Opinion
6:18-cv-02227-MK
04-30-2021
CARRIE MORGAN, an individual; Plaintiff, v. WAL-MART STORES, INC., a Delaware Corporation Defendants; LEVI'S DIRT WORKS, LLC, an Oregon Corporation; Third-Party Defendant.
FINDINGS AND RECOMMENDATION
MUSTAFA T. KASUBHAI United States Magistrate Judge
Carrie Morgan (“Plaintiff”) filed this negligence action against Wal-Mart Stores, Inc., (“Walmart”) in Oregon State Court for the Circuit of Deschutes County. ECF No. 1-2. Defendant removed pursuant to this Court's diversity of citizenship jurisdiction. 28 U.S.C. § 1332; ECF No. 2. Walmart filed a third-party complaint against Levi's Dirt Works, L.L.C., (“Levi's”) claiming negligence, breach of contract, and seeking indemnification. ECF No. 12. Walmart moves for summary judgment against Plaintiff (ECF No. 41); Levi's moves for summary judgment against Walmart (ECF No. 45); and Walmart cross moves for summary judgment against Levi's on the issues of duty and breach (ECF No. 50). For the reasons that follow, the motions should be DENIED.
Although not formally titled as a such, the Court construes Def. Walmart Stores, Inc.'s Resp. Opp'n, ECF No. 50 (“Walmart's Opp'n”), as a cross-motion for summary judgment.
The Court is mindful of the parties' various burdens given the motions filed in this case and construes the evidence in the light most favorable to the non-moving party. See JL Beverage Co., LLC v. Jim Bean Brands Co., 828 F.3d 1098, 1105 (9th Cir. 2016).
On the morning of January 11, 2017, Plaintiff entered the Walmart store in Redmond, Oregon, walking along the front sidewalk. Lancaster Decl. Ex. 1 (“Stout Dep.”) 18:6-12, ECF No. 47-1. Snow had fallen the night before, and Plaintiff described the premises as covered in “fresh snow with some ice underneath.” Id. at 16:9-11. Plaintiff exited the store using the same route by which she had entered. Id. at 16:2-5. While navigating the sidewalk, Plaintiff slipped and fell, which resulted in an injury to her shoulder. Id. at 18:2. Security camera photographs show a Walmart employee shoveling the relevant area of sidewalk at 7:39:28 a.m., another customer walking through the area at 7:39:35 a.m., and Plaintiff falling in that area at 7:39:48 a.m. Lancaster Decl. Ex. 2, ECF No. 42-2.
Walmart and Levi's entered into an agreement under which Levi's would perform snow and ice removal services for the Redmond Walmart store. Huffman Decl. ¶ 2, ECF No. 48. The Master Services Agreement, Scope of Work, and Worker Orders (the “written Agreement”) outlined the parties' various responsibilities. Lancaster Decl. Exs. 1-2, ECF No. 52. The written Agreement defined the coverage area to include all hard surfaces that were part of the premises. Lancaster Decl. Ex. 2 ¶ 2.3, ECF No. 52-2. Under the written Agreement's terms, Levi's was required to, inter alia, automatically dispatch upon any accumulation of snow or ice and to prioritize sidewalks. Id. at ¶ 3.2. The written Agreement also provided that the “terms of this Agreement may . . . only be modified or amended by a written agreement signed by authorized representatives” of Walmart and Levi's. Id. at ¶ 25. Finally, the written Agreement provided that Levi's would indemnify Walmart for any damages or injury alleged that resulted from the services Levi's provided. Id. at ¶ 9.
Levi's acknowledges the existence of the written Agreement; however, it asserts a Walmart employee represented that the written Agreement “was a generic form, that did not represent the services needed at the Redmond Store[.]” Huffman Decl. ¶ 6, ECF No. 48. Levi's maintains that the relationship between it and Walmart was governed by an agreement negotiated by Mr. Levi Huffman, owner of Levi's Dirt Works, and Melanie Hensley, the store manager for the Redmond Walmart (the “verbal Agreement”). Id. at ¶ 3. Under the verbal Agreement, sidewalks were not included in the coverage area. Id. at ¶ 4. Further, Levi's asserts that it was not permitted to self-dispatch upon any accumulation of snow. Id. at ¶ 12. Instead, Levi's maintains that Walmart store management would request service upon an accumulation of approximately an inch and a half to two inches of snow. Id. Levi's also claims that Defendant represented to Levi's that “it was against Walmart procedure to sue its vendors for things such as slip and falls, ” id. at ¶ 20, and that Levi's “would not have responsibility for slip and falls” as outlined in the image below:
(Image Omitted)
Huffman Decl. Ex. 2, ECF No. 48-2.
Walmart denies it communicated to Levi's that sidewalks were not included in the coverage area. Hensley Decl. ¶ 3, ECF No. 51. Walmart further denies it instructed Levi's to only deploy upon request at a specific accumulation level. Id. at ¶ 9. Walmart also denies that it represented to Levi's that it would not be liable for slips and falls related to its work. Id. at ¶ 12. Further, Walmart asserts that only Walmart corporate representatives, not store management, had the authority to alter the written Agreement, and asserts corporate representatives never altered the agreement with Levi's. Id. at ¶ 7. Walmart's corporate representative Teresa Stout testified she had no knowledge of any conversations between the Redmond store and Levi's. Crow Decl. Ex. 2 (“Stout Dep”) 17:9-12, ECF No. 47-2.
On the day Plaintiff fell, Levi's did not perform services because, it asserts, the Walmart store management never requested snow removal service. Huffman Decl. ¶ 2, ECF No. 48. Levi's maintained a log of calls received from Walmart store management, which does not contain an entry for January 11, 2017. Huffman Decl. Ex. 1, ECF No. 48-1.
STANDARD OF REVIEW
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file, if any, show “that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Substantive law on an issue determines the materiality of a fact. T.W. Elec. Servs., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party determines the authenticity of the dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324.
Special rules of construction apply when evaluating a summary judgment motion: (1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; and (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. T.W. Elec., 809 F.2d at 630.
DISCUSSION
I. Walmart's Motion for Summary Judgment
Walmart asserts it is entitled to summary judgment as to Plaintiff's negligence claim for two reasons. Def. Walmart Stores, Inc.'s Mot. Summ. J. 3-5, ECF No. 41 (“Walmart's Mot.”). First, that as a matter of law, snow and ice are not an “unreasonable risk of harm” for the purposes of premises liability. And second, Walmart contends that Plaintiff failed to show that Defendant had actual or constructive knowledge of the snow and ice.
In its Reply, Walmart raises two new arguments. First, Walmart asserts that the snow and ice was not unreasonable dangerous because it could be encountered safely. Second, Walmart asserts it took reasonable and feasible steps to obviate the danger. The Court declines to consider these arguments as they were raised for the first in Walmart's Reply. Stinziano v. Am. Home Mortg. Servicing, Inc., 2011 WL 13227843, at *2 (C.D. Cal. Feb. 14, 2011) (“The Court generally will not consider arguments raised for the first time in a Reply Brief.”) (citing Officers for Justice v. Civil Serv. Comm'n of the City and Cnty. of San Francisco, 979 F.2d 721, 725-26 (9th Cir. 1992)).
To prevail on a negligence theory under Oregon law, “a plaintiff must show: (1) that the defendant owed plaintiff a duty, (2) that the defendant breached that duty, and (3) that the breach was the cause in fact of legally cognizable damage to the plaintiff.” Hoffee v. Walmart Inc., No. 3:18-cv-01497-AC, 2019 WL 6971039, at *2 (D. Or. Dec. 19, 2019) (citing Brennan v. City of Eugene, 285 Or. 401, 405, (1979)).
Generally, a possessor of land must take reasonable action to protect an invitee against unreasonable risks of harm and “owes a duty to invitees to keep its premises-including its floors-in a reasonably safe condition.” Moorehead v. Tri-County Metropolitan Transp. Dist. Of Oregon, 273 Or.App. 54, 68 (2015). In cases where an invitee claims to have been injured slipping on a foreign substance on the premises, liability will not attach unless the invitee can show the possessor had actual or constructive knowledge of the foreign substance. Moorehead, 273 Or.App. at 67. An invitee can demonstrate knowledge in one of three ways:
In Oregon, the principles that govern “foreign substance” cases also govern “condition” cases. Id. at 67. Ice and snow on a possessor's land are a “condition” on the premises. See Dawson v. Payless for Drugs, 248 Or. 334 (1967), superseded by statute on other grounds as stated in Woolston v. Wells, 297 Or. 548, 553 (1984) (“Since the time of the decision in Dawson, the legislature has moved to alter the law as it applies to cases of this kind. In 1971 the legislature enacted a ‘comparative negligence' system for the express purpose of superseding the common law rule that a plaintiff's contributory negligence would bar his recovery in a negligence action.”).
(1) That the substance was placed by the possessor, or
(2) That the possessor knew the substance was there and failed to use reasonable diligence to remove it, or
(3) That the foreign substance had been there for such a length of time that the possessor should, by the exercise of reasonable diligence, have discovered and removed it.Id. at 68.
A plaintiff must also demonstrate that the snow and ice presented an unreasonable risk of harm. Moorehead, 273 Or. at 71. Whether a foreign substance or condition creates an unreasonable risk of harm for which the possessor is responsible is typically a jury question. Id. Oregon law establishes two duties of care depending on the nature of the risk of harm. Ault v. Del Var Properties LLC, 281 Or.App. 840, 849-50 (2016). Ordinarily, a possessor's duty to protect an invitee from an unreasonable risk of harm can be satisfied by a warning. Id. But, where the risk of harm is an “unreasonably dangerous condition, ” a possessor's duty is heightened to include the duty to take reasonable steps to obviate the danger. Id. An “unreasonably dangerous condition” is one that cannot be encountered with reasonable safety even if the danger is known and appreciated. Id. What reasonable action must be taken to obviate the danger depends on the circumstances of the case. See Moorehead, 273 Or.App. at 71.
A. Unreasonable Risk of Harm
In support of Walmart's assertion that the natural accumulation of snow and ice can never form the basis for an unreasonable risk of harm, Walmart relies on two district court decisions from the Western and Northern Districts of Texas. Walmart's Mot. 3-4 (citing Kasparek v. United States, 2018 WL 2392558, at *1 (W.D. Tex. May 25, 2018); Weddington v. Ace Parking Mgmt., Inc., 2016 WL 4563414, at *1 (N.D. Tex. Aug. 31, 2016)). Significantly, those cases interpret Texas law, not Oregon, and are not binding on this Court. Moreover, Oregon courts held that injury suffered by a business invitee caused by snow and ice can give rise to premises liability. See, e.g., Dawson, 248 Or. at 341 (“In several cases it has been held that the jury could find the owner of business premises was negligent in failing to eliminate snow and ice from a parking lot provided for its patrons even though the condition of the parking lot was known to the plaintiff.”)
Furthermore, Oregon law does not categorically bar recovery from injury caused by specific types of hazards, but instead governs premises liability cases according to the same principles regardless of the type of foreign substance or condition presenting a risk of harm in a given case. Moorehead, 273 Or. App 54, 58 (2015) (slip and fall on rainwater on a train car floor); Hagler v. Coastal Farm Holdings, 354 Or. 132, 140-41 (2013) (plaintiff was struck by a falling piece of merchandise in defendant's store); Woolston v. Wells, 297 Or. 548, 557-58 (1984) (slip and fall on a defective staircase); Wilk v. George, 267 Or. 19 (1973) (slip and fall rainwater on the floor of a tree nursery); Pribble v. Safeway Stores, Inc., 249 Or. 184 (1968) (slip and fall on a puddle of rainwater inside defendant's store). As Judge Acosta recently observed: “Oregon courts typically regard slippery floors as an unreasonable risk of harm.” Hoffee, 2019 WL 6971039, at *4. As such, whether a foreign substance or condition presented an unreasonable risk of harm is a question left to a jury. Moorehead, 273 Or. at 71.
B. Knowledge
Walmart's assertion that Plaintiff cannot establish that Walmart had knowledge of the snow and ice fairs no better. Walmart's Mot. 4-5. In her deposition, Plaintiff described the snow as “fresh snow with some ice underneath.” Lancaster Dec. Ex. 116:9-11, ECF No.47-1. Walmart itself submitted photographs of a Walmart employee shoveling snow in the same location in which Plaintiff fell. Lancaster Decl. Ex. 2 at 1-2, ECF No. 42-2. Plaintiff also testified that the snow had been falling for at least overnight and perhaps for days. Lancaster Dec. Ex. 116:9-11, ECF No. 47-1. Viewing the evidence in the light most favorable to the Plaintiff, a jury could reasonably conclude that Walmart had actual or constructive knowledge of the snow and ice. Moorehead, 273 Or.App. at 67.
As such, Walmart's motion for summary judgment should be denied.
II. Levi's Motion for Summary Judgment
Levi's asserts it is entitled to summary judgment as to Walmart's third-party claims for three reasons. Def. Levi's Dirt Work's, LLC, Mem. Supp. Mot. Summ. J. 36-5, ECF No. 45 (“Levi's Mot.”). First, Levi's asserts that Walmart's negligence claim fails because Levi's owed no contractual duty to ensure the sidewalks were free of snow and ice because Walmart explicitly instructed Levi's not to do so; Walmart never requested that Levi's to perform work on the day of Plaintiff's fall; and that Walmart represented to Levi's that it “was not responsible for any injury [that customers might] sustain due to snow or ice.” Levi's Mot. 7-9. Second, Levi's contends that Walmart cannot establish that Levi's breached the contract because Walmart staff provided conflicting directions. Third, Walmart's contribution claim fails because Levi's was not responsible for the injuries sustained by Plaintiff.
Walmart counters that the terms of the written Agreement are “crystal clear, ” and that the written Agreement prohibited oral modifications. Walmart's Opp'n 5-8, ECF No. 50. Therefore, Walmart argues, it is entitled to summary judgment on the issue of duty and indemnification.
Neither party identified the framework employed by Oregon courts when interpreting a contract's provisions; nor did the parties discuss under what circumstances courts may consider extrinsic evidence in determining a contract's terms; nor did the parties discuss the appropriate standard for assessing whether an agreement was fully integrated. Because the record as currently developed makes summary judgment inappropriate as to Levi's and Walmart, the Court should deny the motions.
In Yogman v. Parrott, the Oregon Supreme Court described a three-step analysis for constructing a contract's terms. 325 Or. 358, 361 (1997). First, courts consider the text and context of the contractual provision to determine whether the provision is ambiguous. Id. If the text and context reveal that the provision is ambiguous, then at the second step, the factfinder considers the “extrinsic evidence of the contracting parties' intent.” Id. at 363. If the “provision remains ambiguous after the first two steps have been followed, the court relies on appropriate maxims of construction” to determine the provision's meaning. Id. at 364. Importantly, “whether a contract is ambiguous is a question of law.” Batzer, 204 Or.App. at 317.
The Oregon Supreme Court has interpreted ORS § 42.220 to allow a trial court to “consider parol and other extrinsic evidence to determine whether the terms of an agreement are ambiguous.” Abercrombie v. Hayden Corp., 320 Or. 279, 292 (1994). Specifically, a trial court may “consider the circumstances underlying the formation of a contract to determine whether the terms of the contract are ambiguous, ” and the Oregon Court of Appeals has identified three exceptions to the general rule prohibiting courts from doing so:
The rule does not exclude evidence of
(1) “the circumstances under which the agreement was made, or to which it relates, as defined in ORS § 42.220, ” [which provides that “[i]n construing an instrument, the circumstances under which it was made, including the situation of the subject and the parties, may be shown so that the judge is placed in the position of those whose language the judge is interpreting.”];
(2) “to explain an ambiguity, intrinsic or extrinsic”; or
(3) “to establish illegality or fraud.” ORS § 41.740.Batzer Const., Inc. v. Boyer, 204 Or.App. 309, 314 (2006). Finally, as to whether a contract is fully integrated:
[D]eciding whether terms of a contract are integrated in a writing involves two steps. First, the court must consider all the relevant circumstances to resolve preliminary issues of historical fact. Simply put, the court must decide what happened. . . . Second, the court determines the legal effects of those facts.Batzer, 204 Or.App. at 314 (citing Wescold, Inc. v. Logan International, Ltd., 120 Or.App. 512, 519-20 (1993)).
Applying the above principles here, summary judgment is not appropriate. The summary judgment record contains Mr. Huffman's affidavit in which he indicated that the relationship between Levi's and Walmart was governed by the verbal Agreement negotiated between Huffman and the Redmond Walmart store manager. This verbal Agreement did not included coverage for sidewalks, and that the written Agreement was simply “a generic form, that did not represent the services needed at the Redmond Store[.]” Huffman Decl. ¶¶ 3-4, 6, ECF No. 48. Mr. Huffman has also produced evidence that Levi's was not permitted to self-dispatch and that Walmart represented that Levi's “would not have responsibility for slip and falls, ” and that “it was against Walmart procedure to sue its vendors for things such as slip and falls.” Id. at ¶¶ 12, 20; see also Huffman Decl. Ex. 2, ECF No. 48-2.
Walmart cites at length, however, the written Agreement's terms that specifically prohibit such an oral modification and argues that the “contract was created specifically to prevent and address this precise issue when one party misunderstands or misrepresents the agreement.” Walmart's Opp'n 6-8.
The parties' divergent characterizations of events surrounding the creation of the written Agreement and the verbal Agreement make summary judgment inappropriate in this case especially given the implicit credibility determinations the Court would be required to make in deciding which specific contractual provisions control. See Batzer, 204 Or.App. at 319 (observing that trial courts are “charged with drawing a legal conclusion about whether the disputed contractual term[s are] ambiguous” and that a court's conclusions as to that charge is “pregnant with implicit factual findings, and . . . an implicit credibility determination”); Oregon Bureau of Labor & Indus. ex rel. Mayorga v. Hous. Auth. Douglas Cty., No. 6:13-cv-01205-MC, 2014 WL 5285609, at *8 (D. Or. Oct. 15, 2014) (denying summary judgment and finding “that the better course would be to proceed to a full trial because a fuller record will afford a more substantial basis for decision”); Anderson, 477 U.S. at 255 (“Neither do we suggest that . . . the trial court may not deny summary judgment in a case where there is reason to believe that the better course would be to proceed to a full trial.” (citation omitted)).
As such, Levi's and Walmart's motions for summary judgment should be denied.
RECOMMENDATION
For the reasons discussed above, Walmart's motion for summary judgment (ECF No. 41) should be DENIED; Levi's motion for summary judgment (ECF No. 45) should be DENIED; and Walmart's cross-motion for summary judgment (ECF No. 50) should be DENIED.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order.
The Findings and Recommendation will be referred to a district judge. Objections to this Findings and Recommendation, if any, are due fourteen (14) days from today's date. See Fed. R. Civ. P. 72. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).