IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
GWEN THOMAS AND ODELL THOMAS, Individually, and as a Marital No. 87997-9-I Community, DIVISION ONE
Appellant,
UNPUBLISHED OPINION
v.
ESTERRA COMMONS VENTURE, LLC, A NEW JERSEY LIMITED LIABILITY COMPANY, DOING BUSINESS AS VERDE ESTERRA PARK APARTMENTS, AND SIDNEY MITCHELL, PROPERTY MANAGER, AND GREP SOUTHWEST, LLC., A DELAWARE CORPORATION DOING BUSINESS IN THE STATE OF WASHINGTON,
Respondent.
COBURN, J. — Gwen Thomas fell down an interior staircase as an invitee at the fairly new Verde Esterra Park Apartments and sued claiming negligence. Thomas told the emergency room doctors that before falling “she felt like her foot got stuck awkwardly on the stair.” A resident who was present during the fall but did not witness it testified that when she later asked Thomas what caused her to fall, Thomas mentioned that her knees gave out. Defendants presented expert opinion that the stairs did not present a dangerous condition and were properly inspected. Thomas presented expert opinion that the stairs did present a dangerous condition and were not properly
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inspected. The trial court dismissed the suit at summary judgment. Because genuine questions of material fact remain, summary judgment is improper. We reverse.
BACKGROUND
On February 1, 2023, Thomas and her daughter, H.T., visited Belinda Ramsey, a resident at the Verde Esterra Park Apartments for a prayer meeting in the building’s conference room. Upon Thomas and H.T.’s arrival, Ramsey walked them through a restaurant and up an interior staircase into a conference room. After a few hours, Thomas left the conference room with H.T. and walked down the same stairs she previously walked up. 1 Thomas handed her daughter her coat and a bag 2 so she could hold the banister while walking down the stairs. Thomas was still holding a glass mug. H.T. walked ahead of Thomas and waited for her at the bottom of the stairs. After walking down a few steps, placing both feet on one step before moving to the next step, Thomas said she could not move her foot, like it was “stuck” and she “just started falling.” H.T. did not see Thomas fall down the stairs.
Emergency response was called and the fire department arrived. The fire department indicated on its incident report that Thomas was found lying at the bottom of the stairs speaking in full sentences. Thomas stated to the fire department that she was walking down the stairs when she tripped and fell down 12 stairs, hitting her head and injuring her wrist. Thomas claimed she did not lose consciousness. She was taken to the emergency room and emergency department records indicated that Thomas sustained a laceration over her forehead, had a right wrist deformity with swelling and
1 H.T. testified that Ramsey insisted that she and Thomas take the stairs instead of the elevator because it was quicker.
2 H.T. testified that Thomas gave H.T. Thomas’ coat and a bag, not including her purse.
Thomas testified that she gave H.T. her coat and purse.
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pain, as well as pain in the bilateral shins but could bear weight. Thomas told the emergency room doctors that she fell down 14 stairs after “she felt like her foot got stuck awkwardly on the stair.”
Before the accident, the apartment building was subject to weekly and monthly property inspections of various spaces in its building. However, while the apartment building had a general “monthly property inspection,” those inspections did not specifically indicate that its interior staircases had to be inspected for possible tripping hazards. Various apartment building employees testified that they periodically examined the stairs before and after Thomas’ fall and never noticed any protruding screws. One apartment building maintenance worker testified that before the building opened in 2022, a fire marshal inspected the brand-new stairs. Additionally, the record includes April 2022 documentation of performed “Structural Special Inspections” of structural bolting and welds, lateral wood framing, structural steel fabrication, and prestressed concrete, and a May 2022 structural observation completed in accordance with international building code section (IBC) 1704.6. 3 Ramsey testified that she called Thomas while Thomas was at the hospital.
According to Ramsey, when Ramsey asked Thomas what she thought had caused her fall, Thomas mentioned that her knees gave out. Ramsey testified that Thomas never said anything to her about her foot getting caught.
Thomas testified that she did not see what her foot got caught on. She explained that she went down a few steps, her foot got stuck, and she started falling down the
3 “[T]he owner or the owner’s authorized agent shall employ a registered design professional to perform structural observations.” IBC 1704.6 Structural observations, ICC DIGITAL CODES (2018), https://codes.iccsafe.org/s/IBC2018P6/chapter-17-special-inspectionsand -tests/IBC2018P6-Ch17-Sec1704.6.
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stairs. H.T. also indicated that she did not see anything protruding out of the stairs and only saw Thomas’ blood on the stairs as well as a broken glass that Thomas was carrying. Thomas wore flat-heel leather boots at the time of the fall and said they were not damaged before the fall. The day after the fall, Thomas noticed one heel’s front corner was damaged.
Thomas hired an expert from Construction Systems Management, Inc., Mark Lawless, who examined the subject staircase, as well as related records such as inspection reports and deposition testimony. Thomas’ husband, Odell Thomas, was concerned as to how Thomas fell because he noticed a snag on the bottom of the shoe she wore during the fall. After examining the stairs, Odell, 4 who was not present during the fall, testified that “quite a few” of the screws on the first few steps were above the stair platform.
In May 2023 Thomas and Odell filed suit for negligence against the owner of the apartment building, Esterra Commons Venture, LLC, as well as the property management entity GREP SOUTHWEST, LLC, and property manager Sidney Mitchell (collectively Esterra). 5 Lawless “found screws that were not placed perpendicular to the horizontal nosing surface so that the angle of the screw causes one side of the head to be at or above the countersinking hole in the nosing.” Additionally, Lawless observed that the stairs have a wood tread containing a nosing that was installed after the steel stairway structure was built.
4 We use Odell’s first name for clarity because he shares the same surname as his wife.
5 A second amended complaint filed in July 2024 added GREP SOUTHWEST, LLC as a defendant.
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In his report, Lawless cited various sections of the 2021 International Property Maintenance Code (IPMC). In his deposition, Lawless concluded that the staircase does not meet Section 111(2) of the IPMC, identifying dangerous structures as “The walking surface of any … stairway … so warped, worn loose, torn or otherwise unsafe as to not provide safe and adequate means of egress” as the “nosing-to-wood transition” “creates a warped condition because it’s not uniform in elevation.” Moreover, Lawless indicated that there was noncompliance with IPMC Section 305(5), which states that unsafe conditions include “stairs … [that] are not structurally sound, not properly anchored or are anchored with connections not capable of supporting all nominal loads and resisting all load effects.”
Lawless concluded that “the condition of integrating a nosing with a wood tread actually creates a new, in my opinion, unacceptable condition that requires a very high degree of maintenance and a high degree of inspection to ensure that that nosing-to- wood transition doesn’t create a blockage or a tripping hazard for someone.” Additionally, he stated that “the crooked screw; that is, the head that is raised because of the angle of screw resulting from the groove implant” and “the raised nosing between the wood tread and the face of the nosing would cause a fall.” However, Lawless could not definitively say that the screw caused Thomas to fall, indicating that “[t]here were conditions that could lead to a trip or to one catching their foot.” In October 2021 the general contractor confirmed that the nosing on the staircase is acceptable.
Esterra also hired an expert, Kurt Stranne, President of Apex Safety, which provides state and federal regulatory compliance consultation and site safety inspections. Stranne examined the parties’ complaints, depositions, discovery, Lawless’
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report, and the site of the fall. He opined that Esterra employees inspected the stairs before and after Thomas’ fall. Additionally, he stated that Lawless’ report does not address a single failure to comply with any of the IPMC sections referenced in the report. Moreover, the words “screws” and “fasteners” only appear once and twice, respectively, in the entire IPMC in the context of “non-mandatory Boarding Standard[s] for windows and doors.” He also stated that Lawless’ staircase photos and videos do “not reveal any screws that extended above the textured stair tread to where they presented a recognized hazard.” Stranne also examined the staircase and “did not find a single screw that extended above the textured stair nosing to where it created a recognized hazard.”
Esterra moved for summary judgment, arguing that Thomas cannot prove that Esterra had actual or constructive notice of an unsafe condition or that Esterra proximately caused her injuries. 6 The trial court granted Esterra’s motion following a hearing. Thomas appeals.
DISCUSSION
We engage in the same inquiry as the trial court when reviewing a grant of summary judgment. Degel v. Majestic Mobile Manor, Inc., 129 Wn.2d 43, 48, 914 P.2d 728 (1996). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” CR 56(c); Degel, 129 Wn.2d at 48. We consider all facts and reasonable inferences in the light most favorable to the nonmoving party. Degel,
6 Esterra’s arguments in favor of summary judgment are presented as to all defendants.
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129 Wn.2d at 48. An inference is reasonable where it is a logical conclusion or deduction based on established facts or circumstances. Fairbanks v. J.B. McLoughlin Co., Inc., 131 Wn.2d 96, 101-02, 929 P.2d 433 (1997). “When the evidence at summary judgment is susceptible to competing reasonable inferences, some supporting liability and others not, a fact question is presented that a jury must determine.” Asphy v. State, 31 Wn. App. 2d 605, 630, 552 P.3d 325, review denied, 3 Wn.3d 1033, 559 P.3d 1023 (2024).
The initial burden is on the moving party to present the absence of an issue of material fact. Young v. Key Pharm. Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). If the moving party meets their burden, the burden shifts to the nonmoving party to establish evidence as to an essential element of their case. Id. If the nonmoving cannot meet this burden, the trial court should grant summary judgment because the failure to prove an essential element of the case renders all other facts immaterial. Id. The nonmoving party cannot rely on speculation or argumentative assertions that unresolved factual issues remain. Marshall v. Bally’s Pacwest, Inc., 94 Wn. App. 372, 377, 972 P.2d 475 (1999).
Summary judgment is appropriate only when a trial would be useless. Wheeler v.
Ronald Sewer Dist., 58 Wn.2d 444, 446, 364 P.2d 30 (1961). A trial is not useless and is necessary where there is a genuine dispute as to any material fact. Id. “An issue of material fact is genuine if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party.” Keck v. Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015).
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To prove negligence, the plaintiff must establish (1) a duty owed to the complaining party, (2) breach of that duty, (3) resulting injury, and (4) proximate cause. Christen v. Lee, 113 Wn.2d 479, 488, 780 P.2d 1307 (1989).
The existence of a duty is a question of law. Hutchins v. 1001 Fourth Ave.
Assocs., 116 Wn.2d 217, 220, 802 P.2d 1360 (1991). A landowner owes a certain legal duty to a person entering the premises depending on whether the entrant is a trespasser, licensee, or invitee. Younce v. Ferguson, 106 Wn.2d 658, 662, 724 P.2d 991 (1986). The parties do not dispute that Thomas was an invitee.
Generally, it is a “basic and well-established principle that for a possessor of land to be liable to a business invitee for an unsafe condition of the land, the possessor must have actual or constructive notice of the unsafe condition.” Ingersoll v. DeBartolo, Inc., 123 Wn.2d 649, 652, 869 P.2d 1014 (1994). Actual or constructive notice applies only to temporary conditions created by others. 7 Erdman v. Lower Yakima Valley, Wash. Lodge No. 2112 of B.P.O.E., 41 Wn. App. 197, 205, 704 P.2d 150 (1985). Particularly, “[t]he rule requiring such notice is not applicable where the dangerous condition of the premises was created in the first instance by the occupant.” Falconer v. Safeway Stores, Inc., 49 Wn.2d 478, 480, 330 P.2d 294 (1956). Therefore, notice “does not apply where the condition was created by the landowner or his agents and had been in existence for a long time.” Erdman, 41 Wn. App. at 205.
7 Another exception to requiring the possessor to have actual and constructive notice is the “reasonable foreseeability exception” that applies where the nature of proprietors’ business and their methods of operation are such that the existence of the unsafe condition on their premises is reasonably foreseeable. Johnson v. Liquor & Cannabis Bd., 197 Wn. 2d 605, 622, 486 P.3d 125 (2021). Thomas does not assert that the foreseeability exception applies.
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Esterra argues that there is no dangerous condition on the stairs, and even if there is, they did not have actual or constructive notice of it.
Dangerous Condition
The apartment building opened in June 2022 and the fire marshal inspected the stairs when the building first opened. Before Thomas’ incident, no defects were ever identified with the stairs, and no repairs were made to the stairs since they were constructed.
Thomas’ expert, Lawless, examined the stairs one month after her fall, and reviewed the depositions of multiple Esterra employees and those of Thomas and Odell. Lawless also reviewed Esterra’s inspection reports and records. Lawless reported:
Tread surface variances include tread joinery where the steel nosing was higher than the wood plane. We found screws that were not placed perpendicular to the horizontal nosing surface so that the angle of the screw causes one side of the head to be at or above the countersinking hole in the nosing. We found screw heads that were recessed into the countersinking hole so that the hole itself created a minor depression, and we found screws that were not countersunk into the hole all the way thereby projecting above the horizontal plane of the nosing. These conditions are due, in part because the crossing grooves of the cast steel horizontal surface are at the location of a countersinking hole and the side walls of the groove interfere with the ability to countersink the screw all the way. We found screw heads where the metal forming the Phillips bit insert into the screw head has been raised due to the soft metal characteristic and reaming of the screw head. The twisted metal was sharp to the touch.
Additionally, Lawless opined that the stairs did not meet IPMC Section 111 and is not in compliance with IPMC Section 305(5).
Esterra contends that Lawless’ photos provide “no evidence of an obvious tripping hazard,” and their expert agrees. Stranne concluded that “Lawless’ photographs and videos do[] not reveal any screws that extended above the textured stair tread to where they presented a recognized hazard.” Stranne also personally inspected the
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stairs and “did not find a single screw that extended above the textured stair nosing to where it created a recognized hazard.” Finally, Stranne disagreed with Lawless that the stairs do not meet IPMC standards, arguing that the sections Lawless cites do not relate to screws.
The parties’ contradictory experts as to the existence of an unsafe condition creates “a classic battle of the experts, a battle in which the jury must decide the victor.” Intalco v. Aluminium Corp. v. Dep’t of Lab. & Indus., 66 Wn. App. 644, 662, 833 P.2d 390 (1992) (quoting Ferebee v. Chevron Chem. Co., 736 F.2d 1529, 1535 (D.C. Cir. 1984)). We hold that there is a dispute of material fact as to whether an unsafe condition existed.
Notice
The parties also dispute whether Esterra, under their duty to Thomas, had notice of protruding screws on the interior staircase where Thomas fell. Thomas asserts that she does not need to prove notice because the protruding screws were not a temporary unsafe condition, but rather a fixed condition, so notice does not apply.
Thomas does not need to prove notice because the parties do not dispute that the stairs have not changed since they were built. 8 Thomas asserts that the stairs were an unsafe condition that Esterra created. Esterra does not assert or present any evidence that they are not the owners of the stairs or that their agents did not build the stairs.
At oral argument Esterra, without supporting cites to the record, asserted for the first
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time on appeal that Thomas’ fall changed the stairs. Wash. Ct. of Appeals oral arg., Thomas v. Esterra Commons Venture, LLC, No. 87997-9-I (March 11, 2026), at 13 min., 25 sec. through 13 min., 28 sec. video recording by TVW, Washington State’s Public Affairs Network, https://tvw.org/video/division-1-court-of-appeals-2026031237/. We do not consider this new argument made for the first time at oral argument. RAP 10.3(b); see RAP 10.3(a)(6).
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Notably, Stranne opined that because “the stairway was inspected frequently and no maintenance was ever required … the inherent stairway design and construction [is] the only remaining [cause of Thomas’ fall], which was not under Esterra’s control.” (Emphasis added). However, Stranne cites no source to support such a conclusion. As summary judgment requires us to examine the facts in the light most favorable to the plaintiff, we conclude that the record supports a reasonable inference that Esterra or their agents created the staircase.
The parties spend much of their respective briefs arguing whether Esterra had actual or constructive notice. As explained, Thomas provided evidence that she does not need to prove notice because the parties do not dispute that the stairs have not changed between the time Esterra opened the stairs and the day Thomas fell down them.
Negligence
Thomas alleges that the defendants were negligent in maintaining the staircase where she fell. Esterra disagrees, arguing that their employees testified that they inspected the stairs before her fall and never noticed any protruding screws. We hold there is a dispute of material fact as to how the property was maintained.
Our state Supreme Court adopted the Restatement (Second) of Torts § 343, which states,
[a] possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, [the possessor]
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
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(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
Tincani v. Inland Empire Zoological Soc’y, 124 Wn.2d 121, 138, 875 P.2d 621 (1994) (alterations in original) (citing Restatement (Second) of Torts § 343 (1965)). “Reasonable care requires the landowner to inspect for dangerous conditions, ‘followed by such repair, safeguards, or warning as may be reasonably necessary for [the invitee’s] protection under the circumstances.’” Id. at 139. (citing § 343, cmt. b).
Lawless concluded that “[t]he condition of integrating a nosing with a wood tread actually creates a new, in my opinion, unacceptable condition that requires a very high degree of maintenance and a high degree of inspection to ensure that that nosing-to- wood transition doesn’t create a blockage or a tripping hazard for someone who is using the stairs.” Stranne presented a contrasting opinion, stating that “the stairway was inspected frequently and no maintenance was ever required, therefore stairway maintenance was not the cause of the incident.” Again, when there is a “battle of the experts” as to a material issue, summary judgment is not proper.
Proximate Cause
Esterra alleges that Thomas’ proximate cause evidence is too speculative to defeat summary judgment. Esterra relies on Ramsey’s reporting that Thomas told her that her knees gave out when Ramsey asked her the day after the fall what had happened. Thomas points to medical records that document Thomas telling treatment providers hours after the fall that “she felt like her foot got stuck awkwardly on the stair and she fell forward.”
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Generally, negligence and proximate cause are not subject to summary adjudication, but we are not precluded from rendering judgment on these grounds. LaPlante v. State, 85 Wn.2d 154, 159, 531 P.2d 299 (1975). “Washington law recognizes two elements to proximate cause: Cause in fact and legal causation.” Hartley v. State, 103 Wn.2d 768, 777, 698 P.2d 77 (1985). 9 “Cause in fact refers to the ‘but for’ consequences of an act—the physical connection between an act and an injury.” Id. at 778. Legal causation “rests on policy considerations as to how far the consequences of defendant’s acts should extend.” Id. at 779. We can only resolve causation “when the causal connection is so speculative and indirect that reasonable minds could not differ.” Mehlert v. Baseball of Seattle, Inc., 1 Wn. App. 2d 115, 119, 404 P.3d 97 (2017). Proximate cause is a question of law subject to review when there are undisputed facts, and reasonable persons could only reach one conclusion. Mejia v. Erwin, 45 Wn. App. 700, 705, 726 P.2d 1032 (1986). It is well established that facts cannot rest in guess, speculation, or conjecture. Home Ins. Co. of N.Y. v. Northern Pac. Ry. Co., 18 Wn.2d 798, 802-03, 140 P.2d 507(1943).
Esterra argues that Thomas does not have evidence of cause in fact because she cannot point to the specific screw that caused her to fall. However, this court recognizes that “[t]here may be more than one proximate cause of an injury.” Mehlert, 1 Wn. App. 2d at 118. “Direct evidence or precise knowledge of how an accident occurred is not required; circumstantial evidence is sufficient.” Id.
9 A judge of this court has opined that cause in fact and legal causation are separate and distinct elements of a negligence claim rather than elements of proximate cause. Zorchenko v. City of Federal Way, 31 Wn. App. 2d 390, 401-04, 549 P.3d 743 (2024) (Feldman, J. concurring).
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In Mehlert, this court held that there was evidence of causation to defeat summary judgment after a plaintiff fell when leaving a store even though she did not know what caused her to fall because she had an expert testify that the absence of handrails on the staircase was a proximate cause of her injuries. Id. at 116. The plaintiff’s expert also opined that the plaintiff was “most likely” at the top of the stairs when she fell based on her stride length. Id. at 119. Moreover, her expert cited studies about stair width and indicated that a ramp in the middle of the stairs divided the stairs into an impermissibly narrow length that could potentially cause a fall. Id. at 119-20. The defendant’s argued that because the plaintiff could not remember where or why she fell, it cannot be assumed the ramp caused the fall. Id. at 120. The court disagreed, stating that the plaintiff’s testimony together with the rest of the evidence allows a reasonable juror to infer causation without speculation. Id. at 121.
Mehlert is analogous to the instant case. A plaintiff’s inability to remember, recount, or explain how an accident occurred does not mean that they are not entitled to recover if reliable evidence exists to meet the deficiency. See Behla, 11 Wn. App. 2d at 344. This reliable evidence could be either direct or circumstantial, such as eyewitness testimony, known physical facts, or expert reports. See id. at 337. Esterra claims that because Thomas cannot prove which specific screw, or which dangerous condition of the staircase caused her to fall, a jury could not find that protruding screws or another dangerous condition of the stairs caused her fall without guess or speculation. We agree that a jury cannot base their conclusions on guess, speculation, or conjecture, but they are entitled to draw reasonable inferences. Home Ins. Co. v. Northern Pac. R. Co., 18 Wn.2d 798, 802-03, 140 P.2d 507, 509 (1943).
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This is not to say that a plaintiff’s testimony categorically will defeat summary judgment even when they do not know the cause of their injuries. In prior cases, we have held that a plaintiff’s inability in their own testimony to make out a case defeated recovery when there was no independent evidence to supply the deficiencies in their testimony. See, e.g., Arntz v. City of Seattle, No. 77504-9-I, slip op. at 11 (Wash. Ct. App. Feb. 25, 2019) (unpublished), https://www.courts.wa.gov/opinions/pdf/775049.pdf (affirming summary judgment dismissal because plaintiff did not know how she fell and expert did not state that plaintiff’s proffered cause caused the fall); 10 Little v. Countrywood Homes, Inc., 132 Wn. App. 777, 781-82, 133 P.3d 944 (2006) (affirming summary judgment dismissal because plaintiff did not know how he was injured and expert did not opine that defendant’s negligence caused the accident); Wilson v. City of Seattle, 146 Wn. App. 737, 742, 194 P.3d 997 (2008) (affirming summary judgment dismissal because plaintiff admitted that the defendant’s manhole cover that she fell in appeared to be properly placed before the fall).
In the instant case, Lawless provided evidence of what he considered to be protruding screws, as well as issues with nosing-to-wood transition. He opined that both might cause one to trip. It is undisputed that Thomas fell while proceeding down the stairs, that she reported to emergency room doctors that before falling “she felt like her foot got stuck awkwardly on the stair,” and that the corner of the heel of her boot that she wore showed damage after the fall that did not exist before the fall.
In contrast, Stranne opined that there are no conditions on the stairs that would cause someone to trip. Ramsey also testified that when asked what she thought
We may cite or discuss unpublished opinions in our opinions if “necessary for a 10
reasoned decision.” GR 14.1(c).
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happened, Thomas “mentioned … that her knees gave out.” The parties have presented the existence of different possible causes of the fall and contrasting expert opinions. A jury having to make credibility findings and determine whether to accept or reject expert opinion does not turn this case into one that is built on mere conjecture, surmise, and speculation. This is a case where proximate cause should be left to the jury and not decided at summary judgment.
CONCLUSION
We reverse.
WE CONCUR: