took a fall when leaving a store and landed at the bottom of
a set of stairs. Although she cannot remember what caused her
to lose her footing, expert testimony creates a genuine issue
of fact as to whether the absence of required handrails was a
proximate cause of her injuries. The order dismissing her
suit on summary judgment is reversed.
in favor of plaintiff Virginia Mehlert, the nonmoving party,
the record establishes the following facts. Mehlert visited
the Mariners Team Store in downtown Seattle on March 22,
2012. At the time, the front of the store was configured as
shown in the photograph below. Three concrete steps led up from
the sidewalk to a landing; the landing connected to a
carpeted vestibule; the vestibule led to the door. The top
stair was 76 inches wide. A 37-inch wide plywood ramp was
placed over the stairs to make the store accessible by
wheelchair. On each side of the ramp was a raised edge strip,
measuring 1 inch in width and 2 inches in height. There were
no handrails adjacent to the ramp or the stairs.
remembers that when she left to go to another store, she
pushed the door open and turned to say goodbye to a store
employee. "I took one or two steps is about all I took,
and then I had a sensation of falling." Mehlert lost
consciousness as a result of hitting her head as she fell.
Mehlert recalls that she fell to her left and the next thing
she remembers is talking to a paramedic. She was found on the
sidewalk to the left of the stairs, bleeding from a cut over
her eye. She suffers from the effects of a head injury.
sued the tenant and landlord of the store for failure to
maintain safe premises. The defendants successfully moved for
summary judgment on the basis that Mehlert lacked proof of
causation. Mehlert appeals.
review summary judgment orders de novo, engaging in the same
inquiry as the trial court. Mahoney v. Shinpoch, 107
Wn.2d 679, 683, 732 P.2d 510 (1987). Summary judgment is
proper when, viewing the evidence and available inferences in
favor of the nonmoving party, there are no genuine issues of
material fact. CR 56(c). The moving party has the initial
burden of demonstrating there are no factual issues.
Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770
P.2d 182 (1989). The burden then shifts to the plaintiff, who
must set forth specific facts rebutting the moving
party's contentions and disclosing issues of material
fact. Young, 112 Wn.2d at 225. The plaintiff may not
rely on speculation or argumentative assertions. Marshall
v. Bally's Pacwest, Inc., 94 Wn.App. 372, 377, 972
P.2d 475 (1999).
negligence case, the plaintiff must produce evidence
supporting four elements: duty, breach, causation, and
damages. Little v. Countrywood Homes, Inc., 132
Wn.App. 777, 780, 133 P.3d 944, review denied, 158
Wn.2d 1017 (2006). Defendants acknowledge that they owed
Mehlert a duty to protect her from dangerous conditions on
the property, and they concede for purposes of summary
judgment that the ramp created a dangerous condition. They
accept the conclusion of engineer William K. Skelton that the
ramp was noncompliant with a building code requirement for
handrails on both sides. The parties agree that the sole
issue for our consideration is whether the lack of handrails
was a cause of Mehlert's injuries.
proximate cause is one that in natural and continuous
sequence, unbroken by an independent cause, produces the
injury complained of and without which the ultimate injury
would not have occurred." Attwood v. Albertson's
Food Ctrs., Inc., 92 Wn.App. 326, 330, 966 P.2d 351
(1998). There may be more than one proximate cause of an
injury. Smith v. Acme Paving Co., 16 Wn.App. 389,
396, 558 P.2d 811 (1976). Direct evidence or precise
knowledge of how an accident occurred is not required;
circumstantial evidence is sufficient. Conrad v.
Alderwood Manor, 119 Wn.App. 275, 281, 78 P.3d 177
(2003); Klossner v. San Juan County, 21 Wn.App. 689,
692, 586 P.2d 899 (1978), affd, 93 Wn.2d 42, 605 P.2d 330
(1980). See also Raybell v. State, 6 Wn.App. 795,
803, 496 P.2d 559 (circumstantial evidence was sufficient to
prove that if a proper guardrail had been installed along a
narrow highway, decedent's car would have been deflected
instead of plunging over a cliff), review denied, 81
Wn.2d 1003 (1972). The inquiry is whether a reasonable person
could conclude that there is a greater probability that the
conduct in question was the proximate cause of the
plaintiff's injury than there is that it was not.
Hernandez v. W. Farmers Ass'n, 76 Wn.2d 422,
425-26, 456 P.2d 1020 (1969).
is usually a jury question. Little, 132 Wn.App. at
780. It becomes a question of law for the court only when the
causal connection is so speculative and indirect that
reasonable minds could not differ. Moore v. Hagge,
158 Wn.App. 137, 148, 241 P.3d 787 (2010), review
denied, 171 Wn.2d 1004 (2011); Marshall, 94
Wn.App. at 378.
were no witnesses to the fall except for Mehlert herself, and
Mehlert does not remember what caused her to fall. She does
not know whether she was on the stairs, ramp, or somewhere
else when she began falling, and she does not know what she
hit her head on. She testified that she was "headed in
the direction of down the stairs or down the ramp" when
she began falling. She "wanted something to grab, but
there was nothing to grab." When asked whether she
recalled "reaching for something, " Mehlert
responded, "I remember wanting to because I was
prove causation, Mehlert relies on the declaration of Dr.
Erin Harley, a human factors specialist with a doctorate in
cognitive psychology. Harley opined that Mehlert was most
likely at the top of the stairs when she fell because her
stride length (the distance traveled in two consecutive
steps) was approximately 59 inches, while the distance from
the door to the concrete of the landing was approximately 60
inches. Harley explained that the placement of the ramp over
the middle of the stairs effectively divided the stairs into
two impermissibly narrow stairways, one on each side of the
ramp, each approximately 19 V-z inches wide at the
top. Citing a study, she stated that 29 inches is the minimum
safe stair width for a single file stair in a public place,
especially considering that an individual descending a stair
typically maintains an approximate distance of 6 inches from
a wall. "The narrow width of the stairways constrained
the path of egress from the building, and increased the
likelihood that a pedestrian would inadvertently contact the
raised edges of the ramp, and potentially suffer a
trip-and-fall event, when attempting to descend one of the
staircases." She added that Mehlert's description of
suddenly falling forward and the injuries she sustained in
the fall were "consistent with the kinematics of a fall
resulting from a trip."
contend that because Mehlert cannot remember why or where she
fell, it cannot be assumed that she came into contact with
the ramp. But Mehlert's theory of causation does not
require proof that she tripped on the ramp or was on the ramp
when she fell, and it does not require an explanation of how
or why she fell. Her theory of causation rests on
Harley's opinion that the absence of handrails
"presented a safety hazard and was a contributing
factor" in her fall. Code required handrails on each
side of the two narrow staircases as well as on the ramp.
Without handrails, any path from the store to the sidewalk
was unsafe. According to Harley, if appropriate handrails had
been present, Mehlert would have been able to reach out to
grasp one, thereby lessening or preventing her injuries.
presented research about the effectiveness of handrails in
preventing falls. She discussed studies showing that in
moments of destabilization, individuals are almost ...