Unpublished Disposition, 859 F.2d 924 (9th Cir. 1983)

87-3771.

United States Court of Appeals, Ninth Circuit.

Before ALARCON and BEEZER, Circuit Judges, and HENDERSON,^*  District Judge.

MEMORANDUM^** 

Erma and Derwood Wilson appeal from the district court's dismissal on the merits of their claim against the United States under the Federal Tort Claims Act (FTCA). We affirm.

FACTS

Erma Wilson was injured when she slipped on a paper clip and fell on a hallway floor at the Madigan Army Medical Center in Tacoma, Washington. The fall occurred outside the OB/GYN clinic on ramp 3. The Wilsons subsequently brought suit against the United States under the FTCA, 28 U.S.C. §§ 1346(b), 2671 et seq., claiming that the United States was liable for Mrs. Wilson's damages because it negligently maintained the floors at the medical center.

After a bench trial, the district court dismissed the action on the merits. From the evidence proffered at trial, the district court made the following findings of fact and conclusions of law:

FINDINGS OF FACT

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5. Wilson slipped on a paper clip that was lying on the floor of the hall. The fall occurred at approximately 10:00 a.m. on January 12, 1983. Wilson did not see the paper clip before the fall. On prior occasions, Wilson had noticed paper clips on the floor.

6. The hallway in which Wilson was injured is heavily used. Hundreds of people a day walk through the hall at the point where plaintiff fell.

7. Ramp 3 is regularly swept and cleaned according to a set schedule. The hall is swept four times a day, twice between 5:30 a.m. to 2:30 p.m. and twice from 2:30 p.m. to sometime during the evening hours. The hall is mopped at least one time a day.

8. In addition to regular cleaning, ramp 3 is inspected between four and six times per day.

9. The day Mrs. Wilson fell, the hallway in question, was swept at approximately 9:00 a.m. The spot where plaintiff fell was scheduled to be swept again at approximately 10:30. The hall was free of debris after it was swept at 9:00 a.m.

10. The files of OB/GYN clinic patients are brought to the clinic the morning of their appointment between 7:45 a.m. and 8:15 a.m. The files contain paper clips and are delivered by Madigan personnel. Throughout the day, Madigan personnel carry files in ramp 3 that contain paper clips.

11. The paper clip Mrs. Wilson slipped on was lying on the floor because of the action of Madigan personnel, at some unknown time before she fell.

12. A standard sized paper clip lying on a linoleum floor of a heavily travelled hallway creates a hazardous condition, and defendant had notice of the hazardous condition, because of the actions of their personnel.

13. Since Madigan personnel created the hazardous condition, defendant had knowledge of the fact that a paper clip was on the floor of the hallway just outside the OB/GYN clinic. See Falconer v. Safeway Stores, 49 Wash. 2d 478, 303 P.2d 294 (1956).

14. The paper clip was lying on the floor of the hallway for an indeterminate period of time.

Based upon the foregoing Findings of Fact, the Court now makes the following:

CONCLUSIONS OF LAW

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2. In Washington, land owners and occupiers of land, such as Madigan in the instant case, owe invitees a duty of ordinary care to keep their premises in reasonably safe condition. Morgan v. United States, 709 F.2d 580 (9th Cir. 1983).

3. The likelihood or probability of harm to others presented by a condition existing upon the land is the most significant factor for consideration when determining a land owners liability for injuries allegedly caused by such condition. Ochampaugh v. Seattle, 91 Wash. 2d 514, 588 P.2d 1351 (1979).

4. The permissible period of time, consistent with the exercise of ordinary care, for removing a dangerous condition is measured by the varying circumstances of each case. Morton v. Lee, 75 Wash. 2d 393, 397, 450 P.2d 957 (1969).

5. This court finds plaintiff maintained the floor of ramp 3 in reasonably safe condition because the floor was swept and inspected several times per day. Under the circumstances of this case, defendant acted reasonably in maintaining the hallway in question in a reasonably safe condition for its invitees.

6. Plaintiffs have failed to show by a preponderance of the evidence that defendant breached its duty to exercise ordinary care under the circumstances in this case.

JUDGEMENT will be entered accordingly.

The Wilsons timely appeal.

STANDARD OF REVIEW

We review the district court's interpretation of state law de novo. See Matter of McLinn, 739 F.2d 1395, 1397 (9th Cir. 1984) (en banc). We review the district court's finding of fact under the clearly erroneous standard. Fed. R. Civ. P. 52(a); Yeseta v. Baima, 837 F.2d 380, 386 (9th Cir. 1988). A finding of fact is clearly erroneous when upon review of the entire evidence we are left with the definite and firm conviction that a mistake has been committed. United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948); Yeseta, 837 F.2d at 386; Dollar Rent-A-Car of Washington v. Travelers Indem., 774 F.2d 1371, 1374 (9th Cir. 1985).

ANALYSIS

Under the FTCA, tort actions against the United States are governed by the "law of the place where the act or omission occurred." 28 U.S.C. § 1346(b). Washington State law is therefore applicable to this case. Under Washington law, liability based on negligence is established by the existence of a duty, breach of that duty, proximate cause between the breach and the injury, and a resulting injury. See Davis v. Globe Mach. Mfg. Co., 102 Wash. 2d 68, 684 P.2d 692, 696 (1984); Pedroza v. Bryant, 101 Wash. 2d 226, 677 P.2d 166, 168 (1984); see also General Elec. Co. v. Rees, 217 F.2d 595, 597 (9th Cir. 1955).

As a business invitee on the day of her accident, the United States owed Wilson a duty to use ordinary care to keep the premises in a reasonably safe condition. See Hemmen v. Clark's Restaurant Ent., 72 Wash. 2d 690, 434 P.2d 729, 731-32 (1967); Hooser v. Loyal Order of Moose, Inc., 69 Wash. 2d 1, 416 P.2d 462, 463 (1966); McKinnon v. Washington Federal Savings and Loan Ass'n, 68 Wash. 2d 644, 414 P.2d 773, 776 (1966); Messina v. Rhodes Co., 67 Wash. 2d 19, 406 P.2d 312, 317 (1965). Ordinary or reasonable care is "that degree of care which a man of ordinary prudence would exercise under the same or similar circumstances." Hemmen, 434 P.2d at 732. What constitutes a reasonably safe condition depends on the nature of the business conducted and the circumstances surrounding the particular situation. Brant v. Market Basket Stores, Inc., 72 Wash. 2d 446, 433 P.2d 863, 866 (1967); Messina, 67 Wash. 2d at 27.

The Wilsons contend that the district court's conclusion of law was clearly erroneous and reflects a misapplication of Washington case law. The Wilsons essentially maintain that once the district court found that defendant had notice and knowledge of the hazardous conditions because defendant created the condition, it should have ended its inquiry and found the United States negligent. According to the Wilsons, they need not prove that defendant failed to take reasonable care inspecting or maintaining its premises.

The general rule in Washington governing liability for failure to maintain premises in a reasonably safe condition has been set out by the Washington Supreme Court:

[T]he unsafe condition must be caused by the proprietor or his employees, or the proprietor must have actual or constructive notice of the unsafe condition. Such notice need not be shown, however, if when 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. This exception merely eliminates the need for establishing notice and does not shift the burden to the defendant to disprove negligence. The plaintiff must still prove that defendant failed to take reasonable care to prevent the injury.

Pimental v. Roundup Co., 100 Wash. 2d 39, 666 P.2d 888, 893 (1983); see also Kangley v. United States, 788 F.2d 533, 534 (9th Cir. 1986). The requirement of actual or constructive notice obviously does not apply where the dangerous condition is created by the defendant and has been in existence for a long time. Falconer v. Safeway Stores, Inc., 49 Wash. 2d 478, 303 P.2d 294, 296 (1956); Erdman v. Lower Yakima Valley, 41 Wash. App. 197, 704 P.2d 150, 156 (1985). The notice requirement applies only to temporary conditions created by others, and where there is no such participation on the part of the defendant. Erdman, 704 P.2d at 156.

Our review of the record before us leaves us with the definite and firm conviction that a mistake has been committed. The district court clearly erred in finding that "defendant had notice of the hazardous condition because of the actions of their personnel" and that " [s]ince Madigan personnel created the hazardous condition, defendant had knowledge of the fact that a paper clip was on the floor." The evidence in the record does not support the finding that defendant's employees created a hazardous condition merely by carrying files with attached paper clips. Moreover, there is no evidence that any government worker was aware that one of them had dropped a paper clip.

Although we conclude that the district court clearly erred in some of its findings of fact, we affirm its conclusion that defendant acted reasonably in maintaining the hallway in a reasonably safe condition for its invitees. The facts on the record fail to show that the hospital's employees breached their duty to exercise ordinary care to keep the premises in a reasonably safe condition under the circumstances of this case.

AFFIRMED.