Sanoumegah v. Costco Wholesale Corp.

• Decision Date: 05 February 2021
• Docket Number: No. 19-cv-1595 (DLF),19-cv-1595 (DLF)
• Parties: ADO SANOUMEGAH, Plaintiff, v. COSTCO WHOLESALE CORPORATION, Defendant.
• Court: U.S. District Court — District of Columbia

ADO SANOUMEGAH, Plaintiff, v. COSTCO WHOLESALE CORPORATION, Defendant.

No. 19-cv-1595 (DLF)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

February 5, 2021

MEMORANDUM OPINION

Ado Sanoumegah brings this negligence suit against Costco Wholesale Corporation (Costco) after she slipped and fell in a Costco cafeteria. Compl., Dkt. 1-1. Before the Court is Costco's Motion for Summary Judgment, Dkt. 17. For the reasons that follow, the Court will grant the motion.

I. BACKGROUND¹

Sanoumegah was shopping in the D.C. Costco in July 2018 when she slipped and fell on an ice cube on the cafeteria floor. Def.'s Stmt. of Undisputed Facts ¶ 1, Dkt. 17-1. Sanoumegah had left the store to unload her groceries into her car, then returned to the cafeteria area to pickup a pizza she had ordered. Id. ¶ 6. As she was turning into the cafeteria, she slipped and fell to the ground. Id. ¶ 7. Sanoumegah was at first unsure what caused her fall, but later noticed an ice cube on the ground when another customer pointed it out. Id. ¶ 8; Sanoumegah Dep. at 64:4-8, Dkt. 17-2. After being helped up by two other Costco customers, id. at 63:12-20, she filled out an incident report form, id. at 74:2-4; Incident Report, Dkt. 17-3. Sanoumegah then retrieved her pizza and left the store. Sanoumegah Dep. at 74:17-22.

Sanoumegah filed suit in the Superior Court of the District of Columbia, seeking $1,000,000 in damages. Compl. at 3. Costco removed the case to federal court based on the diversity of citizenship between the parties and the amount in controversy in excess of $75,000. See 28 U.S.C. §§ 1332, 1441; Notice of Removal, Dkt. 1. Costco then moved for summary judgment, and that motion is now ripe for review. Sanoumegah submitted security camera footage of the Costco cafeteria counter area on the day of Sanoumegah's fall, which the Court has reviewed.

II. LEGAL STANDARD

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate if the moving party "shows that 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A "material" fact is one that could affect the outcome of the lawsuit. See Anderson, 477 U.S. at 248; Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A dispute is "genuine" if a reasonable jury could determine that the evidence warrants a verdict for the nonmoving party. See Anderson, 477 U.S. at 248; Holcomb, 433 F.3d at 895. In reviewing the record, "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000).

It is well established, however, that "a plaintiff opposing summary judgment" must "substantiate [her allegations] with evidence" that "a reasonable jury could credit in support of each essential element of her claims." Grimes v. District of Columbia, 794 F.3d 83, 94 (D.C. Cir. 2015). The moving party is entitled to summary judgment if the nonmoving party "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 (1986).

III. ANALYSIS

Under District of Columbia law, in a negligence action the plaintiff "has the burden of establishing the applicable standard of care, a deviation from that standard by the defendant, and a causal relationship between the deviation and the plaintiff's injury." Young v. District of Columbia, 752 A.2d 138, 145 (D.C. 2000) (internal quotation marks omitted); see also Martin v. Omni Hotels Mgmt. Corp., 206 F. Supp. 3d 115, 121 (D.D.C. 2016). "It is established law in this jurisdiction that a storekeeper is not an insurer or guarantor of his customers' safety . . . [and] the mere happening of an accident does not impose liability or permit an inference of negligence." Napier v. Safeway Stores, 215 A.2d 479, 480 (D.C. 1965). Rather, "[t]he burden rests upon the customer to prove the proprietor was negligent in either creating the alleged condition or in permitting it to continue and that this negligence was the proximate cause of the injuries." Id. And "[i]t is axiomatic that under a negligence regime, one has a duty to guard against only foreseeable risks." Novak v. Cap. Mgmt. & Dev. Corp., 452 F.3d 902, 911-12 (D.C. Cir. 2006) (internal quotation marks omitted).

In the context of slip and fall premises liability cases, this means that a plaintiff must establish either actual or constructive notice of the dangerous condition. See Hudson v. HarrisTeeter, LLC, 292 F. Supp. 3d 496, 499 (D.D.C. 2018). Constructive notice exists where the dangerous condition existed for a long enough period of time that the premises owner should have been aware of it. See id. (noting that where a negligence claim is "predicated upon the existence of a dangerous condition it is necessary to show that the party against whom negligence is claimed had actual notice of the dangerous condition or that the condition had existed for such length of time that, in the exercise of reasonable care, its existence should have become known and corrected"); see also Sullivan v. AboveNet Commc'ns, Inc., 112 A.3d 347, 356 (D.C. 2015). In other words, absent evidence of actual notice, "it is incumbent upon the injured customer to establish a factual predicate sufficient to support a finding that the condition existed for such length of time that it should have become known and have been corrected." Hudson, 292 F. Supp. 3d at 499.

This case comes down to the issue of constructive notice. Sanoumegah does not argue that Costco had actual notice of the ice cube before her fall. See generally Pl.'s Opp'n, Dkt. 18-1. The question, then, is whether Sanoumegah has established a material factual dispute on the issue of Costco's constructive notice. See Pl.'s Opp'n at 33. In other words, Costco can only be liable for negligence if there is a dispute of fact as to whether the ice cube was on the floor for a long enough period that Costco, through the exercise of reasonable care, should have been aware of it.

"Notice is a question ordinarily left for the jury, but where there is no testimony about how a substance came to be on the floor or how long it had been there, or that any employee of [the defendant] knew of its existence, the court may properly decide the case as a matter of law because of [the] failure to present prima facie proof of liability." Hudson, 292 F. Supp. 3d at 499 (emphasis added) (internal quotation marks omitted). That is the case here. Critically,Sanoumegah has provided no evidence whatsoever about how long the ice cube was on the floor. Indeed, Sanoumegah even admits in her deposition testimony that she does not know how long it had been on the floor. Sanoumegah Dep. at 68:3-5 ("Do you know how long that cube of ice had been there before you stepped on it?" "I don't know, sir."); id. at 69:2-3 ("Just like I said, I can't determine how long."). So too, she admits that no Costco employee told her how long the ice cube had been there. Id. at 68:11-19. And she merely speculates as to how the ice cube might have gotten on the floor in the first place. See id. at 67:22-68:1 ("Do you know how that cube of ice came to be where it was when you stepped on it?" "I don't know."); id. at 64:17-65:3 (Sanoumegah providing her belief that the ice cube must have come from the Costco ice machine because it contained "[e]xactly the same ice from the machine"); id. at 65:7-10 ("I didn't see how it come to be on the floor.").

"If a plaintiff can conclusively establish that a foreign object was present on the ground for a specific amount of time, it can become a question for the jury as to whether the defendant had constructive notice given the amount of time the hazard was present." Kindig v. Whole Foods Mkt. Grp., 930 F. Supp. 2d 48, 52 (D.D.C. 2013), aff'd, 608 F. App'x 14 (D.C. Cir. 2015). As Sanoumegah has failed to marshal any evidence on this point, there is no question for the jury to decide on constructive notice. See Hudson, 292 F. Supp. 3d at 499-500 ("[W]hen a plaintiff proves only that a hazard existed for an undetermined period of time, she has not shown that the defendant had constructive notice."). Simply put, "[e]stablishing evidence that could show how long the [ice] was on the floor is [Sanoumegah's] burden and she has not carried it." Id. at 501.

Sanoumegah attempts to overcome this conclusion by arguing that the Court should draw an adverse inference against Costco based on spoliation of evidence, because Costco employees failed to get the names of the other customers at the scene despite an internal policy requiringthem to do so.² See Pl.'s Opp'n at 30. The D.C. Circuit "has recognized that a negative inference may be justified where the defendant has destroyed potentially relevant evidence." Gerlich v. U.S. DOJ, 711 F.3d 161, 170 (D.C. Cir. 2013). Sanoumegah provides no support, however, for the proposition that Costco had an affirmative duty not only to preserve evidence already in its possession but to actively collect evidence on Sanoumegah's behalf. And the Fourth Circuit has rejected the same argument in an analogous case. See Hodge v. Wal-Mart Stores, Inc., 360 F.3d 446, 450 (4th Cir. 2004) (rejecting the plaintiff's argument that "given her own incapacity" after being hit by a falling mirror, the defendant's "failure even to try to obtain the witness' account of the events or her identification and contact information . . . constituted a willful loss of evidence, requiring a spoliation inference"). The Court reasoned that the defendant "never possessed the witness' contact information or account," "could not have forced the witness to tell her anything," and "did not have control of that information." Id. at 451. And absent any...