CAROLYN L. ANDERSON, and K.C.

ANDERSON, her spouse,

Appellants, v. AMERICAN RESTAURANT GROUP, INC., DBA
DELAWARE AMERICAN RESTAURANT GROUP, INC., DBA
BLACK ANGUS RESTAURANTS, Respondents.

No. 44488-3-I

COURT OF APPEALS OF WASHINGTON, DIVISION ONE

November 6, 2000, Filed

RULES OF THE WASHINGTON COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED

OPINIONS. PLEASE REFER TO THE WASHINGTON RULES OF COURT.

OPINION
AGID, C.J. -- Carolyn Anderson suffered injuries when she slipped and fell while running across the
bathroom floor at the Black Angus restaurant in Bellevue to retrieve a piece of toilet paper for a restaurant-
sponsored scavenger hunt. Anderson brought a negligence suit against ARG Enterprises, Inc., d/b/a Black
Angus Restaurants, and the trial court granted summary judgment in Black Angus's favor. We reverse the
court's summary dismissal.
FACTS
In March, April, and May of 1995, the Black Angus lounge sponsored a series of scavenger hunts "as
an entertainment/promotional device for the patrons." During the scavenger hunt, participants sat in chairs
on the dance floor. As the disc jockey called out each object, the participants moved throughout the
restaurant to locate the required item. The last participant to return to the dance floor with the item for that
round was eliminated, and the game continued until only one person remained. The prize for winning the
hunt was entry in a drawing to win a Mexico trip.
On March 30, 1995, Anderson went to the Black Angus with two friends and participated in one of the
scavenger hunts. When she and three others were the only remaining participants, the DJ announced "toilet
paper" as the next required item, and Anderson dashed to the women's restroom nearest the lounge.
According to Anderson, she slipped and fell as she ran across the bathroom floor, and slid on her knees for
approximately four feet. She glanced back after falling and noticed there was water on the floor. She also
realized there were wet spots on her jeans in the knee area and below, and concluded the wet floor had
caused her fall. As she stood up, Anderson was in some pain but able to walk. She took a piece of toilet
paper from inside one of the bathroom stalls and returned to the dance floor. Because she was not the last
person to return, Anderson remained in the game and ultimately finished second. She did not file an
incident report or notify any Black Angus employee about the water on the bathroom floor. Black Angus
knew nothing about Anderson's fall until August 1995, when she contacted the restaurant's general
manager, Stephen Sheedy.
According to Anderson, she has had three surgeries on her right knee as a result of the fall, and
reinjured her back because of the knee injury and surgeries. She sued Black Angus for negligence, and the
restaurant moved successfully for summary judgment. Anderson timely appealed.
DISCUSSION 1

1 We review a summary judgment de novo, considering the facts and reasonable inferences
therefrom in the light most favorable to the nonmoving party. Hertog v. City of Seattle, 138 Wn.2d
265, 275, 979 P.2d 400 (1999). Summary judgment is appropriate only if the moving party is
entitled to judgment as a matter of law and there are no genuine issues of material fact. CR 56(c);
 Hertog, 138 Wn.2d at 275.
In a negligence action, the plaintiff must prove four basic elements: (1) the existence of a duty, (2)
breach of that duty, (3) resulting injury, and (4) proximate cause. 2 For negligence claims based on premises
liability, Washington has adopted the standards set forth in the Restatement (Second) of Torts §§ 343 and
343A to determine a landowner's liability to invitees. 3 Section 343 provides that a landowner is liable for an
invitee's physical harm caused by a condition on the land only if he:

....
(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.
An invitee "is entitled to expect that the possessor will take reasonable care to ascertain the actual
condition of the premises and, having discovered it, either to make it reasonably safe by repair or to give
warning of the actual condition and the risk involved therein." 4 Important to this case is the principle that
the amount or preparation required for an invitee's use of the property depends on "the nature of the land
and the purposes for which it is used . . . ." 5

2 Tincani v. Inland Empire Zoological Soc'y, 124 Wn.2d 121, 127-28, 875 P.2d 621 (1994).
3 Iwai v. State, 129 Wn.2d 84, 915 P.2d 1089 (1996).
4 Comment d to § 343.
5 Comment e to § 343.
In view of Section 343's language and comments, we hold that Black Angus' decision to host and invite
customers to participate in the scavenger hunt gave rise to a duty to inspect for and remedy or warn
participants about water on the bathroom floor. 6 Black Angus knew or should have known that scavenger
hunt participants would run through the bathrooms to look for toilet paper, and it had a duty to inspect and
maintain the bathrooms in a manner consistent with that knowledge. 7

6 Whether a duty exists is a question of law. Degel v. Majestic Mobile Manor, Inc., 129 Wn.2d
43, 48, 914 P.2d 728 (1996).

7 Although Anderson's own claims comprise the only evidence that there was water on the floor,
on summary judgment we interpret all facts and inferences in her favor. Further, while a wet
bathroom floor may not be unreasonably dangerous per se, it was under the circumstances here
because it was used in the scavenger hunt.
Given this duty, a reasonable jury could find that Black Angus breached its duty of reasonable care. 8 A
jury could find that Black Angus should have known that the bathroom floor might be wet, especially one
that has towel dispensers on the wall opposite the sinks. As restaurant and "games" expert Tom Shanahan
stated: "Restaurant and lounge restrooms are constant maintenance problem areas. The problems include
slick and wet floors. It is always foreseeable that there may be water slopped on the floor." The Restroom
Checklist that Black Angus used states the obvious: A wet floor is a safety hazard and keeping bathroom
floors clean and dry is a basic safety consideration. 9 Accordingly, a jury could conclude that by not
ensuring the bathroom floor was clean and dry up to and [*7] including the moment it challenged the
scavenger hunt participants to get a piece of toilet paper as fast as possible, it breached its duty of care. 10
And a jury could conclude that Black Angus should have expected that patrons darting into the bathroom
would not discover or realize the danger of a wet floor because they would be focused elsewhere and in a
hurry. For these reasons, summary judgment was inappropriate.

8 The amount of care required in a given instance necessarily varies according to the
circumstances of the particular case. Olsen v. John Hamrick's Tacoma Theatres, 9 Wn.2d 380, 387,
115 P.2d 718 (1941). "Reasonable care" means the care that a reasonably prudent person would
 have exercised under the same or similar circumstances. Id.
9 The checklist and testimony in the record suggests that Black Angus ordinarily checked the
bathroom for safety and cleanliness every half-hour. While that procedure may be reasonable under
normal circumstances, it was not sufficient here.
10 Cf. Lee v. Durow's Rest., Inc., 238 A.D.2d 384, 656 N.Y.S.2d 321 (1997) (restaurant not liable
for customer's injuries caused by a wheelbarrow race engaged in by other customers because the
activity was unexpected).

A jury could also find Black Angus was negligent under Section 343A(1) of the Restatement, which
imposes landowner liability even for known or obvious dangers if there is reason to anticipate harm
nonetheless: 11

A possessor of land is not liable to his invitees for physical harm caused to them by any activity or
condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the
harm despite such knowledge or obviousness.

11 See Degel, 129 Wn.2d at 50 (Section 343A imposes an additional duty if the landowner should
have anticipated the harm despite the invitee's knowledge of the danger or despite the obvious
nature of the danger).
The comments to this section explain that a landowner should expect harm to a visitor where there is
reason "to expect that the invitee's attention may be distracted, so that he will not discover what is obvious,
or will forget what he has discovered, or fail to protect himself against it." 12 And where a landlord [*9]
should anticipate harm despite the danger's obviousness, the landlord's duty of reasonable care remains and
may include "warn[ing] the invitee, or . . . [taking] other reasonable steps to protect him, against the known
or obvious condition or activity . . . ."

12 Section 343A, comment f. The fact that a danger is known, or is obvious, is important in
determining whether the invitee is to be charged with contributory negligence, or assumption of
risk, but is not conclusive in determining the duty of the possessor or potential negligence of the
landowner. Id. We do not consider Anderson's potential contributory negligence or assumption of
the risk because the parties do not explicitly discuss those issues.
Viewing the facts in light of these standards and in favor of Anderson, a jury could conclude that Black
Angus should have anticipated the harm that a wet bathroom floor could cause even if it were obvious
because participants would not have time to see and recognize the danger while sprinting into the
restroom to retrieve toilet paper. Accordingly, a jury could find that Black Angus should have taken steps
to ensure that the bathroom floor was completely dry during the scavenger hunt or at least warned
participants not to run. Contrary to Black Angus's claims, this is not a case where the only evidence of
negligence is a slip and fall event and water on the floor. Black Angus hosted the scavenger hunt, and a
jury should determine whether Black Angus should have foreseen the type of harm Anderson suffered. 13
While Black Angus cites numerous cases that have rejected a plaintiff's negligence claim because the
danger was "open and obvious," that reliance ignores the fact that whether a landowner is liable under
Section 343A is a separate consideration from a plaintiff's potential fault or assumption of the risk. 14

13 See, e.g., Degel, 129 Wn.2d at 54-55 (remanding for trial on whether the defendant should have
anticipated a child tenant might fall into a creek adjacent to a play area); Tincani, 124 Wn.2d at
140-41 (jury could conclude the defendant should have anticipated the young plaintiff might be
harmed while trying to descend a cliff he knew was dangerous); Lettengarver v. Port of Edmonds,
40 Wn. App. 577, 580-81, 699 P.2d 793 (1985) (jury could conclude the defendant should have
anticipated the plaintiff would slip on a known, exposed bolt, when it was impossible to dock
without encountering the bolts).

14 We also reject Black Angus's attempt to characterize the situation involved here as a typical
game venue. It runs a restaurant/lounge, not a place designed for games.
On a final note, although we are aware that Washington law absolves a landowner of liability if he
lacked either actual or constructive notice of the unsafe condition, 15 we analyze that requirement in light of
the unique circumstances here. Because there is no evidence that Black Angus had actual notice of the wet
floor, Anderson must show the restaurant had constructive notice of the dangerous condition. Constructive
notice is measured by whether the landowner had "'. . . sufficient opportunity, in the exercise of ordinary
care, to have made a proper inspection of the premises and to have removed the danger.'" 16 Ordinarily the
length of time the dangerous condition persisted is central to the constructive notice inquiry. 17 But under
the unique circumstances here, a jury could conclude that Black Angus had constructive notice of the
condition simply because it recognized wet floors were dangerous and it chose to conduct [*12] the
scavenger hunt, without any evidence of how long the bathroom floor had been wet. It is reasonable to
assume that water can easily collect on the floor of any bathroom, especially one designed like the one
involved here. Thus, a reasonable jury could conclude Black Angus had sufficient opportunity for a proper
inspection because it easily could have anticipated that the scavenger hunt would involve customers
running into and through the tiled bathrooms.

15 Iwai, 129 Wn.2d at 96. Although the analysis in Iwai centered on § 343 of the Restatement, the
notice requirement also applies when § 343A provides the analytical framework because a
landowner could not "anticipate the harm" of an allegedly dangerous condition or activity without at
least constructive notice of it.
16 Id. (quoting Pimentel v. Roundup Co., 100 Wn.2d 39, 44, 666 P.2d 888 (1983)).
17 See, e.g., Carlyle v. Safeway Stores, Inc., 78 Wn. App. 272, 896 P.2d 750, review denied, 128
Wn.2d 1004, 907 P.2d 297 (1995).
Finally, we grant Black Angus's motion to strike the Anderson's reply supplemental brief. This
court's order for supplemental briefing anticipated only one additional brief from each party. 18

18 We do not reach the issue of whether the trial court correctly struck the experts' declarations.
We agree that they may not contain any legal conclusions. See Charlton v. Day Island Marina, Inc.,
46 Wn. App. 784, 732 P.2d 1008 (1987) (expert may not state opinions of law or mixed fact and
law, such as whether a person was negligent; an affidavit is to be disregarded to the extent it
contains legal conclusions). But because we are reversing the summary judgment order, the
declarations are not at issue. Should additional declarations be filed, the trial court will evaluate
them in light of the applicable rules.
Reversed.
WE CONCUR: