Opinion
Civil No. 03-3101 ADM/AJB.
August 31, 2004
Bryce J. Johnson, Esq., Griffel Dorshow, Chartered, Minnetonka, MN, appeared for and on behalf of Plaintiffs.
Andrew L. Marshall, Esq., Bassford Remele, Minneapolis, MN, appeared for and on behalf of Defendant.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
On August 31, 2004, oral argument before the undersigned United States District Judge was heard on the Motion for Summary Judgment [Docket No. 27] of Defendant CostCo Wholesale Corporation ("CostCo"). In their Complaint [Docket No. 1], Plaintiffs Lioudmila and Micha Petrosian ("Plaintiffs") allege claims of negligence and loss of consortium. For the reasons set forth below, Defendant's Summary Judgment Motion is granted.
II. BACKGROUND
For purposes of the instant Motion, the facts are viewed in the light most favorable to Plaintiffs, the nonmovant. See Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995).
On May 26, 2001, Plaintiff Lioudmila Petrosian ("Ms. Petrosian") slipped and fell on a plastic packing strap at the CostCo located in St. Louis Park, Minnesota. Ms. Petrosian alleges that she suffered a knee injury as a result of this fall. It is undisputed that no one witnessed Ms. Petrosian's fall, nor does evidence exist as to where the packing strap came from or how long it was on the floor.
Plaintiffs submitted no substantive response to Defendant's Motion for Summary Judgment. Rather, Plaintiffs argue that decision on this Motion should be stayed pending the deposition of Peter Wong ("Mr. Wong"), a CostCo employee who prepared an after-the-fact incident report regarding Ms. Petrosian's fall. Plaintiffs therefore styled their opposition to this Motion as a Response to Defendant's Motion for Summary Judgment and Plaintiffs' Motion to Compel Discovery. At the hearing, Plaintiffs argued that Mr. Wong would be able to testify as to any policies CostCo might have regarding inspection of its premises and related issues. Discovery in this case has apparently been done quite informally; however, the discovery period set by Magistrate Judge Arthur Boylan's Scheduling Order expired on February 1, 2004 [Docket No. 8]. A brief in camera inspection of Mr. Wong's incident report during the hearing revealed no evidence to suggest that Mr. Wong has any evidence regarding the incident in question. Accordingly, it was ordered at the hearing that CostCo immediately produce the incident report to Plaintiffs. A copy of the report was made and delivered to Plaintiffs during the hearing. As a result, Plaintiffs' request to compel discovery was denied.
III. DISCUSSION
A. Summary Judgment Standard
Federal Rule of Civil Procedure 56(c) provides that summary judgment shall issue "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion for summary judgment, the Court views the evidence in the light most favorable to the nonmoving party.Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995). The nonmoving party may not "rest on mere allegations or denials, but must demonstrate on the record the existence of specific facts which create a genuine issue for trial." Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995).
B. Negligence Claim
It is well established under Minnesota law that a "shopkeeper is not an insurer of the safety of business invitees, but he owes those expressly or impliedly invited upon his premises the duty to keep and maintain his premises in a reasonably safe condition." Wolvert v. Gustafson, 146 N.W.2d 172, 173 (Minn. 1966); see also Do v. Wal-Mart Stores, 162 F.3d 1010, 1012 (8th Cir. 1998). Furthermore, "[w]here defendant and his employees have not caused the dangerous condition, the burden is on plaintiff to establish that the operator of the premises had actual knowledge of the defect causing the injury or that it had existed for a sufficient period of time to charge the operator with constructive notice of its presence." Wolvert, 146 N.W.2d at 173.
In the instant case, Plaintiffs have offered no evidence that Defendant supplied the packing strap upon which Ms. Petrosian slipped. There is also no evidence to suggest how long the packing strap was on the floor before Ms. Petrosian's accident. As a result, it is not possible to conclude that CostCo had actual or constructive notice of the potentially dangerous condition caused by the placement of the packing strap. Plaintiffs argue that, should they be allowed to depose Mr. Wong, they would be able to discern what policies CostCo has regarding inspection of its facilities. However, the existence of these policies, even if they were disregarded in this instance, will not help Plaintiffs establish actual or constructive knowledge of the condition. As a result, Plaintiffs' negligence claim cannot survive.
Micha Petrosian also alleges loss of consortium in this action. However, the failure of the negligence claim compels the dismissal of the loss of consortium for lack of causation.
IV. CONCLUSION
Based on the foregoing, and all the files, records and proceedings herein, IT IS HEREBY ORDERED that Defendant's Motion for Summary Judgment [Docket No. 27] is GRANTED, and Plaintiffs' Complaint [Docket No. 1] is DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.