Galassi v. Lowe’s: Reasonable Foreseeability Exception Applies to Falling Merchandise and Defendants Must Carry the Initial Summary-Judgment Burden

1) Introduction

Galassi v. Lowe’s Home Centers, LLC is a premises-liability decision addressing when a plaintiff may avoid the traditional requirement of proving a retailer had actual or constructive notice of an unsafe condition. Hwayo Jenny Galassi alleged she was injured in Lowe’s garden center when a 2x25 foot roll of wire fencing, displayed on a high shelf in a self-service area, fell onto her foot after she touched an “askew” roll that was partially slanted forward over a stop bar.

The key legal issue was narrow and procedural: on Lowe’s motion for summary judgment, did the record—viewed in the light most favorable to Galassi—create a genuine issue of material fact as to the applicability of Washington’s “reasonable foreseeability exception” (often discussed as a “mode of operation” exception) to the traditional notice rule? If the exception could apply, Galassi could attempt to prove cause in fact without proving Lowe’s had prior notice of the specific mis-shelved roll.

2) Summary of the Opinion

Justice Yu, writing for a unanimous court, affirmed the Court of Appeals and held that summary judgment was improper. The Court reiterated that the reasonable foreseeability exception:

• applies equally to falling-merchandise incidents and slip-and-fall incidents;
• is not a per se rule and does not impose strict liability;
• remains a method of proving cause in fact (not a shift in the burden of proving negligence).

On this record, a trier of fact could infer that Lowe’s methods of operation—displaying bulky fencing rolls on high shelves for customer self-service and adopting employee safety-walk policies aimed at correcting mis-shelved items that “could fall and injure customers”—made it reasonably foreseeable that customers might remove and improperly replace bulky merchandise, creating the precise hazard alleged. Although Lowe’s offered contrary evidence (notably, no similar incidents in the prior three years), that conflict underscored the existence of a fact question rather than eliminating it.

3) Analysis

A. Precedents Cited

• Johnson v. Wash. State Liquor & Cannabis Bd., 197 Wn.2d 605 (2021)
  The Court treated Johnson as the modern synthesis of the exception’s “history and application.” It quoted Johnson for (i) the plaintiff’s burden to prove cause in fact, (ii) the traditional notice requirement in premises cases, and (iii) the exception’s formulation: unsafe conditions may be deemed “reasonably foreseeable” based on the “nature of the proprietor’s business and [its] methods of operation.” Importantly, Johnson is used to emphasize limits: the exception is “not a per se rule” and does not shift the burden of disproving negligence.
• Wiltse v. Albertson's Inc., 116 Wn.2d 452 (1991)
  Wiltse is cited for the doctrinal placement of the exception: it is a means of proving “cause in fact,” and the plaintiff must show injury from “specific unsafe conditions that are continuous or foreseeably inherent in the nature of the business or mode of operation.” The Court also notes Wiltse’s caution about importing Pimentel too readily into slip-and-fall cases—used here to illustrate that foreseeability is fact-pattern sensitive, not to confine the exception.
• Pimentel v. Roundup Co., 100 Wn.2d 39 (1983)
  Pimentel is the foundational Washington decision adopting the exception, and notably involved falling merchandise (a paint can fell on a customer’s foot). The Court relies on Pimentel for the exception’s rationale: when hazards are “continuous or easily foreseeable” due to operating methods, the “logical basis for the notice requirement dissolves.” It also reiterates Pimentel’s constraint: the exception does not “shift the burden to the defendant to disprove negligence.”
• Ingersoll v. DeBartolo, Inc., 123 Wn.2d 649 (1994)
  Lowe’s framed Ingersoll as creating “criteria” or a checklist of required evidence (vendors, operations, historical incident experience). The Supreme Court rejected that framing, treating Ingersoll as fact-bound: its record was “silent as to obviously relevant facts,” and the plaintiff’s theory depended on an “unsupported assumption” about the source of the substance. In contrast, here the hazard was known (a fencing roll) and was located where Lowe’s chose to store/display it.
• Keck v. Collins, 184 Wn.2d 358 (2015)
  Cited for the summary-judgment standard: de novo review, with evidence and inferences viewed in the light most favorable to the nonmoving party.
• Van Hook v. Anderson, 64 Wn. App. 353 (1992)
  Cited for the principle that, on summary judgment, the court considers evidence “from both sides” in the light most favorable to the nonmoving party.
• Young v. Key Pharms., Inc., 112 Wn.2d 216 (1989) and Celotex Corp. v. Catrett, 477 U.S. 317 (1986)
  Used to articulate burdens on summary judgment: the moving party has the initial burden to show the absence of a material fact issue. A defendant may do so by “pointing out” the plaintiff’s lack of evidence; if so, the burden shifts to the plaintiff to set forth specific facts under CR 56(e). The Court uses this framework to explain why Lowe’s lost at the threshold: it did not merely point out an evidentiary gap; it submitted evidence that itself supported competing inferences.
• Hash v. Child.'s Orthopedic Hosp. & Med. Ctr., 110 Wn.2d 912 (1988)
  Central to the disposition: if the moving party does not sustain its burden, summary judgment must be denied “regardless of whether the nonmoving party has submitted affidavits or other evidence.” This undercuts Lowe’s argument that Galassi was necessarily “required to put on evidence” to avoid summary judgment.
• Pac. Nw. Shooting Park Ass'n v. City of Sequim, 158 Wn.2d 342 (2006)
  Reinforces that a defendant may pursue one of two strategies on summary judgment: submit its own facts or argue the plaintiff lacks evidence. The Court treats Lowe’s as having chosen the former.
• Jones v. State, 170 Wn.2d 338 (2010)
  Cited to reject dismissing testimony as “self-serving” on summary judgment; courts do not weigh credibility at that stage.
• Meyers v. Ferndale Sch. Dist., 197 Wn.2d 281 (2021), Hartley v. State, 103 Wn.2d 768 (1985), and Schooley v. Pinch's Deli Mkt., Inc., 134 Wn.2d 468 (1998)
  These cases frame “cause in fact” as a “but for” inquiry typically reserved for the jury—supporting the Court’s view that foreseeability under the exception is usually a fact question.
• Moore v. Fred Meyer Stores, Inc., 26 Wn. App. 2d 769 (2023)
  Cited for the proposition that whether the exception applies is fundamentally a question of fact for the jury unless reasonable minds could not differ. The Supreme Court declined Lowe’s invitation to “reverse” Moore (not before the Court) and clarified only that foreseeability is indeed factual because it goes to cause in fact.
• Wiard v. Mkt. Operating Corp., 178 Wash. 265 (1934)
  Used for historical grounding: the traditional notice rule was well established by the mid-1930s.
• Jasko v. F.W. Woolworth Co., 177 Colo. 418 (1972)
  Quoted (via Pimentel) for the rationale behind relaxing notice where operating methods make hazards continuous or easily foreseeable.
• Ciminski v. Finn Corp., 13 Wn. App. 815 (1975) and Coleman v. Ernst Home Ctr., Inc., 70 Wn. App. 213 (1993)
  Cited for the economic and practical realities of self-service: customers handle merchandise and are “naturally not as careful,” making hazards “apparent” where goods are removed and replaced.
• Tincani v. Inland Empire Zoological Soc'y, 124 Wn.2d 121 (1994) and RESTATEMENT (SECOND) OF TORTS § 343
  Provide the general duty framework for business invitees (reasonable care to protect invitees from conditions on the land) and the elements of negligence.
• Additional slip-and-fall comparisons: Tavai v. Walmart Stores, Inc., Arment v. Kmart Corp., Carlyle v. Safeway Stores, Inc.
  These examples illustrate a recurring slip-and-fall evidentiary gap (unknown substance/source) and help explain why Ingersoll-style proof is not universally required.
• Additional summary-judgment citations: White v. Kent Med. Ctr., Inc., Jacobsen v. State, Baldwin v. Sisters of Providence in Wash., Inc.
  These reinforce that the nonmoving party’s failure to submit opposing evidence does not automatically warrant summary judgment if the moving party has not met its initial burden.

B. Legal Reasoning

1. The Court situates the exception as a cause-in-fact tool, not a liability shortcut.
Relying on Johnson, Wiltse, and Pimentel, the Court stresses that the exception modifies the proof required for the notice component of cause in fact in premises cases. It does not collapse duty, breach, or the “unreasonably dangerous condition” requirement, and it does not shift burdens of persuasion to the defendant. This framing addresses (and rejects) Lowe’s “strict liability” concern.

2. Falling merchandise is not doctrinally distinct for the exception.
The Court makes an explicit clarification: the reasonable foreseeability exception “applies equally to falling merchandise, slip-and-falls, or other incidents.” That statement matters because much of Washington’s later case law discussing the exception is slip-and-fall focused; the Court uses Pimentel (a falling-merchandise case) to confirm the exception’s origin and applicability.

3. The exception demands a fact-specific inquiry; Ingersoll is not a universal checklist.
The core dispute was Lowe’s attempt to transform Ingersoll into a general evidentiary template. The Court rejects that move by emphasizing that what evidence is “relevant and necessary” depends on “the specific facts presented.” In slip-and-fall cases, uncertainty about the identity and origin of the substance often makes vendor practices and “historical experience” more critical. Here, the hazard’s identity and location were much clearer: a fencing roll on the shelf where Lowe’s displayed it.

4. Summary judgment turned on the moving party’s strategic choice—and its consequences.
The Court’s dispositive reasoning is procedural:

• Lowe’s could have met its initial burden by simply pointing out Galassi’s lack of evidence of actual/constructive notice (a “no evidence” strategy under Young/Celotex).
• Instead, Lowe’s submitted evidence and asserted affirmatively that the exception did not apply.
• But Lowe’s own evidence (notably, the safety-walk policy targeting mis-shelved items that “could fall and injure customers,” plus the self-service display of bulky fencing on a high shelf) supported competing inferences about foreseeability.
• Under Hash, if the movant does not carry its initial burden, summary judgment must be denied “regardless” of the opponent’s submissions.

5. The Court identifies the factual inferences that create the triable issue.
Viewing the evidence most favorably to Galassi, the Court explains how a factfinder could infer:

• customers would remove bulky rolls from high shelves to inspect them and attempt to replace unwanted rolls;
• customers may replace bulky items improperly;
• improper shelving could cause the roll to fall and injure customers—matching the hazard Lowe’s safety policies anticipate.

The Court acknowledges contrary evidence (no prior similar incidents) that could support Lowe’s position. But that merely confirms the dispute is for the trier of fact, not resolvable as a matter of law.

C. Impact

• Clarification for falling-merchandise claims: By expressly reaffirming that the exception applies to falling merchandise (and noting the doctrine’s origin in Pimentel), the Court reduces the argument that the exception is primarily “slip-and-fall law.”
• Anti-checklist guidance: The opinion discourages rigid, Ingersoll-as-template approaches and pushes litigants and trial courts toward a hazard-specific inquiry: what evidence is “obviously relevant” depends on what allegedly happened and why it is claimed to have been foreseeable.
• Summary-judgment strategy consequences: The opinion is a cautionary note for defendants who choose to submit affirmative evidence to negate foreseeability. If that evidence supports reasonable inferences for the plaintiff, it can prevent the defendant from meeting its initial burden—keeping the case for trial even if the plaintiff’s opposition is modest.
• No strict-liability expansion (in doctrine): The Court repeatedly emphasizes doctrinal limits—no per se rule, no burden shifting, and no elimination of other negligence elements. Practically, however, the decision may increase the number of cases reaching juries where store policies and merchandising practices can be framed as acknowledging foreseeable customer-created hazards.

4) Complex Concepts Simplified

• Business invitee: A customer invited onto business premises. The proprietor owes reasonable care to protect invitees from dangerous conditions (RESTATEMENT (SECOND) OF TORTS § 343).
• Traditional notice rule (actual/constructive notice): Ordinarily, to show the store’s negligence caused the injury, the plaintiff must prove the store knew (actual notice) or should have known (constructive notice) about the specific hazardous condition in time to fix it.
• Reasonable foreseeability exception (mode-of-operation concept): Instead of proving notice of the specific hazard, the plaintiff may prove notice/cause-in-fact by showing the business’s nature and operating methods make that type of hazard reasonably foreseeable (e.g., self-service handling makes misplacement/spills more likely).
• Cause in fact (“but for” causation): The factual connection—would the injury have happened “but for” the defendant’s conduct? Usually a jury question.
• Summary judgment & “genuine issue of material fact”: A case can be decided without trial only if no reasonable factfinder could disagree on a fact that matters to the outcome. The moving party has an initial burden to show that absence; only then must the opponent produce specific facts (CR 56(e)).
• “Not a per se rule” / “not strict liability”: Even if foreseeability substitutes for proof of notice, the plaintiff must still prove a dangerous condition, breach of reasonable care, and damages; the defendant is not automatically liable.

5) Conclusion

Galassi v. Lowe’s Home Centers, LLC reinforces and clarifies Washington’s reasonable foreseeability exception in two important ways: (1) it applies equally to falling-merchandise injuries, not just slip-and-fall scenarios; and (2) its application is intensely fact-specific, resisting any attempt to turn Ingersoll v. DeBartolo, Inc. into a universal evidentiary checklist. Procedurally, the decision highlights that a defendant who supports summary judgment with affirmative evidence must ensure that evidence does not itself support reasonable inferences of foreseeability—because if it does, the defendant may fail to meet the initial burden and the case will proceed to a factfinder.