Burch v. Wells Fargo & Co.

Filing 43

ORDER: RE 22 Motion to Strike is DENIED w/o prejudice. RE 24 Motion for Summary Judgment is GRANTED, as to plf's claim for punitive damages; that claim is DISMISSED. Wells Fargo's Motio nfor Summary Judgment is otherwise DENIED. (See order for details). Signed by Judge Sharon L. Gleason on 07/22/2015. (CME, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
MARTHA BURCH,
Plaintiff,
v.
WELLS FARGO BANK, N.A.,
Defendant.
Case No. 3:13-cv-00201-SLG
ORDER
Currently before the Court are Defendant Wells Fargo Bank, N.A.’s Motion to Strike
Plaintiff’s Expert Witness Jay R. Smith, P.E., at Docket 22, and Defendant’s Motion for
Summary Judgment, or, in the Alternative, Motion for Partial Summary Judgment on
Punitive Damages Claim at Docket 24. Both motions have been fully briefed and oral
argument on both motions was heard on May 1, 2015.
BACKGROUND
This case arises out of Plaintiff Martha Burch’s slip and fall on a sidewalk adjacent
to the Wells Fargo building in Palmer, Alaska, on January 12, 2013. Ms. Burch alleges
that she “slipped and fell on an accumulation of ice which posed a hazardous condition
that contributed as a substantial factor in legally causing injury to the plaintiff.”1 Ms. Burch
alleges that Wells Fargo was “negligent for failure to take steps to make sure that the
premises at 705 S. Bailey St. was safe,” and is “liable for negligent failure to warn of

1

Docket 1-1 (Compl.) at ¶ 6.

hazardous conditions,” “liable for negligent training and/or supervision,” and “liable for
spoliation of evidence.”2 She seeks both compensatory and punitive damages. 3
MOTION TO STRIKE
In its motion at Docket 22, Wells Fargo seeks to strike the report and testimony of
Ms. Burch’s expert witness, Jay R. Smith. Wells Fargo first asserts that Mr. Smith is not
qualified to provide relevant expert opinion testimony. Wells Fargo contends that “Smith’s
qualifications as a professional engineer and automotive accident reconstructionist do not
qualify him to provide testimony regarding the reasonableness of a commercial entity’s
snow and ice removal measures . . . .” 4 Wells Fargo adds that “Smith also lacks any other
specialized knowledge gained from experience in the field to qualify him as an expert in
this case” and observes that Smith’s consulting engineer work “focuses on ‘automobile
and industrial accident reconstruction, fire investigation, and defect examination.’” 5
Wells Fargo also asserts that Mr. Smith’s opinion, as expressed in his expert
report, fails to satisfy the requirements of Evidence Rule 702. Wells Fargo maintains that
Mr. Smith did not examine Ms. Burch’s deposition testimony prior to preparing his report
and, accordingly, did not base his opinion on sufficient facts or data. 6 Wells Fargo also
asserts that Mr. Smith’s review of “‘Best Practices’ for snow and ice management” does

2

Docket 1-1 (Compl.) at ¶¶ 10-14.

3

Docket 1-1 (Compl.) at ¶ 19.

4

Docket 23 (Mot. to Strike Mem.) at 9.

5

Docket 23 (Mot. to Strike Mem.) at 10-11 (quoting Docket 23-2 (Jay R. Smith Curriculum Vitae)
at 3).
6

Docket 23 (Mot. to Strike Mem.) at 13-14.

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not specify what materials he reviewed or whether he had ever reviewed or applied such
practices in the past. 7 Wells Fargo further observes that Mr. Smith does not provide a
basis for his opinion that the Dansko clogs that Ms. Burch was wearing at the time of the
incident would have provided proper traction if there had been no ice coating on the
sidewalk, nor does he indicate that he performed any testing performed in support of this
opinion. 8 Finally, Wells Fargo asserts that “[w]ithout knowing what the mystery ‘Best
Practices’ Smith relied upon in formulating his opinion entail, it is impossible to know if
Smith reliably applied them to the facts and data of this case. . . . He has failed to reliably
apply any methods or procedures (or even identify them) to an incomplete and insufficient
set of record data.” 9
With her response, Ms. Burch submits an affidavit from Mr. Smith that expands
upon his experience in reviewing snow removal procedures and in friction testing . 10 Ms.
Burch relies on this additional background and explanation to assert that Mr. Smith is
qualified to testify as an expert and that his analysis is reliable. 11
In reply, Wells Fargo asserts that Mr. Smith’s affidavit is “an untimely attempt to
supplement his deficient and unsupported conclusory report and fill in the holes that Wells
Fargo identified in its Motion to Strike.”12

7

Docket 23 (Mot. to Strike Mem.) at 15.

8

Docket 23 (Mot. to Strike Mem.) at 15-16.

9

Wells Fargo maintains that Mr. Smith’s

Docket 23 (Mot. to Strike Mem.) at 16.

10

Docket 26-1 (Aff. of Jay R. Smith, P.E.) at 3.

11

Docket 26 (Opp’n to Mot. to Strike).

12

Docket 28 (Reply to Mot. to Strike) at 2 n.1.

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expanded background in his affidavit is still insufficient to qualify him as an expert. 13 Wells
Fargo also argues that Mr. Smith’s affidavit does not resolve the reliability problems
identified in its motion. Wells Fargo states that the friction testing discussed in Mr. Smith’s
affidavit is irrelevant given that there is no reference to friction testing having been
performed here. 14 Wells Fargo also states that Mr. Smith has still not provided the titles,
authors, or other publication information about the “Best Practices” materials he has
reviewed. 15
A court “must ensure that any and all scientific testimony or evidence admitted is
not only relevant, but reliable.”16 The inquiry is “flexible” and “the trial court must base its
inquiry on the facts of each case.” 17

When considering the admissibility of expert

testimony, “there is less danger that a trial court will be ‘unduly impressed by the expert’s
testimony or opinion’ in a bench trial.” 18 In this case, the Court will be the trier of fact and,
having reviewed Mr. Smith’s report, curriculum vitae, and supplemental affidavit, the
Court will not strike Mr. Smith’s opinion or testimony in its entirety at this time. However,
both parties are apprised that the scope of direct examination for experts at trial will be
restricted to the subject matter that has been fully disclosed in the expert’s report, and if

13

Docket 28 (Reply to Mot. to Strike) at 2-4.

14

Docket 28 (Reply to Mot. to Strike) at 4-5.

15

Docket 28 (Reply to Mot. to Strike) at 5.

16

Daubert v. Merrell Dow Pharma., Inc., 509 U.S. 579, 589 (1993).

17

F.T.C. v. BurnLounge, Inc., 753 F.3d 878, 887 (9th Cir. 2014).

18

BurnLounge, 753 F.3d at 887 (quoting Shore v. Mohave Cnty, State of Ariz., 644 F.2d 1320,
1322-23 (9th Cir. 1981)).
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applicable, the expert’s testimony by deposition or affidavit that clarifies or explains the
report. In this regard, the Court finds that on the record before the Court, Ms. Burch has
failed to adequately disclose to Wells Fargo the “Best Practices” to which Mr. Smith refers
in his report.

Based on the foregoing, Wells Fargo’s Motion to Strike will be denied

without prejudice to renew in whole or in part at trial.

MOTION FOR SUMMARY JUDGMENT
I.

Jurisdiction
This Court has diversity jurisdiction over this matter pursuant to 28 U.S.C. §
1332(a)(1). 19

II.

Summary Judgment Standard
In this diversity action, the Court applies federal law to procedural issues and

Alaska law to substantive legal issues. Federal Rule of Civil Procedure 56(a) directs a
court to “grant summary judgment if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” The
burden of showing the absence of a genuine dispute of material fact initially lies with the
moving party. 20 If the moving party meets this burden, the non-moving party must present
specific evidence demonstrating the existence of a genuine issue of fact. 21 The nonmoving party may not rely on mere allegations or denials. It must demonstrate that

19

Docket 1-1 (Compl.) at ¶ 9.

20

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); In re Oracle Corp. Sec. Litig., 627 F.3d 376,
387 (9th Cir. 2010).
21

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986); Oracle, 627 F.3d at 387.

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enough evidence supports the alleged factual dispute to require a finder of fact to make
a determination at trial between the parties’ differing versions of the truth. 22
When considering a motion for summary judgment, a court must accept as true all
evidence presented by the non-moving party and draw “all justifiable inferences” in the
non-moving party’s favor. 23 To reach the level of a genuine dispute, the evidence must
be such “that a reasonable jury could return a verdict for the non-moving party.” 24 The
non-moving party “must do more than simply show that there is some metaphysical doubt
as to the material facts.” 25 If the evidence provided by the non-moving party is “merely
colorable” or “not significantly probative,” summary judgment is appropriate. 26
III.

Discussion
Wells Fargo asserts that it is entitled to summary judgment because “no

reasonable juror could conclude that Wells Fargo acted unreasonably under the
circumstances surrounding plaintiff’s fall.” 27 Wells Fargo asserts that it “adopted and
implemented adequate measures to keep its premises in a reasonably safe condition for

22

Anderson, 477 U.S. at 248-49 (citing First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253
(1968)).
23

Anderson, 477 U.S. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970)).

24

Anderson, 477 U.S. at 248.

25

Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586–87 (1986)).
26

Anderson, 477 U.S. at 249–50 (citing Dombrowski v. Eastland, 387 U.S. 82, 87 (1967); First
Nat’l Bank, 391 U.S. at 290).
27

Docket 25 (Summ. J. Mem.) at 10.

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its patrons.” 28 Wells Fargo points to its arrangement with Alaska Commercial Services
(“ACS”), which included “inspecting the parking lot and sidewalks, removing snow
accumulation from the parking lot and sidewalks, applying sand or ice melt to slippery
areas as necessary, and monitoring the conditions of the parking lot and sidewalk.” 29
Wells Fargo also asserts that its employees were instructed “to monitor the condition of
the sidewalks upon entering the building in the morning and when entering or exiting the
building throughout the course of the business day” and “[i]f employees notice a change
in weather that results in slippery conditions, they are instructed to call Wells Fargo’s
Customer Solution Center,” which, in turn, contacts ACS. 30 Wells Fargo also notes that
its Palmer branch, like others, is provided with a snow kit on which branch managers are
instructed. 31 Wells Fargo’s expert opined that “Wells Fargo did exercise reasonable skill
and care in maintaining the Palmer branch in order to avoid unreasonable risk of harm.”32
Wells Fargo also asserts that “Wells Fargo had no actual or constructive notice of
any ice accumulation on its sidewalk or that the weather conditions had changed prior to
plaintiff’s fall.” 33 Wells Fargo points to Ms. Burch’s deposition testimony stating that she
did not know that there was ice on the sidewalk before she stepped on it to argue that it
is not unreasonable that Wells Fargo employees likewise would not have had notice of

28

Docket 25 (Summ. J. Mem.) at 11.

29

Docket 25 (Summ. J. Mem.) at 11.

30

Docket 25 (Summ. J. Mem.) at 12.

31

Docket 25 (Summ. J. Mem.) at 12-13.

32

Docket 25-7 (Jerry W. Royce Expert Report, dated December 15, 2014).

33

Docket 25 (Summ. J. Mem.) at 15.

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the condition. 34 Wells Fargo also argues that “[i]t is not unreasonable for Wells Fargo
employees to not have notice of the changed weather conditions given the short amount
of time [16-31 minutes] between the light rain beginning and the plaintiff’s fall, much less
notice that the change in weather caused a potentially slippery surface.” 35
Ms. Burch responds that Wells Fargo’s reliance on entering and exiting employees
to monitor conditions was inadequate, and that Wells Fargo “would reasonably have
expected freezing rain conditions on the day Mrs. Burch slipped on its icy sidewalk.” 36
Wells Fargo also asserts that at a minimum, the Court should grant partial
summary judgment on Ms. Burch’s claim for punitive damages. Wells Fargo maintains
that there is no evidence that it intentionally implemented substandard safety procedures
evidencing reckless indifference toward the safety of others or that Wells Fargo’s conduct
was outrageous or malicious. 37 Ms. Burch responds that “Wells Fargo’s failure to perform
systematic inspection . . . was not a mistake, but intentional in this case,” 38 and contends
that “[a] fact finder may reasonably determine that the bank’s failure to systematically
inspect its sidewalks or track any inspections in the Winter, in spite of documents
presupposing systematic inspection, evidences reckless disregard to the interest of

34

Docket 25 (Summ. J. Mem.) at 114-15 (citing Docket 25-1 (Burch Dep. Dated July 28, 2014) at
9-10.

35

Docket 25 (Summ. J. Mem.) at 15.

36

Docket 27 (Summ. J. Opp’n) at 4.

37

Docket 25 (Summ. J. Mem.) at 16.

38

Docket 27 (Summ. J. Opp’n) at 6.

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others or was outrageous.” 39
In Edenshaw v. Safeway, Inc., the Alaska Supreme Court accepted certification
from the federal district court in a slip and fall case and considered whether actual or
constructive notice of a hazardous condition is an element of a prima facie case. 40 In
holding that it was not, the court relied upon its holding in Webb v. City & Borough of Sitka
that:
A landowner or owner of other property must act as a reasonable person in
maintaining his property in a reasonably safe condition in view of all the
circumstances, including the likelihood of injury to others, the seriousness
of the injury, and the burden on the respective parties of avoiding the risk. 41
After reviewing the exhibits and the briefing and arguments provided by the parties,
the Court finds that there are genuine disputes as to the reasonableness of Wells Fargo’s
property maintenance at the Palmer branch in view of all the circumstances. 42 Given Mr.
Smith’s opinion that Wells Fargo’s “inadequate monitoring and not correcting the slippery
conditions caused by freezing rain” was the cause of Ms. Burch’s slip and fall, 43 which the
Court accepts as true for purposes of summary judgment, the Court cannot conclude that

39

Docket 27 (Summ. J. Opp’n) at 6 (citing AS 09.17.020(b)).

40

Edenshaw v. Safeway, Inc., 186 P.3d 568, 571 (Alaska 2008).

41

Webb v. City & Borough of Sitka, 561 P.2d 731, 733 (Alaska 1977), superseded on other
grounds by statute, AS 09.65.200, as recognized in Univ. of Alaska v. Shanti, 835 P.2d 1225,
1228 n.5 (Alaska 1992)).
42

See Edenshaw, 186 P.3d at 571 (“Evidence of notice or lack thereof may be relevant to the
question whether a defendant breached a duty of care and therefore should go to the fact finder.”).

43

Docket 27-6 (Smith Report) at 6. See also Docket 27-4 at 2-3 (identifying unusual surface
conditions with no apparent maintenance undertaken).

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there is no genuine dispute that Wells Fargo’s conduct was reasonable. The Alaska
Supreme Court has held that “issues of negligence are ‘not susceptible to summary
determination’ and are better left to the trier of fact because of the question of
reasonableness.”44 Accordingly, the Court will deny Wells Fargo’s motion for summary
judgment.
However, the Court finds that Wells Fargo is entitled to partial summary judgment
on Ms. Burch’s claim for punitive damages. AS 09.17.020(b) provides that a “fact finder
may make an award of punitive damages only if the plaintiff proves by clear and
convincing evidence that the defendant’s conduct (1) was outrageous, including acts
done with malice or bad motives; or (2) evidences reckless indifference to the interest of
another person.” 45 In Hayes v. Xerox Corp., the Alaska Supreme Court held that “[i]f the
evidence does not give rise to an inference of actual malice or conduct sufficiently
outrageous to be deemed equivalent to actual malice, then the trial court need not submit
the issue of punitive damages to the jury.” 46 The court added that “this same principle
should apply where there is no inference of outrageous conduct equivalent to reckless
indifference.”47 Ms. Burch’s contentions that Wells Fargo’s alleged actions or failures to
act constitute more than negligence are conclusory and without support in the evidence

44

Edenshaw v. Safeway, Inc., 186 P.3d 568, 570 (Alaska 2008) (quoting Webb, 561 P.2d at 733).
Summary judgment is particularly problematic on the current limited record before the Court,
especially in the absence of any testimony from the employees of Wells Fargo’s Palmer branch
that were present on the day of the incident. See also Dockets 20 and 21 (Witness Lists), which
indicate that both parties anticipate trial testimony from additional Wells Fargo employees.

45

AS 09.17.020(b).

46

718 P.2d 929, 935 (Alaska 1986) (citation omitted).

47

718 P.2d at 935 at n.4.

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submitted on summary judgment. Accordingly, Wells Fargo’s motion is granted to the
extent that Ms. Burch’s claim for punitive damages will be dismissed.

CONCLUSION
Based on the foregoing, IT IS ORDERED as follows:
1. Wells Fargo Bank, N.A.’s Motion to Strike Plaintiff’s Expert Witness Jay R. Smith,
P.E., at Docket 22 is DENIED without prejudice to renew in whole or in part at trial;
and
2. Wells Fargo’s Motion for Summary Judgment, or, in the Alternative, Motion for
Partial Summary Judgment on Punitive Damages Claim at Docket 24 is GRANTED
as to Plaintiff’s claim for punitive damages; that claim is DISMISSED. Wells
Fargo’s Motion for Summary Judgment is otherwise DENIED.
DATED this 22nd day of July, 2015 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

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