Wood v. Costco Wholesale Corp.

• Decision Date: 31 August 2022
• Docket Number: CV-21-00605-PHX-JJT
• Parties: Marlene Wood, Plaintiff, v. Costco Wholesale Corporation, et al., Defendants.
• Court: U.S. District Court — District of Arizona

Marlene Wood, Plaintiff, v. Costco Wholesale Corporation, et al., Defendants.

No. CV-21-00605-PHX-JJT

United States District Court, D. Arizona

August 31, 2022

ORDER

Honorable John J. Tuchi United States District Judge

At issue is Defendant Costco Wholesale Corporation's (“Costco”) Motion for Summary Judgment (Doc. 19 Mot.), to which Plaintiff filed a Response (Doc. 25, Resp.) and Defendant filed a Reply (Doc. 27, Reply). The Court finds this matter suitable for resolution without oral argument. See LRCiv 7.2(f).

I. BACKGROUND

On March 12, 2019, Plaintiff was injured after she slipped on wet concrete outside of Defendant's warehouse, under its “large covered patio.” (Doc. 20, Defendant's Statement of Facts (“DSOF”) ¶ 1; Doc. 26, Plaintiff's Separate Statement of Facts (“PSOF”) ¶¶ 1-3.) There is surveillance video footage of Plaintiff's fall, which shows that the parking lot pavement was wet from rain, and that it was raining at the time of Plaintiff's fall. (DSOF ¶¶ 3-4; PSOF ¶ 3.) Additionally, weather data shows that it was raining on March 12, 2019, in the area of Buckeye Arizona, where Defendant's subject warehouse is located. (DSOF ¶ 9.)^[1] However, Plaintiff suggests that while “it is possible that rain may have been falling out in the parking lot, there is nothing to suggest that rain was falling where Plaintiff slipped and fell, 10-15 feet within the vestibule^[2]. (PSOF ¶ 6.) Defendant also asserts, and Plaintiff disputes, that the video shows Plaintiff entering the covered patio area from the wet parking lot with her umbrella open, and it subsequently shows her wet shoes causing her to slip and fall. (DSOF ¶ 5.) Plaintiff contends that whether her shoes caused her to fall is a contested assertion, requiring resolution by a trier of fact. (PSOF ¶ 5.)

On March 10, 2021, Plaintiff brought suit against Defendant in Maricopa County Superior Court, alleging respondeat superior, premises liability, and negligence claims. (Doc. 1, Compl. ¶¶ 19-33.) Defendant removed the case to this Court pursuant to 28 U.S.C. §§ 1332, 1441, and 1446. On October 12, 2021, Defendant moved for summary judgment, arguing that Plaintiff's claims fail as a matter of law because it owed no duty to Plaintiff. (See generally Mot.) The Court now resolves each aspect of Defendant's Motion.

II. LEGAL STANDARD

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate when: (1) the movant shows that there is no genuine dispute as to any material fact; and (2) after viewing the evidence most favorably to the non-moving party, the movant is entitled to prevail as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir. 1987). Under this standard, “[o]nly disputes over facts that might affect the outcome of the suit under governing [substantive] law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine issue” of material fact arises only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

In considering a motion for summary judgment, the court must regard as true the non-moving party's evidence, if it is supported by affidavits or other evidentiary material. Celotex, 477 U.S. at 324; Eisenberg, 815 F.2d at 1289. However, the non-moving party may not merely rest on its pleadings; it must produce some significant probative evidence tending to contradict the moving party's allegations, thereby creating a material question of fact. Anderson, 477 U.S. at 256-57 (holding that the plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment); First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968).

“A summary judgment motion cannot be defeated by relying solely on conclusory allegations unsupported by factual data.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). “Summary judgment must be entered ‘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.'” United States v. Carter, 906 F.2d 1375, 1376 (9th Cir. 1990) (quoting Celotex, 477 U.S. at 322).

III. ANALYSIS

A. Plaintiff Cannot Show that Defendant Owed her a Duty

“‘To establish a claim for negligence, a plaintiff must prove . . .: (1) a duty requiring the defendant to conform to a certain standard of care; (2) a breach by the defendant of that standard; (3) a causal connection between the defendant's conduct and the resulting injury; and (4) actual damages.'” Diaz v. Phx. Lubrication Serv., Inc., 230 P.3d 718, 721 (Ariz.Ct.App. 2010) (quoting Gipson v. Kasey, 150 P.3d 228, 230 (Ariz. 2007)). In Arizona, landowners have a duty to business invitees to maintain their property in a reasonably safe manner. See Nicoletti v. Westcor, Inc., 639 P.2d 330, 332 (Ariz. 1982). However, a business owner is not required to guarantee absolute safety. See McMurty v. Weatherford Hotel, Inc., 293 P.3d 520, 528 (Ariz.Ct.App. 2013). “Whether the defendant owes the plaintiff a duty of care is a threshold issue; absent some duty, an action for negligence cannot be maintained.” Gipson, 150 P.3d at 230 (citation omitted). The question of duty is usually decided by the trial court as a matter of law. Wilson v. U.S. Elevator Corp., 972 P.2d 235, 237 (Ariz.Ct.App. 1998).

For any of Plaintiff's claims to survive, Defendant must have had a duty to protect Plaintiff from the condition that caused her injury. Defendant argues that Plaintiff cannot show that it owed her a duty because: (1) wet cement caused by an active rainstorm is not an unreasonably dangerous condition; (2) the presence of wet cement while it is raining is an open and obvious condition, about which Defendant had no duty to warn; and (3) the “ongoing storm rule” precludes Plaintiff's claims. (See generally Mot.)

1. The Wet Cement was Not an Unreasonably Dangerous Condition

Defendant argues that while it was required to ensure that its premises were reasonably safe, wet cement caused by an active rainstorm is not an unreasonably dangerous condition from which it had a duty to protect Plaintiff. (Mot. at 5-6.) Defendant relies on precedent from other states where courts have found that wet cement caused by active rain does not create an unreasonably dangerous condition. See Misir v. Beach Haven Apt. No. I, Inc., 803 N.Y.S.2d 19 (N.Y. Sup. Ct. 2005) (wet leaves and slippery pavement did not constitute an unreasonably dangerous condition); Gibson v. Consol. Credit Corp., 138 S.E.2d 77, 79 (Ga.App. 1964) (“There is scarcely any material that might be used in construction that isn't made somewhat slippery by the presence of water. This is a matter of common knowledge, and, since it is, it behooves us all [to] use a measure of protection in walking upon wet surfaces.”); Pliska v. Equity Mgmt. Grp., Inc., No. 3009-CA-000723-MR, 2010 WL 3515753 (Ky. Ct. App. Sept. 10, 2010) (affirming summary judgment against a plaintiff who slipped on wet pavement in a parking lot, holding that there was “nothing inherently dangerous about . . . wet pavement”).

Plaintiff contends that whether the wet cement constitutes an unreasonably dangerous condition is a question of fact for the jury. (Resp. at 6.) See Silvas v. Speros Const. Co., 594 P.2d 1029, 1031 (Ariz.Ct.App. 1979) (finding a question for the jury as to whether the defendant should have anticipated the harm that occurred, despite the fact that the plaintiff knew and appreciated the danger of holes in the roof of a construction job). Plaintiff argues that the area where she slipped was under a covered area and appeared to be dry, and there were no mats, signage, or employees warning of the condition of the pavement, so the “particular facts” of her fall require a jury's determination.^[3] (Resp. at 7.)

The Court finds Plaintiff's arguments unpersuasive. Though it was covered, the area where Plaintiff fell was not walled off, allowing rain to enter. (See DSOF, Exs. B, C.) Additionally, Plaintiff fails to cite any authority to support her contention that Defendant had a duty to keep its outdoor covered patio area dry during an active rainstorm, nor could the Court find any cases suggesting as much in its own research. Indeed, numerous courts in other states have found that wet floors inside buildings or enclosed vestibules are not unreasonably dangerous when rainy weather conditions are present outside. See, e.g., Dubensky v. 2900 Westchester Co., LLC, 813 N.Y.S.2d 117 (N.Y.App.Div. 2006) (finding no duty to keep floor of lobby area dry during a period of ongoing precipitation); Ling v. Hosts, Inc., 164 N.W.2d 123, 128 (Iowa 1969) (holding that “the fact that water, slush, and mud are tracked in on the [lobby] floor of a premises because of weather conditions outside ordinarily does not create an actionable situation,” even though it is “wet, dirty, and slippery”); Reed v. Galaxy Holdings, Inc., 914 N.E.2d 632, 639 (Ill.App.Ct. 2009) (finding no duty to remove naturally accumulated water tracked into a store entrance). For these reasons, the Court finds the wet cement on which Plaintiff slipped was not an unreasonably dangerous condition from which Defendant had a duty to protect Plaintiff. Because Defendant did not owe a duty to Plaintiff, summary judgment is appropriate.

2. The Wet Cement was Open and Obvious

Although the Court can grant summary judgment solely on the basis that the wet cement did not present an unreasonably dangerous condition, the Court briefly addresses Defendant's remaining arguments. Defendant also argues that it owed no duty to Plaintiff...