Harrington v. Safeway, Inc

• Court: District Court, W.D. Washington
• Decided: December 31, 2019
• Docket: 2:18-cv-01357
• Status: Unknown

Opinion

1 The Honorable Barbara J. Rothstein

6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE

9 REBECCA L. HARRINGTON and NO. 2:18-cv-01357-BJR 10 STEVEN W. HARRINGTON, individually and as a marital community composed ORDER DENYING BCI COCA- 11 thereof, COLA BOTTLING COMPANY 12 OF LOS ANGELES, LLC’S Plaintiffs, MOTION FOR SUMMARY 13 JUDGMENT v. 14 SAFEWAY, INC., a foreign corporation; 15 REYES COCA-COLA BOTTLILNG, LLC, 16 fka BCI COCA-COLA BOTTLING COMPANY OF LOS ANGELES, LLC, a 17 foreign limited liability company; COHO DISTRIBUTING, LLC a foreign limited 18 liability company; and JONES DOES 1-5,

19 Defendants. 20

21 I. INTRODUCTION 22 This matter comes before the court on a Motion for Summary Judgment filed by 23 Defendant BCI Coca-Cola Bottling Company of Los Angeles, LLC, (“BCI”), seeking an 24 order dismissing it from this case. BCI argues that Plaintiffs Rebecca Harrington and 25 Steven Harrington (“Plaintiffs”) have failed to point to evidence of any negligence on the 26 ORDER DENYING BCI’S MOTION FOR SUMMARY JUDGMENT 1 part of BCI, and that it is entitled to judgment as a matter of law. Having reviewed the 2 briefs filed in support of and opposition to the motion, and the evidence in the record, the 3 Court holds as follows. 4 II. BACKGROUND 5 This case was removed from Snohomish County Superior Court on September 13, 6 2018. In their original Complaint, Plaintiffs named only Defendant Safeway, Inc., and John 7 8 Does 1-5, alleging that Rebecca Harrington was injured in a Safeway store in Snohomish, 9 Washington. Harrington claims she removed an item from a shelf, apparently loosening a 10 glass bottle of Coca-Cola, which fell to the floor. The glass bottle allegedly shattered on 11 impact, sending shards of glass that lacerated Rebecca’s ankle. In its Answer, Safeway 12 asserted that Plaintiffs’ injuries, if any, were caused by third parties, including BCI, “which 13 sold, supplied and stocked the subject products on the shelves of the Defendant’s store 14 which Plaintiffs claim were in a hazardous condition.” Dkt No. 7, ¶ 4. 15 16 Plaintiffs subsequently (and twice) amended their original Complaint, naming BCI, 17 among others, as an additional defendant. The Second Amended Complaint (“SAC”) 18 alleges “Defendant Safeway has identified [BCI] . . . as the supplier of Coca-Cola products 19 on the shelves of Safeway Store Number 1076 at all material times hereto.” Dkt. No. 25, ¶ 20 1.3. The only additional allegations relating to BCI in the SAC is that BCI “was hired by 21 Safeway to supply and stock Safeway shelves at Store Number 1076 with Coca-Cola,” and that 22 “Defendant Safeway avers, by way of an affirmative defense, that [BCI] bears responsibility 23 24 for its acts, omissions, or negligence in stocking the Safeway shelves.” Id., ¶ 4.3. In their 25 Opposition to BCI’s Motion, Plaintiffs quote their expert as having testified that BCI’s 26 “stocking of the shelves did not rise to the industry standard of providing safe shelf storage ORDER DENYING BCI’S MOTION FOR SUMMARY JUDGMENT 1 of product for retrieval by customers.” Pls.’ Opp. at 7, citing Dec. of Tim Wiese, Dkt. No 2 49. 3 III. DISCUSSION 4 A. Summary Judgment Standard 5 Federal Rule of Civil Procedure 56 provides that a court should grant summary 6 judgment when the moving party demonstrates “that there is no genuine dispute as to any 7 8 material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a), 9 (c); see also Porter v. Cal. Dep't of Corr., 419 F.3d 885, 891 (9th Cir.2005); Addisu v. Fred 10 Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir.2000). A main purpose of summary judgment is 11 to dispose of factually unsupported claims and defenses. Celotex Corp. v. Catrett, 477 U.S. 12 317, 323–24 (1986). Once the moving party has carried its burden under Rule 56, the 13 nonmoving party “must set forth specific facts showing that there is a genuine issue for 14 trial” and may not rely on the mere allegations in the pleadings. Porter, 419 F.3d at 891, 15 16 quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). 17 B. BCI Fails to Meet Its Burden of Demonstrating an Absence of Genuine Issue of Material Fact 18 BCI seeks dismissal from this case, arguing that Plaintiffs have failed to produce 19 20 evidence supporting several essential elements of their negligence claim against BCI. BCI 21 argues that Plaintiffs do not “expressly or directly allege negligence against BCI,” pointing 22 out that the only allegations in the SAC relating to BCI state merely that “Safeway avers” 23 that BCI bears responsibility for Plaintiffs’ injuries. Mot. at 3. 24 BCI overlooks, however, the testimony of Plaintiffs’ Expert Tim Wiese, who 25 submits in a declaration the following: 26 ORDER DENYING BCI’S MOTION FOR SUMMARY JUDGMENT 1 2 Through my experience and training in retail operations, it is clear to me that the Safeway store itself, as well as its vendors, supply and install safety 3 racking/fencing/feeder systems to help with product organization and safety of storing product correctly on the shelves. This is an industry standard in 4 many retail and grocery companies, and the systems are used in other 5 Safeway stores and other markets. Neither Safeway nor Reyes/BCI Coca- Cola complied with the industry standard regarding safety of product 6 display which directly led to the situation wherein products packed too tightly caused an adjacent product to fall when a product was removed from 7 the shelf. 8 9 Decl. of Tim Wiese at 2-3, Dkt. No. 49, emphasis added. The Court holds that this 10 assertion—bolstered by averments by Safeway that BCI is to blame for how the shelves 11 were stocked—is sufficient to create a genuine issue of material fact as to whether BCI 12 shares any responsibility for Plaintiffs’ injuries. 13 BCI also argues in its motion that because Safeway has a non-delegable duty to 14 keep its business invitees safe on its premises, BCI cannot also be liable for Plaintiffs’ 15 16 injuries. “Non-delegable,” however, does not mean exclusive, and a business establishment 17 may share liability with another party if a plaintiff demonstrates both are at fault. See Afoa 18 v. Port of Seattle, 191 Wn. 2d 110, 122 (2018)(“liability for breach of a nondelegable duty 19 does not undermine the fault allocation under RCW 4.22.070,” which provides “[i]n all 20 actions involving fault of more than one entity, the trier of fact shall determine the 21 percentage of the total fault which is attributable to every entity which caused the claimant's 22 damages.”). 23 24 Finally, BCI argues that even if Plaintiffs could demonstrate that the way BCI 25 stocked the shelves contributed to Plaintiffs’ injuries, BCI was only following the 26 schematic developed by Safeway, and thus BCI cannot be held liable for its actions. BCI ORDER DENYING BCI’S MOTION FOR SUMMARY JUDGMENT 1 fails to cite any authority for the proposition that a defendant may be absolved of liability 2 to one party because it was complying with the terms of a contract with another, or was 3 merely following orders. BCI may not have created the shelf schematic, but at this stage 4 the parties’ experts disagree whether the schematic met industry standards for safety and/or 5 whether BCI followed it. This disagreement is appropriate for resolution by a jury, not the 6 Court. 7 8 IV. CONCLUSION 9 For the foregoing reasons, BCI’s Motion for Summary Judgment is DENIED. 10 11 DATED this 31st day of December, 2019. 12

13 A 14 15 B arbara Jacobs Rothstein U.S. District Court Judge 16 17 18 19 20 21 22 23 24 25 26 ORDER DENYING BCI’S MOTION FOR SUMMARY JUDGMENT