Generally, a property owner is liable for injuries to its customers only if it has actual or constructive notice of the hazardous condition that resulted in the injury. Washington law recognizes an exception, however, when the nature of the business and its operational methods make the existence of unsafe conditions reasonably foreseeable. This exception, set forth in Pimentel v. Roundup Company, is known as the Pimentel or self-service exception because it applies to self-service operations. “Self-service” simply means that the customers handle the goods and serve themselves.
There are three factors that must be met for the Pimentel exception to apply. First, the injury must occur in a self-service area. Second, the hazardous condition that caused the injury must also be in the self-service area. Finally, the businesss mode of operation must inherently create a hazardous condition that is reasonably foreseeable.
The Pimentel exception commonly arises in a slip and fall context. In a recent unpublished case, however, the Washington Court of Appeals applied it in an unusual context. In Craig v. Wal-Mart Stores, Inc., the exception was applied when a man was bitten by a rattlesnake in a Wal-Mart garden center.
The plaintiff intended to buy a bag of mulch. He entered an outdoor open air garden center in the parking lot of the store. He bent to brush away a “stick” that was blocking the price tag, but it was actually a rattlesnake. The snake bit the plaintiff’s hand. He subsequently sued Wal-Mart for premises liability and other causes of action. The defendant moved for summary judgment, arguing it did not have actual or constructive notice of a hazard related to rattlesnakes.
The defendant stated the store had been open since September 2009, and it had no other reported incidents involving a snake. The defendant also argued it took steps to decrease the potential risk. These steps included routine sweeping, checking the area, and contracting for monthly pest control.
The plaintiff submitted a declaration from a local man who asserted that it was “common knowledge that rattlesnakes are prevalent” near the levies in town, including near the Wal-Mart. The plaintiff also submitted a declaration from a snake expert who stated there were undeveloped lots adjacent to the garden center. The expert stated rattlesnakes could live in the general area and in the undeveloped lots. He also identified steps the defendant could have taken that would have reduced the risk that a snake could get into the garden center.
The plaintiff argued the Pimentel exception applied. The trial court found that a plaintiff must provide evidence that the hazardous condition “in the particular location of the accident was reasonably foreseeable.” The trial court found there was no evidence of snakes on the premises. Additionally, the court found that there was no evidence that the defendant’s mode of operations would encourage business invitees to encounter or interact with snakes. The court granted summary judgment in the defendant’s favor.
The plaintiff appealed. The defendant argued that the garden center was not a self-service area, but the appeals court found that customers were allowed throughout the garden center to collect items to purchase. The defendant also argued that its mode of operation did not cause a reasonably foreseeable hazardous condition. The appeals court, however, found there was a reasonably foreseeable hazard that customers would interact with rattlesnakes hiding in the area because the outdoor garden center was adjacent to undeveloped property, where rattlesnakes were known to live and wander. The court also found it reasonably foreseeable that a customer could be bitten by a rattlesnake in the garden center.
The appeals court noted that it was not imposing potential liability for snake bites on all self-service businesses. Most businesses prevent snakes and other animals from entering the business area by building walls and doors. A business is only liable if it fails to use reasonable care to prevent rattlesnakes from biting its customers. The appeals court also noted that the defendant had not argued that the steps it took were sufficient as a matter of law to eliminate liability, so the court did not address that issue. The appeals court reversed the trial court’s order of summary judgment.
Judge Korsmo dissented, stating previous case law required a relationship between the hazardous condition and the self-service mode of operation. The dissent asserted that the rattlesnake’s presence in the garden center was not a result of the self-service operation. It further noted that there was no evidence that the garden center was a particularly attractive location for a snake and suggested that a snake could just as easily have been hiding under a vehicle or a bench. The dissent also stated that there was no evidence that having the garden center outdoors created a greater risk of rattlesnakes than just having the parking lot.
Although this case is unpublished, it may indicate a willingness on the part of the Court of Appeals to apply the Pimentel exception in broader circumstances or perhaps to even expand the exception.
If you have been injured on someone else’s property due to their negligence, you need a skilled Washington personal injury attorney to help you seek the compensation you deserve. Call Blair & Kim, PLLC at (206) 622-6562 to discuss your case with one of our attorneys.
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