Schmidt v. Coogan

145 P.3d 1216, 135 Wash. App. 605
CourtCourt of Appeals of Washington
DecidedSeptember 6, 2006
DocketNo. 32840-2-II
StatusPublished
Cited by4 cases

This text of 145 P.3d 1216 (Schmidt v. Coogan) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schmidt v. Coogan, 145 P.3d 1216, 135 Wash. App. 605 (Wash. Ct. App. 2006).

Opinion

Armstrong, J.

¶1 Teresa Schmidt hired attorney Timothy Coogan to represent her in her slip-and-fall claim against a grocery store. The case was dismissed when Coogan failed to serve the proper defendant. Schmidt then sued Coogan for malpractice and the jury awarded her $212,000 in damages. The trial court granted Coogan’s motion for a new trial on damages. Both parties appeal. Schmidt argues that the trial court erred in overturning the jury’s damage award; Coogan argues that Schmidt failed to prove the elements of her underlying claim, specifically that the store had notice of the slippery condition. We agree with Coogan and, therefore, reverse and remand for dismissal.

FACTS

¶2 In December 1995, Teresa Schmidt went to a grocery store to buy shampoo. As she walked down the shampoo aisle, Schmidt stepped in a puddle of shampoo and slipped and fell. After her sister and a bystander helped her up, Schmidt shopped for a few more items and then waited in the checkout line for about 10 minutes before reaching a checker.

[609]*609¶3 Schmidt told the checker of her fall and the spilled shampoo, which she could see from her position next to the register. The store employee did not call anyone to clean the spill while Schmidt was there, and during her brief visit to the store, Schmidt saw no one cleaning the spill or inspecting the aisles for spills. She left immediately after reporting the incident and paying for her groceries.

¶4 Afterward, Schmidt suffered pain and numbness in her arm, migraines, and back spasms. These symptoms prevented her from engaging in her usual activities, such as playing with her child and playing softball. At the trial eight years later, Schmidt still had many of the symptoms.

¶5 Schmidt knew Coogan through her fiancé, John MacMonagle, who had been an attorney in Coogan’s office. Coogan agreed to take Schmidt’s case against the grocery store. And, during this time between the fall and the trial, Schmidt took a job at Coogan’s firm as a receptionist.

¶6 Schmidt presented evidence that Coogan failed to investigate and prepare her case. In addition, when she asked him about the case, Coogan responded with profanity, telling Schmidt not to worry about it, that he was the lawyer, and that he had it under control. On the last day to file the complaint within the statute of limitations, Coogan still had not filed. After talking with Coogan, MacMonagle drafted the complaint and filed it over Coogan’s signature.

¶7 The complaint, however, named the wrong party as owner of the store. Coogan attempted to amend the complaint and name the proper party, but for reasons not clear from the record, the attempt failed and the claim was ultimately dismissed.

¶8 Schmidt then sued Coogan for malpractice. Schmidt testified about the incident in the store, but she presented no evidence that the store had actual knowledge of the spilled shampoo before she fell. Nor did she provide evidence of how long the spill had been there or what the store’s inspection routine, if any, was.

¶9 At the end of Schmidt’s case, Coogan moved for judgment as a matter of law. He argued in part that [610]*610Schmidt had failed to prove an element of the underlying slip and fall claim, specifically that the store had actual or constructive knowledge of the spill. The trial court denied the motion. Coogan renewed the motion after the jury verdict. The trial court granted the motion for a new trial on the issue of damages only.

ANALYSIS

¶10 We review a trial court’s decision to deny judgment as a matter of law de novo. Hizey v. Carpenter, 119 Wn.2d 251, 271-72, 830 P.2d 646 (1992). Judgment as a matter of law is proper only when the court can find, “ ‘as a matter of law, that there is neither evidence nor reasonable inference therefrom sufficient to sustain the verdict.’ ” Goodman v. Goodman, 128 Wn.2d 366, 371, 907 P.2d 290 (1995) (quoting Brashear v. Puget Sound Power & Light Co., 100 Wn.2d 204, 208-09, 667 P.2d 78 (1983)). Under the “case within a case” principle, the plaintiff in a legal malpractice claim must prove that, but for the attorney’s negligence, the plaintiff would probably have prevailed in the underlying claim. See Daugert v. Pappas, 104 Wn.2d 254, 263, 704 P.2d 600 (1985).

¶11 When a plaintiff sues a business owner for failing to correct a dangerous condition, the plaintiff must show either that the defendant caused the condition or that the defendant had actual or constructive notice of the condition. See Pimentel v. Roundup Co., 100 Wn.2d 39, 49, 666 P.2d 888 (1983). The “self-service” exception eliminates this notice requirement where “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.” Pimentel, 100 Wn.2d at 49.

¶12 At oral argument, Schmidt focused on the self-service exception. Courts have applied this narrow exception only when the slip-and-fall happens in an area where there is constant handling of slippery products. See, e.g., Morton v. Lee, 75 Wn.2d 393, 397-98, 450 P.2d 957 (1969) [611]*611(outdoor produce display); O’Donnell v. Zupan Enters., Inc., 107 Wn. App. 854, 856, 28 P.3d 799 (2001) (grocery store check-out aisle); Ciminski v. Finn Corp., 13 Wn. App. 815, 823-24, 537 P.2d 850 (1975) (cafeteria buffet line); cf. Carlyle v. Safeway Stores, Inc., 78 Wn. App. 272, 276, 896 P.2d 750 (1995). In Carlyle, the plaintiff asked the court to extend the self-service exception to encompass a shampoo spill in the coffee aisle. Division Three, noting that the produce department was the most hazardous area of the store and that neither the coffee nor the shampoo was kept in the produce section, declined to do so. Carlyle, 78 Wn. App. at 278.

¶13 But Schmidt attempts to distinguish Carlyle. According to Schmidt, Carlyle turns on the fact that the spilled shampoo was in the coffee aisle; here, the spilled shampoo was in the shampoo aisle, a more foreseeable location for a shampoo spill. But shampoo in the coffee aisle was not a critical fact in Carlyle. Carlyle mentioned the coffee aisle location in discussing the distance of the spill from the produce section. Later, the court discussed the coffee location in its constructive notice analysis. See Carlyle, 78 Wn. App. at 278. The other distinguishing factors noted by Schmidt — the frequency of inspections and the size of the spill — are relevant to whether the store had constructive notice but not to whether the shampoo aisle is such an inherently hazardous section to justify the self-service exception to showing knowledge.

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Bluebook (online)
145 P.3d 1216, 135 Wash. App. 605, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schmidt-v-coogan-washctapp-2006.