Maxene Blood v. Willow-wist Farm, Inc.

• Court: Court of Appeals of Washington
• Decided: November 16, 2020
• Docket: 81848-1
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

MAXINE BLOOD, a married woman, ) No. 81848-1-I ) Appellant, ) DIVISION ONE ) v. ) UNPUBLISHED OPINION ) WILLOW-WIST FARM, INC., a ) Washington corporation; VIKING ) FEAST ICE CREAM, a Washington ) business; and “JANE DOE,” an ) individual, ) ) Respondent. ) )

HAZELRIGG, J. — Maxine Blood was seriously injured while visiting Willow-

Wist Farm when an employee of a vendor at the farm turned quickly and collided

with her, causing her to fall. She filed a lawsuit alleging negligence against Willow-

Wist, the ice cream vendor and the employee who knocked her down. The trial

court granted summary judgment for Willow-Wist, finding no genuine issue of

material fact that any crowding in the farm store had a causal connection to the

vendor’s employee colliding with Blood, and dismissed Willow-Wist from the suit.

Blood later obtained a judgment against the ice cream vendor. Blood now appeals,

alleging that Willow-Wist’s summary judgment dismissal and the subsequent

denial of her motion for reconsideration of that ruling were improper. We disagree

and affirm. No. 81848-1-I/2

FACTS

Willow-Wist Farm, a dairy farm in Sequim, participated in the Clallam

County Farm Tour on October 4, 2014. Viking Feast Ice Cream was a local vendor

selling their ice cream products at Willow-Wist Farm that day. Viking Feast is a

sole proprietorship owned and operated by Thormod Skald. Skald makes his ice

cream with Willow-Wist milk, but is not a wholesale buyer; he orders milk on an as-

needed basis. The day of the incident, Skald had employed a friend, Amber

Golding, to help with ice cream sales at the Farm Tour event.

At some point on the afternoon in question, Viking Feast ran out of ice cream

and arranged to purchase pints from the Willow-Wist farm store to sell at their

stand. Skald sent Golding into the farm store, which was on site, to get more pints

of ice cream. Blood arrived at Willow-Wist and went into the farm store to obtain

a half-pint of milk for her grandson. According to Blood, Golding rushed into the

farm store and “hurriedly” grabbed some pints of ice cream from the freezer.

Golding then abruptly turned around and collided with Blood, knocking Blood to

the ground. Another patron in the store provided testimony that Golding was “in a

hurry” and “not really paying attention” when she knocked Blood over. No one

testified that anyone else knocked into Golding or Blood to cause the accident.

Blood broke her right femur, which required surgery the next day, a two-

month hospitalization in an in-patient rehabilitation center, and other follow up

treatment. In March of 2016, Blood filed her complaint against Willow-Wist, Viking

Feast, and Golding. Blood alleged that overcrowding in the farm store posed a

foreseeable danger to its business invitees and that Willow-Wist failed to maintain

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the premises in a safe condition and exercise reasonable case under the

circumstances. On August 1, 2016, Willow-Wist filed a motion for summary

judgment arguing various theories under which the trial court could dismiss them

from the suit. Blood opposed the motion and provided the court with evidence that

she argued created sufficient questions of material fact sufficient to overcome the

motion for summary judgment. One exhibit was a declaration by Joellen Gill, a

Human Factors expert qualified to testify regarding workplace safety standards.

The trial court granted Willow-Wist’s motion for summary judgment and

Blood filed a motion for reconsideration. The court requested a written response

from Willow-Wist. The court eventually denied the motion and issued a

memorandum opinion explaining the basis for the denial. After the claim against

Willow-Wist was dismissed, Blood secured a judgment against Viking Feast for

$628,523.64 in October 2019. Blood then filed this appeal.

ANALYSIS

Blood first assigns error to the trial court’s grant of Willow-Wist’s motion for

summary judgment. This court reviews a grant of summary judgment de novo.

Mohandessi v. Urban Venture LLC, 13 Wn. App. 2d 681, 692, 468 P.3d 622 (2020).

Summary judgment is properly granted when 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.”

CR56(c). “A material fact is one that affects the outcome of the litigation.” Owen

v. Burlington Ne. and Santa Fe R.R. Co., 153 Wn.2d 780, 789, 108 P.3d 1220

(2005). “In ruling on a motion for summary judgment, the court must consider the

material evidence and all reasonable inferences therefrom most favorably for the

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nonmoving party.” Jacobsen v. State, 89 Wn.2d 104, 108, 569 P.2d 1152 (1977).

To establish negligence a plaintiff must prove, “‘(1) the existence of a duty owed

to the complaining party; (2) a breach of that duty; (3) a resulting injury; and (4)

that the claimed breach was a proximate cause of the injury.’” Milson v. City of

Lynden, 174 Wn. App. 303, 309, 298 P.3d 141 (2013) (quoting Hansen v. Friend,

118 Wn.2d 476, 479, 824 P.2d 483 (1992)). “The granting of summary judgment

is proper if the non-moving party, after the motion is made, fails to establish any

facts which would support an essential element of its claim.” Weatherbee v.

Gustafson, 64 Wn. App. 128, 131, 822 P.2d 1257 (1992). In our review, we place

ourselves “in the position of the trial court and consider the facts in a light most

favorable to the nonmoving party.” Young v. Key Pharm., Inc., 112 Wn.2d 216,

226, 770 P.2d 182 (1989).

Blood contends that there was a dispute as to how crowded the farm store

was at the time of her injury such that it created an issue of material fact. It is clear,

however, that the court provided this inference in Blood’s favor when it ruled

“[u]nder this standard, the ‘store’ was crowded.” But we agree with the trial court’s

determination that the proper focus for the inquiry is “the specific area in the store

where the incident occurred.” This fundamental question highlights Blood’s

inability to establish proximate cause for her negligence claim as it relates to

Willow-Wist.

“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). Cause in fact is the “but for” consequences of an act—the physical

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relationship between an act and an injury. Id. at 778. Normally, cause in fact is a

question for the finder of fact. Moore v. Hagge, 158 Wn. App. 137, 148, 241 P.3d

787 (2010). “But the court may decide this question as a matter of law if ‘the causal

connection is so speculative and indirect that reasonable minds could not differ.’”

Id. (quoting Doherty v. Mun. of Metro. Seattle, 83 Wn. App. 464, 469, 921 P.2d

1098 (1996)). “Legal cause depends upon whether a defendant’s conduct should

warrant legal liability as a matter of social policy and common sense.” Doherty, 83

Wn. App. at 469. “The question of legal causation is so intertwined with the

question of duty that the former can be answered by addressing the latter.”

Taggart v. State, 118 Wn.2d 195, 226, 822 P.2d 243 (1992).

The evidence presented demonstrates that crowding of the farm store as a

whole was not a cause of Blood’s injury. Blood herself provided deposition

testimony that indicated crowding was not an issue in front of the milk case where

her injury occurred and that there was sufficient space for Golding to avoid contact

with her. Though there was evidence that the store was generally crowded, the

evidence as to the specific area where the accident occurred provided that Golding

had sufficient space to walk to the freezer as well as open and close the freezer

door. Blood argues to this court that the trial court improperly placed great weight

on Golding’s testimony that she was able to walk to the freezer. This argument

fails to recognize the need for Blood to establish that if overcrowding was a breach

of a duty owed to her, it still needed to play a role in her injury. There was no

evidence to this effect. In fact, Blood testified that she and Golding were not

crowding one another and that she had provided Golding sufficient space such

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that if Golding had been paying attention, she could have avoided injuring Blood.

Other witnesses corroborated this portion of Blood’s testimony. The consistency

of these statements on this point directly undercuts Blood’s assertion that crowding

was the cause of her injury. Blood failed to present evidence to refute this lack of

causation.

Blood argues that her expert’s report established a genuine issue of

material fact as to whether crowding played a role in her injury. Blood’s Human

Factors expert, Gill, provided in the abstract that; “crowded conditions can increase

the potential for contact between patrons.” But Gill also stated in the report that

she cannot resolve factual disputes and that her opinion 3 “applies only if the store

was overcrowded.” Opinion 3 states “[t]he conditions of the inside of the farm

store, if indeed it was overcrowded, were a contributing cause to this incident.”

But, “[i]n order to preclude summary judgment, an expert’s affidavit must include

more than mere speculation or conclusory statements.” Cho v. City of Seattle, 185

Wn. App. 10, 20, 341 P.3d 309 (2014). It is worth noting that Gill’s identification of

what she considered to be factual disputes has no bearing on the court’s review

under the summary judgment standard and its ultimate ruling as to whether there

exists a genuine issue of material fact. Orion Corp. v. State, 103 Wn.2d 441, 461-

62, 693 P.2d 1369 (1985).

In Cho v. City of Seattle, this court rejected an expert’s declaration that a

red light or other traffic infrastructure would have prevented a collision with the

plaintiff by a drunk driver who was inattentive at the time of the crash. Id. at 20-

21. The drunk driver admitted they had not been looking at the road when the

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collision occurred. Id. at 18-19. This court rejected that the expert’s “conclusory

allegations, unsupported by any supporting facts” were sufficient to establish the

inference that the driver who was not looking at the time would have stopped and

avoided the collision. Id. Nor, did the court accept the speculation of how the

plaintiff would have reacted had the infrastructure been different. Id.

Here, like in Cho, the expert’s declaration which states “crowded conditions

can increase the potential for contact” did not create a genuine issue of material

fact, but rather simply stated what many would consider common knowledge.

Further, the expert’s declaration provided, “[t]o the extent the store was

overcrowded at the time of this incident, this would be a contributing cause to Ms.

Blood’s injury incident.” This statement by Gill is unsupported by the testimony on

which she based her opinion and, as such, is mere conclusory speculation without

supporting evidence. Blood’s argument that Gill’s declaration was sufficient to

create a dispute of material fact is wholly unsupported by the record.

The undisputed evidence submitted to the trial court, and now this court,

shows that there was sufficient space in the vicinity of the freezer and that crowding

was not a proximate cause of Blood’s injury. In light of our conclusion, there is no

reason to wade into Blood’s related assertion that negligent overcrowding is a

viable theory for a tort claim in Washington; this case is not about overcrowding

and there is no evidence to establish that overcrowding played a role in Blood’s

injury.

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The trial court’s grant of Willow-Wist’s motion for summary judgment

dismissal was proper. Since we affirm that ruling, we need not reach the court’s

denial of Blood’s motion for reconsideration.

Affirmed.

WE CONCUR:

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