UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ ) JOHNNY CHARLES, ) ) Plaintiff, ) ) v. ) Case No. 16-cv-2054 (EGS) ) HOME DEPOT, U.S.A., INC., ) ) Defendant. ) ______________________________)
MEMORANDUM OPINION AND ORDER
Plaintiff Johnny Charles (“Mr. Charles”) sues defendant
Home Depot, U.S.A., Inc. (“Home Depot”) for negligence after he
stepped in a hole in the floor of a Home Depot store, causing
him to twist and injure his ankle. Pending before the Court is
Home Depot’s motion for summary judgment. After carefully
considering the motion, Mr. Charles’ response, the reply
thereto, the entire record herein, and the applicable law, the
Court DENIES Home Depot’s motion.
I. Background
There is very little dispute as to the facts material to
this case. See, e.g., Def.’s Reply to Counter-Stmt. of Material
Facts, ECF No. 26-3. On October 16, 2013, Mr. Charles was
shopping at a Home Depot store located in Northeast Washington,
D.C. See Dep., ECF No. 25-1 at 23:6-12. He was pushing a cart
1 when he “stepped in a hole” and “twisted his [right] ankle.” Id.
at 28:18-22. According to Mr. Charles, the hole was “about two
inches wide and about . . . a little under a half inch deep.”
Id. at 29:17-24. Mr. Charles estimated the hole was also about
two inches long. Id. at 40:6-9. Mr. Charles did not know what
caused the hole in the cement floor, but characterized it as
“clean-cut,” meaning there was no other “loose cement” nearby.
Id. at 35:7-16.
After twisting his ankle, Mr. Charles reported the hole and
his injury to the store manager, id. 28:18-25, and filled out an
incident report, see Ex. 2, ECF No. 25-1 at 38 1 (reporting that
he stepped in a hole and twisted his right ankle). According to
Mr. Charles, the manager apologized and placed a caution sign
over the hole. Dep., ECF No. 51-1 at 28:18-25. He also believed
the manager was aware of the hole prior to his injury because
the manager said “something like, I told them” when Mr. Charles
showed him the hole. Id. at 36:2-20. Home Depot disputes that
the manager placed a caution sign next to the hole. See Nunyi
Aff., ECF No. 26-1 (Home Depot manager’s attestation that, “to
the best of [his] recollection,” he never “place[d] a caution
sign in the area Mr. Charles claimed to have injured himself”).
1 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document. 2 Initially, Mr. Charles did not believe that he had been
badly injured, see Dep., ECF No. 25-1 at 42:10-15, but his
condition changed quickly, id. at 52:13-16, and his ankle never
fully healed. Over the years, Mr. Charles wore several “boot”
casts and ankle braces, he had to use crutches for several
weeks, and ultimately, he required physical therapy, cortisone
shots, and surgery. See id. at 71:15-19, 84-85, 88-92. Mr.
Charles still wears an ankle brace, id. at 96:10-15, and his
ankle is still tender and painful, id. at 101:2-19. Indeed, Mr.
Charles’ ankle still prevents him from partaking in many
activities that he used to enjoy. See id. at 103-107. 2
II. Standard of Review
Pursuant to Federal Rule of Civil Procedure 56, summary
judgment should be granted only “if the movant shows that there
is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); Waterhouse v. District of Columbia, 298 F.3d 989, 991
(D.C. Cir. 2002). The moving party must identify “those portions
of the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, which
2 Mr. Charles’ previous conditions, including his diabetes, may have aggravated or significantly worsened his injury. See Dep., ECF No. 25-1 at 79:1-6 (Mr. Charles: “And the reason why the swelling wouldn’t go down, [the doctor] said could be because of my diabetes . . . . when you get injuries of that nature, it’s harder to heal”). 3 it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986) (quotations omitted). On the other hand, to defeat
summary judgment, the nonmoving party must demonstrate that
there is a genuine issue of material fact. Id. at 324. A
material fact is one that is capable of affecting the outcome of
the litigation, while a genuine dispute is one in which “the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). Further, in the summary judgment analysis
“[t]he evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.” Id. at
255.
III. Analysis
In its motion for summary judgment, Home Depot argues that
it was not negligent as a matter of law. It contends that the
alleged hole in which Mr. Charles twisted his ankle cannot
constitute a dangerous condition because it was only about two
inches wide, two inches long, and a half-inch deep. See
generally Def.’s Mot., ECF No. 24. Mr. Charles responds by
arguing that whether the hole was a dangerous condition is a
question for the jury to resolve. See generally Pl.’s Opp’n, ECF
No. 25. He contends that the Court cannot find that the hole was
not dangerous as a matter of law. See id.
4 Under District of Columbia law, which both parties agree
applies, 3 the plaintiff in a negligence action must demonstrate
three elements: that there was “a duty of care owed by the
defendant to the plaintiff, a breach of that duty by the
defendant, and damage to the interests of the plaintiff,
proximately caused by the breach.” Girdler v. United States, 923
F. Supp. 2d 168, 187 (D.D.C. 2013)(quotations and citations
omitted). The plaintiff bears the burden of “establishing that a
violation of the reasonable standard of care is the proximate
cause of the injury sustained. The mere happening of an accident
does not meet this burden.” District of Columbia v. Cooper, 445
A.2d 652, 655 (D.C. 1982).
Generally, a store proprietor has an “obligation of due
care to protect customers from risks created by employees or
risks created by other customers.” Hudson v. Harris Teeter, LLC,
292 F. Supp. 3d 496, 499 (D.D.C. 2018)(quoting Safeway Stores,
Inc. v. Morgan, 253 A.2d 452, 453 (D.C. 1969)). In this case,
“the burden is on the plaintiff to prove that the defendant was
negligent ‘either in creating a dangerous condition or in
allowing one to continue without correction and that this
negligence was the proximate cause of the injuries.’” Thomas v.
3 “Because this is a diversity case, the substantive tort law of the District of Columbia controls.” Smith v.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ ) JOHNNY CHARLES, ) ) Plaintiff, ) ) v. ) Case No. 16-cv-2054 (EGS) ) HOME DEPOT, U.S.A., INC., ) ) Defendant. ) ______________________________)
MEMORANDUM OPINION AND ORDER
Plaintiff Johnny Charles (“Mr. Charles”) sues defendant
Home Depot, U.S.A., Inc. (“Home Depot”) for negligence after he
stepped in a hole in the floor of a Home Depot store, causing
him to twist and injure his ankle. Pending before the Court is
Home Depot’s motion for summary judgment. After carefully
considering the motion, Mr. Charles’ response, the reply
thereto, the entire record herein, and the applicable law, the
Court DENIES Home Depot’s motion.
I. Background
There is very little dispute as to the facts material to
this case. See, e.g., Def.’s Reply to Counter-Stmt. of Material
Facts, ECF No. 26-3. On October 16, 2013, Mr. Charles was
shopping at a Home Depot store located in Northeast Washington,
D.C. See Dep., ECF No. 25-1 at 23:6-12. He was pushing a cart
1 when he “stepped in a hole” and “twisted his [right] ankle.” Id.
at 28:18-22. According to Mr. Charles, the hole was “about two
inches wide and about . . . a little under a half inch deep.”
Id. at 29:17-24. Mr. Charles estimated the hole was also about
two inches long. Id. at 40:6-9. Mr. Charles did not know what
caused the hole in the cement floor, but characterized it as
“clean-cut,” meaning there was no other “loose cement” nearby.
Id. at 35:7-16.
After twisting his ankle, Mr. Charles reported the hole and
his injury to the store manager, id. 28:18-25, and filled out an
incident report, see Ex. 2, ECF No. 25-1 at 38 1 (reporting that
he stepped in a hole and twisted his right ankle). According to
Mr. Charles, the manager apologized and placed a caution sign
over the hole. Dep., ECF No. 51-1 at 28:18-25. He also believed
the manager was aware of the hole prior to his injury because
the manager said “something like, I told them” when Mr. Charles
showed him the hole. Id. at 36:2-20. Home Depot disputes that
the manager placed a caution sign next to the hole. See Nunyi
Aff., ECF No. 26-1 (Home Depot manager’s attestation that, “to
the best of [his] recollection,” he never “place[d] a caution
sign in the area Mr. Charles claimed to have injured himself”).
1 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document. 2 Initially, Mr. Charles did not believe that he had been
badly injured, see Dep., ECF No. 25-1 at 42:10-15, but his
condition changed quickly, id. at 52:13-16, and his ankle never
fully healed. Over the years, Mr. Charles wore several “boot”
casts and ankle braces, he had to use crutches for several
weeks, and ultimately, he required physical therapy, cortisone
shots, and surgery. See id. at 71:15-19, 84-85, 88-92. Mr.
Charles still wears an ankle brace, id. at 96:10-15, and his
ankle is still tender and painful, id. at 101:2-19. Indeed, Mr.
Charles’ ankle still prevents him from partaking in many
activities that he used to enjoy. See id. at 103-107. 2
II. Standard of Review
Pursuant to Federal Rule of Civil Procedure 56, summary
judgment should be granted only “if the movant shows that there
is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); Waterhouse v. District of Columbia, 298 F.3d 989, 991
(D.C. Cir. 2002). The moving party must identify “those portions
of the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, which
2 Mr. Charles’ previous conditions, including his diabetes, may have aggravated or significantly worsened his injury. See Dep., ECF No. 25-1 at 79:1-6 (Mr. Charles: “And the reason why the swelling wouldn’t go down, [the doctor] said could be because of my diabetes . . . . when you get injuries of that nature, it’s harder to heal”). 3 it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986) (quotations omitted). On the other hand, to defeat
summary judgment, the nonmoving party must demonstrate that
there is a genuine issue of material fact. Id. at 324. A
material fact is one that is capable of affecting the outcome of
the litigation, while a genuine dispute is one in which “the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). Further, in the summary judgment analysis
“[t]he evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.” Id. at
255.
III. Analysis
In its motion for summary judgment, Home Depot argues that
it was not negligent as a matter of law. It contends that the
alleged hole in which Mr. Charles twisted his ankle cannot
constitute a dangerous condition because it was only about two
inches wide, two inches long, and a half-inch deep. See
generally Def.’s Mot., ECF No. 24. Mr. Charles responds by
arguing that whether the hole was a dangerous condition is a
question for the jury to resolve. See generally Pl.’s Opp’n, ECF
No. 25. He contends that the Court cannot find that the hole was
not dangerous as a matter of law. See id.
4 Under District of Columbia law, which both parties agree
applies, 3 the plaintiff in a negligence action must demonstrate
three elements: that there was “a duty of care owed by the
defendant to the plaintiff, a breach of that duty by the
defendant, and damage to the interests of the plaintiff,
proximately caused by the breach.” Girdler v. United States, 923
F. Supp. 2d 168, 187 (D.D.C. 2013)(quotations and citations
omitted). The plaintiff bears the burden of “establishing that a
violation of the reasonable standard of care is the proximate
cause of the injury sustained. The mere happening of an accident
does not meet this burden.” District of Columbia v. Cooper, 445
A.2d 652, 655 (D.C. 1982).
Generally, a store proprietor has an “obligation of due
care to protect customers from risks created by employees or
risks created by other customers.” Hudson v. Harris Teeter, LLC,
292 F. Supp. 3d 496, 499 (D.D.C. 2018)(quoting Safeway Stores,
Inc. v. Morgan, 253 A.2d 452, 453 (D.C. 1969)). In this case,
“the burden is on the plaintiff to prove that the defendant was
negligent ‘either in creating a dangerous condition or in
allowing one to continue without correction and that this
negligence was the proximate cause of the injuries.’” Thomas v.
3 “Because this is a diversity case, the substantive tort law of the District of Columbia controls.” Smith v. Washington Sheraton Corp., 135 F.3d 779, 782 (D.C. Cir. 1998)(citations omitted).
5 Grand Hyatt Hotel, 749 F. Supp. 313, 314 (D.D.C. 1990), aff’d,
957 F.2d 912 (D.C. Cir. 1992)(quoting Paylor v. Safeway Stores,
Inc., 225 A.2d 312, 314 (D.C. 1967)). Moreover, when liability
is predicated upon the existence of a dangerous condition, as
here, “‘it is necessary to show that the party against whom
negligence is claimed had actual notice of the dangerous
condition or that the condition had existed for such length of
time that, in the exercise of reasonable care, its existence
should have become known and corrected.’” Hudson, 292 F. Supp.
3d at 499 (quoting Sullivan v. AboveNet Comm'ns, Inc., 112 A.3d
347, 356 (D.C. 2015)). Generally, whether a condition is
unreasonably dangerous or reasonably safe is a question “for the
jury.” Cooper, 445 A.2d at 655. Because “jurors are the triers
of fact,” id., “where there is evidence upon which reasonable
persons might differ as to negligence and other elements of
liability, those questions must be decided by the jury,” id.
(citations omitted)(referring to “the question of whether a
walkway is reasonably safe”).
Home Depot argues that the critical question in this case,
whether the hole in which Mr. Charles twisted his ankle was a
dangerous condition, is not an issue for the jury because a
half-inch deep hole is not a dangerous condition as a matter of
law. See Def.’s Mot., ECF No. 24 at 4-7 (“plaintiff cannot
establish a prima facie case of premises liability because the
6 condition at issue was not an unsafe condition as a matter of
law”). In support of its argument, it primarily relies on three
District of Columbia Court of Appeals (“Court of Appeals”)
cases. See id. (discussing Proctor v. District of Columbia, 273
A.2d 656 (D.C. 1971); Williams v. District of Columbia, 646 A.2d
962 (D.C. 1992); and Briscoe v. District of Columbia, 62 A.3d
1275 (D.C. 2013)). In all three cases, the Court of Appeals
evaluated whether the District of Columbia was liable for
injuries caused by minor defects on public sidewalks. In each,
the Court of Appeals founds that the protrusions, which ranged
from a quarter-inch to an inch deep, were not dangerous
conditions as a matter of law. In so concluding, the Court of
Appeals recognized “what pedestrians living in urban areas know
from their own experience: namely, that minor sidewalk
elevations are not an unusual condition for city sidewalks and
are in fact what might be called a very prevalent condition.”
Proctor, 273 A.2d at 658. Because it is “impossible to maintain
a sidewalk in perfect condition[,] [m]inor defects are bound to
exist.” Id. ((quoting Barrett v. City of Claremont, 41 Cal. 2d
70, 73 (1953)). Accordingly, the Court of Appeals held that “[a]
municipality cannot be expected to maintain the surface of its
sidewalks free from all inequalities and from every possible
obstruction to travel. Minor defects due to continued use, or
action of the elements, or other cause, will not necessarily
7 make the city liable for injuries caused thereby.” Id. (quoting
Barrett, 41 Cal. 2d at 73). Applying this logic, the Court of
Appeals has consistently held that the District of Columbia
cannot be liable for injuries caused by de minimis defects on
public sidewalks. See Briscoe, 62 A.3d at 1278-79 (discussing
Proctor, 273 A.2d at 658 and Williams, 46 A.2d at 963).
These cases, however, are not directly on point—they all
involve municipality liability and public sidewalks. In each
case, the Court of Appeals stressed that the protrusions existed
on public sidewalks, where minor defects are “bound to exist.”
Proctor, 273 A.2d at 658. Home Depot has not explained whether
or why such defects are also “bound to exist” in retail stores,
which are presumably less traveled and not exposed to the same
elements. See generally Def.’s Mot., ECF No. 24; Def.’s Reply,
ECF No. 26. Home Depot has also not addressed the fact that
customers’ expectations of retail store conditions likely are
different from their expectations of public sidewalk conditions,
based on their experiences. See generally Def.’s Mot., ECF No.
24; Def.’s Reply, ECF No. 26; see also Proctor, 273 A.2d at 658
(taking into consideration pedestrians’ expectations of city
sidewalks based on their experiences).
Instead, Home Depot argues that there is no legal
distinction between a de minimis defect in a store and one on
the public sidewalk. Def.’s Reply, ECF No. 26 at 2. It contends
8 that the Court of Appeals did not base the Proctor, Briscoe, and
Williams decisions on the fact that “variations in sidewalks are
prevalent.” Id. The Court disagrees. The fact that the slight
variations were “prevalent” and “minor defects are bound to
exist” on public sidewalks were considerations central to the
Court of Appeals’ decisions. Proctor, 273 A.2d at 658. In all
three cases, the Court of Appeals stressed that public sidewalks
were “impossible to maintain,” and, as such, municipalities
should not be held liable for trivial defects. See, e.g., id.
Indeed, all the cases relied upon in Proctor also involved
municipal liability for slight defects on public sidewalks. See
id. at 658-59 (discussing and citing Barrett v. City of
Claremont, 41 Cal. 2d 70, 73 (1953); Kimball v. City of
Cincinnati, 160 Ohio St. 370, 374 (1953); City of Memphis v.
McCrady, 174 Tenn. 162, 164 (1938); Ness v. City of San Diego,
144 Cal. App. 2d 668 (1956)). Thus, the Court is not persuaded
that defects in public sidewalks are indistinguishable from
defects in retail stores.
Moreover, Home Depot has not identified, and the Court
could not locate, a case in which a minor defect in a retail
store or a private premise was found to be not dangerous as a
matter of law. See generally Def.’s Mot., ECF No. 24; Def.’s
Reply, ECF No. 26. To the contrary, in Whitehouse v. Safeway,
the Court of Appeals noted approvingly that the Superior Court
9 of the District of Columbia had found that the plaintiff
presented evidence sufficient to “raise a jury issue” that a
hole in the tile floor of a grocery store was a hazard. 385 A.2d
755, 755-56 (D.C. 1978)(reversing the Superior Court only to the
extent that it concluded there was no constructive notice).
Neither court focused on the size or depth of the hole. See id.
at 755-56, 756 n.1. Without any binding precedent as guidance,
the Court declines to arbitrarily determine how big a defect
must be to constitute a dangerous condition as a matter of law.
See Proctor, 273 A.2d at 658-59 (stating that the Court of
Appeals should not “get into the position of arbitrarily
determining that the maintenance of a particular defects such as
a hole of a certain depth or a raised brick protruding a certain
height above the surrounding bricks constitutes negligence. Such
questions are for the jury in light of all of the surrounding
circumstances”).
Nevertheless, Home Depot argues that it is not “expected to
assume burdens of care which are unreasonable.” In so arguing,
it suggests that repairing the hole would have been
unreasonable. Def.’s Reply, ECF No. 26 at 4 (quoting Whitehouse,
385 A.2d at 757). However, this too is a question for the jury.
See Cooper, 445 A.2d at 660 (“Because the determination of
reasonable care depends on many factual circumstances, courts
may not establish rules denying the jury its traditional
10 function of determining negligence.”); see also Kindig v. Whole
Foods Mkt. Grp., Inc., 930 F. Supp. 2d 48, 51 (D.D.C.
2013)(“Supermarket slip and fall cases are exactly the type of
case within the province of a jury because . . . grocers have a
duty to take reasonable precautions to maintain the store
premises in a condition so as not to create an unreasonable risk
of harm to customers.”)(quotations and citations omitted).
Having rejected Home Depot’s argument, the Court finds that
Mr. Charles otherwise established his negligence claim. For
example, neither party disputes that the hole caused Mr.
Charles’ injury. Home Depot agrees that he twisted his ankle
when he stepped in the half-inch deep hole. See Def.’s Reply to
Counter-Stmt. of Material Facts, ECF No. 26-3 ¶¶ 1-3; Dep., ECF
No. 25-1 at 31:9-32:7. Viewing the evidence in the light most
favorable to Mr. Charles, the Court concludes there is
sufficient evidence from which a reasonable person could find
that the hole was a dangerous condition and caused his injury.
See Cooper, 445 A.2d at 655 (“the law does not require proof of
negligence to a certainty. Rather, the law requires only that
the evidence, when viewed most favorably for the plaintiff,
indicate a reasonable probability of negligence on the part of
the defendant”)(quoting Rich v. District of Columbia, 410 A.2d
528, 532 (D.C. 1979)).
11 Moreover, Home Depot does not argue that it lacked
knowledge or notice of the hole prior to Mr. Charles’ injury.
See generally Def.’s Mot., ECF No. 24; Def.’s Reply, ECF No. 26.
Viewing the evidence in the light most favorable to Mr. Charles,
a reasonable juror could conclude that Home Depot knew or had
constructive knowledge about the condition. Mr. Charles
testified that the Home Depot manager said, after Mr. Charles
showed him the hole, “I told them” while apologizing. Dep., ECF
No. 25-1 at 36:2-23. Indeed, this fact has not been controverted
in the record. See Nunyi Aff., ECF No. 26-1 (Home Depot manager
stating that he had no recollection of putting a caution sign
near the hole, but not denying that he said something like “I
told them” after viewing the hole).
IV. Conclusion and Order
Because the Court cannot agree that a half-inch deep hole
is not a dangerous condition as a matter of law, and because Mr.
Charles presented sufficient evidence such that a reasonable
jury could conclude that his injury was caused by a dangerous
condition of which Home Depot had prior knowledge, the Court
must DENY Home Depot’s motion for summary judgment.
12 It is further ORDERED that the parties shall file a joint
status report with recommendations for further proceedings by no
later than February 4, 2019.
SO ORDERED.
Signed: Emmet G. Sullivan United States District Judge January 3, 2019