Kindig v. Whole Foods Mkt. Grp., Inc.

• Decision Date: 13 March 2013
• Docket Number: Civil Action No. 10–CV–1919 (AK).
• Citation: 930 F.Supp.2d 48
• Parties: Marion KINDIG, Plaintiff, v. WHOLE FOODS MARKET GROUP, INC., Defendant.
• Court: U.S. District Court — District of Columbia

930 F.Supp.2d 48

Marion KINDIG, Plaintiff,

v.WHOLE FOODS MARKET GROUP, INC., Defendant.

Civil Action No. 10–CV–1919 (AK).

United States District Court,

District of Columbia.

March 13, 2013.

Marion Kindig, Bethesda, MD, pro se.

Stephen Bennett Caplis, J. Christopher Nosher, Justin M. Cuniff, Setliff & Holland, PP, Annapolis, MD, for Defendants.

MEMORANDUM OPINION

ALAN KAY, United States Magistrate Judge.

Plaintiff Ms. Marion Kindig (“Plaintiff” or “Ms. Kindig”) sued Defendant Whole Foods Market Group, Inc. (“Defendant” or “Whole Foods”) for personal injuries arising out of an alleged slip and fall incident in the parking lot of a Whole Foods store. Defendant Whole Foods filed a Second Motion for Summary Judgment (“Def.'s Mot.”) [114]. Ms. Kindig filed an Opposition to the Motion (“Pl.'s Opp'n”) [120] and Whole Foods filed a Reply (“Def.'s Reply”) [124]. Given that Ms. Kindig has demonstrated a genuine issue of material fact as to whether Whole Foods had constructive notice of the alleged hazard, the Court denies Defendant's Motion for Summary Judgment.

BACKGROUND

As Defendant Whole Foods correctly stated in its motion, the facts in a motion for summary judgment must be construed in the light most favorable to the nonmoving party. See McCready v. Nicholson, 465 F.3d 1, 7 (D.C.Cir.2006). Therefore, the Court will present the background in the light most favorable to Ms. Kindig, utilizing her depositions and interrogatories.

On November 26, 2007, Ms. Kindig drove from her post office box in Washington, DC, to the Whole Foods store at 2323 Wisconsin Avenue, Washington, DC. (Ex. 2–A [114–2] of Def.'s Mot., Ms. Kindig's Deposition, Sept. 29, 2011, at 53:13–54:5, hereinafter “Pl.'s Dep.”; Exhibit Superior Court Compl. [1–2] at 1, Def.'s Notice of Removal.) Ms. Kindig arrived at Whole Foods at approximately 5:10 pm. (Pl.'s Dep. 54:6–8.) Ms. Kindig described the weather at the time as “raining pretty hard” ( Id. at 74:5) and as “raining torrents.” (Ex. 4 [114–5] of Def.'s Mot., Pl.'s Responses to Def.'s First Set of Interrogatories and Request for Production of Documents and Tangible Things, hereinafter “Pl.'s Interrog.” Answer 1.) She parked on the first level of the parking deck at the Whole Foods store. (Pl.'s Dep. 54:9–55:5.) Ms. Kindig exited her vehicle and removed her crutches from the back seat. ( Id. at 60:11–61:1.) Ms. Kindig described her crutches usage as “I'm just basically walking like anybody would walk. And then, I'm just doing this to try and take the weight off. So I'm fully standing and walking like anybody would. I'm just, you know, taking the weight off.” ( Id. at 62:18–22.)

Ms. Kindig walked away from her parked vehicle, stepped onto the curb, and began walking on the sidewalk toward the elevator. ( Id. at 56:16–57:16.) She observed that the “lighting wasn't very good ... [it] wasn't very bright.” ( Id. at 70:21–71:1.) As she was walking, her feet “slipped” and “went out,” causing her to land on her back. ( Id. at 72:22–73:1.) Ms. Kindig fell on the ground near the middle of the conveyor belt that was used to transport groceries down from the store. ( Id. at 58:3–20.) At the end of the conveyor belt, Whole Foods employee Travis Lyles was stationed with his back to Ms. Kindig, tasked with moving groceries from the conveyor belt to the ground. ( Id. at 93:14–22; 94:20–95:3) After Ms. Kindig fell, Mr. Lyles and an unknown male customer helped pick her up from the ground. ( Id. at 93:18–21.)

After Mr. Lyles and the unknown man helped her stand, Ms. Kindig walked to the elevator and rode it upstairs to the Whole Foods store. ( Id. at 96:16–97:5.) Ms. Kindig briefly spoke to an individual who told her that “Elaine” would take her information. ( Id. at 98:1–5.) Ms. Kindig then spoke to “Elaine” and told her what happened. ( Id.) Ms. Kindig then rode the elevator downstairs to the garage and drove home. ( Id. at 98:18–99:1.) She telephoned her doctor the next day because she had continued pain and he advised her to call 911. ( Id. at 99:1–8.) She was transported via ambulance to Suburban Hospital for treatment. ( Id. at 99:9–18.)

LEGAL STANDARD

Under Federal Rules of Civil Procedure 56, a grant of summary judgment is appropriate when the record shows no genuine issue of material fact and the moving party deserves judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C.Cir.1994). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The moving party has the initial burden to inform the court of the foundation for its motion and identify segments of the record demonstrating an absence of genuine dispute of material facts. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party may utilize the pleadings, depositions, interrogatory answers, admissions, and affidavits to fulfill this burden. Fed.R.Civ.P. 56(c) as cited in Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. When ruling on a motion for summary judgment, the court must draw all inferences in a light most favorable to the nonmoving party. McCready, 465 F.3d at 7. Summary judgment is “rarely granted in personal injury cases because the issues of breach of duty and proximate causation are normally held to be questions of fact for the jury,” yet the nonmoving party still has an obligation to demonstrate there is a genuine issue of fact about the defendant's negligence. Gumppert v. United States, 1993 WL 405763, at *1, 1993 U.S. Dist. LEXIS 13904, *3 (D.D.C.1993).

DISCUSSION

I. A reasonable jury could find that Whole Foods had constructive notice of the hazard

Based on the evidence presented by Ms. Kindig and Whole Foods, a reasonable jury could conclude that Whole Foods had constructive notice of the alleged hazard due to the length of time the hazard was present, the rainy conditions, the lighting in the parking area, and the close proximity of a Whole Foods employee. Therefore, the Court denies Whole Foods' Motion for Summary Judgment.

a. Legal standard for constructive notice

A plaintiff establishes constructive notice by presenting evidence 1) “that a dangerous condition existed” and 2) “that the dangerous condition existed for such a duration of time that the [defendant] should have been aware of it if [the defendant] had exercised reasonable care.” Lynn v. Dist. of Columbia, 734 A.2d 168, 171 (D.C.1999). As a general rule, issues of constructive notice are “peculiarly within the province of juries.” Hines v. Safeway Stores, Inc., 379 A.2d 1174, 1175 (D.C.1978). Supermarket slip and fall cases are exactly the type of case within the province of a jury because supermarkets are public locations and grocers have “a duty to take ‘reasonable precautions to maintain the store premises in a condition so as not to create an unreasonable risk of harm to customers.’ ” Haney v. Marriott Int'l, Inc., 2007 WL 2936087, at *7, 2007 U.S. Dist. LEXIS 74872, *19–*20 (D.D.C.2007), quoting Galloway v. Safeway Stores, Inc., 632 A.2d 736, 739 (D.C.1993).) In tort cases, courts have found defendants to have constructive notice of a hazardous condition through a variety of factors. Courts have found the presence of constructive notice when the hazard existed for an ongoing amount of time prior to the injury, Lynn, 734 A.2d at 171, when the defendant had received previous complaints and had knowledge that prior accidents occurred at the location, Washington Metro. Area Transit Auth. v. Davis, 606 A.2d 165, 175 (D.C.1992), and when the defendant performed previous remedial measures to correct similar nearby hazards, Whitehouse v. Safeway Stores, Inc., 385 A.2d 755, 756 (D.C.1978).

b. Inclement weather could have provided Whole Foods with sufficient notice of a potential hazard

There is a genuine question of material fact as to whether the rainy conditionsprovided Whole Foods with constructive notice of the alleged hazard. Inclement weather can be sufficient to establish constructive notice provided that the rain, snow, or other precipitation was substantial in volume or duration. Doctors Hospital v. Badgley, 156 F.2d 569 (1946); see also Harris v. H.G. Smithy Co., 429 F.2d 744, 745 (D.C.Cir.1970) (“evidence of a substantial period of rain is sufficient to give a landlord constructive notice of the foreseeable hazards that may result from that rain, including the risk that water will be tracked into an apartment lobby and the floor will become slippery”); compare with Smith v. Safeway Stores, Inc., 298 A.2d 214, 217 (D.C.1972) (“Nor were there any attending circumstances such as inclement weather which should have put the store on notice, constructive or otherwise, of mud, water, or special debris accumulations.”) A defendant does not need awareness of a particular puddle, because “[i]t is sufficient to show notice of rain, combined with the probability that in rainy weather tenants will track in water and the lobby floor will become slippery.” Harris, 429 F.2d at 746 (internal citations omitted). Therefore, inclement weather alone can present a genuine question of material fact in which the jury must decide “(1) whether there was a sufficient period of rain to provide constructive notice of the danger of a slippery [ ] floor, and (2) if so, whether [the defendant] exercised reasonable care in responding to that danger.” Id.

The rainy conditions on November 26, 2007, as Ms. Kindig described them were sufficient to establish a question of fact for the jury and survive a motion for summary judgment. Ms. Kindig stated that her drive from her post office box to Whole Foods took approximately ten minutes. (Pl.'s Dep. 53:15–54:5.) When asked about the day's weather, Ms. Kindig stated that “[i]t was raining” and when asked if it had “been raining on your drive over from the post...