Williams v. Plains Tire & Battery Co.

• Decision Date: 17 November 2017
• Docket Number: S-17-0092
• Citation: 405 P.3d 228
• Parties: Cindy WILLIAMS and William Williams, Appellants (Plaintiffs), v. PLAINS TIRE & BATTERY CO., INC., Appellee (Defendants).
• Court: Wyoming Supreme Court

405 P.3d 228

Cindy WILLIAMS and William Williams, Appellants (Plaintiffs),

v.PLAINS TIRE & BATTERY CO., INC., Appellee (Defendants).

S-17-0092

Supreme Court of Wyoming.

November 17, 2017

Representing Appellants: Richard H. Honaker, Honaker Law Offices, LC, Rock Springs, Wyoming; Robert L. Stepans and Ryan R. Shaffer, Meyer, Shaffer & Stepans, PLLP, Missoula, Montana. Argument by Mr. Shaffer.

Representing Appellee: Bruce C. Burt, Law Office of Bruce C. Burt, Midvale, Utah

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

DAVIS, Justice.

[¶1] Cindy Williams was injured when she slipped and fell outside a store operated by Plains Tire & Battery, Co. Inc. (Plains) in Evanston, Wyoming. She filed a complaint alleging that Plains was negligent in failing to maintain the area in a reasonably safe condition. Her husband, William Williams, filed a loss of consortium claim. Plains filed a motion for summary judgment, which the district court granted, finding that the Williams failed to present a genuine issue of material fact as to whether Plains breached a duty to maintain its property in a reasonably safe condition. We reverse and remand.

ISSUES

[¶2] The primary issue for our determination is whether the district court erred in granting summary judgment for Plains.

FACTS

[¶3] On September 27, 2010, Mrs. Williams and her brother, Wayne Campbell, took the Williams' trailer to a store operated by Plains in Evanston, Wyoming for a repair. They entered the building through a side door that led into the repair shop and found their way to the front office. After arranging for the repair, they left the same way they had come.

[¶4] They returned to the store that afternoon to pick up the trailer. They again entered the building through the side door and made their way to the front office. Mrs. Williams paid for the repairs, and they left the store, this time using the main customer door. They turned left and headed across the front of the building to the location where the trailer was parked on the side of the building.

[¶5] Photographs of the area show what appears to be an asphalt parking area in the front and on the side of the building and a narrow gravel strip running along the side of the building between the asphalt and the building. Mrs. Williams claims that as she stepped off the asphalt onto the gravel, she slipped and fell. Mr. Campbell caught her, but it was apparent that she had broken a bone in her leg. Doctors subsequently found that Mrs. Williams had suffered a compound fracture

of her left ankle.

[¶6] On June 27, 2013, Mrs. Williams filed a complaint against Plains, alleging that it breached its duty of ordinary care to maintain its premises in a reasonably safe condition for members of the public. More specifically, she asserted that Plains allowed an unnatural accumulation of gravel to develop that created a slippery condition that in turn caused her fall. She sought damages, including past and future medical expenses and loss of earning capacity.

[¶7] Plains answered the complaint, denying that it was negligent. Subsequently, Mrs. Williams filed an amended complaint that named her husband as a co-plaintiff and alleged a loss of consortium claim on his behalf. Plains filed an answer denying the claims in the amended complaint.

[¶8] On October 3, 2016, Plains filed a motion for summary judgment. Citing extensively from Mrs. Williams' and Mr. Campbell's deposition testimony, Plains asserted there was no evidence showing why Mrs. Williams fell or that the rocks or gravel was an "unnatural accumulation." Plains pointed to Mrs. Williams' deposition testimony to the effect that she could not remember where, how or why she fell. Absent evidence showing how the fall occurred, Plains contended, the Williams could not establish that a duty was owed, and therefore Plains was entitled to judgment as a matter of law.

[¶9] The Williams responded, arguing that the gravel area where Mrs. Williams fell was an artificial, man-made condition, and that Plains had a duty to its customers to exercise ordinary care to maintain the area in a reasonably safe condition to protect them from foreseeable harm. They asserted that Plains breached its duty by failing to maintain the area in a reasonably safe condition.

[¶10] In support of their argument, the Williams attached excerpts of deposition testimony, interrogatory responses, photographs, the affidavit and report of an expert witness, and an interview and accident report of Plains' store manager. In accordance with W.R.C.P. 56.1, the Williams filed a statement of material facts precluding summary judgment, which is a useful summary of their contentions.¹ Among the facts alleged to be disputed in the statement were the following:

• When Mrs. Williams and Mr. Campbell arrived at Plains' store to pick up the trailer, it was parked on the west side of the property;

• Mr. Campbell parked his truck near the trailer on the west side of the property;

• When Mrs. Williams and Mr. Campbell left the building after paying for the repairs, they walked along the edge of the building toward the trailer and the unpaved, gravel slope;

• Mrs. Williams fell when she stepped onto the gravel slope;

• The gravel slope on Plains' property was created to facilitate drainage away from the building;

• The gravel slope lies within the ingress/egress of the store and fails to comply with applicable building codes;

• There was no designated sidewalk or walkway in front of the store;

• There was no physical barrier blocking customers from walking across the gravel slope;

• There was no sign directing customers not to walk across the gravel slope;

• Plains' store manager filled out an accident report after Mrs. Williams fell in which he recommended that tires be piled up between the pavement and gravel slope to reduce the chance of another accident;

• When Mr. Campbell returned to Plains' store the next day, tires were piled where Mrs. Williams had fallen, preventing customers from walking on the gravel slope.

[¶11] Plains filed a reply to the Williams' response, again asserting that no genuine issue of material fact existed because the only two eye-witnesses to the fall, Mrs. Williams and Mr. Campbell, testified that they did not know where, how or why Mrs. Williams fell. Plains also filed a motion to strike an expert witness report and affidavit, arguing that given Mrs. Williams' and Mr. Campbell's testimony that they did not know how, where or why she fell, the expert's conclusions lacked foundation and were inadmissible. The Williams responded,² claiming the record contained ample evidence that Mrs. Williams fell on the gravel slope between the entrance to the store and where the trailer was parked, and that their expert witness relied on that evidence in formulating his opinions.

[¶12] After a hearing, the district court entered an order granting Plains' motion for summary judgment. The district court held that no genuine issues of material fact existed as to whether Plains breached a duty to maintain its property in a reasonably safe condition. In reaching that result, the district court rejected the Williams' expert witness' conclusions finding them unsupported by the evidence. The Williams timely appealed from the district court's order.

STANDARD OF REVIEW

[¶13] We apply the following standard of review to a district court's grant of summary judgment in a negligence case:

We review a summary judgment in the same light as the district court, using the same materials and following the same standards. Gayhart v. Goody, 2004 WY 112, ¶ 11, 98 P.3d 164, 168 (Wyo. 2004). Summary judgment is proper only when there are no genuine issues of material fact, and the prevailing party is entitled to judgment as a matter of law. Id.....

....

Summary judgments are not favored in negligence actions and are subject to exacting scrutiny. Erpelding v. Lisek, 2003 WY 80, ¶ 10, 71 P.3d 754, 757 (Wyo. 2003). However, even in negligence actions, "where the record fails to establish an issue of material fact, [and when the movant is entitled to judgment as a matter of law], the entry of summary judgment is proper." Allmaras v. Mudge, 820 P.2d 533, 536 (Wyo. 1991) (alteration in original) (citing MacKrell v. Bell H2S Safety, 795 P.2d 776, 779 (Wyo. 1990) ).

RB, Jr. v. Big Horn Cty. Sch. Dist. No. 3, 2017 WY 13, ¶ 6, 388 P.3d 542, 545 (Wyo. 2017) (quoting Amos v. Lincoln Cty. Sch. Dist. No. 2, 2015 WY 115, ¶ 15, 359 P.3d 954, 958-59 (Wyo. 2015) ).

DISCUSSION

1. Summary Judgment

[¶14] As a preliminary matter, we address the Williams' claim that the district court improperly granted summary judgment for Plains on the basis of an issue that Plains did not raise in its motion, i.e. whether a genuine issue of material fact existed showing that Plains breached its duty to maintain its property in a reasonably safe condition. The Williams contended the issue Plains presented in its motion was whether it owed a duty to maintain its property in a reasonably safe condition, not whether it breached any such duty. Citing Trefren Construction Co. v. V&R Construction, LLC, 2016 WY 121, 386 P.3d 317 (Wyo. 2016), the Williams asserted it is reversible error for a district court to grant summary judgment on an issue not raised or briefed by the movant.

[¶15] Plains responded that it asserted the absence of both a duty and a breach in its summary judgment argument, and that therefore Trefren has no application to this case. Plains also contends that even assuming its argument focused on the absence of a duty, the district court acted properly in deciding the motion on the corollary issue that no evidence existed that Plains breached a duty owed.

[¶16] Contrary to Plains' assertion, the focus of its argument in its summary judgment brief was the alleged lack of evidence showing that Mrs. Williams fell on an unnatural accumulation of gravel and that "therefore, there [was] no duty owed."³ Despite the focus of Plains' argument, the Williams are correct that the district court...