Josephine Marth v. United States

2 F.3d 1157 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Josephine MARTH, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant. No. 91-36231. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 15, 1993.* Decided Aug. 4, 1993. As Amended on Denial of Rehearing Sept. 20, 1993. Before CANBY, WIGGINS and T.G. NELSON, Circuit Judges. — 1 — MEMORANDUM** — 2 — Under Washington law, the plaintiff in a slip and fall case must prove that there was water on the floor at the time the plaintiff slipped and that the floor was dangerously slippery. Kangley v. United States, 788 F.2d 533, 534 (9th Cir.1986) (applying Washington law). Here, Mrs. Marth proved neither that there was water present on the floor in the area where she fell, nor that water would render the floor dangerously slippery. These failures are fatal to her attempt to establish the Postal Service's negligence. See id.; Brant v. Market Basket Stores, Inc., 433 P.2d 863, 864-65 (Wash.1967); Merrick v. Sears, Roebuck & Co., 407 P.2d 960, 962 (Wash.1965); Griffiths v. Big Bear Stores, Inc., 347 P.2d 532, 534 (Wash.1959). — 3 — Such proof is essential before the question of notice on the part of the Postal Service arises. See Las v. Yellow Front Stores, Inc., 831 P.2d 744, 746 (Wash.Ct.App.1992), citing Wiltse v. Albertson's, Inc., 805 P.2d 793, 798 (Wash.1991). Therefore, we do not address the parties' contentions regarding notice. — 4 — The district court's findings that Mrs. Marth fell because of water on the floor that made it dangerously slippery are not supported by sufficient evidence and are clearly erroneous. Mrs. Marth did not meet her burden under Washington law. The judgment of the district court must be reversed. — 5 — REVERSED and REMANDED with instructions to dismiss the case. Footnotes [-s] * The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a) and Ninth Circuit Rule 34-4 [-s-s] ** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3