Powers v. Walmart Inc

• Court: District Court, W.D. Washington
• Decided: December 20, 2019
• Docket: 2:18-cv-01883
• Status: Unknown

Opinion

HONORABLE RICHARD A. JONES 1

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

8 ARCELIA H. POWERS, 9 Plaintiff, Case No. 2:18-cv-01883-RAJ 10 v. ORDER GRANTING 11 WALMART’S MOTION FOR WALMART, INC., a foreign corporation, SUMMARY JUDGMENT 12 dba MT. VERNON WALMART, Store #2596, 13 Defendant. 14

15 I. INTRODUCTION 16 This matter is before the Court on the motion for summary judgment filed by 17 Defendant Walmart Inc. (“Walmart”). For the reasons below, the Court GRANTS the 18 motion. 19 II. BACKGROUND 20 This case arises out of a September 2017 slip-and-fall incident occurring at a 21 Walmart store located in Mt. Vernon, Washington. The incident happened in the self- 22 checkout area where another customer had just spilled baby food. The Walmart associate 23 responsible for the area placed a bright orange cone next to the spill and proceeded to clean 24 it, first sweeping the area and then covering the floor with paper towels. Dkt. # 14 at 25 00:56:39-58:52. One minute later, Plaintiff walked into the area and fell one foot from 26 where the paper towel was placed. Id. at 01:00:08. In her deposition, Plaintiff testified to 27 seeing the cone and understood that it was in place to denote the presence of “something 1 on the floor.” Dkt. # 12 at 34; Dkt. # 13 at 40. She also testified that did not look at the 2 floor as she approached the area. Dkt. # 12 at 37; Dkt. # 13 at 40. 3 On December 28, 2018, Plaintiff filed a personal injury lawsuit against Walmart 4 stemming from the slip-and-fall incident. Dkt. # 1-1. Walmart properly removed the case 5 to this Court. Dkt. # 1. On October 23, 2019, Walmart filed a motion for summary 6 judgment. Plaintiff responded on November 11, 2019 and Walmart filed its reply on 7 November 15, 2019. 8 III. DISCUSSION 9 In a negligence action, the plaintiff must prove the existence of a duty, breach of 10 that duty, resulting injury, and proximate cause. Tincani v. Inland Empire Zoological 11 Soc’y, 875 P.2d 621 (1994). “Negligence is generally a question of fact for the jury, and 12 should be decided as a matter of law only ‘in the clearest of cases and when reasonable 13 minds could not have differed in their interpretation’ of the facts.” Bodin v. City of 14 Stanwood, 927 P.2d 240 (1996) (quoting Young v. Caravan Corp., 672 P.2d 1267 (1983)). 15 For negligence claims based on premises liability, Washington has adopted the standards 16 set forth in the Restatement (Second) of Torts sections 343 and 343A (1965), dealing with 17 a landowner’s liability to invitees. Iwai v. State, 915 P.2d 1089 (1996). Restatement, 18 section 343 provides: 19 A possessor of land is subject to liability for physical harm caused to his invitees 20 by a condition on the land if, but only if, he 21 (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and 22 (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it; and 23 (c) fails to exercise reasonable care to protect them against the danger. 24 25 Restatement (Second) of Torts § 343 (1965). 26 The slip-and-fall incident in this case was caught on surveillance and the material 27 facts are not in dispute. Specifically, it is undisputed that Walmart placed the bright orange 1 cone adjacent to the spill and that Plaintiff saw the bright orange cone before falling no 2 more than two feet away. Courts addressing similar incidents have noted that the presence 3 of caution cones suggests that the risk of slipping is open and obvious. Finazzo v. 4 Speedway LLC, No. 11–CV–14770, 2012 WL 3966371, at *3 (E.D. Mich. Sep. 11, 2012); 5 see also Helm v. Lowe’s Home Centers, LLC, Case No. C16-5823 BHS, 2017 WL 6 2081077, at *3 (W.D. Wash. May 15, 2017) (finding bright yellow cone to be “an open 7 and obvious warning marker”). Additionally, Plaintiff acknowledged that she understood 8 the cone was in place to denote the presence of “something on the floor.” Dkt. # 12 at 34. 9 Viewing the evidence in the light most favorable to Plaintiff, the Court finds that the 10 condition of the floor where she fell was an open and obvious danger. 11 For Plaintiff to have her claim survive, she must come forth with sufficient evidence 12 to create a genuine issue of material fact regarding whether Walmart “should anticipate the 13 harm despite such knowledge or obviousness.” Restatement (Second) of Torts § 343A, 14 comment f (1965)). That burden has not been met here. The surveillance video shows 15 several other patrons safely entering the area after the spill had been cleared and the orange 16 cone was put in place. Dkt. # 14 at 00:56:39-01:00:59. The evidence presented by Plaintiff 17 fails to raise a factual dispute over whether Walmart should have otherwise anticipated the 18 actual danger of falling. Accordingly, the Court concludes that Walmart did not breach a 19 duty of care to Plaintiff and her claim must be dismissed. 20 IV. CONCLUSION 21 For the reasons stated above, the Court GRANTS Walmart’s motion. Dkt. # 12.

22 DATED this 20th day of December, 2019. 23 A 24 25 The Honorable Richard A. Jones 26 United States District Judge 27