JOHNSTONE v. CHIPS CASINO L.L.C., 27703-4-II (Wash.App. 6-28-2002)

No. 27703-4-II.The Court of Appeals of Washington, Division Two.
Filed: June 28, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Appeal from Superior Court of Kitsap County, No. 002010968, Hon. Leila Mills, July 12, 2001, Judgment or order under review.

Counsel for Appellant(s), J. M. Koch, Attorney At Law, 10049 Kitsap Mall Bl #201, P.O. Box 368, Silverdale, WA 98383-0368.

Counsel for Respondent(s), Erin G. Howshar, Eklund Rockey Stratton P.S., 1900 Alaskan Way Ste 407, Seattle, WA 98101.

J. ROBIN HUNT, C.J.

James Johnstone appeals a grant of summary judgment in favor of Chips Casino, L.L.C., (the Casino) in his negligence action arising from injuries he suffered when he slipped and fell on the wet floor of the Casino bathroom. Holding that the Casino had no notice of water on the bathroom floor, we affirm.

FACTS
Johnstone worked as a bartender for the newly opened Casino. During his work hours, he used the restroom at the Casino a number of times and had never seen the floor wet.

Before his work shift on April 9, 1999, Johnstone had dinner at the Casino restaurant. Around 8:30 p.m., he went to the men’s restroom. As he entered, he noticed that the floor was wet, as if it had been recently mopped. Johnstone had previously used restrooms with wet floors in other establishments, even when confronted with wet floor warning signs, and he had `just been careful’ in those situations. And as a Casino employee, Johnstone had previously had occasion to identify and clean up conditions that he had identified as unsafe to himself, other employees, or patrons. This time, however, he did not take steps to notify the Casino or to clean up the floor before using the restroom.

Aware of the wet floor, Johnstone cautiously stepped lightly across the floor, reaching the third urinal without incident. He testified, `[I]t’s fair to say as I walked in there I used common sense for what the floor was and took it for what it was worth but more importantly I was needing to use the restroom so that’s what I was concentrating on first.’ Clerk’s Papers (CP) at 27.

While Johnstone was standing at the urinal, an elderly gentleman entered the restroom. Johnstone thought that the wet floor was obvious and did not warn the elderly man about the wet floor. But as Johnstone was leaving the restroom, he `lost [his] footing on the floor, fell to the left striking [the elderly gentleman]. . . .’[1] CP at 156. About five hours later, Johnstone started his 1:30 a.m. work shift at the Casino, stopping some time before 7:00 a.m.

Johnstone later sued the Casino for negligence. The Casino confirmed that the scheduled time for restroom cleaning was between 7:00 a.m. and 9:00 a.m. daily. Although several Casino employees acknowledged the presence of water on the restroom floor after Johnstone slipped, no employee knew about or had seen the condition of the restroom floor until after Johnstone reported his fall; and no employee claimed to have mopped the floor or to have known of anyone else mopping the floor before the incident.[2]

On February 15, 2001, the trial court granted the Casino’s motion for summary judgment. The court also denied Johnstone’s motion for reconsideration.

ANALYSIS
When reviewing an order for summary judgment, we engage in the same inquiry as the trial court. Marthaller v. King Co. Hosp. Dist. No. 2, 94 Wn. App. 911, 915, 973 P.2d 1098 (1999). We consider all facts and reasonable inferences in a light most favorable to the nonmoving party. Summary judgment is appropriate if there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law. Marthaller, 94 Wn. App. at 915.

Affidavits submitted in support of, or in response to, a summary judgment motion must set forth facts that would be admissible in evidence. CR 56(e). Unless an affidavit sets forth evidentiary facts (`what took place, an act, an incident, a reality as distinguished from supposition or opinion’), the affidavit does not raise a genuine issue for trial. Roger Crane Assoc. v. Felice, 74 Wn. App. 769, 779, 875 P.2d 705 (1994) (quoting Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 359, 753 P.2d 517 (1988)). Ultimate facts, conclusions of fact, or conclusory statements are insufficient to raise a question of fact. Roger Crane, 74 Wn. App. at 779.

Here, Johnstone’s bare allegations of negligence do not raise a genuine issue of material fact. He merely asserts that (1) the floor was wet and looked to him as if it had been recently mopped, and (2) the number of employees working that night established that the Casino was busy enough that it would be `unreasonable to believe that the restroom . . . did not need to be cleaned at any time between 9:00 a.m. and 8:30 p.m. on a Friday.’ Br. of Appellant at 6. He relies on statements from several Casino employees that they saw water on the floor after the incident and that Casino employees sometimes mopped the restroom floor. Yet no deposed employee stated that he had mopped the floor or knew of anyone else having mopped the floor that evening.

Johnstone failed to produce any evidence that the Casino knew about the restroom’s wet floor before his fall or that any employee had recently mopped the floor. Nor is there any evidence that the Casino had constructive notice of the wet floor. On the contrary, Johnstone had been in that restroom several times before when he was working at the Casino and had seen no water on the floor on those previous occasions. On this occasion, however, although he immediately noticed the aberrant wet floor, he did not notify the Casino until after he slipped and fell. Rather, he apparently deemed it safe enough for him to walk across it carefully to the urinal.

Johnstone’s assertions are speculative and conclusory. He could not survive a summary judgment ruling by `nakedly asserting that there are unresolved factual questions.’ Bates v. Grace United Methodist Church, 12 Wn. App. 111, 115, 529 P.2d 466 (1974). Accordingly, we affirm the trial court’s grant of summary judgment to the Casino.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

WE CONCUR: MORGAN, J., HOUGHTON, J.