From Self-Service to “Reasonable Foreseeability:” the Eight-Year Journey of Johnson v. Washington State Liquor & Cannabis Board
Wednesday, September 20, 2023
by: Mike Throgmorton, Law, Lyman Daniel Kamerrer & Bogdanovich

Section: Summer 2023

            When it landed on my desk in November of 2015, Johnson v. Washington State Liquor and Cannabis Board was as inauspicious as any of the other dozen or so cases I inherited on my first day in the Torts Division of the Attorney General’s Office. A slip-and-fall on a rainy day with unremarkable damages, the only thing noteworthy about it was that it occurred in a state-operated liquor store (the fall occurred in June 2011, prior to the passage of Initiative 1183 in November of that year, privatizing liquor sales in Washington). I placed it aside, not realizing I was about to embark on an eight-year odyssey that would go all the way to the Supreme Court and result in a new standard for slip-and-fall cases throughout the state.

            By the time the Supreme Court granted review in the winter of 2020, I had left the AGO for private practice, but Johnson had come with me. Three years earlier, following a 2017 trial in Lewis County, a jury had awarded the plaintiff over $2.3 million. The damage award was due, in part, to a pre-trial evidentiary ruling preventing the defendant from offering any evidence of pre-existing conditions under Harris v. Drake, 152 Wn.2d 480, 99 P.3d 872 (2004). But the trial court’s evidentiary rulings had cut both ways; the court also excluded the testimony of the plaintiff’s human factors expert, who had formed his opinions on the dangerousness of the floor prior to visiting the store. Both rulings – entered on the first day of trial – had been unexpected and left both parties trying different cases than they had anticipated. Following the verdict for the plaintiff, the State appealed.

            In September 2019, Division II reversed, finding the plaintiff failed to establish that the store had notice of a dangerous condition. The unpublished opinion hewed closely to the facts adduced at trial and did not portend further review. Buried deep on page six of the seven-page opinion, however, was a seemingly benign paragraph rejecting the plaintiff’s invitation to adopt a new standard for slip-and-fall liability. First suggested by Justice James Dolliver’s plurality opinion in Iwai v. State, 129 Wn.2d 84, 915 P.2d 1089 (1996), that standard would, if adopted, delimit the “self-service” exception to the notice requirement and instead apply it to all areas of a store, thereby relieving the plaintiff of the burden of establishing notice of the injury-causing condition whenever “the nature of the proprietor’s business and his methods of operation are such that the existence of unsafe conditions on the premises [are] reasonably foreseeable.”

            Understanding this exception to the notice requirement requires an appreciation of its origins. A creation of common law, the “self-service” exception was first articulated in Ciminski v. Finn Corp., 13 Wn. App. 815, 537 P.2d 850 (1975). Departing from prior Washington case law requiring plaintiffs to establish actual or constructive notice of the injury-causing condition as a prerequisite to liability, Ciminski relied instead on foreign case law to hold that the notice requirement was satisfied as a matter of law because of the self-service nature of the defendant’s business. The court reasoned that the notice requirement “springs from the thought that a dangerous condition, when it occurs, is somewhat out of the ordinary…. In such a situation, the storekeeper is allowed a reasonable time, under the circumstances, to discover and correct the condition, unless it is the direct result of his (or his employees’) acts. However, when the operating methods of a proprietor are such that dangerous conditions are continuous or easily foreseeable, the logical basis for the notice requirement dissolves.” Id. (citing Jasko v. F.W. Woolworth, Co., 177 Colo. 418, 494 P.2d 839 (1972).

            Eight years later, the Supreme Court adopted a modified version of Ciminski in Pimentel v. Roundup Co., 100 Wn.2d 39, 666 P.2d 888 (1983). In Pimentel, the plaintiff, who had been struck on the foot by a falling paint can in a self-service area of the store, sought an instruction based on Ciminski relieving her of the burden of establishing actual or constructive notice. Citing the Colorado case upon which Ciminski was based, the Supreme Court held “[w]here the existence of unsafe conditions is reasonably foreseeable, it will now be unnecessary to establish the length of time for which a particular unsafe condition existed.” Id. at 49. Nevertheless, the Court rejected Ciminski to the extent it suggested that the requirement of showing notice is eliminated as a matter of law for all self-service establishments, holding instead that “the requirement that of showing notice will be eliminated only if the particular self-service operation of the defendant is shown to be such that the existence of unsafe conditions is reasonably foreseeable.” Id. at 50. Subsequent case law adhered closely to this requirement, requiring “a relation between the hazardous condition and the self-service mode of operation of the business.” See, e.g., Wiltse v. Albertson’s, Inc., 116 Wn.2d 452, 461, 805 P.2d 793 (1991); Coleman v. Ernst Home Ctr., Inc., 70 Wn. App. 213, 853 P.2d 473 (1993); Ingersoll v. DeBartolo, Inc., 123 Wn.2d 649, 869 P.2d 1014 (1994).

            Two years after adhering to the foundational logic of the self-service exception, however, the Supreme Court took its first step toward decoupling it from its foundational moorings. In Iwai v. State, 129 Wn.2d 84, 915 P.2d 1089 (1996), a four-member plurality led by Justice Dolliver advocated dispensing with the self-service exception in favor of applying the “reasonably foreseeable exception to the notice requirement … to any situation, whether or not the mode of business involves self-service, 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.’” Id. at 100 (citing Ingersoll, 123 Wn.2d at 654).
            To be sure, Ingersoll itself had firmly rejected this suggestion and had unambiguously required “a relation between the hazardous condition and the self-service mode of operation of the business.” Ingersoll, 123 Wn.2d at 654. As Justice Gary Alexander’s concurrence in Iwai noted, such an extension of the “self-service” exception would decouple it from the Restatements upon which Washington law had long been tethered, a result which he presciently observed would “do nothing but create confusion for occupiers of land, landlords, insurers, trial judges, and practitioners.” Iwai, 129 Wn.2d at 103 (Alexander, J., concurring).

            Following Justice Alexander’s rejection of Justice Dolliver’s plurality in Iwai, subsequent attempts to convince the appellate courts to delimit the “self-service” exception and apply it to all areas of a business were repeatedly rebuffed in Charlton v. Toys R Us, 158 Wn. App. 906, 246 P.3d (2010) and in Fredrickson v. Bertolino’s Tacoma, Inc., 131 Wn. App. 183, 127 P.3d 5 (2005). As a result, by the time the Court of Appeals rejected the plaintiff’s invitation to do so in 2019, it did so in passing, merely noting that “[n]o court since Iwai has adopted the position taken by the plurality.” Johnson v. State Liquor & Cannabis Bd., 10 Wn. App. 2d 1011 at *4 (2019) (unpublished). Having passed on the opportunity on two prior occasions, the risk of the Supreme Court accepting review to do so here seemed low.

            Nevertheless, on December 2, 2020, the Court granted review “only on the issue of whether the foreseeability exception to the notice requirement applies in the context of premises liability actions.” The writing, it seemed, was on the wall.

            On May 13, 2021, the Supreme Court handed down its opinion, finding that “the reasonable foreseeability exception to the notice requirement applies.” Hearkening back to Justice Dolliver’s invocation of Ingersoll, the Court observed that “self-service is not the key to the exception.” Johnson v. Liquor & Cannabis Bd., 197 Wn.2d 605, 615, 486 P.3d 125 (2021). Instead, relying on Pimentel’s observation that, “the question is whether ‘the nature of the nature of the proprietor’s business and his mode of operation are such that the existence of unsafe conditions on the premises are reasonably foreseeable,” the Court held “[c]ustomers entering a store during business hours while it is raining is ‘inherent in a store’s mode of operation.’” Id. at 615 (emphasis in original). A rainy Washington day, ubiquitous as it is, had thus supplanted the requirement of actual or constructive notice, and in doing so, arguably rendered it a nullity. See Kangley v. United States, 788 F.2d 533, 535 (9th Cir. 1986) (holding “[i]f we were to hold that a person who slips inside a door … on a day when it is wet outside may recover for injuries sustained without showing anything more, we would place an intolerable burden on businesses … where it is often wet outside. We are convinced that this is not the law in the state of Washington”).

            Read broadly, Johnson casts aside more than seventy-five years of Washington precedent allocating the risk of entryway slip-and-falls to patrons entering stores. See, e.g., Knopp v. Kemp & Hebert, 193 Wash. 160, 74 P.2d 924 (1938); Shumaker v. Charada Inv. Co., 183 Wash. 521, 49 P.2d 44 (1935). As Justice Alexander predicted a quarter century before, Johnson’s adoption of the Iwai plurality has indeed created increased confusion amongst landowners, insurers, and judges as the lower courts struggle to apply Johnson’s more subjective “reasonable foreseeability” standard in place of actual or constructive notice. See, e.g., Glassi v. Lowe’s Home Centers, LLC, --- P.3d --- 2023 WL 5540776 at *4 (July 5, 2023) (finding that a trier of fact could reasonably infer that the store’s policy of immediately correcting improperly stocked items on display shelves and doing daily safety walks at the beginning of the day “reflect Lowe’s belief that improperly stocked items may fall from the display shelves and create unsafe situations or cause dangerous outcomes”); Moore v. Fred Meyer Stores, Inc., 532 P.3d 165 (2023) (reversing defense verdict based on finding that the Washington Pattern Instruction “is no longer an accurate statement of the law” following Johnson); Rush v. Sundown M Ranch Corp., 25 Wn. App. 2d 1004 (2022) (applying Johnson’s reasonable foreseeability exception to snow and ice accumulation that does not experience public foot traffic).

            Johnson represents a significant expansion of premises liability in Washington. Its inevitable result will be fewer summary judgments, increased liability, and more frequent payouts. Unfortunately, as remedial measures such as store policies, signs, and rugs, become evidence of foreseeability, Johnson’s legacy will not be one of safer patrons. Ironically, the lesson of Johnson is the same for practitioners like me as it is for store patrons: beware of the dangers hiding in plain sight.
Mike Throgmorton is an attorney at Law Lyman Daniel Kamerrer & Bogdanovich in Olympia, where his practice focuses on civil defense. Prior to joining Law Lyman in January 2020, he worked in the Torts Division of the Attorney General’s Office from 2012-2019 and for the Honorable Chief Justice Barbara Madsen in 2011.