United States District Court, W.D. Washington, Tacoma
ORDER ON DEFENDANT'S MOTION FOR SUMMARY
J. BRYAN UNITED STATES DISTRICT JUDGE.
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.
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.
reasons provided, the Home Depot's motion (Dkt. 27)
should be granted, and the case dismissed with prejudice.
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
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.
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
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.
STANDARD ON SUMMARY JUDGMENT
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).
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).
APPLICATION OF ...