En Banc. Callow, J.*fn* Dolliver, Andersen, Durham, and Smith, JJ., concur. Utter, J., Dore, C.j., Brachtenbach, J., and Pearson, J. Pro Tem., dissent by separate opinion; Guy and Johnson, JJ., did not participate in the disposition of this case.
The plaintiff, Steven Wiltse, slipped and fell in water that came from a hole in the roof of the defendant, Albertson's Incorporated, self-service grocery store. At trial, the court instructed the jury that the plaintiff had the burden of proving that this condition had "existed for a sufficient length of time and under such circumstances that defendant or defendant's employees should have discovered it in the exercise of ordinary care."
The issue is whether the trial court erred in instructing the jury that the plaintiff had the burden of proving actual or constructive notice of the water existing at defendant's grocery store, based on Pimentel v. Roundup Co., 100 Wash. 2d 39, 666 P.2d 888 (1983).
In Pimentel, the plaintiff was injured when a can of paint struck her foot while she was looking through a magazine rack which contained books on home improvements. Pimentel, 100 Wash. 2d at 41. There, the court held that the owner's actual or constructive knowledge of the hazard was not necessary if the existence of the hazard was reasonably foreseeable. Pimentel, 100 Wash. 2d 39. The new rule adopted in Pimentel was taken from a Colorado case, Jasko v. F.W. Woolworth Co., 177 Colo. 418, 494 P.2d 839 (1972). The Jasko court reasoned:
The basic 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. Then, actual or constructive notice of the specific condition need not be proved.
(Italics ours.) Jasko, 177 Colo. at 420-21. The court in Pimentel also stated that "the requirement 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." Pimentel, 100 Wash. 2d at 50. That is not the case in the facts presented to us here.
There was no evidence that the leak in the roof was a result of Albertson's negligence nor that it came from the self-service operation of Albertson's. We will not abandon principles of negligence and make "self-service" stores liable whether they were aware or should have been aware of a dangerous condition.
Pimentel held that where the operating procedures of any store are such that unreasonably dangerous conditions are continuous or reasonably foreseeable, there is no need to prove actual notice of such conditions to establish liability for injuries caused by them. Pimentel, at 40. The Pimentel holding went on to say:
This does not change the general rule governing liability for failure to maintain premises in a reasonably safe condition: the unsafe condition must either be caused by the proprietor or his employees, or the proprietor must have actual or constructive notice of the unsafe condition.
Here, none of the conditions expressed in Pimentel are present. That is, the conditions which led up to the plaintiff's accident were neither continuous, reasonably foreseeable, nor was the accident associated with the store's self-service mode of operation. The record bears this out.
First, there is no indication that the store manager or any employee was aware of the water on the floor previous to
Mr. Wiltse's accident. The record indicates that the accident happened shortly after 7 p.m. on November 28, 1982. The store manager testified that he had been past the location of the plaintiff's fall minutes before the accident happened and did not notice, or have any previous notice, of any foreign substance on the floor.*fn1 There was further testimony from an employee that she did not notice any water on the floor at the time she walked by the area to punch out.*fn2 Thus, the record indicates that the store manager had
no notice that an unsafe condition existed in the store until after the time of Mr. Wiltse's accident.
The water came to rest on the floor because of a previously unnoticed leak in the building's roof, not from the dairy case or any other means associated with the store's self-service operation. At trial, the plaintiff testified that:
Q: Now, you indicated a few moments ago that you slipped in some water but yet you didn't see the water. How is it you knew that it was water that you had slipped in?
A: Well, naturally I was laying in it. It was hitting me from a hole or the grate or whatever in the ceiling. It was hitting me in the chest. I assumed it was water. I couldn't imagine what else could be up there.
Thus, the hazard came from a leaking roof which could give way suddenly, unforeseen and without notice. This is not the same as a continuing danger resulting from the store's self-service mode of operation.
The Pimentel rule does not apply to all self-service operations, but only if the particular self-service operation of the defendant is such that it is reasonably foreseeable that unsafe conditions in the self-service area might be created. The trial judge understood the difference between the facts of the case at bar and the rule established in Pimentel when he denied the proposed Pimentel instruction of the plaintiff. He stated:
With respect to the first exception with regard to whether or not the Court should utilize the las [ sic ] as set forth in Pimentel, simply because the defendant admittedly is a self-service grocery store, I feel the law, which in substance in Pimentel eliminates the need to show notice of a dangerous condition, should be applied to those cases in which the condition arises out of the actual operation of such a self-service enterprise, and if it does, then such an instruction is appropriate.
But here we have admittedly a condition which really doesn't result from the self-service operation as such, but something entirely ...