Slip and Fall in Washington: Notice, Obvious Dangers, and the Ice in the Parking Lot
You went down on black ice in a parking lot that had been plowed and never sanded, or on something clear and wet in an aisle at the grocery store, and you got up embarrassed rather than angry. Three weeks later you are facing surgery on a wrist that will not heal straight, and the store has written to say its records show no notice of any hazardous condition. That phrase is not a throwaway. Notice is the hinge nearly every Washington slip and fall case turns on, and there are two well-established ways around it.
What a property owner owes you depends on why you were there
Washington sorts people on land into invitees, licensees, and trespassers, and the duty changes with the category. A customer in a store, a tenant in a common area, and a member of the public in a building open for business are invitees, which is the category that gets the most protection.
For invitees the state follows the Restatement (Second) of Torts. In Iwai v. State, 129 Wn.2d 84 (1996), the Supreme Court set out section 343 and section 343A and cited Tincani v. Inland Empire Zoological Society, 124 Wn.2d 121 (1994), as having adopted them. Under section 343 a possessor of land is liable for harm from a condition if the possessor knows of it or by reasonable care would discover it, should realize it involves an unreasonable risk to invitees, should expect that invitees will not discover or realize the danger or will fail to protect themselves against it, and fails to exercise reasonable care to protect them.
That is a chain with four links, and a defense lawyer attacks whichever one is weakest. The first link is the one that becomes the notice fight.
Notice: what the owner knew, or should have known
Iwai states the working rule plainly. In applying the knowledge requirement to premises liability actions, Washington law requires a plaintiff to show the landowner had actual or constructive notice of the unsafe condition, citing Ingersoll v. DeBartolo, Inc., 123 Wn.2d 649 (1994).
Actual notice means somebody knew. Constructive notice is the harder and more common theory, and the Iwai court described the plaintiff's burden as showing that the specific unsafe condition had existed for long enough that the defendant, exercising ordinary care, would have had sufficient opportunity to discover it.
So in a grocery store case the fight is about how long the spill was on the floor, and the evidence that answers it is almost never the plaintiff's memory. It is the sweep log, the inspection schedule, the camera that points at the aisle, and the testimony of whoever walked past it last. All of that is in the store's hands and most of it is overwritten or discarded on a schedule measured in weeks.
The exception that removes the notice requirement entirely
In Pimentel v. Roundup Co., 100 Wn.2d 39 (1983), a paint can fell from a shelf onto a customer's foot in a self-service store. The Supreme Court held that where the operating procedures of any store are such that unreasonably dangerous conditions are continuous or reasonably foreseeable, there is no need to prove actual or constructive notice of such conditions in order to establish liability for injuries they cause.
The reasoning is that a business which chooses a mode of operation creating a foreseeable hazard already has notice of the hazard its own system produces. It does not get to require proof of notice of each particular instance of a risk it built in.
Iwai describes the same idea as the exception under which, if a specific unsafe condition is foreseeably inherent in the nature of the business or mode of operation, the plaintiff need not prove notice. In practice this is the theory that fits a self-service produce department, a drink station, a garden center, or an entryway that funnels wet feet onto hard floor every time it rains, and the way to make it is by showing the system rather than the spill.
If this is describing your situation, tell me what is going on. I read what comes in myself, and I will tell you whether it is something I can help with.
Tell me about your situationDoes an obvious hazard end the case?
Not automatically, and this is the second provision most people have never heard of.
Restatement section 343A(1), quoted in Iwai, says a possessor of land is not liable to invitees for physical harm caused by a condition whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness. The Iwai court applied that directly, observing that the plaintiff may well have known about the ice in the parking lot, and framing the question as whether the defendant could and should have anticipated that she would encounter it anyway.
That is the real-world situation. A person who needs to get into the building, or into their own car, does not have the option of refusing the only route. Obviousness is an argument the defense will make. It is not the end of the inquiry, and the statute of comparative fault handles whatever is left of it.
Snow and ice: Washington declined to adopt the natural accumulation rule
Iwai itself was a Spokane case. Over seven inches of snow fell on November 27, 1984, a contractor plowed the parking lot of a state office that day, apparently no sand was applied afterward, the temperature moved above and below freezing for two days, and the plaintiff fell on an inclined section of the lot.
The defendants asked the Supreme Court to adopt the natural accumulation rule for commercial parking lots, which in states that follow it precludes liability for injuries caused by naturally accumulated snow or ice. The court did not adopt it. It affirmed the Court of Appeals, which had reversed summary judgment and sent the case back for trial.
For anyone who falls on a winter surface in eastern Washington, that is the first thing to know. There is no automatic snow and ice defense here. Whether a given lot was maintained reasonably is a question the owner has to answer with evidence about plowing, sanding, inspection, and what the weather had been doing.
Being partly at fault, and the three years
RCW 4.22.005 says contributory fault diminishes the award proportionately and does not bar recovery, so a finding that you should have been watching reduces a claim rather than ending it. RCW 4.22.015 directs the comparison to weigh both the nature of the conduct and how much it actually caused the damages.
The deadline is three years. RCW 4.16.080(2) sets a three-year limit for any other injury to the person or rights of another, running from the fall.
If you fell on property owned by a city, a county, a school district, a housing authority, or the state, there is a claim you have to present before you may file suit, and that deadline is much shorter than three years. The article on claims against government entities covers that step.
Where this goes wrong
Nobody writes to the property owner to preserve the video, and the system overwrites itself. The single most valuable piece of evidence in a store case usually has a lifespan of two to four weeks.
No incident report. Managers will often take one at the time, and a person who is embarrassed and in a hurry leaves without asking for it, which turns the fact of the fall itself into something that has to be proved.
No photographs of the surface. What the floor looked like, whether there was a mat, whether a cone was out, and where the lighting fell are all gone within the hour.
The case is built on the condition and never on the system. Notice is hard to prove one spill at a time and much easier to prove through sweep logs, staffing, and the design of the department, which is what Pimentel is for.
The fall is described in the medical chart as a mechanical fall with no mention of ice, water, or a floor condition, leaving no document that ties the injury to the premises.
Waiting. Weather data, maintenance contractor records, staffing records and video all age out, and in a snow and ice case the weather in the forty-eight hours before the fall is frequently the whole argument.
What a lawyer does here
The work that decides a premises case happens in the first few weeks and most of it is paperwork. Sending a preservation letter before the video is gone. Getting the incident report, the sweep and inspection logs, the maintenance contract and the snow removal invoices. Pulling the weather record for the days before the fall. Identifying whether the case is a notice case or a mode of operation case under Pimentel, because they are proved with different evidence and the choice is made early or not at all. Reading the lease where an owner and a tenant each say the other was responsible for the lot. And saying plainly whether the obviousness argument is a real one here, because under section 343A it sometimes is.
I handle premises injury claims from my office in downtown Spokane, and I represent clients throughout Washington. I am admitted in Washington, WSBA #55307, and Oregon, OSB #242384.
If you were hurt in a fall on someone else's property, I offer a free consultation by appointment at my Spokane office, 601 W. 1st Ave., Suite 1400. Bring any photographs you took, the incident report if you were given one, and the names of anyone who helped you up.
Disclaimer
This article is general information about Washington law, not legal advice, and reading it does not create an attorney-client relationship. Law changes, and how it applies depends on facts specific to your situation. If you have a question about your own circumstances, speak with a lawyer.
This article is general information about Washington law, current as of publication. It is not legal advice, it does not create an attorney-client relationship, and the law changes. For advice on your own situation, speak to a lawyer.