Oswald v. Costco Wholesale Corp., Docket No. 47261

CourtUnited States State Supreme Court of Idaho
Writing for the CourtBURDICK, Chief Justice.
Citation473 P.3d 809,167 Idaho 540
Parties John A. OSWALD, an individual; Nancy R. Poore, an individual, Plaintiffs-Appellants, v. COSTCO WHOLESALE CORPORATION, a Washington corporation, Defendant-Respondent, and Estate of Frank L. Myers, and Does Individual/Entities I through XX, Defendants.
Decision Date05 October 2020
Docket NumberDocket No. 47261

167 Idaho 540
473 P.3d 809

John A. OSWALD, an individual; Nancy R. Poore, an individual, Plaintiffs-Appellants,
COSTCO WHOLESALE CORPORATION, a Washington corporation, Defendant-Respondent,
Estate of Frank L. Myers, and Does Individual/Entities I through XX, Defendants.

Docket No. 47261

Supreme Court of Idaho, Boise, June 2020 Term.

Opinion Filed: October 5, 2020

Andersen, Schwartzman, Woodard, Dempsey, PLLC, Boise, for Appellants. Steven B. Andersen argued.

Eberle, Berlin, Kading, Turnbow, & McKlveen, Chartered, for Respondent. Neil D. McFeeley argued.

BURDICK, Chief Justice.

473 P.3d 815
167 Idaho 546

John A. Oswald and Nancy R. Poore ("the Plaintiffs") appeal from an Ada County district court's final judgment entered after the court awarded summary judgment in favor of the defendant, Costco Wholesale Corporation ("Costco"). The lawsuit focuses on the parking lot of Costco's Boise store—specifically, the parking lot's pedestrian walkway that bisects two perpendicular rows of ADA-accessible parking spaces. In February 2017, Oswald and Poore were walking on that walkway when an elderly driver drove onto it, striking Oswald and pinning him against a vehicle parked on the opposite side, causing Oswald to suffer significant injuries. The Plaintiffs sued Costco alleging (1) premises liability, (2) negligence and willful wanton conduct, (3) negligent infliction of emotional distress, and (4) intentional infliction of emotional distress. After the district court resolved a discovery dispute in Costco's favor, Costco moved for summary judgment. In granting the motion, the district court ruled that Costco had no notice that its walkway was a dangerous condition and, therefore, owed no duty to redesign it or warn pedestrians about it. The district court entered judgment dismissing the Plaintiffs' claims with prejudice.


Because this appeal comes to this Court from a decision granting summary judgment in favor of Costco, the facts are presented in the light most favorable to the Plaintiffs.

A. The parking lot and walkway at Costco's Boise Warehouse

Costco's Boise store features a parking lot that wraps around the warehouse from its north side to its west side. The parking lot features concrete walkways for pedestrians traversing the parking lot. The walkways extend from the warehouse to the sidewalks that comprise the perimeter of the property. All the walkways are flanked by perpendicular parking spaces and rubber "wheel stop" embankments that rest a few feet away from the walkways. The wheel stops are a few inches high and covered with bright yellow strips of reflective material.

A central walkway ("the Walkway") is different from the other walkways in a few respects. First, the Walkway sits level with the parking lot's asphalt, while the other walkways are raised above the ground, creating a curb. Second, the parking spaces bisected by the Walkway are ADA-accessible and situated perpendicular to the Walkway. The ADA parking spots are bordered on one side by an "access aisle," demarcated by striped paint, which provides additional space for a person using a wheelchair to enter and exit a parked vehicle. The Walkway also features signposts jutting up from the front-center of the parking spaces right before the asphalt transitions to concrete. At the time of the incident, some of the signs were bent toward the Walkway and some of the wheel stops in the ADA-accessible stalls were not squarely aligned with the Walkway.

B. The Incident

On the afternoon of February 10, 2017, John Oswald and his significant other, Nancy Poore, had finished shopping at Costco and were returning to their vehicle using the Walkway. Oswald pushed the couple's cart as Poore walked in front of him. Suddenly, Frank Myers—a 92-year-old man who had recently had his license suspended and reinstated for being involved in a prior collision—drove his Cadillac Deville onto the Walkway and into Oswald, pinning him against a GMC Envoy that had just parked on the opposite side of the Walkway ("the Incident").

Myers had been attempting to park his Cadillac in one of the ADA stalls. In the process, it appears that he drove through a portion of the access aisle to the left of the

473 P.3d 816
167 Idaho 547

parking spot he was aiming for, striking the right-side rear bumper of an unoccupied Ford Taurus parked on the other side of the access aisle with the left front bumper of his Cadillac. Apparently confused, Myers pressed on the gas, causing him to sideswipe the Taurus and drive over a wheel stop1 and into the Walkway where he struck Oswald.

Myers' car pushed Oswald into the front end of the GMC Envoy that had just parked in the parking spot situated opposite to the one Myers attempted to park in. Still confused, Myers did not back up his Cadillac to release Oswald, but instead kept pressing on the gas pedal until an onlooker rushed over, reached into the vehicle, put the Cadillac in park, shut off the engine, and removed the keys from the ignition. Luckily, because the driver of the GMC Envoy was still in the vehicle, the Envoy reversed, freeing Oswald. One of the bystanders, an E.R. physician, attended to Oswald until an ambulance arrived. Oswald suffered substantial and severe injuries requiring extended hospitalization and rehabilitation. Poore was not struck by Myers' vehicle nor did she see Myers' Cadillac strike Oswald, but she witnessed the aftermath.

C. The Plaintiffs' complaint

On April 24, 2017, Oswald and Poore filed suit against both Myers and Costco. Shortly thereafter, Myers passed away and his estate was substituted for him as a defendant. The estate and the Plaintiffs reached a settlement before the summary judgment ruling in this case. As a consequence, only the claims against Costco are relevant to this appeal.

Plaintiffs asserted four claims against Costco: (1) premises liability; (2) negligence and willful wanton conduct; (3) negligent infliction of emotional distress; and (4) intentional infliction of emotional distress.

The Plaintiffs alleged that the Walkway was unsafe because it invited pedestrians to use a pathway unprotected from vehicle incursions while Costco failed to provide the necessary protection against such incursions. Plaintiffs alleged that "Costco knew or should have known that its parking lot design and pedestrian pathway configuration created an unreasonable risk of harm to those walking upon the subject pathway between the rows of ADA parking stalls." In detailing their cause of action for premises liability, the Plaintiffs asserted that the Walkway was a dangerous condition that Costco had a duty to warn its invitees of because there was "a high degree of probability that such harm would actually result." For their cause of action for negligence, Plaintiffs asserted that Costco violated its duty of care by failing to "protect Plaintiffs against the reasonably foreseeable, harmful, and tortious conduct of third parties."

D. The discovery dispute

Following an initial exchange of discovery, Plaintiffs served a second set of discovery requests on Costco (the Second Set of Discovery). Believing the Second Set of Discovery to be overly broad and burdensome, Costco sought a protective order. After a hearing, the district court granted Costco's motion in its entirety, ruling that Costco was under no obligation to respond to the Second Set of Discovery. The district court noted that, as drafted, the Second Set of Discovery "call[ed] for Costco to disclose on a nationwide basis any incident in which it is aware of a vehicle impacting anything."

Immediately after ruling from the bench, the district court offered comments and its "general thoughts" on what it would likely permit when the Plaintiffs went back to the drawing board. Afterward, Plaintiffs submitted a "revised" second set of discovery (Revised Second Set of Discovery). Costco again responded with a motion for a protective order for many of the same reasons. The Court never ruled on the second motion, because the parties reached an agreement narrowing the issues.

E. Motion for summary judgment and motions to strike

On March 8, 2019, Costco moved for summary judgment on all claims against it, arguing

473 P.3d 817
167 Idaho 548

that Plaintiffs could not "establish the breach and causation elements of their negligence claim." Plaintiffs responded with a memorandum in opposition and submitted a declaration from their experts, Robert Reiter and Adam Aleksander, each incorporating their reports, rebuttals, and curriculum vitae in support. Plaintiffs' attorney, Christine Arnold, submitted an affidavit attaching 22 exhibits. Among those exhibits were various news articles detailing vehicle-on-pedestrian accidents that took place in Costco parking lots around the country.

On the same day Plaintiffs filed their response to Costco's...

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