No. 64851-9-I.The Court of Appeals of Washington, Division One.
Filed: April 25, 2011.
Appeal from a judgment of the Superior Court for King County No. 08-2-16533-7, Regina S. Cahan, J., entered January 6, 2010.
Affirmed by unpublished opinion per Becker, J., concurred in by Grosse and Ellington, JJ.
BECKER, J.
The trial court granted summary judgment dismissing Catherine Webert’s negligence claim against Seattle University for injuries she suffered when she tripped and fell on a cracked walkway on the Seattle University campus. Our de novo review of the record reveals that Webert failed to carry her burden to produce evidence demonstrating a genuine issue of material fact for trial. Accordingly, we affirm.
FACTS
In May 2005, Catherine Webert was a student at Seattle University. While walking on campus in the middle of a dry and sunny day, she tripped and fell on cracked pavement. She sustained injuries to her hand, wrist, knee, chin, and mouth. At some unknown point in time before Webert fell, the University had repaired a “root upheaval” of the walkway. In May 2008, Webert sued the University for damages alleging that the condition of the walkway posed an unreasonable risk of harm and the University failed to exercise reasonable care to protect her from the danger caused by the condition of the walkway.
The University moved for summary judgment arguing that Webert could not prove that the University breached its duty of care owed to her. The trial court granted the motion, and Webert appeals.
ANALYSIS
On appeal, Webert claims summary judgment was improperly granted because there is a genuine issue of material fact about whether the patched walkway constituted a dangerous condition and whether the University, in attempting to repair the walkway, caused or worsened the unsafe condition.
We review a summary judgment order de novo, performing the same inquiry as the trial court and considering facts and reasonable inferences in the light most favorable to the nonmoving party. Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P.3d 1068
(2002). Summary judgment is proper if no genuine issue of material fact remains and the moving party is entitled to judgment as a matter of law. CR 56(c).
A defendant may move for summary judgment by showing that there is an absence of evidence to support the plaintiff’s case. Young v. Key Pharm., Inc., 112 Wn.2d 216, 225 n. 1, 770 P.2d 182 (1989). If the defendant shows an absence of evidence to establish the plaintiff’s case, the burden then shifts to the plaintiff to set forth specific facts showing a genuine issue of material fact for trial. Young, 112 Wn.2d at 225. If the plaintiff “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial,” summary judgment is proper. Young, 112 Wn.2d at 225.
The nonmoving party may not rely on speculation, mere allegations, denials, or conclusory statements to establish a genuine issue of material fact. Int’l Ultimate, Inc. v. St. Paul Fire Marine Ins. Co., 122 Wn. App. 736, 744, 87 P.3d 774, review denied, 153 Wn.2d 1016 (2004). A party’s own self-serving opinions and conclusions are insufficient to defeat a motion for summary judgment. Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 359-61, 753 P.2d 517 (1988).
In a negligence action, the plaintiff must prove the existence of a duty, breach of that duty, resulting injury, and proximate cause. Tincani v. Inland Empire Zoological Soc’y, 124 Wn.2d 121, 127-28, 875 P.2d 621 (1994). The alleged negligence in this case is based on premises liability, and there is no dispute that Webert was an invitee to whom the University owed a duty of care.
Washington law governing premises liability follows the principles articulated in the Restatement (Second) of Torts § 343 and § 343A (1965). Iwai v. State, 129 Wn.2d 84, 93-95, 915 P.2d 1089 (1996); Degel v. Majestic Mobile Manor, Inc., 129 Wn.2d 43, 49-50, 914 P.2d 728 (1996). According to these provisions, a landowner is liable for physical harm caused by a dangerous condition on the land if the landowner:
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
Restatement (Second) of Torts § 343; see also Tincani, 124 Wn.2d at 138. A landowner is not generally liable to invitees for harm caused by known or obvious dangers, unless the landowner should anticipate the harm despite such knowledge or obviousness. Restatement (Second) of Torts § 343 A(1); Mucsi v. Graoch Assocs. Ltd. P’ship No. 12, 144 Wn.2d 847, 860, 31 P.3d 684 (2001).
In moving for summary judgment below, the University claimed there was no evidence the repaired walkway created an unreasonable risk of harm. According to the evidence submitted by the University, there were no prior reported incidents at the location where Webert fell. Also, relying on the photographs of the location of the fall and Webert’s deposition, the University asserted that the condition of the walkway was visible and, therefore, open and obvious. The University argued that it had no reason to expect that Webert would fail to notice the condition and fail to protect herself from injury.
In her deposition, Webert reviewed photographs of the area taken by her son a couple of months after she fell, and a second set photographs taken by a University employee several years after the accident. Webert said that none of the photographs depicted the conditions of the area at the time of incident because when she fell there was extensive foliage which created a “canopy of shade.” Webert agreed that apart from some caulk or paint that was not there when she fell, the patched area of the walkway itself appeared to be in the same condition as it was when she fell. And Webert admitted that as she was walking over the area at the time of the accident, notwithstanding the shadows and the foliage, she was able to see the patched pavement. Webert said that although she saw the patched crack in the walkway, she failed to appreciate the unevenness of the pavement, caught her sandal on a jagged edge, and fell.
In opposing summary judgment, Webert argued that the University had notice of the unsafe condition because it attempted to repair the walkway and made the condition worse by doing so. Webert submitted her own declaration and asserted that she only observed the patched crack in the pavement when she was in “mid-step” and unable to prevent the fall. Webert further maintained that she could not have avoided falling because the shady conditions prevented her from being able to see the condition of the walkway before she fell.
But the fact that the University repaired the walkway at some point does not establish the existence of an unreasonable risk of harm. Other than the fact that she fell, Webert offered no evidence establishing that the walkway was unreasonably dangerous. And although Webert complains that the photos the University relied upon did not accurately represent the conditions at the time of the accident, she provided no other evidence of how the area or the walkway looked in May 2005. Significantly, Webert admitted in her deposition that although the area was dark and shady, she could see the patched area in spite of the shade. Despite her insistence that the University misquoted and took her deposition testimony out of context, Webert’s testimony on this point was clear. Webert’s self-serving assertions in her declaration that the patched area was not visible cannot create a material issue of fact by contradicting her unambiguous previous deposition testimony. See Marshall v. Bally’s Pacwest, Inc., 94 Wn. App. 372, 379, 972 P.2d 475 (1999).
To the extent that Webert suggests that summary judgment was improper because of the University’s untimely responses to her discovery requests, we reject this claim. After hearing oral argument on the summary judgment motion, the trial court deferred ruling on the motion. The court ordered the University to submit responses to outstanding discovery requests and gave Webert the opportunity to provide additional briefing before issuing its decision.
In sum, the evidence before the court on summary judgment construed in the light most favorable to Webert did not establish that the walkway created an unreasonable risk of harm. Even assuming a dangerous condition, no evidence showed that the University should have expected Webert would not realize the danger or fail to protect herself.
Affirmed.