Weir v. Expert Training, LLC

• Decision Date: 05 April 2022
• Docket Number: S-21-0180
• Parties: LASHAWN WEIR, Appellant (Plaintiff), v. EXPERT TRAINING, LLC, a Wyoming limited liability company, Appellee (Defendant).
• Court: Wyoming Supreme Court

2022 WY 44

LASHAWN WEIR, Appellant (Plaintiff), v. EXPERT TRAINING, LLC, a Wyoming limited liability company, Appellee (Defendant).

No. S-21-0180

Supreme Court of Wyoming

April 5, 2022

Appeal from the District Court of Natrona County The Honorable Catherine E. Wilking, Judge

Representing Appellant: Mel C. Orchard, III, Noah W. Drew and Emily S. Madden, The Spence Law Firm, LLC, Jackson Wyoming. Argument by Mr. Drew.

Representing Appellee: Monty L. Barnett, Nicholas B. Klann, E. Catlynne Shadakofsky, and Adam J. Goldstein, White & Steele, P.C., Denver, Colorado. Argument by Mr. Goldstein.

Before FOX, C.J., and DAVIS ^[*] , KAUTZ, BOOMGAARDEN, and GRAY, JJ.

GRAY JUSTICE

[¶1] LaShawn Weir was injured when she fell from Sunrise Shopping Center's (Shopping Center) attic to the floor below. Ms. Weir sued several entities, some with overlapping ownership: the Shopping Center's owner-Casper Sunrise, LLC (Casper Sunrise), various property management companies-Property MGMT Services, Inc. (Property MGMT) and PM Real Estate Management, Inc. (PM Real Estate), a roofing contractor-Randy Day d/b/a Day Enterprises, and a staffing company that provided janitorial and maintenance workers to the Shopping Center-Expert Training, LLC (Expert Training). Ms. Weir settled with all defendants except Expert Training. The district court granted summary judgment in favor of Expert Training, finding in relevant part that Expert Training was not engaged in a joint venture and that it owed no duty to Ms. Weir. Ms. Weir appeals and we affirm.

ISSUES

[¶2] The dispositive issues, which we rephrase, are:

1. Are there genuine issues of material fact precluding summary judgment on Ms. Weir's claim that a joint enterprise exists between Casper Sunrise, Property MGMT, PM Real Estate, and Expert Training, such that Expert Training can be jointly liable for Ms. Weir's accident?

2. Did Expert Training owe Ms. Weir a duty to inspect and maintain the attic?

FACTS

The Shopping Center

[¶3] Casper Sunrise owns the Shopping Center, a strip mall located in Casper, Wyoming. Casper Sunrise leased one of the units in the Shopping Center to Prime Time Pub and Grill (Prime Time), a restaurant, bar, and bowling alley.

[¶4] The Shopping Center has an attic that is several stories high and long enough to "punt a football across." The attic floor joists were covered by a plywood walkway that was nailed down and other areas were covered by plywood decking that was not nailed down. The attic was not well lit. Some areas had nonfunctioning mercury vapor lights hanging from the ceiling. Other areas had no lights.

The Accident

[¶5] Ms. Weir was the general manager for Prime Time. Ms. Weir periodically made trips to the Shopping Center attic to retrieve items that Prime Time stored there. On November 27, 2016, she made three trips to the attic to gather Christmas decorations. These were stored in an area where there were no lights, and Ms. Weir used her phone flashlight for illumination. Ms. Weir's boss had warned her to remain on the attic walkway.

[¶6] On her first trip to the attic, Ms. Weir noticed that the plywood decking near the Christmas decorations had been moved, leaving uncovered insulation and a two- to three-foot gap between the decking and the walkway. To reach the decorations, she needed to keep one foot on the walkway and place the other on the plywood decking, straddling the gap. Twice, she successfully retrieved decorations and brought them down to Prime Time. On her third trip, she again straddled the gap and picked up a box of decorations. As she stood and turned to step back completely onto the pathway, she fell through the gap landing on the concrete floor thirteen feet below.

[¶7] As a result of her fall, Ms. Weir broke her arm and multiple teeth; tore her rotator cuff and bicep; shattered her pelvis; crushed her spinal discs at L6 and C4-6; and damaged nerves in her hips, legs, and spine. She suffers from carpal tunnel in both wrists and experiences post-traumatic stress disorder. She was wheelchair bound for four months and continues to receive treatment for chronic pain and physical ailments.

Ownership and Management of the Shopping Center

[¶8] Casper Sunrise is owned by NLV Partners, LLC, a California company. Two of its members, Charles Hawley and Steve Resnick, were also partners in Property MGMT and are partners in PM Real Estate Management. Mr. Hawley negotiates contracts and leases on behalf of Casper Sunrise.

[¶9] In 2004 when Casper Sunrise acquired the Shopping Center, it hired Standard Parking Corporation (Standard Parking) to provide property management, maintenance, and janitorial services. Susan Hawley (Mr. Hawley's wife) worked for Standard Parking, and as part of her responsibilities, undertook the property management of the Shopping Center. Casper Sunrise's investors were unhappy with Standard Parking for various reasons including expense and staffing issues. They determined they could alleviate some of these concerns by hiring Expert Training to provide some of the services (janitorial and maintenance) that Standard Parking was providing. In 2013, Casper Sunrise began using Expert Training to provide janitorial and maintenance personnel for the Shopping Center but kept Standard Parking as its property manager, and Mrs. Hawley continued to manage the Shopping Center as an employee of Standard Parking.

[¶10] Expert Training, a California-based company, originally owned by Mrs. Hawley, was initially formed to provide computer training to businesses. In 2005 or 2006, Expert Training began providing employees for janitorial and maintenance services for various businesses in Casper, Wyoming. Currently, Mr. and Mrs. Hawley each own 50% of Expert Training.

[¶11] In 2013, Casper Sunrise replaced Standard Parking as the property manager for the Shopping Center, contracting instead with Property MGMT for these services. In 2016, Property MGMT dissolved, and PM Real Estate Management (PM Real Estate) began managing the property. Property MGMT and PM Real Estate have similar, but not identical, ownership. The partners in Property MGMT were Steve Resnick, Bob Gottsch, Dale Stark, Chuck Hawley, and one other unidentified person. The partners in PM Real Estate are Steve Resnick, Bob Gottsch, Dale Stark, and Chuck Hawley.

[¶12] When Property MGMT took over management of the Shopping Center, Standard Parking, and consequently Mrs. Hawley, stopped managing the property. Property MGMT and PM Real Estate employed Ryan Herden as the person responsible for management of the Shopping Center. He was in this capacity at the time of Ms. Weir's fall in November 2016. In March 2017, Mr. Herden resigned, and PM Real Estate hired Mrs. Hawley as its day-to-day manager for the Shopping Center and other properties it managed.^[1] Expert Training provided janitorial and maintenance services separate from property management throughout this time.^[2] At the time of Ms. Weir's accident, Daniel Sorensen, an employee of Expert Training, was responsible for janitorial and maintenance services at the Shopping Center. He reported to Mr. Herden (the property manager employed by Property MGMT and then PM Real Estate).

[¶13] When Mr. Sorensen encountered a minor maintenance issue, he would repair it himself, if he could. If a repair was beyond his abilities, he would inform "management" so that a contractor could be hired. Minor projects-lawn mowing, replacing light bulbs, minor sprinkler repair, and painting-were within his purview. He was not responsible for, and never performed, major projects such as roofing. While he thought the attic walkway was safe, Mr. Sorensen believed the plywood decking was unsafe and should be removed and that tenants should not be permitted to use the attic for storage. Prior to the accident, Rob Caputa, the owner of Prime Time, had complained more than once about the attic's conditions. These complaints were made to Mr. Sorensen and to the Hawleys. He testified that his concerns "fell on deaf ears."

Procedural History

[¶14] In January 2018, Ms. Weir sued Casper Sunrise, asserting claims of negligence and premises liability. In May 2019, she amended her complaint to add, as defendants, PM Real Estate, Property MGMT, Expert Training, and Randy Day d/b/a Day Enterprises (a roofing contractor hired by Casper Sunrise). She asserted claims of negligence, premises liability, joint enterprise, and negligent hiring against Casper Sunrise, Property MGMT, PM Real Estate, and Expert Training. She alleged that Randy Day d/b/a Day Enterprises was negligent. Expert Training moved for summary judgment on all claims, and the district court granted that motion in April 2020. In April 2021, all the remaining parties settled with Ms. Weir. Ms. Weir appeals the district court's summary judgment in favor of Expert Training, requesting the Court reverse the district court's summary judgment on her joint enterprise and negligence claims.

STANDARD OF REVIEW

[¶15] A district court may grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." W.R.C.P. 56(c) (2016). The party moving for summary judgment bears the initial burden of establishing a prima facie case that no genuine issue of material fact exists and that summary judgment should be granted as a matter of law. Dimick v. Hopkinson, 2018 WY 82 ¶ 7, 422 P.3d 512, 516 (Wyo. 2018). "Once a prima facie showing is made, the burden shifts to the party opposing the motion to present evidence showing that there are genuine issues of material fact." Id. (quoting Bogdanski v....