In the winter of 2009 a near-record six-and-half feet of snow fell in Spokane, Washington.  Snow-plowing created snow berms throughout the city.

Mr. Todd came to an intersection. A large snow berm blocked the view to his left. Mr. Todd stopped, looked both ways, then inched into the intersection to try to see if it was clear. After the front of his vehicle was at least half-way through the intersection he accelerated. He never saw the vehicle that struck him.

A huge snow pile blocks a driver's vision of on-coming traffic. As you might guess, this does not end well.
A huge snow pile blocks a driver’s vision of on-coming traffic. As you might guess, this does not end well.

Mr. Todd sued the hardware store that was on the corner to his left for property damage and personal injury.

The store did not dispute that its parking lot was cleared of snow. The store nevertheless moved to dismiss the case on summary judgment, arguing that Mr. Todd’s negligence was the sole cause of the accident, that the store owed no duty to Mr. Todd, and that if any duty was owed it did not breach that duty.

Mr. Todd responded, arguing that his own deposition testimony and circumstantial evidence created a material issue of fact, and that there were outstanding discovery requests.

The trial court granted summary judgment.

The Washington Court of Appeals reversed.[1]

The Court of Appeals concluded that the hardware store misunderstood the summary judgment burden of proof. Contrary to the store’s argument, the moving party in a summary judgment motion bears the initial burden of showing a lack of evidence.

Mr. Todd is entitled to inferences in his favor for purposes of summary judgment. While he never witnessed anyone acting on behalf of the store plowing any snow, he observed a snow large berm on the public right of way at the edge of the store’s parking lot. Creating a snow pile is a matter of common understanding, not one where expert testimony is necessary.

The Court of Appeals concluded that summary judgment is not appropriate where discovery is outstanding and where the non-moving party’s deposition raises a fact issue.


by Travis Eller

Note – our firm was not involved in this case.



[1] Todd v. River Ridge Hardware, Inc., unpublished opinion (No. 29551-6-III).