IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JISOO YAMADA, an individual, No. 83049-0-I Appellant, DIVISION ONE v. UNPUBLISHED OPINION EARL’S RESTAURANT (BELLEVUE), INC., a Washington corporation; and EARL’S RESTAURANTS USA, INC., a foreign corporation doing business in Washington; KEMPER DEVELOPMENT COMPANY, a Washington corporation; and ABC CORPORATIONS 1-5,
Respondents.
BIRK, J. — Jisoo Yamada brought a slip-and-fall claim against Earl’s
Restaurant (Bellevue) Inc. (Earl’s Restaurant) and other defendants, asserting she
slipped on water on the restaurant floor and was injured. One issue is dispositive.
Even accepting Yamada’s evidence that some level of water was present on the
floor at the time of her fall, there is no evidence from which it can be inferred that
an unsafe condition existed. As a result, the trial court correctly granted summary
judgment to the defendants. We affirm. No. 83049-0-I/2
I
On September 2, 2017, Yamada celebrated her birthday with friends.
Yamada and her friends went to Earl’s Restaurant. Earl’s Restaurant was busy
and crowded that night.
After being seated and ordering, Yamada and her friend, Leslie Buckner,
went to the bathroom to wash their hands. Yamada’s dining table was located on
carpeted flooring that transitioned into tile flooring closer to the hallway that led to
the bathrooms. After the floor transitioned from carpet to tile, Yamada fell
backwards on her left elbow and buttock. Buckner was walking behind Yamada
and observed that Yamada’s fall did not result from her losing her footing or twisting
an ankle. Buckner helped Yamada to the bathroom while Yamada held her arm
to her chest.
At some point before entering the bathroom, Buckner observed wet
blotches or spots all along Yamada’s left backside and told Yamada about them.
Buckner tried to brush off the wet area on Yamada’s clothing to see the nature of
the substance, and found it to be simply a “wet liquid.” The liquid dried without
staining Yamada’s clothing.
Yamada felt nauseous immediately after entering the bathroom and
believed she might vomit. An Earl’s Restaurant waitress noticed Yamada had
fallen, and followed her into the rest room. She offered Yamada water and pain
medication, which Yamada declined. Yamada remained in the bathroom for at
least 10 minutes then rejoined her friends at their table by taking the same route
back to her table from the bathroom.
2 No. 83049-0-I/3
Neither Yamada nor Buckner looked around the area of Yamada’s fall to
see what might have caused it. No other witness indicated that Yamada slipped
on water. Whatever liquid had been present on the floor, Yamada pointed to no
means of determining how long it had been present. At no time did Yamada see
a restaurant employee spill anything on that area of the floor before her fall or clean
up that area after her fall.
On August 11, 2020, Yamada filed suit against Earl’s Restaurant and
Kemper Development Company alleging negligence under a theory of premises
liability. In her deposition taken on March 31, 2021, Yamada testified in regard to
the presence of water. She stated, “[T]here was like a little darker spot kind of
towards my left side of my, like, buttocks. . . . [My romper] wasn’t completely wet.”
When asked, “[W]hen did your friend first notice that you had some staining on
your romper?” She said, “As soon as we were . . . walking into the bathroom
because I think I was probably . . . ahead of her a little bit.”
The defendants filed a motion for summary judgment on July 2, 2020. On
July 19, 2021, in response to the motion for summary judgment, Yamada filed a
declaration testifying, “When [Buckner] helped me up, she immediately said that
my romper was wet because there were large, wet blotches, splotches, smudges,
or spots all along my left backside.” Additionally, Yamada submitted a declaration
by Buckner, in which Buckner testified she noticed Yamada’s clothing was wet
shortly after the fall. Yamada did not contest the summary judgment motion as to
defendants other than Earl’s Restaurant.
3 No. 83049-0-I/4
The trial court granted summary judgment to the defendants. Yamada
appeals.
II
A party seeking summary judgment bears the initial burden to show the
absence of a genuine issue of material fact. Young v. Key Pharms., Inc., 112
Wn.2d 216, 225, 770 P.2d 182 (1989). This burden may be met by showing an
absence of evidence to support the nonmoving party’s burden of proof at trial. Id.
Then, the burden shifts to the nonmoving party to show the existence of a genuine
issue of material fact. Id. We review an order granting summary judgment de
novo. Id. at 226. We view the evidence in the light most favorable to the
nonmoving party. Id.
Initially, the parties dispute whether Yamada’s evidence is sufficient to
support an inference that water was present on the floor at the time of her fall.
Citing Marshall v. AC&S, Inc., 56 Wn. App. 181, 185, 782 P.2d 1107 (1989), Earl’s
Restaurant asks that we disregard Yamada’s declaration. It argues the statements
contradict Yamada’s earlier deposition testimony. However, we need not decide
this issue because even considering the declaration, Earl’s Restaurant is entitled
to summary judgment.
A party asserting negligence must establish duty, breach of that duty,
causation, and damage. Hansen v. Friend, 118 Wn.2d 476, 479, 824 P.2d 483
(1992). In a premises liability action, a land possessor’s duty of care is governed
by the entrant’s status as an invitee, licensee, or trespasser. Tincani v. Inland
Empire Zoological Soc’y, 124 Wn.2d 121, 128, 875 P.2d 621 (1994). It is
4 No. 83049-0-I/5
undisputed that at the time of her injury Yamada was a business invitee of Earl’s
Restaurant to whom Earl’s Restaurant owed a duty of care.
The parties devote much of their briefing to whether the nature of Earl’s
Restaurant’s business and its methods of operation are such that the existence of
an unsafe condition on the premises is reasonably foreseeable, or alternately,
whether Earl’s Restaurant had actual or constructive notice of an unsafe condition.
Johnson v. Liquor & Cannabis Bd., 197 Wn.2d 605, 622, 486 P.3d 125 (2021);
Pimentel v. Roundup Co., 100 Wn.2d 39, 49-50, 666 P.2d 888 (1983).
Separately from establishing notice or an exception to the notice
requirement, however, Yamada must establish the existence of an unsafe
condition. Watters v. Aberdeen Recreation, Inc., 75 Wn. App. 710, 714, 879 P.2d
337 (1994). Under Washington case law, the mere presence of some level of
water on a floor and the fact of a slip are insufficient on their own to establish the
existence of an unsafe condition. Brant v. Market Basket Stores, Inc., 72 Wn.2d
446, 448, 433 P.2d 863 (1967); Merrick v. Sears, Roebuck & Co., 67 Wn.2d 426,
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JISOO YAMADA, an individual, No. 83049-0-I Appellant, DIVISION ONE v. UNPUBLISHED OPINION EARL’S RESTAURANT (BELLEVUE), INC., a Washington corporation; and EARL’S RESTAURANTS USA, INC., a foreign corporation doing business in Washington; KEMPER DEVELOPMENT COMPANY, a Washington corporation; and ABC CORPORATIONS 1-5,
Respondents.
BIRK, J. — Jisoo Yamada brought a slip-and-fall claim against Earl’s
Restaurant (Bellevue) Inc. (Earl’s Restaurant) and other defendants, asserting she
slipped on water on the restaurant floor and was injured. One issue is dispositive.
Even accepting Yamada’s evidence that some level of water was present on the
floor at the time of her fall, there is no evidence from which it can be inferred that
an unsafe condition existed. As a result, the trial court correctly granted summary
judgment to the defendants. We affirm. No. 83049-0-I/2
I
On September 2, 2017, Yamada celebrated her birthday with friends.
Yamada and her friends went to Earl’s Restaurant. Earl’s Restaurant was busy
and crowded that night.
After being seated and ordering, Yamada and her friend, Leslie Buckner,
went to the bathroom to wash their hands. Yamada’s dining table was located on
carpeted flooring that transitioned into tile flooring closer to the hallway that led to
the bathrooms. After the floor transitioned from carpet to tile, Yamada fell
backwards on her left elbow and buttock. Buckner was walking behind Yamada
and observed that Yamada’s fall did not result from her losing her footing or twisting
an ankle. Buckner helped Yamada to the bathroom while Yamada held her arm
to her chest.
At some point before entering the bathroom, Buckner observed wet
blotches or spots all along Yamada’s left backside and told Yamada about them.
Buckner tried to brush off the wet area on Yamada’s clothing to see the nature of
the substance, and found it to be simply a “wet liquid.” The liquid dried without
staining Yamada’s clothing.
Yamada felt nauseous immediately after entering the bathroom and
believed she might vomit. An Earl’s Restaurant waitress noticed Yamada had
fallen, and followed her into the rest room. She offered Yamada water and pain
medication, which Yamada declined. Yamada remained in the bathroom for at
least 10 minutes then rejoined her friends at their table by taking the same route
back to her table from the bathroom.
2 No. 83049-0-I/3
Neither Yamada nor Buckner looked around the area of Yamada’s fall to
see what might have caused it. No other witness indicated that Yamada slipped
on water. Whatever liquid had been present on the floor, Yamada pointed to no
means of determining how long it had been present. At no time did Yamada see
a restaurant employee spill anything on that area of the floor before her fall or clean
up that area after her fall.
On August 11, 2020, Yamada filed suit against Earl’s Restaurant and
Kemper Development Company alleging negligence under a theory of premises
liability. In her deposition taken on March 31, 2021, Yamada testified in regard to
the presence of water. She stated, “[T]here was like a little darker spot kind of
towards my left side of my, like, buttocks. . . . [My romper] wasn’t completely wet.”
When asked, “[W]hen did your friend first notice that you had some staining on
your romper?” She said, “As soon as we were . . . walking into the bathroom
because I think I was probably . . . ahead of her a little bit.”
The defendants filed a motion for summary judgment on July 2, 2020. On
July 19, 2021, in response to the motion for summary judgment, Yamada filed a
declaration testifying, “When [Buckner] helped me up, she immediately said that
my romper was wet because there were large, wet blotches, splotches, smudges,
or spots all along my left backside.” Additionally, Yamada submitted a declaration
by Buckner, in which Buckner testified she noticed Yamada’s clothing was wet
shortly after the fall. Yamada did not contest the summary judgment motion as to
defendants other than Earl’s Restaurant.
3 No. 83049-0-I/4
The trial court granted summary judgment to the defendants. Yamada
appeals.
II
A party seeking summary judgment bears the initial burden to show the
absence of a genuine issue of material fact. Young v. Key Pharms., Inc., 112
Wn.2d 216, 225, 770 P.2d 182 (1989). This burden may be met by showing an
absence of evidence to support the nonmoving party’s burden of proof at trial. Id.
Then, the burden shifts to the nonmoving party to show the existence of a genuine
issue of material fact. Id. We review an order granting summary judgment de
novo. Id. at 226. We view the evidence in the light most favorable to the
nonmoving party. Id.
Initially, the parties dispute whether Yamada’s evidence is sufficient to
support an inference that water was present on the floor at the time of her fall.
Citing Marshall v. AC&S, Inc., 56 Wn. App. 181, 185, 782 P.2d 1107 (1989), Earl’s
Restaurant asks that we disregard Yamada’s declaration. It argues the statements
contradict Yamada’s earlier deposition testimony. However, we need not decide
this issue because even considering the declaration, Earl’s Restaurant is entitled
to summary judgment.
A party asserting negligence must establish duty, breach of that duty,
causation, and damage. Hansen v. Friend, 118 Wn.2d 476, 479, 824 P.2d 483
(1992). In a premises liability action, a land possessor’s duty of care is governed
by the entrant’s status as an invitee, licensee, or trespasser. Tincani v. Inland
Empire Zoological Soc’y, 124 Wn.2d 121, 128, 875 P.2d 621 (1994). It is
4 No. 83049-0-I/5
undisputed that at the time of her injury Yamada was a business invitee of Earl’s
Restaurant to whom Earl’s Restaurant owed a duty of care.
The parties devote much of their briefing to whether the nature of Earl’s
Restaurant’s business and its methods of operation are such that the existence of
an unsafe condition on the premises is reasonably foreseeable, or alternately,
whether Earl’s Restaurant had actual or constructive notice of an unsafe condition.
Johnson v. Liquor & Cannabis Bd., 197 Wn.2d 605, 622, 486 P.3d 125 (2021);
Pimentel v. Roundup Co., 100 Wn.2d 39, 49-50, 666 P.2d 888 (1983).
Separately from establishing notice or an exception to the notice
requirement, however, Yamada must establish the existence of an unsafe
condition. Watters v. Aberdeen Recreation, Inc., 75 Wn. App. 710, 714, 879 P.2d
337 (1994). Under Washington case law, the mere presence of some level of
water on a floor and the fact of a slip are insufficient on their own to establish the
existence of an unsafe condition. Brant v. Market Basket Stores, Inc., 72 Wn.2d
446, 448, 433 P.2d 863 (1967); Merrick v. Sears, Roebuck & Co., 67 Wn.2d 426,
429-30, 407 P.2d 960 (1965). Rather, a plaintiff must further produce evidence
“that water would render such a floor, as then and there existed, slippery or
dangerous.” Brant, 72 Wn.2d at 448.
In Merrick, the plaintiff worked at Sears and used a rest room maintained
by the store. 67 Wn.2d at 426-27. In the washroom section of the women’s rest
room were five toilets in stalls alongside one wall and the opposite wall contained
five sinks, each with a liquid soap dispenser. Id. at 427. The washroom floor,
composed of small rectangular ceramic tiles, had a drain near the center of the
5 No. 83049-0-I/6
area. Id. While at work one morning, Merrick washed her hands with liquid soap,
dried them at a towel rack, and in turning to leave, slipped and fell backwards,
hitting her head. Id. While standing back up, Merrick felt water on the floor with
her hand. Id. A few hours later, another Sears employee observed not a puddle
but a few drops of water on the floor and that the floor lacked the brightness or
depth of color as though mopped and rinsed with dirty water. Id. at 427-28. Merrick
held, “[N]o inference of negligence can be drawn either from the existence of a few
drops of water on the rest room floor as described by one witness or that the floor
felt wet to Mrs. Merrick’s hand.” Id. at 429.
In Brant, the plaintiff entered the defendant’s store on a snowy afternoon.
72 Wn.2d at 447. Brant slipped and fell within 8 to 12 feet of the entrance to the
store, and there was evidence that near where the fall occurred, there was tracked-
in water on the floor. Id. Brant’s brother testified that her clothing was damp, and
her husband testified that Brant’s coat was soaking wet. Id. However, there was
no testimony as to the character of the floor, i.e., whether it was made of wood,
concrete, asphalt, tile or some other material. Id. at 448. There was also no
testimony that the water rendered such a floor, as then and there existed, slippery
or dangerous. Id. Finally, there was no testimony that Brant slipped on anything
more than a wet floor, as opposed to debris or other foreign articles. Id. The court
affirmed dismissal of Brant’s claims. Id. at 452.
Although there is evidence Yamada slipped on a tile floor, there is
nevertheless no evidence of the amount of water present, the type of tile, nor the
effect of water in a given amount on the safety of the particular floor on which
6 No. 83049-0-I/7
Yamada slipped. As a result, Yamada lacks evidence “that water would render
such a floor, as then and there existed, slippery or dangerous.” Brant, 72 Wn.2d
at 448. In the absence of evidence that an unsafe condition existed, Yamada’s
evidence was insufficient to sustain her burden of proof and the trial court correctly
granted summary judgment to defendants.
We need not reach any other issues.
Affirmed.
WE CONCUR: