Ogilvie v. Thrifty PayLess Inc

Opinion

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

MARJORIE OGILVIE, CASE NO. C18-0718JLR Plaintiff, ORDER DENYING DEFENDANT v. THRIFTY PAYLESS, INC.’S JUDGMENT THRIFTY PAYLESS, INC., et al. Defendants.

Before the court is Defendant Thrifty Payless, Inc.’s (“Rite Aid”) motion for summary judgment. (MSJ (Dkt. # 49).) Plaintiff Marjorie Ogilvie and Defendant Assa Abloy Entrance System US, Inc. (“Assa Abloy”) both oppose the motion. (Am. Ogilvie Resp. (Dkt. # 55); Assa Abloy Resp. (Dkt. # 56).) Rite Aid replied separately to each opposition. (Assa Abloy Reply (Dkt. # 59); Ogilvie Reply (Dkt. # 63).) The court has considered the motions, the parties’ submissions in support of and in opposition to the motions, and the applicable law. Being fully advised,1 the court DENIES Rite Aid’s motion for summary judgment.

The court begins by laying out the factual and procedural backgrounds of the case. A. Factual Background On the morning of August 29, 2015, Ms. Ogilvie was approaching a Rite Aid in Arlington, Washington (“the Store”), when the sidelite2 of the Store’s automatic door flung open and struck her in the head. (Am. Ogilvie Resp., Ex. A (“Ogilvie Decl.”) ¶¶

1-2.) Ms. Ogilvie fell backward, landing on the pavement, and sustained several injuries. (Id. ¶¶ 3-4.) The door in question was an automatic sliding door with a sidelite on each end. (Martin Decl. (Dkt. # 50) ¶ 3.) While the door does not normally open by swinging in or out, there is a breakaway mechanism that allows both the door and its sidelites to swing open in emergency circumstances. (Id. ¶ 4.)

From August 1, 2013, to July 30, 2016, Rite Aid had a contract with Assa Abloy to perform general maintenance at the store and to respond to maintenance requests regarding the door. (10/2/20 Lancaster Decl. (Dkt. # 51) ¶ 3, Ex. 2; Assa Abloy Resp. at 1-2.) Assa Abloy would conduct planned maintenance once a year after Rite Aid issued a work order for that maintenance. (Goldman Decl. (Dkt. # 57) ¶ 3, Ex. 2 (“Flock Dep.”)

1 No party requests oral argument (see MSJ at 1; Ogilvie Resp. at 1; Assa Abloy Resp. at 1), and the court finds oral argument unnecessary to its disposition of the motion, see Local Rules W.D. Wash. LCR 7(b)(4). 2 Sidelites for automatic sliding doors are the glass panes on either side that the door slides behind when it opens in its normal fashion. (See Goldman Decl. ¶ 11, Ex. 10.) 23:21-24:21).) Rite Aid contends that Assa Abloy had inspected the door on August 1, 2015, four weeks before the incident. (MSJ at 2; Martin Decl. ¶ 9.) Assa Abloy disagrees, and states that the last time it provided maintenance to the door was September

18, 2014. (Assa Abloy Resp. at 3; see also Flock Dep. 25:1-26:4.) During the September 18, 2014, maintenance visit, Assa Abloy discussed the door’s daily safety checklist with Rite Aid. (Goldman Decl. ¶ 2, Ex. 1 (“Myers Dep.”) at 20:15-21:2.) This daily safety checklist instructed Rite Aid to conduct a series of minimum safety checks on the door every day. (Id.; Goldman Decl. ¶ 6, Ex. 5 (“Daily Safety Checklist”) at 3.)

The parties all agree that August 29, 2015, was a particularly windy day and that a gust of wind appears to have blown the sidelite into Ms. Ogilvie’s head. (See MSJ at 2, 5; Am. Ogilvie Resp. at 1; Assa Abloy Resp. at 4.) Rite Aid contends that there is no evidence that any Store employees or representatives were on notice of the door swinging open unexpectedly on the day of the incident or any time prior. (MSJ at 2.) Assa Abloy,

however, points to a Rite Aid work order submitted by Anita Tronson, the Store manager on duty at the time of the incident. (Goldman Decl. ¶ 9, Ex. 8 (“Work Order”).) This order is time-stamped at 11:07 a.m., 35 minutes before the incident,3 and states that the reporting employee “[s]aid that her front automatic doors pushed open from wind storm and will not stay shut now. [N]eeds emg service.” (Id.; Goldman Decl., Ex. 10

(screenshots of video showing the incident occurring between 11:42 a.m. and 11:44 a.m.).) Ms. Tronson, however, has testified that before the incident involving Ms.

3 The parties do not dispute that the incident occurred between 11:42 a.m. and 11:44 a.m. Ogilvie, she neither observed the door blow open nor reported any issues with the door. (Tronson Decl. (Dkt. # 61) ¶¶ 8-9.4) B. Procedural Background

Ms. Ogilvie filed suit against Rite Aid in Snohomish County Superior Court on March 26, 2018. (Compl. (Dkt. # 1-1).) The case was removed to federal court on May 17, 2018. (Not. of Removal (Dkt. # 1).) On August 13, 2018, Ms. Ogilvie amended her complaint to include Assa Abloy as a defendant. (Am. Compl. (Dkt. # 21).) Ms. Ogilvie alleges that “Defendant Assa Abloy Entrance Systems designed and/or manufactured

and/or installed or had installed the sliding glass door that injured” her, and that these three things “were done in a negligent and/or improper and/or grossly negligent manner.” (Id. ¶¶ 6-7.) She further alleges that she suffered injuries and incurred medical expenses “due to Defendants’ negligence and premises liability” and that the Defendants are jointly and severally liable. (Id. ¶ 8.) Rite Aid moved for summary judgment on October 2,

2020. (MSJ.) The court lays out the appropriate legal standard before addressing Assa Abloy’s motion to strike and the merits of Rite Aid’s motion for summary judgment.

4 Assa Abloy has moved to strike Ms. Tronson’s declaration along with two others because Rite Aid filed the declarations with its reply. (Mot. to Strike (Dkt. # 65).) As discussed below, the court will consider this evidence. (See infra § III.B.) A. Legal Standard Summary judgment is appropriate if the evidence viewed in the light most favorable to the non-moving party 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); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Beaver v. Tarsadia Hotels, 816 F.3d 1170, 1177 (9th Cir. 2016). A fact is “material” if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is “‘genuine’ only if there is sufficient evidence for a reasonable fact finder to find for the

non-moving party.” Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 992 (9th Cir. 2001) (citing Anderson, 477 U.S. at 248-49). The moving party bears the initial burden of showing there is no genuine dispute of material fact and that it is entitled to prevail as a matter of law. Celotex, 477 U.S. at 323. If the moving party does not bear the ultimate burden of persuasion at trial, it can

show the absence of such a dispute in two ways: (1) by producing evidence negating an essential element of the nonmoving party’s case, or (2) by showing that the nonmoving party lacks evidence of an essential element of its claim or defense. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1106 (9th Cir. 2000). If the moving party meets its burden of production, the burden then shifts to the nonmoving party to identify

specific facts from which a factfinder could reasonably find in the nonmoving party’s favor. Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250. //

// B. Motion to Strike Assa Abloy brings a motion to strike three declarations filed by Rite Aid with its reply. (Mot. to Strike; see also Sack Decl. (Dkt. # 60); Tronson Decl.; 12/3/20 Lancaster

Decl. (Dkt. # 62).) In general, “[i]t is not acceptable legal practice to present new evidence or new argument in a reply brief.” Roth v. BASF Corp., C07-0106MJP, 2008 WL 2148803, at *3 (W.D. Wash. May 21, 2008); see also United States v. Puerta, 982 F.2d 1297, 1300 n.1 (9th Cir. 1992) (“New arguments may not be introduced in a reply brief.”); Bridgham-Morrison v. Nat’l Gen. Assembly Co., C15-0927RAJ, 2015 WL

12712762, at *2 (W.D. Wash. Nov. 16, 2015) (“For obvious reasons, new arguments and evidence presented for the first time on Reply . . . are generally waived or ignored.”). Additional evidence can be presented in support of a reply brief, however, where “[t]he Reply Brief addressed the same set of facts supplied in [respondent’s] opposition to the motion but provides the full context to [respondent’s] recitation of the facts.” Terrell v.

Contra Costa Cty., 232 F. App’x 626, 629 n.2 (9th Cir. 2007). In other words, “[e]vidence submitted in direct response to evidence raised in the opposition is not ‘new.’” Crossfit, Inc. v. Nat’l Strength & Conditioning Ass’n, Case No. 14-CV-1191 JLS (KSC), 2017 WL 4700070, at *3 n.3 (S.D. Cal. Oct. 19, 2017). The Local Civil Rules expressly contemplate submitting additional evidence with a reply brief. See Local Rules

W.D. Wash. LCR 7(b)(3) (“The moving party may . . . file . . . a reply brief in support of the motion, together with any supporting material of the type described in subsection (1).”). Rite Aid’s declarations all address its employees’ potential awareness of the danger posed by the door before Ms. Ogilvie arrived at the Store. (See generally Sack Decl.; Tronson Decl.; 12/3/20 Lancaster Decl.) The court finds that these declarations

are submitted in direct response to the Work Order evidence raised in Assa Abloy’s opposition. (See Assa Abloy Resp. at 5 (arguing the Work Order demonstrates Rite Aid employees were on notice about the door opening unexpectedly by 11:07 a.m. at the latest).) Thus, Assa Abloy’s motion to strike is denied. C. A Genuine Dispute of Material Fact Exists

Rite Aid asks the court to grant its motion for summary judgment because Ms. Ogilvie alleges that the door was improperly designed, manufactured, or installed, and there is no evidence in the record that Rite Aid did any of these three actions. (MSJ at 3; Assa Abloy Reply (Dkt. # 59) at 1-2.) Ms. Ogilvie, however, brings her suit against Rite Aid based on a theory of negligence and premises liability. (See Am. Compl. ¶ 8

(alleging Ms. Ogilvie suffered injuries “due to [Rite Aid and Assa Abloy’s] negligence and premises liability,” and that Defendants are jointly and severally liable).) Rite Aid lays out standards for both negligence and premises liability in its motion (MSJ at 4-5), and argues that if Ms. Ogilvie “is to succeed in her action against Rite Aid, she must prove that Rite Aid had actual or constructive knowledge that the front entrance doors

posed an unreasonable risk of harm to its invitees.” (Ogilvie Reply at 3 (citing Iwai v. State, Employment Sec. Dep't, 915 P.2d 1089, 1093 (Wash. 1996)). The court agrees with Rite Aid that liability may exist if Ms. Ogilvie is able to demonstrate that Rite Aid had notice of the potential danger posed by the door. Furthermore, the court finds that there is a genuine issue of material fact that goes directly to this potential liability. Assa Abloy has provided a document that, on its face, suggests that a Rite Aid employee knew the door was being blown open by the wind and

requested emergency servicing 35 minutes before the incident with Ms. Ogilvie. (See Work Order (time stamped at 11:07 a.m. the morning of the incident).) Rite Aid has provided the court with evidence that contradicts this. (See Tronson Decl. (testifying that the employee listed on the Work Order did not submit any requests for emergency service before the incident).) Rite Aid also promises that “given additional time, Rite Aid will be

able to obtain information relevant to the nature and mode of entry of the work order at issue to further substantiate the testimony of its employees.” (12/3/20 Lancaster Decl. ¶ 4.) The court may not weigh competing evidence or decide if certain pieces of evidence require “further substantiat[ion]” on summary judgment. Viewed in the light

most favorable to the non-moving parties, there exists a question of fact whether Rite Aid was aware of the door posing a possible danger before Ms. Ogilvie was struck and injured. This goes directly to Rite Aid’s potential negligence. (See MSJ at 4 (citing Iwai, 915 P.2d at 1093).) Rite Aid also contends that the court should grant summary judgment on Assa

Abloy’s affirmative defense of contribution because that defense relies on the existence of joint and several liability. (Assa Abloy Reply at 2.) Ms. Ogilvie explicitly alleges that the Defendants are jointly and severally liable. (Am. Compl. ¶ 8.) Rite Aid’s argument is dependent on the court finding that Ms. Ogilvie cannot sustain her negligence claim against it. (Assa Abloy Reply at 2 (“[U]nless Rite Aid is somehow responsible for the specifications of negligence alleged by Plaintiff, then Assa Abloy has no claim for contribution against it.”).) Because the court finds there is a genuine issue of material

fact as to Ms. Ogilvie’s claim against Rite Aid, it also finds that awarding summary judgment against Assa Abloy’s affirmative defense of contribution is improper. Thus, because there is a genuine issue of material fact as to Rite Aid’s knowledge of the potential danger posed by the door, Rite Aid’s motion for summary judgment is denied in its entirety.

For the foregoing reasons, the court DENIES Rite Aid’s motion for summary judgment (Dkt. # 49). Dated this 14th day of January, 2021. A United States District Judge