WPI 120.06.02 Duty to Invitee or Customer—Notice of Temporary Unsafe Condition Not Caused by Ow...

If the unsafe condition was created by the defendant, use WPI 120.06.01 (Duty of Business Proprietor to Customer—Activities or Condition of Premises) (for business operators), or WPI 120.06 (Duty to Business or Public Invitee—Activities or Condition of Premises) (for other owners or occupiers of premises).

The bracketed phrase relating to the condition being the result of negligence on defendant's part is to be used if the evidence would warrant a finding that defendant did not directly create the condition, but the defendant's own negligence may have caused a temporary unsafe condition. For example, the negligent manner in which a grocer arranged the vegetable display may be the proximate cause of a lettuce leaf being temporarily on the floor and there would be no requirement of notice.

For cases involving acts or knowledge of a defendant's employees, use this instruction along with an appropriate instruction from WPI Chapter 50 (Agency and Partnership).

This instruction was cited with approval in Wiltse v. Albertson's Inc., 116 Wn.2d 452, 805 P.2d 793 (1991).

Actual or constructive notice. A possessor of premises is liable for a temporary unsafe condition if there was either actual or constructive notice. Coleman v. Ernst Home Center, Inc., 70 Wn.App. 213, 853 P.2d 473 (1993); Mathis v. H.S. Kress Co., 38 Wn.2d 845, 232 P.2d 921 (1951); Smith v. Manning's, Inc., 13 Wn.2d 573, 126 P.2d 44 (1942). The problem of constructive notice is really a problem of spelling out more clearly that the duty is to exercise ordinary care in inspecting the premises and that the temporary condition must have existed for a sufficient length of time such that the defendant should have been aware of the problem. This instruction goes directly to the time requirement instead of using the indirect approach of stating that constructive notice is required and then defining constructive notice.

The facts of Morton v. Lee, 75 Wn.2d 393, 450 P.2d 957 (1969), holding modified by 100 Wn.2d 39, 666 P.2d 888 (1983), involved fruit on the floor of a grocery store. Whether or not it had been there long enough to give constructive notice is ordinarily a jury question and the permissible period of time for discovering it will vary from case to case depending on the circumstances.

Notice not required when unsafe condition created by the defendant. The requirement that there be actual or constructive notice applies only to temporary conditions created by others. Falconer v. Safeway Stores, Inc., 49 Wn.2d 478, 303 P.2d 294 (1956); Wardhaugh v. Weisfield's Inc., 43 Wn.2d 865, 264 P.2d 870 (1953); Erdman v. Lower Yakima Valley, Washington Lodge No. 2112 of B.P.O.E., 41 Wn.App. 197, 704 P.2d 150 (1985).

Notice not required for reasonably foreseeable dangers. When the operating procedures of a 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 caused by them and it is reversible error to instruct that the plaintiff must prove actual or constructive knowledge of a hazard. Pimentel v. Roundup Co., 100 Wn.2d 39, 666 P.2d 888 (1983).

In Ciminski v. Finn Corp., Inc., 13 Wn.App. 815, 537 P.2d 850 (1975), the court held that the danger may be reasonably foreseeable from a self-service operation and a showing of actual or constructive notice of the specific hazard is not required. However, the Pimentel exception to the requirement of actual or constructive notice will not apply unless there is a relation between the hazardous condition and the self-service mode of operation. Ingersoll v. DeBartolo, Inc., 123 Wn.2d 649, 869 P.2d 1014 (1994). See also Wiltse v. Albertson's Inc., 116 Wn.2d 452, 461, 805 P.2d 793 (1991), and Coleman v. Ernst Home Center, Inc., 70 Wn.App. 213, 853 P.2d 473 (1993).

The Pimentel exception has not been extended beyond the self-service areas of stores. Fredrickson v. Bertolino's Tacoma, Inc., 131 Wn.App. 183, 193, 127 P.3d 5 (2005). In Iwai v. State, 129 Wn.2d 84, 915 P.2d 1089 (1996), the lead opinion stated that the exception applies beyond self-service areas, although only four Justices signed the opinion. The other five Justices signed either the concurring/dissenting opinion or the concurring opinion, both of which conclude the exception should be limited to self-service areas. See also Ingersoll v. DeBartolo, Inc., 123 Wn.2d at 654 (indicating that “self-service” is not the issue but that the appropriate inquiry is whether “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”) (quoting Pimentel v. Roundup Co., 100 Wn.2d at 49).

Ice and snow cases. See Comment to WPI 120.07 (Liability to Business or Public Invitee—Condition of Premises—Condition Not Caused by the Owner or Occupier) for discussion of premises liability related to natural accumulations of ice and snow.