Morgan v. Kimco Realty Corp.
| Docket Number | 3:21-cv-00073-SB |
| Decision Date | 10 March 2022 |
| Parties | PEARL MORGAN, Plaintiff, v. KIMCO REALTY CORPORATION, Defendant. |
| Court | U.S. District Court — District of Oregon |
Plaintiff Pearl Morgan (“Morgan”) filed this action against Kimco Realty Corporation (“Kimco”), alleging claims for negligence and negligence per se. (ECF No. 1-1.) Now before the Court is Kimco's motion for summary judgment. (ECF No. 14.)
The Court has jurisdiction over Morgan's claims pursuant to 28 U.S.C. § 1332, and all parties have consented to the jurisdiction of a U.S. Magistrate Judge pursuant to 28 U.S.C § 636. The Court held a hearing on Kimco's motion on January 26, 2022. For the reasons discussed below, the Court grants Kimco's motion for summary judgment.
BACKGROUND[1]
On April 26, 2019, Morgan arrived at a parking lot owned by Kimco. (Compl. ¶ 3.) Upon parking in a designated handicapped parking space and exiting her vehicle, Morgan fell over a concrete wheel stop near the head of the parking space, causing injuries to her left foot and right hip. (Id. ¶¶ 3, 5.)
Morgan alleges that Kimco's negligence in the construction and maintenance of its parking lot caused her injuries, including Kimco's installation of a wheel stop within a handicapped parking space, failure to provide an accessible route from the parking space to the retail building, failure to warn disabled patrons of the tripping hazard caused by the “unauthorized” wheel stop, failure to maintain the lot in a reasonably safe condition for a disabled invitee, and failure to protect disabled invitees from defective conditions on the premises, including the wheel stop. (Id. ¶¶ 4-5.)
Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). On a motion for summary judgment, the court must view the facts in the light most favorable to the non-moving party, and draw all reasonable inferences in favor of that party. Porter v. Cal. Dep't of Corr., 419 F.3d 885, 891 (9th Cir. 2005). The court does not assess the credibility of witnesses, weigh evidence, or determine the truth of matters in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).
“[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “In such a situation, there can be ‘no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Id. Thus, the moving party is entitled to entry of summary judgment where “the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.” Id. at 323.
Morgan alleges that Kimco failed to comply with the Americans with Disabilities Act (“ADA”) in its construction and maintenance of the handicapped parking space in question, and therefore the doctrine of negligence per se applies to her claims. (Compl. ¶ 4.)
“To prove a negligence per se claim, a plaintiff must demonstrate four elements: (1) defendant violated a statue or ordinance; (2) plaintiff was injured as a result of the defendant's violation; (3) plaintiff was a member of the class of persons the statute or ordinance intended to protect; and (4) plaintiff suffered an injury of the type the statute or ordinance was meant to prevent.” Beaudet v. Starbucks Corp., No. 6:16-cv-01814-JR, 2018 WL 5815603, at *2 (D. Or. Sept. 24, 2018) (citing McAlpine v. Multnomah Cnty., 131 Or.App. 136, 144 (1994)), report and recommendation adopted by 2018 WL 5816652 (D. Or. Nov. 6, 2018). “Negligence per se is not a separate claim for relief, but is simply shorthand for a negligence claim in which the standard of care is expressed by a statute or rule.” Abraham v. T. Henry Constr., Inc., 350 Or. 29, 35 n.5 (2011).
Morgan claims that Kimco violated the ADA by “installing [a] wheel-stop within a disabled parking stall” and “failing to provide an accessible route for handicapped individuals, including [Morgan], from the parking stall to the . . . retail building.” (Compl. ¶ 4(a)-(b).) Morgan does not identify in her complaint which section of the ADA Kimco violated, and when asked by Kimco via interrogatory for the specific ADA section, Morgan's counsel declined to provide the information, asserting attorney-client privilege. (Decl. of Kelly Huedepohl (“Huedepohl Decl.”) ¶ 2, Ex. A, ECF No. 14-1.) Morgan did not identify the relevant ADA section in her response to Kimco's motion for summary judgment, and her expert only generally opined, without citing a relevant provision, that the parking stall at issue was not compliant with the ADA's requirements of a clear path to the adjacent sidewalk and no tripping hazards. (Decl. of Thomas R. Fries, P.E. (“Fries Decl.”) ¶ 1, ECF No. 16.) At oral argument, Morgan's counsel was unable to identify which section of the ADA Kimco violated.
By failing to identify an ADA provision Kimco violated or present any evidence in support of any specific ADA violation, Kimco has failed to make a showing sufficient to establish the existence of an element essential to her negligence per se claims.[2] See Anderson, 477 U.S. at 256 (“[T]he plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment.”). Accordingly, the Court grants Kimco's motion for summary judgment on Morgan's negligence per se claims.
Morgan's remaining claims are based on a common law negligence theory. (See Compl. ¶¶ 4-6.) Morgan alleges that she was injured after tripping over a wheel stop at the head of Kimco's handicapped parking stall. (Id. ¶ 3.) Morgan alleges that Kimco failed to warn of the tripping hazard created by the wheel stop, failed to maintain the parking lot in a reasonably safe condition for a disabled invitee, and failed to protect disabled invitees using its disabled parking spot from defective conditions on the premises, including the wheel stop. (Id. ¶ 4.)
With respect to an invitee's negligence claim against a property owner, Oregon courts have explained that a property owner must exercise due care to discover conditions that create an unreasonable risk of harm to an invitee and must exercise that standard of care to either eliminate or warn of the risk:
In general, it is the duty of the possessor of land to make the premises reasonably safe for the invitee's visit. The possessor must exercise [due care] to discover conditions of the premises that create an unreasonable risk of harm to the invitee. The possessor must exercise that standard of care either to eliminate the condition creating that risk or to warn any foreseeable invitee of the risk so as to enable the invitee to avoid the harm. Accordingly, property owners are ‘liable to invitees only for conditions that create an unreasonable risk of harm to the invitee.'
Glorioso v. Ness, 191 Or.App. 637, 643 (2004) (simplified).
Morgan has presented no evidence sufficient to establish that Kimco failed to comply with the applicable standard of care it owed to an invitee under Oregon law, nor that any such breach caused Morgan's injuries here. Morgan relies only on Fries' expert declaration to attempt to establish these elements of her negligence claims. (Pl.'s Resp. at 5.)
Fries is a licensed professional engineer but does not claim to be an expert in parking lot design, safety, or the ADA. (Fries Decl., Ex. 1.) At oral argument, Morgan acknowledged that Fries has no particularized experience in these areas but claimed that Fries was familiar with the ADA generally. Kimco objects to the admissibility of Fries's declaration on several grounds, including that Fries is not an expert in the relevant field of commercial parking lot design, his opinion is not based on sufficient facts or data, and his opinions are inconsistent with requirements for handicapped parking stalls under the ADA and Oregon law. (Def.'s Reply at 4-10.) Kimco argues that handicapped parking spaces are regulated by both the ADA and Oregon law, the requirements of these laws establish the applicable standard of care here, and the parking stall in question satisfied the applicable requirements. (Def.'s Reply at 8-9) (citing 42 U.S.C. §§ 12181 to 12189; Or. Rev. Stat. §§ 447.210 to 447.280; and Fed.R.Evid. 201).
Assuming without deciding that Fries is qualified to testify as an expert on disabled parking stall requirements, the Court finds that the Fries Declaration fails to establish that Kimco did not meet the applicable standard of care with respect to the parking stall at issue. Fries cites no relevant provisions of the ADA or Oregon law, but rather refers only generally to the ADA, International Property Management codes, Standards for Safe Walking Surfaces, and a Uniform Civil Jury Instruction in support of his opinion on what a disabled individual “would reasonably expect” in a parking space. (See Fries Decl. ¶ 1.) In contrast, Kimco cites specific ADA and Oregon law requirements governing the parking stall...
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