Harris et al v. Costco Wholesale Corporation et al

Filing 105

ORDER by Judge Claudia Wilken DENYING WDS' 88 MOTION FOR SUMMARY JUDGMENT, GRANTING COSTCO'S UNOPPOSED 90 MOTION FOR SUMMARY JUDGMENT, and GRANTING COSTCO'S UNOPPOSED 91 MOTION FOR PARTIAL SUMMARY JUDGMENT ON ITS CROSS COMPLAINT AS TO EXPRESS INDEMNITY. (ndr, COURT STAFF) (Filed on 4/11/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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RUTHELLEN HARRIS, individually
and as personal representative of
ROBERT JEAN HARRIS, HEATHER
HARRIS, JAMIE HARRIS and GREG
HARRIS,

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United States District Court
For the Northern District of California

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No. C 10-4626 CW
ORDER DENYING WDS'
MOTION FOR SUMMARY
JUDGMENT, Docket
No. 88, GRANTING
COSTCO'S UNOPPOSED
MOTION FOR SUMMARY
JUDGMENT, Docket
No. 90, and
GRANTING COSTCO'S
UNOPPOSED MOTION
FOR PARTIAL
SUMMARY JUDGMENT
ON ITS CROSS
COMPLAINT AS TO
EXPRESS INDEMNITY,
Docket No. 91.

Plaintiffs,
v.
COSTCO WHOLESALE CORPORATION,
WAREHOUSE DEMO SERVICES, INC.,
and DOES 1-100, inclusive,
Defendants.
________________________________/

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This action arises from the death of Robert Jean Harris.
Plaintiffs have alleged that on June 5, 2010, Harris died after

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choking on a sample of tri-tip meat negligently prepared and
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served to him by Defendants at Costco Wholesale Corporation Store

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#422 in South San Francisco, California.

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Code of Civil Procedure section 377.30, Plaintiff Ruthellen Harris

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is decedent's personal representative.

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Harris, Heather Harris, Jamie Harris, and Greg Harris also sue

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individually as decedent's surviving spouse and children.

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Cal. Civ. Proc. Code § 377.60.

Pursuant to California

Plaintiffs Ruthellen

See

Plaintiffs' Second Amended

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Complaint names Warehouse Demo Services, Inc. (WDS) and Costco
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Wholesale Corporation as Defendants, and contains five causes of
action: (1) "Wrongful Death - Negligence" against both Defendants;

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(2) "Wrongful Death - Products Liability, Negligence" against both

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Defendants; (3) "Negligent Retention of an Independent Contractor"

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against Costco; (4) "Negligent Supervision" against Costco; and

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(5) "Survival Action" against both Defendants.

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WDS moves for summary judgment as to the claims against it in
the 2AC.

Docket No. 88.

WDS argues that Plaintiffs cannot

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establish that it owed a duty to the decedent, Robert Jean Harris,
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United States District Court
For the Northern District of California

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or that the duty, if any, was breached.
Defendant Costco Wholesale Corporation filed a separate

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motion for summary judgment or, in the alternative, for partial

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summary judgment.

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WDS's motion for summary judgment with respect to the first,

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second and fifth causes of action, asserting that neither WDS nor

Docket No. 90.

In its motion, Costco joined

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Costco owed a duty to Harris.

As to the causes of action plead

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only against Costco, Costco asserted that Plaintiffs lacked
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evidence to support their third cause of action for negligent

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hiring and the fourth cause of action for negligent supervision of

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an independent contractor.

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to the extent that Costco has argued that there is insufficient

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evidence to show negligent hiring or supervision.

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Plaintiffs have not opposed the motion

Costco also moved for partial summary judgment on its Cross-

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Complaint against WDS, in which it asserts that the sole basis for
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liability against it arises from the decedent's consumption of a
food sample prepared by a WDS employee, and that WDS is

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contractually liable to Costco for any damages arising out of its

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work.1

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Docket No. 91.

WDS has not opposed this motion.

Having considered all of the parties' submissions and oral
argument, the Court denies WDS' and Costco's motions for summary
judgment as to the first, second and fifth causes of action,

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grants Costco's unopposed motion for summary judgment as to the
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United States District Court
For the Northern District of California

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third and fourth causes of action, and grants Costco's unopposed
motion for partial summary judgment on its Cross-Complaint against
WDS.

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BACKGROUND

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On June 5, 2010, WDS ran a food demonstration table that

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served Morton's tri-tip samples to customers at the Costco store
where the incident at issue occurred.

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Deanna Gehrett, a WDS employee, worked at the tri-tip
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demonstration table that day.

Following instructions provided in

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the Product Information Form (PIF),2 Gehrett cut the tri-tip into

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sample pieces that she said were approximately 1/8 to 1/4 inch

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thick and one by one inch in dimension.

Declaration of Anthony

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Costco has alleged the following cross-claims against WDS:
(1) express indemnity; (2) breach of contract; (3) contribution
and (4) equitable indemnity.

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The PIF explained a series of steps to prepare the tri-tip
and serve it in samples. It stated, in relevant part,
7. Cut meat across the grain into THIN STRIPS, 1/8 to
1/4 inch thick.
8. Cut thin strips into 1 inch by 1 inch pieces and
serve. (DO NOT SERVE IN CHUNKS)
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Label, Ex. 2, Gehrett Dep. at 17:3-20, 24:4-23; 27:3-6.

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samples were served in a white paper cup with a toothpick.

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27:21-28:2.

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the samples, she understood it was important to cut the tri-tip

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samples according to the PIF to prevent a choking hazard.

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58:21-59:9.

The
Id. at

Gehrett testified that at that time she was preparing

Id. at

Tamika Grisez, also a WDS employee, testified that,

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based on the company’s training, she was aware that if pieces were
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United States District Court
For the Northern District of California

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cut too large, they could present a choking hazard.

Label Dec.,

Ex. 14, Grisez Dep. at 27:3-11.
At some point, while Gehrett was cleaning the table, Harris

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approached her in distress.

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moment, the demonstration table had been free of tri-tip "on

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display" and "free of any demonstrations" for about five or ten

Gehrett testified that, at that

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minutes.

Id. at 75:10-76:5.

However, she also stated that they

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"had two tri-tips left," and that they had to clean up because
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they did not want their table to "look messy."

Id. at 29:4-5.

When Harris approached Gehrett, he did not speak, but pointed

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to his neck and chest, leading her to believe that he was either

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choking or having a heart attack.

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at 29:19-30:7.

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Label Dec., Ex. 2, Gehrett Dep.

Off-duty firefighter Louis Arzave was also

shopping at Costco at the time of the incident.

He performed the

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Heimlich maneuver and other measures on Harris in an unsuccessful
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attempt to dislodge the blockage in his airway.

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Gehrett testified that she had not seen Harris before he

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approached her, id. at 76:3-5, and estimated that hundreds of tri4

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tip samples had been served that day, id. at 65:17-18.

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Paula Ponce, however, testified that she heard Gehrett screaming

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that Harris was choking on a piece of steak.3

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Paula Ponce Dep. at 57:12-22.

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Bystander

Label Dec., Ex. 8,

The South San Francisco Fire Department responded to the

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emergency and took over the efforts to save Harris.

Testimony by

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Jeff Cochran, a paramedic and fire fighter with the department,
provides some insight as to the nature of the food that blocked

United States District Court
For the Northern District of California

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Harris' airway.

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Yaunker in an unsuccessful attempt to remove the item.

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Dec., Ex. 6, Cochran Dep. at 85:15-23.

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smaller pieces of chewed meat, id. at 26:21-24, but was unable to

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Cochran first used a suction device called a
Label

He was able to suction

remove any meat larger than the suction tip.

Id. at 85:6-14.

The

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exterior diameter of the suction tip was about the diameter of
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Cochran's smallest finger, although he did not testify as to the

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size of his finger.

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the suction was smaller than his smallest finger.

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Id. at 85:6-14.

Thus, the inner diameter of
Id.

Next Cochran used a laryngoscope blade and magill forceps to

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clear Harris' airway.

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observed "a chewed piece of meat blocking [Harris'] airway

Id. at 26:24-27:24.

In doing so, Cochran

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Gehrett's statement is not excludable hearsay because it is
an excited utterance or an admission by the opposing party's
employee within the scope of her employment. Federal Rule of
Evidence 801(d)(2)(D) (an out of court statement is not hearsay if
it is "made by the [opposing] party's agent or employee on a
matter within the scope of that relationship and while it
existed.")
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actually completely blocking the back of [his] mouth."

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27:1-5.

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meat and set it on the ground.

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recall the size of the piece of meat.

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Id. at

Using the magill forceps, Cochran removed the piece of
Id. at 29:10-16.

He could not

Id. at 17-21.

From a distance of about six to ten feet, Arzave observed the
extracted meat on the ground for about ten seconds and identified

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it as a piece of tri-tip that looked "exactly like the piece of
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meat" that he had sampled five minutes earlier.

Label Dec.,

United States District Court
For the Northern District of California

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Ex. 6, Arzave Dep. at 61:2-62:2.

Arazave also stated that he had

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sampled a larger than usual piece of tri-tip meat from the

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demonstration table.

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he sampled and the meat that was extracted from Harris was about

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three inches by one inch in size.

Id. at 39:7-12.

He testified that the meat

Id. at 38:16-23.

Neither piece

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of meat was a "tiny little square."

Id. at 38:24-25.

According

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to Arzave, the meat that Harris choked on looked "intact," and did
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not appear as though it had been chewed "forty times," or "worked

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over."

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not wearing glasses at the time and that he was nearsighted, he

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also stated that he did not require glasses to drive and that he

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needed glasses to read.

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Id. at 35:14-25.

Although Arzave testified that he was

Id. at 34:25-35:13.

Plaintiffs also submit expert evidence in support of their

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claims.

Plaintiffs' food safety expert Jeff Nelken attested that

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he had attended thirty to forty food demonstration shows where

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tri-tip was served.

He opined, based on his observations of tri-

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tip samples at food shows and Trader Joe's, and based on his
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knowledge of the food-service industry's concern for serving safe

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food, that the standard of care in the food industry regarding

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tri-tip steak samples requires that samples be no larger than one

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inch by one inch wide, and that tri-tip steak samples that are

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larger than that standard create a potentially dangerous choking

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hazard.

Nelken attested to his experience and education in

detail.

Defendants' objections, asserting that more concrete

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evidence, such as evidence demonstrating that the food shows

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For the Northern District of California

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concerned food safety, go to the weight of the evidence, rather

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than precluding the testimony's admissibility.

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Plaintiffs' medical expert, Michael Jay Bresler, M.D., an

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emergency room physician, opined that had the tri-tip sample been

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the size required by the PIF instructions, the decedent would have

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been less likely to choke on the sample and the Heimlich maneuver
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would have been more likely to have dislodged the sample.
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LEGAL STANDARD

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Summary judgment is properly granted when no genuine and

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disputed issues of material fact remain, and when, viewing the

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evidence most favorably to the non-moving party, the movant is

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clearly entitled to prevail as a matter of law.

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Fed. R. Civ. P.

56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);

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Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir.
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1987).
The moving party bears the burden of showing that there is no
material factual dispute.

Therefore, the court must regard as
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true the opposing party's evidence, if supported by affidavits or

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other evidentiary material.

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815 F.2d at 1289.

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in favor of the party against whom summary judgment is sought.

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Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

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Celotex, 477 U.S. at 324; Eisenberg,

The court must draw all reasonable inferences

587 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952

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F.2d 1551, 1558 (9th Cir. 1991).
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Material facts which would preclude entry of summary judgment

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For the Northern District of California

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are those which, under applicable substantive law, may affect the

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outcome of the case.

The substantive law will identify which

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facts are material.

Anderson v. Liberty Lobby, Inc., 477 U.S.

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242, 248 (1986).

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DISCUSSION

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Defendants first argue that, as a matter of law, they did not
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owe a duty to exercise reasonable care in serving food samples to
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Harris and other Costco customers.

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argument in connection with the motion to dismiss Plaintiffs' 2AC.

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September 13, 2011 Order Denying Defendants' Motion to Dismiss.

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Plaintiffs have submitted expert evidence that an industry

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standard of care exists by which tri-tip samples are to be served

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The Court rejected this

in pieces no larger than one inch by one inch wide.

A reasonable

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jury may rely on such evidence to find that WDS had a duty of care
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to serve samples according to that standard.
Defendants assert that there is no evidence that Harris
consumed a tri-tip sample prepared by WDS.
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However, Arzave

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testified that the food extracted from Harris appeared to be the

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same tri-trip that he had sampled minutes earlier.

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Arzave stated that he was "nearsighted," this goes to the weight

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of his testimony.

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to find that Harris choked on meat prepared by WDS.

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Although

A reasonable jury could rely on this testimony

Plaintiffs have submitted evidence that supports a finding

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that breach of the industry standard occurred.

Arzave stated that

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the piece of tri-tip that he sampled was larger than usual and

United States District Court
For the Northern District of California

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that the meat extracted from Harris was approximately one inch by

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three inches.

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on was larger than the sample size that WDS employees were

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instructed to prepare.

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that WDS did not serve a reasonably sized piece of meat.

This is evidence that the meat that Harris choked

Based on this evidence, a jury could find

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The foreseeability of harm arising from a breach of the duty
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is supported by WDS employees' testimony regarding the safety
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risk, as well as Nelken's and Bresler's expert opinions.
Finally, Defendants contend that they may not be held liable

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because Harris should have chewed his meat.

Defendants assert

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that California Civil Code section 1714(a)4 demonstrates that

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The provision states, in relevant part,

Everyone is responsible, not only for the result of
his or her willful acts, but also for an injury
occasioned to another by his or her want of ordinary
care or skill in the management of his or her property
or person, except so far as the latter has, willfully
or by want of ordinary care, brought the injury upon
himself or herself.
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decedent's failure to exercise ordinary care in sufficiently

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chewing the sample, shields them from liability for any negligence

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they have committed.

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1714(a) establishes a rule of contributory negligence as an

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available defense.

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Essentially, Defendants assert that section

Under such a rule, contributory negligence "is

conduct on the part of the plaintiff which falls below the

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standard to which he should conform for his own protection, and
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which is a legally contributing cause cooperating with the

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For the Northern District of California

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negligence of the defendant in bringing about the plaintiff's

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harm . . . Except where the defendant has the last clear chance,

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the plaintiff's contributory negligence bars recovery against a

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defendant whose negligent conduct would otherwise make him liable

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to the plaintiff for the harm sustained by him."

Li v. Yellow Cab

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Co., 13 Cal. 3d 804, 809 (1975) (quoting Rest. 2d Torts §§ 463 and
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467).
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In Li, the California Supreme Court found that, when section

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1714 was enacted in 1872, it adopted the rule of contributory

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negligence mitigated by the doctrine of last clear chance.

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819-20.

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legislature did not intend to restrict courts from developing

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Id. at

However, the court further determined that the

negligence concepts according to evolving standards of duty,

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causation, and liability.

Id. at 821-22.

Accordingly, the court

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discarded the rule of contributory negligence as a complete
Cal. Civ. Code § 1714(a).

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defense, and adopted the doctrine of comparative negligence,

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assessing liability in direct proportion to fault.

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Summary judgment in favor of Defendants as to Plaintiffs'
first, second and fifth causes of action is unwarranted.

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Id. at 827.

CONCLUSION
The Court denies WDS' and Costco's joint motions for summary

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judgment with respect to the negligence claims alleged against
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both companies.

Docket Nos. 88 and 90.

The Court, however,

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For the Northern District of California

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grants Costco's unopposed motion for summary adjudication of

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Plaintiffs' third cause of action for negligent hiring and fourth

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cause of action for negligent supervision of an independent

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contractor.

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unopposed motion for partial summary judgment as to its crossclaim

Docket No. 90.

The Court also grants Costco's

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against WDS for express indemnity.

Docket No. 91.

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Plaintiffs conceded at the April 5, 2012 hearing that they
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have no remaining cause of action against Costco.
The Court will hold a final pretrial conference for this

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action on May 23, 2012 at 2:00 pm.

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whether it wishes to proceed on its crossclaims against WDS.

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eight day jury trial will commence on June 4, 2012.

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Costco must address how or

The Court

will not be in session on June 12 or 13, 2012.

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The parties are to schedule a mediation with the private
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mediator of their choice at the earliest available date.

The

parties shall submit confirmation to the Court that they have

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An

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scheduled the mediation.

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that they attended the mediation.

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In addition, the parties shall confirm

IT IS SO ORDERED.

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Dated: 4/11/2012

CLAUDIA WILKEN
United States District Judge

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United States District Court
For the Northern District of California

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