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Helm v. Lowe's Home Centers LLC

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

May 15, 2017

LAWRENCE HELM, Plaintiff,
v.
LOWE'S HOME CENTERS, LLC, Defendant.

          ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          BENJAMIN H. SETTLE United States District Judge

         This 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.

         I. PROCEDURAL AND FACTUAL BACKGROUND

         On 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 stores. Id.

         On September 27, 2017, Lowe's removed the matter to this Court. Dkt. 1.

         On 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. 1.

         On 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.

         II. DISCUSSION

         A. Motion to Strike

         Lowe's 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.

         B. Summary Judgment

         Helm 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.

         1. Standard

         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 (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 ...


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