting out its
23 Galassi v. Lowe’s Home Ctrs. LLC, No. 102410-0
own version of the facts, affirmatively asserting that it did not have notice and “the
[reasonable foreseeability] exception does not apply,” and attempting to support
this assertion through the submission of evidence, including Employee Jenkins’
declaration, a photograph of the display shelf, and Lowe’s interrogatory answer
confirming the lack of prior similar incidents. CP at 14 (capitalization and
boldface omitted).
The fact that Lowe’s summary judgment strategy was unsuccessful in this
case does not relieve plaintiffs of their burden of proof. It is merely a case-specific
outcome in accordance with the well-established rule that “[i]f the moving party
does not sustain its burden, summary judgment should not be granted, regardless of
whether the nonmoving party has submitted affidavits or other evidence in
opposition to the motion.” Hash v. Child.’s Orthopedic Hosp. & Med. Ctr., 110
Wn.2d 912, 915, 757 P.2d 507 (1988); see also White v. Kent Med. Ctr., Inc., 61
Wn. App. 163, 170, 810 P.2d 4 (1991) (citing Jacobsen v. State, 89 Wn.2d 104,
108, 569 P.2d 1152 (1977); Baldwin v. Sisters of Providence in Wash., Inc., 112
Wn.2d 127, 132, 769 P.2d 298 (1989)); CR 56(e) (burden to “set forth specific
facts showing that there is a genuine issue for trial” arises only after “a motion for
summary judgment is made and supported as provided in this rule”).
Finally, Lowe’s raises similar concerns to those in Johnson, 197 Wn.2d at
618-19, arguing that the Court of Appeals’ decision here effectively creates “a per
24 Galassi v. Lowe’s Home Ctrs. LLC, No. 102410-0
se rule that the danger of falling merchandise is always reasonably foreseeable,”
resulting in “strict liability” for retailers. Pet’r’s Suppl. Br. at 15; Lowe’s Home
Ctrs., LLC’s Pet. for Discr. Rev. at 13. We emphasize that the reasonable
foreseeability exception never operates as a per se rule, including in cases of
falling merchandise. Whether the exception applies in any particular case depends
on the evidence presented, with the plaintiff bearing the burden of proof before the
trier-of-fact. As discussed above, the evidence in this record does not conclusively
prove the reasonable foreseeability exception applies, but it is sufficient to create a
genuine issue of material fact precluding summary judgment.
We also emphasize that even where the reasonable foreseeability exception
applies, it does not impose strict liability, or any liability at all, because the “other
elements of a negligence claim [do not] disappear.” Johnson, 197 Wn.2d at 619.
The exception “does not obviate the need to prove the existence of the
unreasonably dangerous condition” or any other element, nor does it “shift the
burden to the defendant to disprove negligence.” Id.; Pimentel, 100 Wn.2d at 49.
It is merely a way in which a plaintiff might prove cause in fact.
CONCLUSION
Lowe’s did not meet its initial burden on summary judgment regarding the
applicability of the reasonable foreseeability exception. Accordingly, we affirm
the Court of Appeals and remand to the trial court for further proceedings.
25 Galassi v. Lowe’s Home Ctrs. LLC, No. 102410-0
WE CONCUR:
O'Donnell, J.P.T.