Moritz v. Walmart Inc

• Court: District Court, W.D. Washington
• Decided: July 25, 2023
• Docket: 3:22-cv-05595
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 MARK MORITZ, Case No. 3:22-cv-5595-TLF 7 Plaintiff, v. ORDER GRANTING 8 DEFENDANT’S MOTION FOR WAL-MART, INC., SUMMARY JUDGMENT, AND 9 DENYING PLAINTIFF’S MOTION Defendants. TO COMPEL 10

11 This matter comes before the Court on Defendant Walmart, Inc.’s motion for 12 summary judgment (Dkt. 18) and Plaintiff Mark Moritz’s motion to compel discovery and 13 extend the discovery end date to November 1, 2023 (Dkt. 26). After considering the 14 parties’ briefing and the remaining record, the Court GRANTS Defendant’s motion for 15 summary judgment and DENIES Plaintiff’s motion to compel and request to extend the 16 discovery end date. Plaintiff’s complaint is dismissed with prejudice. 17 PROCEDURAL HISTORY 18 This slip and fall negligence action arises out of an injury sustained by Plaintiff, 19 Mr. Moritz, while at a Walmart store in Poulsbo, Washington. On June 6, 2022, Mr. 20 Moritz filed a complaint in Kitsap County Superior Court. Dkt. 1-2. Mr. Moritz asserts a 21 negligence action as a business invitee of Walmart. Id. On August 16, 2022, Walmart 22 removed the action to this Court, under this Court’s diversity jurisdiction. Dkt. 1. On May 23 15, 2023, Walmart moved for summary judgment. Dkt. 18. Mr. Moritz responded on May 24 1 26, 2023. Dkt. 21. Mr. Moritz subsequently also moved to compel the depositions of 2 Evelyn Wagner and Debra Conway from Walmart and to extend the discovery end date 3 to November 1, 2023. Dkts. 26, 27. Plaintiff satisfied the meet and confer requirement 4 under Local Civil Rule 37. See Dkt. 26-1, Declaration of Shelbi Eller, at ¶7.

5 BACKGROUND 6 On February 6, 2022, Plaintiff was walking to the self-checkout area of the 7 Walmart with his shopping cart when he slipped and fell on the floor and consequently 8 sustained an injury to his leg. An ambulance was called shortly thereafter. Dkt. 18, 9 Declaration of Eddy Silverman, Ex. G at 8. 10 Plaintiff testified that he believed it was water on the floor that caused him to slip 11 and fall, but he did not actually see any liquid (or other substance) on the floor while he 12 was walking and before he fell. See Dkt. 18, Declaration of Eddy Silverman, Exh. E at 13 61:7-21. When asked during his deposition why he assumes it was water on the floor 14 even though he did not actually see the water, Mr. Moritz responded, “My wife said

15 when I got home she took the coat and the back of it was all wet.” Id. at 61:7-21. 16 Plaintiff’s wife, Kari Moritz, testified that she spotted white stains on the sleeves of Mr. 17 Moritz’s coat weeks later and then washed his coat. See Dkt. 18, Declaration of Eddy 18 Silverman, Ex. F at 25:9-15. She stated that she did not see anything on his coat or on 19 his sleeves at or around the time of the incident. Id. at 26:2-6. 20 Photographs of the aisle taken after Plaintiff’s fall show there was no liquid on the 21 floor where Plaintiff fell. See Dkt. 18, Declaration of Eddy Silverman, Exh. C. Walmart 22 provided video surveillance from the date of Mr. Moritz’s incident; the video surveillance 23 was not clear enough (given the angle of the camera) to show whether there was liquid

24 1 or other debris in the aisle where Mr. Moritz fell, but it did show another customer 2 walking the same aisle as Mr. Moritz a second before him. See Dkt. 18, Declaration of 3 Eddy Silverman, Exh. B at 6:19:43-45. It did not appear from the video surveillance that 4 the other customer slipped or hesitated in any way. Finally, Walmart also took several

5 witness statements from employees after the fact. None of the employees witnessed 6 Mr. Moritz fall. See Dkt. 18, Declaration of Eddy Silverman, Exh. G. 7 DISCUSSION 8 A. Summary Judgment Standard 9 In a case based on diversity jurisdiction, the court applies state substantive law, 10 but applies federal procedural law. Gasperini v. Ctr. For Humanities, Inc., 518 U.S. 415, 11 426-427 (1996). Summary judgment is supported if the pleadings, the discovery and 12 disclosure materials on file, and any affidavits show that there is no genuine issue as to 13 any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. 14 Civ. P. 56(c).

15 Summary judgment is proper if “there is no genuine dispute as to any material 16 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 17 The Court views facts in the light most favorable to the nonmoving party and resolves 18 ambiguity in that party's favor, but it must not make credibility determinations or weigh 19 evidence. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49, 255 (1986); 20 Bator v. Hawaii, 39 F.3d 1021, 1026 (9th Cir. 1994). Even if the material facts are 21 largely undisputed, summary judgment may still be improper if “the evidence is 22 susceptible of different interpretations or inferences by the trier of fact.” Hunt v. 23 Cromartie, 526 U.S. 541, 553 (1999). The moving party has the initial burden to show

24 1 the lack of a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 2 If that party succeeds, the burden shifts to the nonmoving party to demonstrate there is 3 an issue for trial. See id. at 323–24. In response to the motion for summary judgment, 4 the nonmoving party is required to present specific facts, and cannot rely on conclusory

5 allegations. Hansen v. U.S., 7 F.3d 137, 138 (9th Cir. 1993). The Court must determine 6 whether the specific facts that are presented by the non-moving party, considered along 7 with undisputed context and background facts, would show that a rational or reasonable 8 jury might return a verdict in the non-moving party’s favor based on that evidence. 9 Emeldi v. University of Oregon, 698 F.3d 715, 728-29 (9th Cir. 2012). 10 11 Rule 56(d) of the Federal Rules of Civil Procedure provides a procedure by which 12 a party may avoid summary judgment when such party has not had sufficient 13 opportunity to discover affirmative evidence necessary to oppose the motion. See 14 Garrett v. San Francisco, 818 F.2d 1515, 1518 (9th Cir. 1987). In particular, Rule 56(d)

15 provides that a court may deny a summary judgment motion and permit the opposing 16 party to conduct discovery where it appears that the opposing party, in the absence of 17 such discovery, is unable to present facts essential to opposing the motion. Fed. R. Civ. 18 P. 56(d). 19 A pending discovery motion is sufficient to raise a question as to whether the 20 party opposing summary judgment should be permitted additional discovery, even if no 21 request under Rule 56(d) has been made. See Garrett, 818 F.2d at 1518 (finding that 22 the district court erred in dismissing a pending motion for discovery as moot without 23

24 1 considering the merits after granting summary judgment). Given that Plaintiff 2 subsequently filed a motion to compel, the Court will consider both motions together. 3 B. Negligence 4 Mr. Moritz asserts that he slipped and fell in a liquid. He did not notice any water

5 or liquid on the floor prior to his fall, nor did he have personal knowledge of how long the 6 alleged liquid had been on the floor. 7 In Washington, “[a] cause of action for negligence requires the plaintiff to 8 establish (1) the existence of a duty owed, (2) breach of that duty, (3) a resulting injury, 9 and (4) a proximate cause between the breach and the injury.” Johnson v. Liquor & 10 Cannabis Bd., 197 Wash. 2d 605, 611 (2021) (quoting Tincani v. Inland Empire 11 Zoological Soc'y, 124 Wash. 2d 121, 127–28 (1994)). “Negligence is generally a 12 question of fact for the jury, and should be decided as a matter of law only ‘in the 13 clearest of cases and when reasonable minds could not have differed in their 14 interpretation’ of the facts.” Bodin v. City of Stanwood, 130 Wash. 2d 726, 741 (1996)

15 (quoting Young v. Caravan Corp., 99 Wash. 2d 655, 661 (1983)). If any of these 16 elements cannot be met as a matter of law, summary judgment for the defendant is 17 proper. 18 1. Duty 19 “Existence of a duty is a question of law.” Vargas v. Inland Washington, LLC, 194 20 Wash. 2d 720, 730 (2019) (quoting Hertog v. City of Seattle, 138 Wash. 2d 265, 275 21 (1999)). According to premises liability theory, “the duty of care landowners owe to 22 persons entering upon their land is governed by whether the person is a trespasser, a 23 licensee, or an invitee.” Van Dinter v. City of Kennewick, 121 Wash. 2d 38, 41 (1993).

24 1 The parties do not dispute Plaintiff's status as a business invitee while he was shopping 2 at Walmart. Dkt. # 6 at ¶9. A business invitee is “a person who is invited to enter or 3 remain on land for a purpose directly or indirectly connected with business dealings with 4 the possessor of the land.” Restatement (Second) of Torts § 332 (Am. L. Inst. 1965).

5 See id. cmt. a (business invitees include “customers in shops”); see also Beebe v. 6 Moses, 113 Wash. App. 464, 467 (2002) (“Washington has adopted the definition of an 7 invitee in the Restatement (Second) of Torts § 332.”). 8 For invitees, the Washington Supreme Court has often applied the set of duties 9 set forth in the Restatement (Second) of Torts § 343: 10 A possessor of land is subject to liability for physical harm caused to his invitees 11 by a condition on the land if, but only if, he 12 (a) knows or by the exercise of reasonable care would discover the condition, 13 and should realize that it involves an unreasonable risk of harm to such invitees, and 14 (b) should expect that they will not discover or realize the danger, or will fail to

15 protect themselves against it, and 16 (c) fails to exercise reasonable care to protect them against the danger. 17 See Johnson v. Liquor & Cannabis Bd., 197 Wash. 2d 605, 612 (2021)(quoting 18 Restatement (Second) of Torts § 343). 19 Under this criterion for evaluating whether a duty exists, Walmart owed Mr. 20 Moritz a duty to exercise reasonable care to protect Plaintiff from an unreasonable risk 21 of harm. See, Section 343 of the Restatement of Torts (Second).. The parties do not 22 dispute this. 23

24 1 2. Breach 2 Breach is generally an issue for the trier of fact, but courts may resolve the 3 question of a defendant's breach as a matter of law “if reasonable minds could not 4 differ.” Vargas, 194 Wash. 2d at 730 (quoting Hertog, 138 Wash. 2d at 275).

5 Determining whether an unreasonably dangerous condition existed is not 6 automatic. This is especially true in slip and fall cases. “It is well established in the 7 decisional law of this state that something more than a slip and a fall is required to 8 establish ... the existence of a dangerous condition.” Brant v. Mkt. Basket Stores, Inc., 9 72 Wn.2d 446, 448 (1967). “[O]ne cannot establish the existence of a dangerous 10 condition merely by proving “that [one] slipped and fell on a wet floor.” Id. at 451. See 11 also Charlton v. Toys “R” Us—Delaware, Inc., 158 Wn. App. 906, 913-14 (2010) 12 (Plaintiff failed to present any evidence that the floor in the entryway of the Toys R Us 13 store presented an unreasonable risk of harm when wet. For that reason alone, 14 summary judgment was proper.); Brant v. Market Basket Stores, Inc., 72 Wn.2d 446,

15 450 (1967) (“A wet cement surface does not create a condition dangerous to 16 pedestrians. It is a most common condition, and one readily noticed by the most casual 17 glance.”) 18 Mr. Moritz did not submit any evidence that a liquid was actually present in the 19 aisle where he fell. There is no evidence in the record that there was any water or other 20 liquid on the floor when he fell, or – even if such liquid existed in that location, that there 21 was an uncommon or unreasonable amount of liquid on the floor. Mr. Moritz himself did 22 not notice whether anything was on the floor. Further, although the video surveillance 23 was not clear enough to show whether there was in fact anything on the floor before Mr.

24 1 Moritz walked down the aisle, the surveillance shows other patrons walking down the 2 same aisle as Mr. Moritz without slipping. One of those patrons walked down the same 3 path as Mr. Moritz only a second before him. 4 Other than the fall itself, Mr. Moritz did not provide any other evidence to show

5 that there was an unreasonably dangerous condition present. See e.g., Johnson v. 6 Liquor & Cannabis Bd., 21 Wash. App. 2d 1041 (2022), review denied, 200 Wash. 2d 7 1029 (2023) (finding that neither a “slippery when wet” sign nor the fact that plaintiff 8 slipped are evidence of an unreasonably dangerous condition.) 9 Mr. Moritz appears to be conflating the elements of negligence in his response to 10 Walmart’s motion for summary judgment. Plaintiff argues that a dangerous condition 11 was created due to Walmart’s defective floor and safety plan whereby it was 12 foreseeable that a customer could slip and fall. Dkt. 21 at 9. Plaintiff, however, has not 13 provided evidence that there was an unreasonably dangerous condition present to 14 begin with. If evidence showed that an unreasonably dangerous condition had been

15 present, then the Court would undertake an analysis of the next element -- whether 16 there was evidence that Walmart had either actual or constructive notice of the 17 condition. Only if actual or constructive notice could be proved, then the evidence of 18 safety procedures of this Walmart location would be potentially relevant. See Section 19 343 of the Restatement of Torts (Second). 20 Plaintiff has not produced evidence to show the existence of an unreasonably 21 dangerous condition; as a matter of law, the Court finds no reasonable juror would be 22 able to conclude in plaintiff’s favor on the element of breach of duty; therefore, no 23 reasonable juror would be able to find that defendant would be liable. The Court has

24 1 considered the specific facts presented by Plaintiff, the non-moving party, along with 2 undisputed context and background facts. A rational or reasonable jury could not 3 reasonably infer there was an unreasonably dangerous condition present and therefore 4 could not – as a matter of law -- return a verdict in the non-moving party’s favor based

5 on that evidence. Emeldi v. University of Oregon, 698 F.3d 715, 728-29 (9th Cir. 2012). 6 Finally, the Court finds Plaintiff’s motion to compel unpersuasive. Plaintiff seeks 7 to take the depositions of Darla Conway, an employee of the Poulsbo, Walmart, and 8 Evelyn Wagner, the current manager of the Poulsbo, Walmart, to provide more insight 9 on this specific Walmart’s floor and safety plan. Dkt. 26 at 6. Plaintiff states that he has 10 the “right to depose those fact witnesses to determine how those policies, are being 11 implemented specifically in the storefront where Plaintiff fell, and the only way to 12 determine that is to depose those witnesses who were working there at the time of the 13 incident, and were in charge of making sure Walmart’s safety procedures were being 14 followed as they were outlined in the 30(b)(6) deposition.” Dkt. 26 at 6.

15 Neither Ms. Wagner nor Ms. Conway were witnesses to the incident. Ms. Wagner 16 was also not an employee at Poulsbo, Walmart at the time of this incident. Further, this 17 assumes Plaintiff has met his burden of showing that there was in fact an unreasonably 18 dangerous condition on the floor, and as discussed above, the Court finds that he has 19 not. Plaintiff has not identified any other specific reason why these depositions are 20 necessary for his case. Therefore, Plaintiff’s motion to compel is DENIED. 21 22 23

24 1 CONCLUSION 2 For the foregoing reasons, Plaintiff’s motion to compel is DENIED and 3 Defendant’s motion for summary judgment is GRANTED. Plaintiff’s complaint is 4 dismissed with prejudice.

5 6 Dated this 25th day of July, 2023. 7 8 A 9 Theresa L. Fricke 10 United States Magistrate Judge

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