Summary
finding that circumstantial evidence supporting plaintiff's argument that a substance was on the ground for over two hours was insufficient to defeat defendant's showing of insufficient constructive notice because the witness testimonies, though based on actual observations, had gaps that led to speculation of how long the substance was on the floor
Summary of this case from Burdette v. Steadfast Commons II, LLCOpinion
CASE NO. C07-0363-JCC.
April 14, 2008
ORDER
This matter comes before the Court on Defendant Wal-Mart Stores, Inc.'s Motion for Summary Judgment (Dkt. No. 25), Plaintiff Vicky Wall's Response in opposition (Dkt. No. 29), Defendant's Reply (Dkt. No. 31), and Defendant's Supplemental Reply (Dkt. No. 35). The Court has carefully considered these papers, together with their supporting declarations and exhibits, and has determined that oral argument is not necessary. The Court hereby GRANTS the motion and rules as follows.
I. BACKGROUND
Plaintiff Vicky Wall brings this suit against Defendant Wal-Mart Stores based on a slip-and-fall accident that occurred on July 25, 2005. (Compl. ¶ 3 (Dkt. No. 1 at 8-9).) Plaintiff testified that she entered the Tulalip/Marysville, Washington, Wal-Mart store at approximately 7:45 p.m., and that she did not notice anything on the floor near the entry/exit at that time. (Wall Dep. 19:2-11, 26:9-11 (Dkt. No. 26 at 9, 11).) She remained in the store for fifteen minutes or less, and made a few purchases. (Id. at 22:8-17.) After she left the checkout stand, on her way to the exit, Plaintiff slipped on a substance on the floor and fell on her tailbone and right side. (Id. at 23:6-10; 27:3-7.) After the fall, Plaintiff saw that the substance was white and was in a couple of "round blobs" about the size of a fifty-cent piece or smaller. (Id. at 27:16-24.) Helen Haskell, a Wal-Mart cashier who was stationed at a register about six or seven steps from where Plaintiff fell, heard someone yell out and immediately responded to Plaintiff and asked if she was okay. (Haskell Decl. ¶ 8 (Dkt. No. 27 at 2).) Ms. Haskell recalls wiping a substance off the floor that was light in color; she thought it resembled vomit. (Id. at ¶ 9.) Plaintiff asked to speak to the manager, and while she was waiting, heard an employee at the customer service counter tell the manager, "She slipped on hair product." (Wall Dep. 41:7-11 (Dkt. No. 26 at 13).) Plaintiff testified that had she been looking at the floor when she exited, she is not sure whether she would have noticed the substance. (Id. at 43:15-17.) Plaintiff did not see any evidence indicative of a recent hair product spill, such as a bottle or packaging, and is not certain what the substance was. (Id. at 43:1-8.) She also testified that she had no idea how long the substance had been on the floor, and that no one at Wal-Mart made any comments to her about that issue. (Id. at 99:4-10.)
Ms. Haskell, the cashier, testified that she was responsible for monitoring the floor around her area for dangerous conditions, and that she had a clear view of the entryway floor where Plaintiff fell. (Haskell Decl. ¶ 4 (Dkt. No. 27 at 1).) Ms. Haskell did not notice any substance or other foreign objects on the floor from the time she started her shift at 6:00 p.m. until Plaintiff fell nearly two hours later. (Id. at ¶ 6.) Ms. Haskell did not see anyone spill anything on the floor, nor did anyone report any spills. (Id.) Ms. Haskell testified that she had no idea how the substance came to be on the floor. (Id. at ¶ 10.)
Additionally, Timothy Labrensz, the manager on duty at the time of Plaintiff's fall, testified that he had been on shift for several hours prior to the accident, and that he did not see and was not informed of a spill occurring in the store that day. (Labrensz Decl. ¶ 5 (Dkt. No. 28 at 2).) According to Mr. Labrensz, if there had been a spill during his shift, he would have been informed about it. (Id.)
Plaintiff alleges that Defendant was negligent, and is liable for her injuries. (Compl. ¶ 5 (Dkt. No. 1 at 9).) Specifically, Plaintiff alleges that Defendant (1) "fail[ed] to take adequate precautions to protect its business invitees from known hazards;" (2) "fail[ed] to properly clean up and remove hazardous conditions that exposed its business invitees to peril;" and (3) "fail[ed] to warn or guard its business invitees from a dangerous condition[.]" (Id.) Defendant asks the Court to dismiss Plaintiff's claims on summary judgment, on grounds that Plaintiff has offered no evidence that Defendant had actual or constructive notice of the dangerous condition. (Def.'s Mot. 1 (Dkt. No. 25).)
II. APPLICABLE LAW
III. ANALYSIS
56T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n,809 F.2d 626630Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,475 U.S. 574586See T.W. Elec. Serv.,809 F.2d at 630Matsushita,475 U.S. at 586Lujan v. Defenders of Wildlife,504 U.S. 55556156Celotex Corp. v. Catrett, 477 U.S. 317323-24 Coleman v. Ernst Home Ctr., Inc.,853 P.2d 473475see also Schmidt v. Coogan,173 P.3d 273492
Constructive notice arises where the condition has existed for such time as would have afforded [the proprietor] sufficient opportunity, in the exercise of ordinary care, to have made a proper inspection of the premises and to have removed the danger. . . . The plaintiff must establish that the defendant had, or should have had, knowledge of the dangerous condition in time to remedy the situation before the injury or to warn the plaintiff of the danger.Ingersoll v. DeBartolo, Inc., 869 P.2d 1014, 1015 (Wash. 1994) (internal quotation omitted). Further:
Ordinarily, it is a question of fact for the jury, whether under all the circumstances, a defective condition existed long enough so that it would have been discovered by an owner exercising reasonable care. The permissible period of time for the discovery and removal or warning of the dangerous condition is measured by the varying circumstances of each case. To a large extent, it depends upon the opportunity for discovery open to the defendant's employees by reason of their number, their physical proximity to the hazard, and, in general, the likelihood they would become aware of the condition in the normal course of duties. The decisive issues, therefore, are the length of time the condition is present and the opportunity for discovery under the circumstances proved. While the plaintiff must prove that the defective condition existed long enough so that by the use of reasonable care it should have been discovered and remedied, that fact, like other facts, may be proved by circumstantial as well as by direct evidence. . . . However, where circumstantial evidence leads only to speculation, a verdict cannot be based on inferences drawn from the evidence.Coleman, 853 P.2d at 476-77 (quoting Morton v. Lee, 450 P.2d 957, 959-60 (Wash. 1969)) (emphasis added).
In the instant case, Plaintiff argues that Defendant had constructive notice of the substance spilled on the floor because (1) it is undisputed that Plaintiff did in fact slip on a substance in Wal-Mart, and (2) according to Plaintiff, this substance must have been on the floor for at least two hours prior to Plaintiff's fall, which is an important consideration in determining whether Defendant had constructive notice. (Pl.'s Resp. 6 (Dkt. No. 29).) Plaintiff submits no evidence to support her argument, even though the Court specifically extended the fact discovery period to allow Plaintiff to conduct further investigation. (See Minute Order by Judge Zilly Feb. 26, 2008 (Dkt. No. 33).) The only evidence that Plaintiff cites to support her conclusion that the substance must have been on the floor for at least two hours are the statements in Ms. Haskell's and Mr. Labrensz's declarations, filed by Defendant. Plaintiff argues that because Ms. Haskell testified that she did not notice anyone depositing any substances upon the floor for two hours prior to the fall, the substance must have been on the floor at least two hours before the accident. In addition, Plaintiff argues, in essence, that because Mr. Labrensz did not hear about any spills during his shift, and he had been on shift for at least a few hours prior to the fall, the substance must have been spilled prior to Mr. Labrensz's shift.
Defendant originally submitted its motion on January 18, 2008. In opposition, Plaintiff's counsel submitted, in part, a declaration stating that Defendant "asks the Court to make this [summary judgment] determination prematurely, when the parties have not finished discovery." (Penfield Decl. ¶ 2(b) (Dkt. No. 30 at 2).) Plaintiff requested that the Court renote the summary judgment motion and extend the discovery period to allow Plaintiff to depose Mr. Labrensz and Ms. Haskell in order that Plaintiff "be able to prepare an appropriate response" to the motion. (Id. at ¶ 2(e).) The Court granted Plaintiff's request. However, Plaintiff did not file a supplementary response, and the deadline to do so has now passed.
The Court is not persuaded that the testimony of Ms. Haskell or Mr. Labrensz is enough to rebut Defendant's showing that there is insufficient evidence of constructive notice. At most, presented with this testimony, the jury could only speculate about how long the substance had been on the floor. The testimony of Mr. Labrensz supports Defendant's position that it did not have actual notice of the spill, which Plaintiff does not challenge. Ms. Haskell's testimony evinces a lack of evidence regarding the length of time the spill had been on the floor. Ms. Haskell testified that although she was only six or seven steps away, she did not see the spill before Plaintiff's fall. Plaintiff puts forth no affirmative evidence, circumstantial or otherwise, showing how long the spill had been there, such as any packaging visible on the floor nearby, or any witnesses who may have noticed the substance some time earlier. This case is therefore unlike Schmidt v. Coogan, 173 P.3d 273 (Wash. 2007), in which the plaintiff offered evidence that a shampoo spill on which she slipped was visible to employees from the cash registers and that during the time she was at the checkout stand none of the employees made any effort to clean it up. Id. at 275. Instead, the Court finds the facts of this case analogous to those presented in Coleman v. Ernst Home Ctr., Inc., 853 P.2d 473 (Wash.Ct.App. 1993). In Ernst, the plaintiff tripped in a hole in the carpeting of the entryway of a store. The court of appeals affirmed the trial court's determination that there was insufficient evidence of constructive notice to submit to the jury where there was:
no evidence that any cashier, or any other store employee, actually saw the hole in the carpeting before [the plaintiff] fell. There is no clear evidence concerning what caused the carpet pieces to come loose or as to how long the hole in the carpeting had been present before [the plaintiff] tripped. [The plaintiff] testified that she did not notice the hole when she entered the store. She noticed the hole as she left the store only because it caused her to trip and fall.Id. at 474. Similarly, in Carlyle v. Safeway Stores, Inc., 896 P.2d 750 (Wash.Ct.App. 1995), where the plaintiff offered no evidence that a shampoo spill had been on the floor for a long enough time to afford the store a sufficient opportunity to have made a proper inspection and to have removed the hazard, the court of appeals recognized that the plaintiff could not prove constructive notice. Id. at 752. Likewise, in the instant case, Plaintiff has offered insufficient evidence for the jury to reasonably conclude that the unidentified substance had been on the floor for a sufficient time to afford Defendant enough time to have found and removed the hazard before Plaintiff slipped on it. While Plaintiff's injuries are regrettable, "owners of property are not insurers against all happenings that occur on the premises." Coleman, 853 P.2d at 478. Plaintiff has not carried her burden with regard to the instant motion, and accordingly, the Court DISMISSES Plaintiff's claims with prejudice.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant Wal-Mart Stores, Inc.'s Motion for Summary Judgment (Dkt. No. 25). Accordingly, Plaintiff's claims are DISMISSED in their entirety, and the Clerk is DIRECTED to close the case.