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Dammeier v. Home Depot U.S.A., Inc.

United States District Court, W.D. Washington, Tacoma

April 13, 2017

BRIAN DAMMEIER, individually, Plaintiff,



         This matter comes before the Court on Defendant Home Depot U.S.A., Inc.'s (“Home Depot”) Motion for Summary Judgment. Dkt. 27. The Court has considered the pleadings filed regarding the motion and the remaining record.

         On March 11, 2016, Plaintiff filed this case in Pierce County, Washington Superior Court, alleging that he sustained injuries after attempting to retrieve an item off a shelf that was above waist-height at a Tacoma, Washington Home Depot on March 15, 2013. Dkt. 1-1. The Home Depot removed the case based on diversity jurisdiction. Dkt. 1. This case is the second brought by Plaintiff asserting the same claims against Home Depot for this event; the first was filed on May 1, 2014 (“2014 case”), which Plaintiff voluntarily dismissed after Home Depot filed a motion for summary judgment. Dammeier v. Home Depot, Pierce County Superior Court case number 14-2-08344-6. Plaintiff's attorney was permitted to withdraw from this federal case on January 4, 2017. Dkt. 26. The Home Depot filed its current Motion for Summary Judgment on February 7, 2017, and noted it for consideration on March 10, 2017. Dkt. 27. Plaintiff did not timely respond. Due to Plaintiff's pro se status, he was given a notification pursuant to Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), and the motion for summary judgment was renoted to March 24, 2017. Dkt. 29. Plaintiff requested (Dkt. 30) and was granted another extension of time to respond (Dkt. 34). The motion is now ripe.

         For the reasons provided, the Home Depot's motion (Dkt. 27) should be granted, and the case dismissed with prejudice.

         I. FACTS

         Around March 13, 2013, Plaintiff entered a Home Depot in Tacoma, Washington. Dkt. 1. He states that he attempted to retrieve a box of Beadex All Purpose Joint Compound, which was “stacked real high.” Dkt. 28, at 30. Plaintiff testified that as he brought the box down, he “felt a tear” in his shoulder and lost “all use of his arm.” Dkt. 28, at 31. The box weighed around 48 pounds. Dkt. 28, at 36 and 59. Plaintiff did not drop the box, however, it bounced off a shelf. Dkt. 28, at 30-31. Plaintiff did not ask for help before the incident. Dkt. 28, at 31. Plaintiff testified that nothing appeared to be wrong with the box, and he did not check the weight, which is on the box, before he attempted to lift the box. Dkt. 28, at 31 and 33.

         Plaintiff's Complaint asserts a negligence claim against Home Depot for “creating a dangerous condition that injured the Plaintiff by stocking heavy products above waist level, but within the reach of its customers.” Dkt. 1-1. Plaintiff seeks damages. Id.

         In Home Depot's motion for summary judgment, it argues that there are no issues of fact as to Plaintiff's claim for negligence, and that the case should be dismissed with prejudice. Dkt. 27. Home Depot argues that its decision to stack the boxes of joint compound was not an unreasonably dangerous condition and that Plaintiff cannot show that any alleged breach of a duty of care proximately caused his injuries. Id.

         Plaintiff responds and argues that “there are many issues of fact that a jury must determine, ” but does not identify those facts. Dkt. 35. Plaintiff primarily argues that his attorneys should not have been permitted to withdraw from representing him, that he has contacted several attorneys to represent him, and they have all declined to do so. Id. Although Plaintiff testified that he did not check the weight on the box, in his response, he now asserts that the weight of the box could not be seen. Id. Plaintiff also maintains that he looked for help on the day of the accident, but could not find a sales person. Id.



         Summary judgment is proper only if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985). There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)(nonmoving party must present specific, significant probative evidence, not simply “some metaphysical doubt.”). See also Fed. R. Civ. P. 56(e). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 .S. 242, 253 (1986); T.W. Elec. Service Inc. v. Pacific Electrical Contractors Association, 809 F.2d 626, 630 (9th Cir. 1987).

         The determination of the existence of a material fact is often a close question. The court must consider the substantive evidentiary burden that the nonmoving party must meet at trial - e.g., a preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254, T.W. Elect. Service Inc., 809 F.2d at 630. The court must resolve any factual issues of controversy in favor of the nonmoving party only when the facts specifically attested by that party contradict facts specifically attested by the moving party. The nonmoving party may not merely state that it will discredit the moving party's evidence at trial, in the hopes that evidence can be developed at trial to support the claim. T.W. Elect. Service Inc., 809 F.2d at 630 (relying on Anderson, supra). Conclusory, nonspecific statements in affidavits are not sufficient, and “missing facts” will not be “presumed.” Lujan v. National Wildlife Federation, 497 U.S. 871, 888-89 (1990).

         B. APPLICATION OF ...

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