Volume 123 — Washington Reports, Second Series

<bold>[1] Judgment — Summary Judgment — Review — Role of Appellate</bold> <bold>Court.</bold> A court reviewing a summary judgment engages in the same inquiry as the trial court. When the facts are undisputed and the trial court decided questions of law only, appellate review is de novo.<page_number>Page 574</page_number> <bold>[2] Constitutional Law — Police Power — Validity — Substantive</bold> <bold>Due Process — Test.</bold> In determining whether a local government's regulation enacted pursuant to its police power violates substantive due process, a court will evaluate whether the regulation (1) is aimed at achieving a legitimate public purpose, (2) uses means that are reasonably necessary to achieve that purpose, and (3) is unduly oppressive on the person regulated. <bold>[3] Municipal Corporations — Sidewalks — Defect —</bold> <bold>Indemnification of Municipality — Validity of Ordinance.</bold> An ordinance which requires the owner of private property abutting a defective public sidewalk to indemnify the municipality, without a trial or a finding of fault against the property owner, for all damages the municipality may agree to pay a person injured by the defect unless the owner has notified the municipality of the defect is unduly oppressive and violates substantive due process. <bold>[4] Municipal Corporations — Sidewalks — Maintenance — Primary</bold> <bold>Duty.</bold> Under RCW <cross_reference>35.22.280</cross_reference>(7), a first class city has the primary duty to maintain public sidewalks in a safe condition. <bold>[5] Municipal Corporations — Sidewalks — Defect —</bold> <bold>Indemnification of Municipality — Abating Nuisance.</bold> The authority granted by RCW <cross_reference>35.22.280</cross_reference>(30) to a first class city to abate nuisances and impose fines upon parties who create, continue, or suffer nuisances does not authorize requiring the owner of property abutting a defective sidewalk to indemnify the city for all damages the city may pay a person injured by the defect. <bold>[6] Torts — Immunity — Sovereign Immunity — Abolition —</bold> <bold>Indemnification for Governmental Negligence.</bold> Under RCW <cross_reference>4.96.010</cross_reference>, the abolition of governmental immunity precludes requiring another party to immunize a governmental entity for the negligence of the entity. <bold>[7] Constitutional Law — Due Process — Scope — Factors.</bold> In determining the degree of procedural due process (notice and an opportunity to be heard) that is due in a particular case, a court will balance the following interests: (1) the private interest to be protected, (2) the risk of erroneous deprivation of that interest by the government's procedures, and (3) the government's interest in maintaining its procedures.

<bold>[1] Negligence — Owner or Occupier of Land — Invitee — Knowledge</bold> <bold>of Hazard — Constructive Knowledge — Test.</bold> For purposes of determining if a business proprietor is liable to a business invitee for an unsafe condition on the land, the proprietor does not have constructive notice of the unsafe condition unless the condition existed for a length of time during which the proprietor had sufficient opportunity, in the exercise of ordinary care, to make a proper inspection of the premises and to remove the danger. In an action against the proprietor, the plaintiff must establish that the proprietor had, or should have had, knowledge of the dangerous condition in time to remedy the situation before the plaintiff's injury or to warn the plaintiff of the danger. <bold>[2] Negligence — Owner or Occupier of Land — Invitee — Knowledge</bold> <bold>of Hazard — Self-Service Store — Test.</bold> The rule that the proprietor of a self-service store can be liable to a business invitee for an unsafe condition on the land even if the proprietor does not have actual or constructive notice of the unsafe condition does not apply unless the nature of a proprietor's business and methods of operation are such that the existence of unsafe conditions on the premises is reasonably foreseeable; <italic>i.e.</italic>, there must be a relation between the hazardous condition and the self-service mode of operation of the business. <bold>[3] Judgment — Summary Judgment — Burden on Nonmoving Party —</bold> <bold>Averment of Specific is Facts — Prima Facie Case —</bold> <bold>Necessity.</bold> A defendant is entitled to a summary judgment if the defendant meets the initial burden of showing the<page_number>Page 650</page_number> absence of a genuine issue of material fact and the plaintiff fails to show the existence of a genuine issue of material fact. <bold>[4] Negligence — Owner or Occupier of Land — What Constitutes.</bold> For purposes of tort liability, a possessor of land is (1) a person who occupies the land with intent to control it, (2) a person who has been in occupation of the land with intent to control it and no other person has subsequently occupied it with intent to control it, or (3) a person who is entitled to immediate occupation of the land if no other person is possessing the land pursuant to either (1) or (2) above. DOLLIVER, J., concurs in the result only.

<bold>[1] Controlled Substances — Possession — Elements — In General.</bold> The crime of unlawful possession of a controlled substance (RCW <cross_reference>69.50.401</cross_reference>(d)) requires proof that (1) the substance is a controlled substance and (2) the defendant possessed the substance. The possession element may be either actual possession (personal custody) or constructive possession (dominion and control). <bold>[2] Controlled Substances — Possession — Momentary Handling — In</bold> <bold>General.</bold> For purposes of unlawful possession of a controlled substance (RCW <cross_reference>69.50.401</cross_reference>(d)), the momentary handling of a controlled substance does not constitute "possession"; the defendant must have actual control of the controlled substance for there to be possession.<page_number>Page 795</page_number> <bold>[3] Controlled Substances — Possession — Elements — Knowledge —</bold> <bold>Intent.</bold> The crime of unlawful possession of a controlled substance (RCW <cross_reference>69.50.401</cross_reference>(d)) does not require proof of intent to possess, knowledge of possession, or knowledge that the substance is a controlled substance. <bold>[4] Controlled Substances — Possession — Unwitting Possession —</bold> <bold>Affirmative Defense — Applicability.</bold> Unwitting possession is an affirmative defense to unlawful possession of a controlled substance (RCW <cross_reference>69.50.401</cross_reference>(d)) that may be raised after the State first establishes prima facie evidence of possession (<italic>i.e.</italic>, evidence of a sufficient quantum to establish actual control of a controlled substance by the defendant). <bold>[5] Controlled Substances — Possession — Momentary Handling —</bold> <bold>Proof of Actual Control — Status as Defense.</bold> In a prosecution for unlawful possession of a controlled substance (RCW <cross_reference>69.50.401</cross_reference>(d)), the defendant's "momentary, temporary, or fleeting" possession of the controlled substance is relevant to the State's burden of proving actual control but does not create a legal excuse for possession based on the duration of possession. <bold>[6] Criminal Law — Trial — Instructions — Proposed Instructions</bold> <bold>— Error.</bold> A criminal defendant is not entitled to an instruction which inaccurately represents the law.