FILED DECEMBER 8, 2016 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
MICA CRAIG, ) No. 33985-8-III ) Appellant, ) ) V. ) UNPUBLISHED OPINION ) WAL-MART STORES, INC., ) ) Respondent. )
LAWRENCE-BERREY, J. -A rattlesnake bit Mica Craig while he was shopping at
Walmart's outdoor garden center in Clarkston, Washington. Mr. Craig sued Wal-Mart
Stores, Inc., doing business as Walmart, on a theory of premises liability. Walmart
successfully moved for summary judgment. Mr. Craig appeals.
Walmart argues it lacked actual or constructive notice of any rattlesnake incident
on its premises. Mr. Craig responds that rattlesnakes are well known to live in the
undeveloped lots adjacent to the outdoor garden center, and Walmart's decision to
operate an outdoor garden center in such an area created the risk that a rattlesnake might
enter the garden area and bite a customer. Mr. Craig argues that by creating such a risk, No. 33985-8-111 Craig v. Wal-Mart Stores, Inc.
Walmart owes him a duty of reasonable care to prevent his injury. We agree and,
therefore, reverse the trial court.
FACTS
A. OVERVIEW OF INJURY
In May 2012, Mr. Craig entered the garden center of Walmart to purchase a bag of
mulch. The garden center was an outdoor open air section of the store located in the
parking lot. Other customers were also shopping in the outdoor garden center at the time.
Mr. Craig saw bags of mulch stored on wooden pallets. He bent down near the bags to
brush aside what he thought was a stick obscuring a price tag. The "stick" turned out to
be a rattlesnake, and it bit his hand. Mr. Craig immediately went to a medical clinic, and
eventually went to a hospital where he received appropriate care and treatment.
B. PROCEDURE BELOW
Mr. Craig brought suit against Walmart. He alleged premises liability, among
other causes of action. After brief discovery, Walmart moved for summary judgment
dismissal of Mr. Craig's premises liability claim.
Walmart asserted it lacked actual or constructive notice of any rattlesnake danger.
Specifically, it asserted its Clarkston store had been in operation since September 2009,
that over four million customers had visited the store prior to May 2012, and that there
had never been a "reported incident involving a snake." Clerk's Papers (CP) at 34.
Walmart also described various efforts it used to decrease the risk of dangerous incidents,
2 No. 33985-8-III Craig v. Wal-Mart Stores, Inc.
such as routinely sweeping and checking the garden center area and hiring a company to
provide monthly pest control.
In response, Mr. Craig submitted declarations, including one from a middle-aged
man who had lived in Clarkston his entire life, and another from a snake expert. The
layperson asserted, "it is common knowledge that rattlesnakes are prevalent in areas
around the levies of [Clarkston], including in the immediate vicinity of the Clarkston,
WA Walmart." CP at 217. The expert asserted that there were undeveloped lots
immediately adjacent to Walmart's outside garden center, and that rattlesnakes could live
in those lots and the general area. He also posited various steps that Walmart could have
taken, but did not, which would have reduced the risk of a rattlesnake getting into the
outdoor garden center area.
Mr. Craig argued that the Pimentel' self-service exception applied. He argued that
Walmart's outdoor garden center used a self-service method of operation, and that
Walmart's choice to use such a method of operation in rattlesnake country created the
unsafe condition.
The trial court granted Walmart's summary judgment motion. In dismissing Mr.
Craig's premises liability claim, the trial court concluded:
1 Pimentel v. Roundup Co., 100 Wn.2d 39, 666 P.2d 888 (1983).
3 No. 33985-8-III Craig v. Wal-Mart Stores, Inc.
[T]o invoke the Pimentel exception, a plaintiff must present some evidence that the unsafe condition in the particular location of the accident was reasonably foreseeable. There is simply no evidence whatsoever of any snake activity of any kind anywhere on the premises of this particular Walmart store and a complete lack of evidence that Walmarts [sic] mode of business operations would somehow encourage or promote invitees to encounter and interact with [a rattlesnake].
CP at 279 (emphasis added) (citation omitted). 2
Mr. Craig appeals.
ANALYSIS
A. SUMMARYJUDGMENTSTANDARD
"' Summary judgment is properly granted when the pleadings, affidavits,
depositions, and admissions on file demonstrate there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law.'" Berger v. Sonne land,
144 Wn.2d 91, 102, 26 P.3d 257 (2001) (quoting Folsom v. Burger King, 135 Wn.2d 658,
663,958 P.2d 301 (1998)). "The moving party bears the burden of demonstrating there is
no genuine dispute as to any material fact." Id. "The appellate court engages in the same
inquiry as the trial court when reviewing an order for summary judgment." Id. "All facts
and reasonable inferences are considered in a light most favorable to the nonmoving
party." Id. at 102-03. "All questions of law are reviewed de novo." Id. at 103.
2 Although Mr. Craig asserted causes of action other than premises liability, the parties treated the summary judgment order as a final order dispositive of all claims.
4 No. 33985-8-III Craig v. Wal-Mart Stores, Inc.
B. PREMISES LIABILITY AND THE PIMENTEL EXCEPTION TO NOTICE
In premises liability actions, a person's status as an invitee, licensee, or trespasser
determines the scope of the duty of care owed by the possessor of that property. Tincani
v. Inland Empire Zoological Soc'y, 124 Wn.2d 121, 128, 875 P.2d 621 (1994). Walmart
does not dispute that Mr. Craig was a business invitee.
A business invitee must usually show that the owner of the premises had actual or
constructive notice of the hazardous condition for liability to attach. Tavai v. Walmart
Stores, Inc., 176 Wn. App. 122, 128, 307 P.3d 811 (2013). But such notice need not be
shown if the nature of the proprietor's business and his methods of operation are such
that the existence of unsafe conditions on the premises is reasonably foreseeable. Id.
This is known as the Pimentel exception. Id.
The Pimentel exception is a limited rule for self-service operations. A self-service
operation is one where goods are stocked and customers serve themselves by handling
the goods. O'Donnell v. Zupan Enter., Inc., 107 Wn. App. 854, 859, 28 P.3d 799 (2001).
The exception applies if (I) the area where the injury occurred was self-service, (2) the
hazardous condition that caused the injury was within the self-service area, and (3) the
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FILED DECEMBER 8, 2016 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
MICA CRAIG, ) No. 33985-8-III ) Appellant, ) ) V. ) UNPUBLISHED OPINION ) WAL-MART STORES, INC., ) ) Respondent. )
LAWRENCE-BERREY, J. -A rattlesnake bit Mica Craig while he was shopping at
Walmart's outdoor garden center in Clarkston, Washington. Mr. Craig sued Wal-Mart
Stores, Inc., doing business as Walmart, on a theory of premises liability. Walmart
successfully moved for summary judgment. Mr. Craig appeals.
Walmart argues it lacked actual or constructive notice of any rattlesnake incident
on its premises. Mr. Craig responds that rattlesnakes are well known to live in the
undeveloped lots adjacent to the outdoor garden center, and Walmart's decision to
operate an outdoor garden center in such an area created the risk that a rattlesnake might
enter the garden area and bite a customer. Mr. Craig argues that by creating such a risk, No. 33985-8-111 Craig v. Wal-Mart Stores, Inc.
Walmart owes him a duty of reasonable care to prevent his injury. We agree and,
therefore, reverse the trial court.
FACTS
A. OVERVIEW OF INJURY
In May 2012, Mr. Craig entered the garden center of Walmart to purchase a bag of
mulch. The garden center was an outdoor open air section of the store located in the
parking lot. Other customers were also shopping in the outdoor garden center at the time.
Mr. Craig saw bags of mulch stored on wooden pallets. He bent down near the bags to
brush aside what he thought was a stick obscuring a price tag. The "stick" turned out to
be a rattlesnake, and it bit his hand. Mr. Craig immediately went to a medical clinic, and
eventually went to a hospital where he received appropriate care and treatment.
B. PROCEDURE BELOW
Mr. Craig brought suit against Walmart. He alleged premises liability, among
other causes of action. After brief discovery, Walmart moved for summary judgment
dismissal of Mr. Craig's premises liability claim.
Walmart asserted it lacked actual or constructive notice of any rattlesnake danger.
Specifically, it asserted its Clarkston store had been in operation since September 2009,
that over four million customers had visited the store prior to May 2012, and that there
had never been a "reported incident involving a snake." Clerk's Papers (CP) at 34.
Walmart also described various efforts it used to decrease the risk of dangerous incidents,
2 No. 33985-8-III Craig v. Wal-Mart Stores, Inc.
such as routinely sweeping and checking the garden center area and hiring a company to
provide monthly pest control.
In response, Mr. Craig submitted declarations, including one from a middle-aged
man who had lived in Clarkston his entire life, and another from a snake expert. The
layperson asserted, "it is common knowledge that rattlesnakes are prevalent in areas
around the levies of [Clarkston], including in the immediate vicinity of the Clarkston,
WA Walmart." CP at 217. The expert asserted that there were undeveloped lots
immediately adjacent to Walmart's outside garden center, and that rattlesnakes could live
in those lots and the general area. He also posited various steps that Walmart could have
taken, but did not, which would have reduced the risk of a rattlesnake getting into the
outdoor garden center area.
Mr. Craig argued that the Pimentel' self-service exception applied. He argued that
Walmart's outdoor garden center used a self-service method of operation, and that
Walmart's choice to use such a method of operation in rattlesnake country created the
unsafe condition.
The trial court granted Walmart's summary judgment motion. In dismissing Mr.
Craig's premises liability claim, the trial court concluded:
1 Pimentel v. Roundup Co., 100 Wn.2d 39, 666 P.2d 888 (1983).
3 No. 33985-8-III Craig v. Wal-Mart Stores, Inc.
[T]o invoke the Pimentel exception, a plaintiff must present some evidence that the unsafe condition in the particular location of the accident was reasonably foreseeable. There is simply no evidence whatsoever of any snake activity of any kind anywhere on the premises of this particular Walmart store and a complete lack of evidence that Walmarts [sic] mode of business operations would somehow encourage or promote invitees to encounter and interact with [a rattlesnake].
CP at 279 (emphasis added) (citation omitted). 2
Mr. Craig appeals.
ANALYSIS
A. SUMMARYJUDGMENTSTANDARD
"' Summary judgment is properly granted when the pleadings, affidavits,
depositions, and admissions on file demonstrate there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law.'" Berger v. Sonne land,
144 Wn.2d 91, 102, 26 P.3d 257 (2001) (quoting Folsom v. Burger King, 135 Wn.2d 658,
663,958 P.2d 301 (1998)). "The moving party bears the burden of demonstrating there is
no genuine dispute as to any material fact." Id. "The appellate court engages in the same
inquiry as the trial court when reviewing an order for summary judgment." Id. "All facts
and reasonable inferences are considered in a light most favorable to the nonmoving
party." Id. at 102-03. "All questions of law are reviewed de novo." Id. at 103.
2 Although Mr. Craig asserted causes of action other than premises liability, the parties treated the summary judgment order as a final order dispositive of all claims.
4 No. 33985-8-III Craig v. Wal-Mart Stores, Inc.
B. PREMISES LIABILITY AND THE PIMENTEL EXCEPTION TO NOTICE
In premises liability actions, a person's status as an invitee, licensee, or trespasser
determines the scope of the duty of care owed by the possessor of that property. Tincani
v. Inland Empire Zoological Soc'y, 124 Wn.2d 121, 128, 875 P.2d 621 (1994). Walmart
does not dispute that Mr. Craig was a business invitee.
A business invitee must usually show that the owner of the premises had actual or
constructive notice of the hazardous condition for liability to attach. Tavai v. Walmart
Stores, Inc., 176 Wn. App. 122, 128, 307 P.3d 811 (2013). But such notice need not be
shown if the nature of the proprietor's business and his methods of operation are such
that the existence of unsafe conditions on the premises is reasonably foreseeable. Id.
This is known as the Pimentel exception. Id.
The Pimentel exception is a limited rule for self-service operations. A self-service
operation is one where goods are stocked and customers serve themselves by handling
the goods. O'Donnell v. Zupan Enter., Inc., 107 Wn. App. 854, 859, 28 P.3d 799 (2001).
The exception applies if (I) the area where the injury occurred was self-service, (2) the
hazardous condition that caused the injury was within the self-service area, and (3) the
mode of operation inherently created a reasonably foreseeable hazardous condition. Id.
Walmart first argues that the Pimentel exception does not apply because the
outdoor garden center was not a self-service area. We disagree. The record is undisputed
that customers are permitted in the entire outdoor garden center, including the area where
Mr. Craig was bitten, to gather goods they wish to purchase.
5 No. 33985-8-III Craig v. Wal-Mart Stores, Inc.
Walmart also argues its mode of operation did nothing to cause a reasonably
foreseeable hazardous condition. Again we disagree. Rattlesnakes wander. As noted by
Mr. Craig's expert, rattlesnakes are especially prone to wander during the spring, such as
in May, when Mr. Craig was bitten. Walmart's choice to locate an outdoor garden center
in its parking lot and adjacent to undeveloped land where rattlesnakes are known to live
created a reasonably foreseeable hazard. The reasonably foreseeable hazard was that its
customers would interact with wandering rattlesnakes hiding among the dirt, plants, and
other items for sale in the outdoor garden center. It is further reasonably foreseeable that
a customer, retrieving such items, might be bitten by a rattlesnake. This risk is inherent
during the entire spring and summer when Walmart utilizes its outdoor garden center.
Our holding today does not impose potential liability on all self-service businesses
operating in rattlesnake country. Most businesses have walls and doors that generally
prevent wild animals, including rattlesnakes, from entering. Potential liability is limited
to only those situations where the business owner fails to take reasonable care to prevent
rattlesnake bites. See Pimentel, 100 Wn.2d at 49. Although Walmart addressed the steps
it took to reduce various risks of animal-caused injury, Walmart neither argued below nor
on appeal that its steps were sufficient to eliminate liability as a matter of law. We,
therefore, express no opinion on that issue here.
6 No. 33985-8-III Craig v. Wal-Mart Stores, Inc.
Reverse.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Lawrence-Berrey, J.
I CONCUR:
3a . Fearin~
7 33985-8-III
KORSMO, J. (dissenting)-The majority extends liability to all landowners in the
Clarkston area simply because rattlesnakes commonly live in the region. There is no
support for that extension of landowner liability in our case law, particularly since the
majority's rule is completely at odds with the Washington Supreme Court's own
interpretation of the Pimentel 1 exception. I dissent.
The majority's theory is premised on two facts: (1) rattlesnakes live in the
riverbanks of the Clarkston area, and (2) Walmart runs its garden center outside in the
general vicinity of the river. That casts far too wide a net.
The self-service exception at issue finds its origins in this court's opinion in
Ciminski v. Finn Corp., 13 Wn. App. 815,537 P.2d 850 (1975), a decision that was
largely adopted by the Washington Supreme Court in Pimentel, 100 Wn.2d at 49-50. The
Pimentel court stated the difference in its ruling from that in Ciminski:
The Ciminski decision contains language which suggests that the requirement of showing notice is eliminated as a matter of law for all self- service establishments. 13 Wn. App. at 820-21. This is not the conclusion we reach under the analysis adopted here; the requirement of showing notice will be eliminated only if the particular self-service operation of the
1 Pimentel v. Roundup Co., 100 Wn.2d 39, 666 P.2d 888 (1983). No. 33985-8-III Craig v. Wal-Mart Stores, Inc.
defendant is shown to be such that the existence of unsafe conditions is reasonably foreseeable.
Id.
Subsequent cases have refined this distinction even further. In a decision
reversing this court, the Washington Supreme Court determined that the Pimentel self-
service rule did not apply to a hazard unrelated to the self-service nature of the business:
Because Pimentel is a limited rule for self-service operations, not a per se rule, the rule should be limited to specific unsafe conditions that are continuous or foreseeably inherent in the nature of the business or mode of operation. Risk of water dripping from a leaky roof is not inherent in a store's mode of operation.
Wiltse v. Albertson's Inc., 116 Wn.2d 452,461, 805 P.2d 793 (1991). In a subsequent
case citing Wiltse with approval, the court summarized the self-service exception:
There must be a relationship between the hazardous condition and the self- service mode of operation of the business. See Wiltse.
Ingersoll v. DeBartolo, Inc., 123 Wn.2d 649, 654, 869 P.2d 1014 (1994).
The trial court properly applied these cases when it dismissed this action at
summary judgment. The rattlesnake passing through the area was no more a result of the
self-service operation than was the leaky roof in the grocery store.
Plaintiffs expert hypothesized that a snake travelling between its winter and
summer homes may have passed through the Walmart lot and decided to spend the night
under a pallet when it became too cold to travel further that day. There was no evidence
2 No. 33985-8-111 Craig v. Wal-Mart Stores, Inc.
that the store's garden shop was a particularly attractive location 2 for snakes to visit, let
alone take up residence. It simply happened to be the nearest available shelter.
Presumably, the same thing could be said about a vehicle in the parking lot or any other
nearby sheltered location such as the benches on a golf course or a backyard barbecue.
This pallet simply was a convenient location. It was not an attractive nuisance for snakes.
Operating a self-service business is not a basis for premises liability in the absence
of notice of a dangerous condition. Only when the self-service operation creates a risk
that is reasonably foreseeable does liability arise. No evidence was presented that
operating a garden shop outside presented a foreseeably greater risk of rattlesnake
encounters than having the parking lot did. Pimentel requires more than the plaintiff
presented here.
The judgment should be affirmed. Accordingly, I dissent.
Korsmo,t7'
2 While the majority states that the garden items created a "foreseeable hazard" of rattlesnake encounters, there is no evidence in the record backing the statement. Majority at 6. Indeed, the only evidence that plaintiff presented was that rattlesnakes liked riverbank areas for their dens and that they would forage up to two miles away in the summer. There is no indication that the mulch and fertilizer bags attracted snakes or even attracted creatures that snakes feast on. The same expert indicates that snakes "might" like the empty lands adjacent to Walmart, but no one indicated that snakes had ever been found there.