United States District Court, W.D. Washington, Tacoma
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
BENJAMIN H. SETTLE United States District Judge
matter comes before the Court on Defendant Lowe's Home
Centers, LLC's (“Lowe's”) motion for
summary judgment (Dkt. 12). The Court has considered the
pleadings filed in support of and in opposition to the motion
and the remainder of the file and hereby grants the motion
for the reasons stated herein.
PROCEDURAL AND FACTUAL BACKGROUND
August 26, 2016, Plaintiff Lawrence Helm (“Helm”)
filed a complaint against Lowe's in Kitsap County
Superior Court for the State of Washington. Dkt. 1-3. Helm
asserts one cause of action for negligence based on
allegations of tripping over a cone at one of Lowe's
September 27, 2017, Lowe's removed the matter to this
Court. Dkt. 1.
January 20, 2017, Lowe's served Helm with requests for
admissions. Dkt. 12-1, Declaration of Justin Walsh
(“Walsh Dec.”), ¶ 2. It is undisputed that
Helm failed to timely respond to the requests and that
failure to respond results in the requests deemed admitted.
See Asea, Inc. v. S. Pac. Transp. Co., 669 F.2d
1242, 1245 (9th Cir. 1981) (“It is undisputed that
failure to answer or object to a proper request for admission
is itself an admission: the Rule itself so states.”);
Dkt. 14 at 5 (Helm conceding that “the Court is allowed
to consider the matters admitted . . . .”). In relevant
part, Helm admitted that (1) “at the time of the
alleged incident a yellow caution cone was located in front
of merchandise on display, ” (2) he “tripped on
the yellow caution cone at the time of the alleged incident,
” (3) he “observed the yellow caution cone before
[he] tripped and fell, ” and (4) “there was
nothing obstructing [his] vision of the yellow caution cone
at the time of the alleged incident.” Walsh Dec., Exh.
March 6, 2017, Lowe's moved for summary judgment. Dkt.
12. Lowe's submitted evidence that Helm tripped over a
standard caution cone used by the store, which appears to be
36 inches high and bright yellow. Dkt. 12-2, Declaration of
Jonnathan Raine, Exh. 1. On March 21, 2017, Helm responded
and submitted still frames from a video of the incident. Dkt.
14. On March 23, 2017, Lowe's replied and moved to strike
portions of Helm's response. Dkt. 15.
Motion to Strike
moves to strike large portions of Helm's response brief
because the assertions are unsupported by admissible evidence
and based on pure speculation. Dkt. 15 at 1-3. The Court
agrees with Lowe's and grants the motion to strike
inadmissible evidence and speculation. Accordingly, the Court
will identify the specific admissible evidence it relies upon
when considering Lowe's motion.
has asserted one claim for negligence based on premise
liability of a landowner for business invitees. Lowe's
moves for summary judgment on Helm's claim arguing that
the exception of an open and obvious danger applies to the
facts of the alleged incident.
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 (1986).
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 ...