United States District Court, W.D. Washington, Seattle
ARCELIA H. POWERS, Plaintiff,
WALMART, INC., a foreign corporation, dba MT. VERNON WALMART, Store #2596, Defendant.
ORDER GRANTING WALMART'S MOTION FOR SUMMARY
Honorable Richard A. Jones, United States District Judge
matter is before the Court on the motion for summary judgment
filed by Defendant Walmart Inc. (“Walmart”). For
the reasons below, the Court GRANTS the
case arises out of a September 2017 slip-and-fall incident
occurring at a Walmart store located in Mt. Vernon,
Washington. The incident happened in the self-checkout area
where another customer had just spilled baby food. The
Walmart associate responsible for the area placed a bright
orange cone next to the spill and proceeded to clean it,
first sweeping the area and then covering the floor with
paper towels. Dkt. # 14 at 00:56:39-58:52. One minute later,
Plaintiff walked into the area and fell one foot from where
the paper towel was placed. Id. at 01:00:08. In her
deposition, Plaintiff testified to seeing the cone and
understood that it was in place to denote the presence of
“something on the floor.” Dkt. # 12 at 34; Dkt. #
13 at 40. She also testified that did not look at the floor
as she approached the area. Dkt. # 12 at 37; Dkt. # 13 at 40.
December 28, 2018, Plaintiff filed a personal injury lawsuit
against Walmart stemming from the slip-and-fall incident.
Dkt. # 1-1. Walmart properly removed the case to this Court.
Dkt. # 1. On October 23, 2019, Walmart filed a motion for
summary judgment. Plaintiff responded on November 11, 2019
and Walmart filed its reply on November 15, 2019.
negligence action, the plaintiff must prove the existence of
a duty, breach of that duty, resulting injury, and proximate
cause. Tincani v. Inland Empire Zoological
Soc'y, 875 P.2d 621 (1994). “Negligence is
generally a question of fact for the jury, and should be
decided as a matter of law only ‘in the clearest of
cases and when reasonable minds could not have differed in
their interpretation' of the facts.” Bodin v.
City of Stanwood, 927 P.2d 240 (1996) (quoting Young
v. Caravan Corp., 672 P.2d 1267 (1983)). For negligence
claims based on premises liability, Washington has adopted
the standards set forth in the Restatement (Second) of Torts
sections 343 and 343A (1965), dealing with a landowner's
liability to invitees. Iwai v. State, 915 P.2d 1089
(1996). Restatement, section 343 provides:
A possessor of land is subject to liability for physical harm
caused to his invitees by a condition on the land if, but
only if, he
(a) knows or by the exercise of reasonable care would
discover the condition, and should realize that it involves
an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the
danger, or will fail to protect themselves against it; and
(c) fails to exercise reasonable care to protect them against
Restatement (Second) of Torts § 343 (1965).
slip-and-fall incident in this case was caught on
surveillance and the material facts are not in dispute.
Specifically, it is undisputed that Walmart placed the bright
orange cone adjacent to the spill and that Plaintiff saw the
bright orange cone before falling no more than two feet away.
Courts addressing similar incidents have noted that the
presence of caution cones suggests that the risk of slipping
is open and obvious. Finazzo v. Speedway LLC, No.
11-CV-14770, 2012 WL 3966371, at *3 (E.D. Mich. Sep. 11,
2012); see also Helm v. Lowe's Home Centers,
LLC, No. C16-5823 BHS, 2017 WL 2081077, at *3 (W.D.
Wash. May 15, 2017) (finding bright yellow cone to be
“an open and obvious warning marker”).
Additionally, Plaintiff acknowledged that she understood the
cone was in place to denote the presence ...