United States District Court, E.D. Washington
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
JUSTIN L. QUACKENBUSH, Senior District Judge.
BEFORE THE COURT is the Defendant's Motion for Summary Judgment (ECF No. 21) filed by Defendant The Home Depot, U.S.A, Inc., ("Home Depot"), to which Plaintiff, Theresa Steffen has filed a Response (ECF No. 34) and Home Depot has filed a Reply (ECF No. 35). The Motion was heard in a telephonic hearing on April 11, 2014. Gregory Thatcher appeared on behalf of Home Depot and Michael Howard represented the Plaintiff. After hearing oral argument, reviewing the briefs and the evidence, the court herein DENIES Home Depot's Motion. The following Order is intended to memorialize and supplement the oral rulings of the court.
In the afternoon of July 31, 2011, Theresa Steffen visited the Home Depot store located at 5617 E. Sprague Avenue in Spokane Valley, Washington. The Complaint alleges that "[w]hile in the Garden Department of the Home Depot Store, [she] slipped on a puddle of water... and suffered serious and permanent injuries to her low back and right shoulder, " which necessitated two surgeries. (ECF No. 2, Ex. 1, ¶ 3.1). Plaintiff commenced this personal injury action seeking compensatory damages against Home Depot in Spokane Superior Court. On May 29, 2013, the Defendant removed the matter to this court pursuant to 28 U.S.C. § 1441(a) on the ground that diversity jurisdiction exists under 28 U.S.C. § 1332(a). Plaintiff contends Home Depot was negligent in a number of related respects: (1) failing to maintain the premises in a reasonably safe condition; (2) failing to adequately warn Plaintiff of the unsafe condition; and (3) failing to rectify or abate the dangerous wet floor condition where customers were forseeably going to walk. (ECF No. 2 (Complaint at ¶ 4.3-4.6)).
Home Depot designates just one undisputed fact in support of its Motion: that "the substance [Plaintiff] allegedly slipped on was water, and only water." (ECF No. 35 at 2). As premises liability cases require a fact specific- not categorical-assessment, the court provides the following additional context drawn from the summary judgment record and viewed in the light most favorable to Plaintiff on this summary judgment motion.
The location of Plaintiff's alleged fall was an indoor plant section of the retail store. Plaintiff alleges that after proceeding down an aisle past a display of plants she attempted to turn the corner around the end cap and she slipped on water, falling forward onto the cement floor. Minutes prior to Plaintiff's alleged fall, Home Depot employee Terry Moss had completed watering plants and was squeegeeing the floor to "try to get as much water off the main walk area as is possible." (ECF No. 32, Ex. 1 (Moss Depo.) at 6). Moss was called away to assist a customer nearby regarding lawn mowers, when the Plaintiff walked up to her and told her she had fallen. Plaintiff does not recall seeing any caution or warning signs prior to her fall.
Plaintiff retained Joellen Gill as her liability expert. Gill is a human factors engineer and certified safety professional. Her January 2, 2014 expert report sets forth three main opinions: 1) the cement floor where Plaintiff fell was in a hazardous condition at the time of her fall because the slip resistence of the floor fell below standard hazard levels when wet; 2) Home Depot failed to abate the hazard in a timely manner due to a lack of an effective safety and risk management program; and 3) Plaintiff's actions or inactions were not a significant contributing factor to her slip and fall. (ECF No. 23 at Ex. 2).
Home Depot's liability expert is Edward G. Pool, a mechanical engineer. He opines that it is unlikely Plaintiff fell on puddled water, and even if she had, based upon his tests of Home Depot's retail floor, the floor was "a safe walking surface and provided greater slip resistence when wet than when dry." (ECF No. 32, Ex. 5).
Home Depot moves for summary judgment alleging Plaintiff lacks sufficient evidence where she only claims to have slipped on water. Home Depot also moves to strike Gill's expert opinions under Daubert v. Merrell Dow, 509 U.S. 579 (1993). Home Depot's challenge to Gill's opinions is also the subject of a separate pretrial Motion in Limine (ECF No. 43) set for hearing at the pretrial conference on April 29, 2014. Jury trial is scheduled for May 19, 2014.
II. LEGAL STANDARD
The court shall grant summary judgment if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A fact is material if it might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To survive a motion for summary judgment, the adverse party must present affirmative evidence, which "is to be believed" and from which all "justifiable inferences" are to be favorably drawn. Id. at 255, 257. When the record, however, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, summary judgment is warranted. See Beard v. Banks, 548 U.S. 521, 529 (2006) ("Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'") (quoting Celotex, 477 U.S. at 322)). If different ultimate inferences may be drawn, summary judgment is inappropriate. Sankovich v. Life Ins. Co. of North America, 638 F.2d 136, 140 (9th Cir.1981).
A. Premises Liability
In diversity actions, federal courts apply state substantive law. Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1090 (9th Cir. 2001).To establish negligence, a plaintiff must establish four basic elements: (1) the existence of a duty, (2) a breach of that duty, (3) a resulting injury, and (4) proximate cause. Tincani v. Inland Empire Zoological Soc'y, 124 Wn.2d 121, 127-28 (1994). Plaintiff contends that she is a business invitee to whom Home Depot owed a duty of ordinary care, which includes an affirmative duty to inspect for dangerous conditions, "followed ...